Judge Long: Principal Must be Disclosed

Who is the lender? This is an abstract from the Judge Long decision. Things in red were done by Max Gardner, in bold by Neil. see entire abstract Judge Long Ibanez Massachuseetts Decision Abstract

Editor’s Note: The “principal” is the “lender” is the creditor” is the “real party in interest” is the “only party that advanced cash” to fund the securitization chain, including your loan.

“when a foreclosure is noticed and conducted for one party by another, the name of the principal must be disclosed in the notice”

“A mortgage is a contract.  It is fundamental and basic that a party seeking to exercise a contractual right (here, the power of sale) has the contractual right to do so at the time of its exercise.” 

“I am puzzled at this since, as noted above and discussed more fully below, the plaintiffs’ own securitization documents required mortgage assignments to be made to the plaintiffs in recordable form for each and every loan at the time the plaintiffs acquired them.  Surely, compliance with this requirement would (and certainly should) have been a priority for an entity issuing securities dependent on recoveries from loans, such as these, known from the start to have a higher than normal risk of delinquency and default.”

“since the blank mortgage assignments failed to name an assignee, they were ineffective to transfer any interest in the mortgage”

“actually holding something and having only the right to be its holder are two very different things.  To obtain a mortgage assignment you do not actually possess presumes, at the least, that you have a demonstrable right to get it, that you will be able to determine the entity that validly holds the mortgage you need assigned (not always easy when all previous assignments have not been recorded at the Registry),[1] that that entity will still be operational,[2] that it will be able to find the relevant paperwork, that it will have someone with authority to execute the relevant paperwork, and that it will be able to do so in a timely fashion.  These presumptions are not always accurate.  See n. 21, supra.  As noted above, even the plaintiffs, armed with all their contractual rights, knowledge, and (presumably) access to the relevant files and authorized persons, took ten months in Ibanez, and fourteen months in Larace, to get actual mortgage assignments in recordable form.”

 

“The issues in this case are not merely problems with paperwork or a matter of dotting i’s and crossing t’s.  Instead, they lie at the heart of the protections given to homeowners and borrowers by the Massachusetts legislature.  To accept the plaintiffs’ arguments is to allow them to take someone’s home without any demonstrable right to do so, based upon the assumption that they ultimately will be able to show that they have that right and the further assumption that potential bidders will be undeterred by the lack of a demonstrable legal foundation for the sale and will nonetheless bid full value in the expectation that that foundation will ultimately be produced, even if it takes a year or more.  The law recognizes the troubling nature of these assumptions, the harm caused if those assumptions prove erroneous, and commands otherwise.”

“The plaintiffs’ fallback argument — that their foreclosures were valid because they were done at the direction of the actual mortgage holder (Option One) — also fails, for two reasons.

            “First, the direction did not come from Option One, but rather from another entity (Fidelity) acting for Option One in its capacity as Loan Servicer.  There is nothing in the record that shows Fidelity’s capacity to act for Option One generally (and, more specifically, as Originator and holder of the mortgage) and certainly nothing that shows it had any authority to order the disposition of Option One’s assets.  This is no mere technicality.  It should never be forgotten that the subjects of these purported directions were interests in land, with all the proofs and safeguards that that necessarily entails.  See, e.g., G.L. c. 259, § 1 (statute of frauds). 

“the plaintiffs were not the present holders of the mortgage at the time of the notice and sale.  They were not properly authorized by the mortgage holder at those times.  Even if their counsel were acting at the direction of an agent for a party that, in another capacity, coincidentally was the mortgage holder, the notice and conduct of the foreclosure sale in the plaintiffs’ names under the incorrect representation that the plaintiffs were the mortgage holders makes the sales invalid.   And, for the reasons previously held, retroactive assignments, long after notice and sale have taken place, do not cure the statutory defects.”


[1]               An assignment simply from the last assignee of record may not be sufficient.  That assignee may have previously assigned the mortgage in an off-record transaction and that off-record assignment may be recorded (even if erroneously) while you are waiting for yours to be processed — a process that the plaintiffs’ counsel conceded currently takes anywhere from “two to three months” to “as long as ten to twelve as is observed in some of these cases.  And quite frankly, who knows why.”  Statement of Walter Porr, Jr. at oral argument (Apr. 17, 2009).  If so, you would need to pursue an assignment from that entity, with associated additional potential problems and delay.

[2]               As noted above, Lehman Brothers and its subsidiaries are currently in bankruptcy and Option One has ceased operations. 

15 Responses

  1. Please find Mr Russell !s brief for this case i have dealt with Attorney Russell ` i` am a client OF Mr Russell is an outstanding individual and of and appreciates very much all efforts in the fight for justice and fairness for the individual homeowner and is listed as one of your lawyers who gets it !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    peter koufos

    508-533-4354

    Russell_SJC_Brief(4).pdf

  2. i see now- findlaw links seem to react to strange wordpress …what ever?!!!

    re; out of state notary-

    in pertinent parts: CAL. CIV. CODE § 1195 : California Code – Section 1195
    Proof and Acknowledgment of Instruments – [1180. – 1207.]

    Section 1195- (b)Proof of the execution of a grant deed, mortgage, deed of trust, quitclaim deed, or security agreement is not permitted pursuant to Section 27287 of the Government Code, though proof of the execution of a trustee’s deed or deed of reconveyance is permitted.
    (c)Any certificate for proof of execution taken within this state may be in the following form, although the use of other, substantially similar forms is not precluded: Proof and Acknowledgment of Instruments [1180. – 1207.]

    Section 1189 (2)A notary public who willfully states as true any material fact that he or she knows to be false shall be subject to a civil penalty not exceeding ten thousand dollars ($10,000). An action to impose a civil penalty under this subdivision may be brought by the Secretary of State in an administrative proceeding or any public prosecutor in superior court, and shall be enforced as a civil judgment. A public prosecutor shall inform the secretary of any civil penalty imposed under this section.
    (b)Any certificate of acknowledgment taken in another place shall be sufficient in this state if it is taken in accordance with the laws of the place where the acknowledgment is made.
    (c)On documents to be filed in another state or jurisdiction of the United States, a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law.

  3. oh i dont disagree with you about the fraud ..” received for value ”
    i’m only playing the devils advocate [just as a judge will] its better to know before your in court.
    i am only referring to the out of state notary “inference”

    http://codes.lp.findlaw.com/cacode/CIV/5/d2/4/4/4/3/s1195
    http://codes.lp.findlaw.com/cacode/CIV/5/d2/4/4/4/3/s1189

  4. tia,

    i understand your concern, however when you signed an affidavit certifying under penalty of perjury, under the laws of ca, it means that the person who certify that document is from the state of california and the notary public must be from the state of ca. i have it confirm by the notary public in the sec of state in ca, the manager called me just to clarify it., and she told me to file a complaint with the general attorney in ca. thats what i did.
    that tick off the VP of Mers, Inc. Mr. Hultman, the assignment of deed i received from the lawyer who filed it as their evidence, were a all fraudulent . in my recorded assignment of deed it says MERS< INC. received FOR FULL VALUE, mean they received money from assigning the the deed, but mr. hultman said they did not received any money from that transfer. so , the document itself is questionable. there are a lot of thing you could raise a question for thAT ONE PAGE OF DOCUMENT, IT ALL FRAUD, AND IF YOU DON'T KNOW HOW TO CHALLENGE IT , YOU WILL BE A LOSER. CHALLENGE ALL THE DOCUMENTS THE PRETENDER LENDERS FILED IN THE COURT OR IN THE RECORDERS OFFICE, 99.99% ARE ALL FRAUDULENT DOCUMENTS.

  5. here is texas & ca side by side
    http://i568.photobucket.com/albums/ss123/freek4u/cal.png?t=1255831206

  6. erlinda
    my post with the ca law links didnt post… hmm…
    from my research an out of state notary is not an issue of defect.
    notary verbiage verbatim & seal is all that is needed.
    if you have a link to ca law that concludes otherwise i’d appreciate the link!
    tia

  7. erlinda

    i think out of state notary is allowable .
    must have proper notarial verbiage verbatim.

    [IMG]http://i568.photobucket.com/albums/ss123/freek4u/cal.png[/IMG]

    http://codes.lp.findlaw.com/cacode/CIV/5/d2/4/4/4/3/s1195
    http://codes.lp.findlaw.com/cacode/CIV/5/d2/4/4/4/3/s1189

  8. charlie,

    i am from california.

  9. ERLINDA:

    good for you Erlinda!!!! i am glad you are taking it upon yourself to catch that lying )(*&^&*(, they all are in this gigantic lie together, but they can only lie for so long and they can only steal from us for so long. Once again their time is coming. what state are you in? if i may ask.

  10. hello,
    update to comment last night. the vice president of Mers, inc. Bill Hultman called me this morning that the assignment of deed that was recorded was in fact a legal document and the person signing it was in fact their MERS, Inc. employee. i said Ok Fine can you confirm that in writing that the document is legit? and how much Mers, Inc. sold my note to hsbc bank, usa n/a as trustee of bla bla bla. mr hultman said Mers, Inc.did not received any money. i asked him, why is it there was a word For VALUE received on the assignment of deed? he said it was just a legal language blah blah blah, with my excitement i said don’t you know that i have the document sent out with attorney general because the notary public in state of ca said that it was illegal because it was notarized in pennsylvania but was certify under penalty of perjury and the laws of ca. and, mr. hultman was very angry when i said, he said that he is not going to confirm it that the document is legit. i said why? he said because you are going to sue MERS, Inc, so i will not confirm that documnet. see i nailed him down for telling a lie about the document and i said to him ok , i will include your name to my subpoena , and he said fine i always do that. i have a lot of ammunition against this MERS, Inc. who help and encourages loans servicer, lawyers, debt collectors, sub- loan servicer, special services and criminals groups to file fraudulent documents in court or in recorders office. mr. hultman is not a good liar, he could be easily caught lying, maybe he doesn’t know the nature of his job, the procedures or maybe he was hired to “LIE” on behalf of those claims filed by the “PRETENDERS”. maybe mr. hultman favorite song Great Pretender by the Platters. you could only catch the Fish through their mouth. so to all homeowners just like what neil said “Challenge all the document this pretender lender filed either in the court of the county recorders office. lawyers should also do that scrutinizing all the documents from NOD, Notice of trustee sale, assignment of deed, promissory note, deed of trust and other documents. i know about this cause i am a Pro see for all my cases. BTW, in 1980’s i was a loan underwriter and auditors of a banks before this underwriting model in computer were invented. it helps me pursuing my case at the same time spending a lot of hours reading all the laws applied to my case. you need to reserch and read esp. if you don’t have the experience. that is all i could advise. you have to have a lot of ammunition against this criminals.

  11. TO: Erlinda.

    Great info Erlinda, if what you say here about the documents notarized out of state not being legal is accurate, that info will help lots of folks, since i have seen MANY documents notarized out of state in most NOD’s and NTS’s filed by the the thieves that want to keep our home.

  12. amilcal f. lopez,

    tell the court assignment has been recorded after foreclosure. assignment of deed filed by the pretender lender are all fraudulent using a notary public outside the states. in my case i challenged the assignment of deed of trust recorded in the recorders office and sent a copy to MERS, Inc to have the document verify if indeed came from MERS, Inc.. i sent a complaint letter to attorney general in sacramento to investigate this fraudulent documents filed by pretender lenders and criminal group rooming around to find their next victims.
    i am still waiting for the reply from MERS, INc. , I spoke to one of the VPa and he said i have to fax it to his office. it was a week passed and called his office about the status of the document he was not on his office today and just leave a message. however , i just sent out my letter 2 days ago to to office of the attorney general i was advised by the notary department in sacramento that the document was illegal or void because ca state will not accept document being notarized outside the state if it was certify under penalty of perjury under the laws of california. hopefully, this documents will open the pandora box of all the lies, fraud, deceit, greed and criminal activities this pretender lenders are trying to portray in the court. good luck .

  13. I have court tomorrow because my was was foreclosed. About two weeks ago the court order the plaintiff to produce a deed. I checked registry of deeds they just recorded it. I believe these docs were ilegally prapared. My original loan started with Decision one. Since then it has been transferred and sold to many companies. What can I do? I have court tomorrow

  14. […] See Neil’s Abstract: judge-long-principal-must-be-disclosed […]

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