Florida 2d DCA Gets It — Rules of Evidence Prevail!

See 2D08-3553 Fla 2d DCA BAC v Ginelle Jean-Jacques

This is the reason why I am offering the workshop on Expert Witnesses, i.e. — to highlight the rules of evidence, to coach those who would present opinions as evidence and to hone the skills of the litigator. While apparently narrow in its scope and reasoning, this decision nails down the issue of evidence versus assumptions or presumptions with finality. The case clearly establishes that merely filing papers with “argument” about what they are or what they mean is insufficient to establish anything at all.

The lesson here is not only that you can beat the pretender lenders, but also that YOU must conform to the rules of evidence, establishing a proper foundation and not try to finesse the court. And in non-judicial states the argument is plain: if they could not prevail in a judicial action, why should the court rubber stamp their non-judicial actions?

U.S. Bank filed documents that named other parties along with defective assignments that were not executed in recordable form. They tried to finesse the court by filing “original Note and Mortgage”. The Trial Court granted Summary Judgment, fooled by the appearance of proper documentation and the appellate court said that was an error and reversed the trial court’s summary final judgment.

Notable excerpts follow:

the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence.

U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006)

When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”).

U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such).

The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. Essentially, U.S. Bank’s argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon record proof—not assumptions.

46 Responses

  1. […] for the 2nd DCA ruling and then this Senator Michael Bennett is proposing this bill ? But here they admit they DO NOT […]

  2. Cheryl,
    My inbox is not full at that address. No, my lawyer did not line up any expert witnesses–we got a notice of removal in response to our complaint and we made a motion for remand, so we were waiting for the federal judge to decide on whether to allow removal or not. Three months later, the removal was approved, which was last month. We’ve been in scramble mode ever since and have sent our loan papers off for a forensic audit. I’d like to make use of Neil’s expert declarations if and when the need arises.

    No mod is forthcoming. This whole mess started when we tried to get them to approve a short sale in late 2008–of course they didn’t approve it because they’re only servicers (BAC, I mean).

    Do you mind trying to email me at another address: leftbehindchild@gmail.com?

    Thanks

  3. Zurenarrh

    I sent an e-mail to you and it was returned. You said you go to court in 2 weeks. Did your lawyer get an expert witness to testify? Does BAC Home Loans want to do a modification? Actually they can’t because they are a servicer like BOA?

  4. Cheryl,
    I would also like to be BoA’s worst nightmare. Or second worst–not trying to challenge your title! But seriously, I’d love to know more since I am currently in a lawsuit with BAC, BoA, and Recontrust and have only a couple weeks now to $h!+ or get off the pot. If you wouldn’t mind sharing, I can be reached at mreggs@eggsistense.com.

  5. Help,

    Loan cannot be transferred, reassigned or sold while you have a lawsuit. Banks do not care though because no one challenges them. They own the Government. That is why you have to fight them every step of the way. Believe me, I am BOA’s worst nightmare.

    BOA just did that to me and supposedly transferred my loan to BAC Home Loans (subsidiary of BOA), also known as old Countrywide.

    I had 30 days to dispute the validity of the loan. I wrote BAC a certified letter and told them I had never heard of them and I had a lawsuit pending and a cloud on my title.

    BAC wrote me back and said thanks for writing to BOA and asking them to verify the principal amt. of my loan. What a lie. I did not send anything to BOA and did not ask anything about the principal. So I sent BAC another certified letter and told them they have violated my rights under the Fair Debt Collection Practices Act (FDCPA). I told them I would only talk to the lender about my loan. I demanded to know the lender’s name – past and present. I told them it is against the FDCPA to talk to me so I gave them my attorneys address and told them that if my attorney did not hear back from them we would consider the matter closed.

    What is going on is that the Banks know if they go to court the Judge will make them admit to who the lender really is. The banks do not want to do that, so they are transferring default loans to Debt collectors hoping that people will not dispute the validity of the loan which most people don’t and then debt collector, i.e., BAC Home Loans can go to court and get a Default Judgment against homeowner.

    I don’t think most banks know who the lender/investor is because there are to many to list after your loan is pooled via Fannie Mae.

  6. PJ: If you have a Fannie Pool number or CUSIP, you are ahead of most folks. You can try digging around here:

    http://www.fanniemae.com/mbs/index.jhtml?p=Mortgage-Backed+Securities

    Using Fannie’s “Quick Securities Locator” and remember, Fannie’s job is “to help those who house America.”

    Can somebody comment on Fannie’s stated effort to “purchase delinquent loans from single family trusts?” See Fannie’s press release at http://www.fanniemae.com/newsreleases/2010/4938.jhtml;jsessionid=GTCHD5WL2SZTHJ2FECISFGA?p=Media&s=News%20Releases

    The actual notes were never “assigned” to the trusts, yet Fannie purports to being able to “purchase” them out of the trusts. Wait, a flock of pigs just flew past my window, so perhaps this is, in fact all legit after all.

  7. SMOKING GUN OR NOT?

    1. Loan funded in 2006
    2. Defaulted in Dec 2008
    3. Sued to stop foreclosure in July 2009
    4. LOAN SOLD- November 2009 (loan sold while in defualt and in the middle of my lawsuit)

    Is this a smoking gun that will help bring the bank, now servicer to the table to negotiate, since they sold the loan while in default and in the middle of a lawsuit? any thoughts?

  8. Thanks’ DNY. Being proactive on compiling data on the loan and an assignment took place in 2005, which clearly states the MBS pool #, and as stated before the MBS pool nor the “prefix” MJ is not listed in the FM pool prefix index. I am contemplating doing a QWR to the servicer to ask for clarification, since this is where the chain of assignment ends in the county records as of 2010.

    Have also made inquiry to MERS and the loan is not listed with them, yes printed and copied that for future use.

    In any-case just trying to figure out where the loan obligation sits and with whom, an “unregistered trust” a liquidated MBS pool etc. And need advise on who to call or contact and or if a QWR to the servicer is a prudent move.

    Thanks again ,like everyone else learning as you go, and getting pretty darn scared in the process!

  9. PJ: “Where do you go to find out which trust owns your loan, when Fannie indicates that “apparently” they hold your mortage…” – You don’t. Your benevolent government has determined that nobody needs to know what Fannie and Freddie have been (and still are) allegedly doing with mortgage “loans” and your identity and credit.

    And with regard to the Fannie individual “trusts,” I find no evidence that any of them are registered anywhere. And there is certainly no publicly disclosed information that links any particular loan to any particular “trust.” Seems to me to be a giant Ponzi scheme. The whole situation more and more reminds me of the “government” in Terry Gilliam’s film “Brazil.”

  10. Where do you go to find out which trust owns your loan, when Fannie indicates that “apparently” they hold your mortage, but the MBS Pool prefix is not listed in the data base, nor the data base of SEC filings, 424B5 & 8-K.

    Would that indicate that the loan is in an “unregistered trust” and if so what are the implications of that.

    Thanks

  11. To Maureen McGrath- are you the Maureen McGrath who testified at the Senate Banking Committee years ago regarding subprime lending practices specifically in the Poconos? If so can you provide a link to that piece? Also thanks for the comment, but what I was trying to figure out was how is MERS or any of its’ affiliated cos. the lender? Or are they just transferring title? Or what? They are listed as “lender” in the Northeast Business Journal. No one has mentioned this before on this site that I have seen- would these properties be foreclosures? The prices seemed pretty high for foreclosures. Thanks,Ian

  12. Ian, re NEPA. First and foremost, you must understand that all rights have been stripped from homeowners. In PA, the note and mortgage may be foreclosed on separately – in other words, the noteholder can foreclose AND THEN the mortgage holder can foreclose in rem. Second, in NEPA, we are the seat of corruption, which you know if you are following the local news, and the homeowners themselves often do not have legal title to property. Third, there are nothing but ROCKET DOCKETS set up in the various courthouses. Finally, the Judges in NEPA either have their own personal agenda going, or are too dumb to know or care about the law.

    A NEPA victim.

  13. Can someone comment on this please? Here in NE Pa. I have last month’s list of properties sold, who bought them, where they are, the mortgage amount, and who the “lender” was. There are 6 with the lender as MERS. There are 4 with the lender as Mortgage Electronic Registration Systems Inc. There is 1 with the lender as MERS-US Bank NA. There is 1 with the lender as MERS Emortgage management LLC. There is 1 with the lender as MERS First Mortgage Corp. These are reported from the courthouse filings. Now all I remember from the Mers Kansas decision is that since “….mers neither lent any money nor collected any payments…..” What is this about? Thanks, Ian

  14. And bt, any info you have would be appreciated. Or anyone email me at mreggs@eggsistense.com regarding BoA, Fannie, etc.

  15. Cheryl,
    Sounds like you’re giving the BoA Constrictor all kindsa hell! Keep it up. Can you give us some more of the info that you dug up about BoA and/or how you found it?

  16. Dny said:

    “Everybody assumes that just because Fannie, Freddie say so, perhaps over and over and over, it is legal. (They usually retract what they have said in some other location anyway.)”

    they tell the investors in their trust documents that investors, not Fannie, are the owners. Contradictions everywhere.

  17. Sounds like Neil needs to please start a TAB on the left of the blog for Bank of America and Fannie Mae, so we can all compile and post our case law and findings.

    I love this blog, but for the true grass roots info there has to be more sharing of information…I have info, otheres have info on our findings on BofA and Fannie, etc that can help us all.

    NEIL will you please start an easier way to post info under TABS for example BofA, Fannie, US Bank, etc.

  18. DNY

    Agree!! REMICs have very strict guidelines. IRS relaxed rules but, I believe, this relates to modifications only- and does not include temporary transfer of loans. Assignments cannot occur after ninety days from start-up and cannot temporarily transfer ownership. But Fannie really does not say that ownership is transferred – they just say that “Fannie Mae temporarily gives the servicer possession of the mortgage note whenever the servicer, acting in its own name, represents Fannie Mae’s interests in foreclosure actions, bankruptcy, probate or other legal proceedings.”

    Sounds like “Champerty” to me if the note was transferred solely for collection purposes and Fannie Mae is not identified. Would like Neil’s opinion on this.

    Disclaimer: I am not an attorney and this is not legal advice. This is for educational and informational purposes only.

  19. “Just the place for a Snark! I have said it twice:
    That alone should encourage the crew.
    Just the place for a Snark! I have said it thrice:
    What i tell you three times is true.”

    Lewis Carroll gives insight here into the mechanations of the GSEs. Everybody assumes that just because Fannie, Freddie say so, perhaps over and over and over, it is legal. (They usually retract what they have said in some other location anyway.)

    As far as I understand it (and I’m not an attorney, etc.) the MBS “Trusts” are SUPPOSED to be REMICs. The loan notes were SUPPOSED to be transfer for consideration WITHOUT RECOURSE. The transfers were to be “in recordable form,” just like the securitizations created by the Wall Street players. Hell, Wall Street saw the money the GSE’s were hauling in on securitizations and tried to best them at the game. The GSE’s always held the dual advantages of 1) implied (but publicly denied) government backing (which has turned out to be true) and 2) complete opacity, a virtual “black box” of accounting practices via SEC filing exemptions.

    To me, all this “the temporary holder of the note” business is BS. If we are to believe what THEY say, they also admit to passing notes around “like a whiskey bottle at a frat party” (to paraphrase Judge X). But they weren’t and aren’t. I believe that only the “pass-thru income” is “pledged” to the “trusts.” It’s ALL smoke and mirrors. The GSE’s could not survive a thorough audit, IMO.

  20. zurenarrh

    Read Announcement 08-12 (changes in servicing). Appears that if note is temporary transfer to servicer for Fannie Mae, servicer must divulge that they are acting on behalf of Fannie Mae. Most courts understand that the servicer is not the creditor/lender – owner of the note. That is why the “trustee” started to be named as the “lender/creditor” (which is also false. Cheryl has posted a real concern – it appears many loans were falsely placed in default – probably before anyone actually defaulted. And, yes loan ownership could be manipulated to avoid liability in court. What federal district court (or what Federal court of Appeals district are you in?)- long shot – can only help if you are in particular one.

  21. Someone said you would think BOA would try to clear things up. BOA owns the Government. Everyone is afraid of BOA. I supposedly had a Fannie Mae loan and documents were falsely recorded and back-datedat closing. I went through OFHEO (who was Fannie’s regulator then) and they had Fannie Mae Fraud Dept. call me. Three years and a lawsuit against BOA and I have done so much digging and found out BOA falsely reported my loan to Fannie Mae that I was in Bankruptcy/Foreclosure and Fannie made them repurchase it back and Fannie now states I never had a loan with them. I have a lawsuit and BOA transferred me to BAC Home Loans. BAC sent me a letter and I disputed the letter asking for verification of the validity of the loan. They have not tried to foreclose because I have a lawsuit. I wrote up the questions for BOA in discovery which this website helped me with. My lawyer could not find an expert witness to go up against the mighty BOA but findly found on in CA. He worked for BOA before and says I have a good case. Everyone keep fighting and digging and using this website. I know lawyers are hard to find because I called about 25 before I found one. Also BOA I suspect collected on the Lender’s Policy on the loan by reporting me in Bankruptcy and Foreclosure. Banks collect on any defaults. Keep fighting especially against BOA.

  22. Holy crap! Check THIS out–this is UNREAL! Neil, does ANY of this hold water legally?

    This is from Fannie’s 2006 Servicing Guide (the most recent available online) regarding foreclosures:

    “In some jurisdictions, only the ““holder”” of the note may conduct a foreclosure. In any jurisdiction in which our servicer must be the holder of the note in order to conduct the foreclosure, we temporarily transfer our possession of the note to our servicer, effective automatically and immediately before commencement of the foreclosure proceedings. When we transfer our possession, our servicer becomes the holder of the note during the foreclosure proceedings.

    If the borrower reinstates the loan or the servicer ceases to service the loan for Fannie Mae for any reason, then possession of the note at that time automatically reverts to Fannie Mae and the note must be returned to the document custodian. At that time, Fannie Mae also resumes being the holder, just as it was before the foreclosure proceedings.

    The transfer of our possession, and any reversion of possession to us, are evidenced and memorialized by our publication of this paragraph. This Guide provision may be relied upon by a court to establish that the servicer conducting the foreclosure proceeding has possession, and is the holder, of the note during the foreclosure proceeding, unless the court is otherwise notified by Fannie Mae.”

  23. Great new post from Mr. Garfield today.

    Also, I heard an investment analyst speak today about Fannie Mae. According to him, Fannie Mae had a policy of holding delinquent loans in trusts for a long time before removing to their balance sheets. Today, because of the new FASB rules the delinquent loans are being brought onto Fannie’s balance sheet quickly and, since (debt) buyers are reluctant to purchase these loans- Fannie’s balance sheet is a disaster. Thus, 8-31 (2008) announcement is likely out-of date.

    This analyst, speaking on Bloomberg network (Bloomberg rarely interviews anyone who is not an optimistic about the economy and cheerleader for foreclosures) emphasized that the economic problems are deep and global. He also spoke of the fraud in foreclosures and that politics is counter-productive. My own NY contact tells me (and I no longer a Democrat or Republican) that although the Democrats approached the crisis wrongly, the Republicans are blocking any real help for the people (mortgages and foreclosures) to prevent a Democratic “victory” of the situation. The Republicans are using every tool and lobbyist they have to convince Congress that the people who were victims of mortgage (fraud) and foreclosures – should not be bailed out. However, consensus is building that the people must be given assistance – or there can be no resolution of the mortgage crisis – it will continue. I continue to be astounded that the government has not stepped in to stop the circus that is going on in US Courts. But, even if all was corrected tomorrow, as John Anderson says – where is the relief for the people who have already lost their homes??? Perhaps, this administration will also never help the people because they would have to admit they were wrong from the onset – approached everything wrong – and how can you provide restitution to the people who have already lost their homes.
    Nevertheless, there is increasing pressure to stop the bleeding – and as lawsuits become even more complex, it is becoming more apparent that the courts do not know what they are doing. The government, by failure to act, and ability to conceal, has caused a truly chaotic situation.
    Hang in everyone – and write your House and Senate representative!!!!! I do believe the tide is starting to change.

  24. @Dan & Foreign Debt Buyers:

    Guess Who Saved the Latest Treasury Auction from Failing?

    http://worldcurrencywatch.com/2010/02/16/guess-who-saved-the-latest-treasury-auction-from-failing/#more-4632

    Chuck Butler (February 16, 2010)

    This news is so BIG, you’re going to wonder why we waited so long to tell you about it!

    Well, did you hear last week about the 10-year Treasury auction results? If not, the yield was driven higher by a full seven basis points to attract investors to the auction. Well, I thought that was a big deal. But it’s cotton candy compared to the news from the 30-year Treasury auction!

    Let me break this down for you so you know exactly what happened…

    “Indirect buyers” are the foreign central banks – guys like China and Japan. They normally buy 40% of the Treasuries we issue. Well, last week, they only bought 28% of the 30-year Treasuries issued. Uh-Oh! But then, there was the “direct buyers” upping their participation in the auction to a record level of 24%!

    Now, most of the market participants don’t have a clue what these numbers are telling us. But, as our readers you will now know and you can spread the word…

    The “direct buyers” are “unknown.” Yes, there is no way to tell who makes up the “direct buyers” at all. For all we know, the Fed could have bought the entire amount!

    Why, you may ask is this a problem?

    Well, we almost had a “failed auction” here in the United States. If not for the “unknown buyers” this auction would have failed!

    To speak of a U.S. Treasury auction and say that it failed would almost be akin to the day the earth stood still!

    If a Treasury auction failed in the U.S., we would see yields soar, and the dollar get deep sixed. So, until that day happens, if it would happen I should say… Every auction should become quite interesting, as long as the U.S. continues to drive up deficit spending, and keep rates at ultra low levels.

    I will keep my eye on this folks. In the meantime, it’s just another nail in our Treasury market long-term.

    That’s it for today! Let’s try to have a Terrific Tuesday anyway, shall we?
    Chuck Butler

  25. This one is very important. Attack the note. I am just still so surprised there are still no lawyers that “get it” in the 941 area code (Sarasota).

  26. “Our nation got to these desparte times through the financial crisis. Our economy essesnitally fucntions on credit. And, much of our credit was created throgh the securitization of loans (MERS, FANNIE & FREDDIE) which should lead to the the discussion of: The the shadow banking system – a secrative opaque neatherworld where FRUAD CAN THRIVE even as it devastates the entire Country.” – Marcy Kaptur

    [youtube=http://www.youtube.com/watch?v=mKgl93Mf_Dg&hl=en_US&fs=1&]

    ‘U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such).” -2d08-3553-fla-2d-dca-bac-v-ginelle-jean-jacques

  27. RESPA QWR- If Fannie Mae is the servicer? If Fannie is the claimed owner?

    wouldn;t they have to respond to RESPA Qualified written requests?

    then BAC home loans, llp would be the servicer and since the loans were transferred from Bank of America to BAC while in defualt…would they not have to travel under the FDCPA?

  28. FANNIE MAE, BAC Home loans , LLP/Bank of America-
    wow this stuff is just so complicated, you would think if you have a case like both the zurenarrh and BT does that filing a suit will make them back down and clear things up. Should the complaint have a quiet title aspect too?

  29. zurenarrh,

    This may be redundant but neither Fannie Mae nor Freddie Mac “makes” loans; they establish lending guidelines so that lenders “can” buy loans from and sell them to one another as they deem fit. Similarly, the VA and HUD have loan programs. They too establish guidelines for lenders to follow for the same reason: to provide liquidity when lenders need it.

    It should be noted however that one of the aspects of VA and FHA loans is that if those loans go bad, the lender will get its money back. Should this happen, VA and FHA loans are “guaranteed” to the lender!

    I will be placing some OUTSTANDING Request for Admissions, Interrogatories and Request for Production of Documents that lean toward Electronically Stored Information (ESI) on my site Discovery Tactics (discoverytactics.com) within the next couple of days. The site is dedicated to foreclosure offense using discovery tactics and strategies that involve Electronically Stored Information (ESI).

    Feel free to reach me at anthony at anthony @ amartinezlaw.com.

    Anthony Martinez

  30. Foreigners Dropping Treasury Securities at Record Rate

    X_http://moneynews.com/Headline/US-Foreign-Holdings/2010/02/17/id/350063

    Dan Edstrom
    dmedstrom@hotmail.com

  31. Help for Florida Homeowners

    Feb 11 2010 the Florida Supreme Court acknowledged that the problem of chain-of-title and manufactured evidence is so widespread that a change was necessary to the Rules of Civil Procedure – judges are basically order to consider the very arguments we have raised:

    > First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

    At first glance, this is a victory.

    But why so little relief where the problem is clearly manufactured evidence and wholesale lies by the banks? Where is the relief for the thousands of people who have already lost their homes? Or for the people asked to put up $1900 just to file a counter-claim?

  32. Zurenarrh, I wish you luck.

  33. First, I know of someone who was told that Freddie Mac is the “investor” for their loan (“investor” – not “owner” was used). However, when the party went to check again (for some reason) – the loan had been removed from the data base – and the party was told that it was an “error” the first time.

    Second, reading the 8-31 announcement, it appears that Fannie Mae states that loans can remain in the MBS pool during modification trial period. For those in default, the trial period is 3 months, for those not in default, the trail period is 4 months. At the end of the trial modification, the loan is “reclassified” and removed from the pool. Reclassified into what??

    It is possible that if the trial period is successful, and the loan is “reclassified” and removed from the pool, then then Fannie Mae will be the servicer for the loan (although it is not in the capacity of servicer for the original MBS trust.)

    Prior servicing guidelines under Fannie Mae rules requires the servicer to remove the mortgage loan from MBS pool once 4 months past due.

    As to the statement that Fannie Mae is now requiring that servicers foreclose while while the loans are in the MBS trust – it also says that the servicer must purchase a regular servicing option MBS mortgage loan from the MBS pool within 60 days after the foreclosure sale date.
    This is contradictory because MBS stands for mortgage backed securities – a security must be backed by current cash flows – if the loan is not current, it cannot be a security. To allow a default loan to remain securitized is contradictory. Further, as loans become delinquent, in mortgage backed securities trusts, they are subordinated to the bottom “residual or “equity” tranche”. This tranche is not a certificate that is sold to the security underwriters – it is usually held by the servicer – on behalf of the the swap holder for delinquent loans. This tranche is also not part of the duties for the Trustee to the mortgage backed securities (upper tranches). It also states that “servicers foreclose” – but does not clarify who the servicers are foreclosing for. Servicers do not have the funds to purchase foreclosed loans themselves – they are acting for someone else. I would also look at PPIP – government participation programs with hedge funds and other buyers of distressed loans to find out who is purchasing these loans and who, therefore, the servicer is acting on behalf of. Clearly, the Fannie Mae does not state that Trustee should initiate foreclosure, which is often the party initiating (falsely) foreclosures for private securitizations.

    Lastly the 8-31 announcement, applies to only certain trusts – future and some “Amended 2007 Trusts”. How the heck due you amend a former Trust?. And, the announcement also states that mandatory purchase of a delinquent loan out of an MBS pool (assumed by the servicer) – does not apply IF the “the mortgage loan is in the process of being assigned to the insurer or guarantor that provided any related mortgage insurance or guaranty” (ie swap holder). What are they stalling assignment to protect the identity of the guarantor debt buyer? The announcement is also not clear as to whether the changes apply to the original trust or the “reclassified” trust. Assume it must be the reclassified trust. If any trust is “reclassified” – no “true sale” ever occurred. Fannie may have trouble down the line defending a reclassification.

    I have tried to research Fannie Mae prospectus/8K many times – with little luck. Only a few are published. Would like to see if any tranche interest (particularly residual/equity tranche) was ever retained by Fannie Mae. Any help on this?

    Appreciate any thoughts.

  34. Rose,
    Thanks for the tip. Here is a link to the Fannie Mae Loan Lookup Tool FAQ For Lenders, which says that the database will be updated monthly and gives explanations why certain properties might return a “not found” result.

    X_https://www.efanniemae.com/sf/mha/pdf/loanlookuplenderfaq.pdf

  35. zurenarrh, if you google “fannie mae announcements” you can see what if any other announcements there are. Quick question for you, where did you find info that the look up tool was updated monthly? I’ve got a friend who’s being disposessed, supposedly by Fannie Mae, and the look up tool says that Fannie Mae does NOT own his loan. Fannie Mae supposedly took ownership in Sept 09, and yet two days ago… their website says they don’t own it. Odd, doncha think? I do!

    Thanks for the help!

  36. zurenarrh,

    This may be redundant but neither Fannie Mae nor Freddie Mac “makes” loans; they establish lending guidelines so that lenders “can” buy loans from and sell them to one another as they deem fit. Similarly, the VA and HUD have loan programs. They too establish guidelines for lenders to follow for the same reason: to provide liquidity when lenders need it.

    It should be noted however that one of the aspects of VA and FHA loans is that if those loans go bad, the lender will get its money back. Should this happen, VA and FHA loans are “guaranteed” to the lender!

    I will be placing some OUTSTANDING Request for Admissions, Interrogatories and Request for Production of Documents that lean toward Electronically Stored Information (ESI) on my site http://www.discoverytactics.com within the next couple of days. The site is dedicated to foreclosure offense using discovery tactics and strategies that involve Electronically Stored Information (ESI).

    Feel free to reach me at anthony@amartinezlaw.com.

    Anthony Martinez

  37. BT/PJ,

    Please feel free to email me at mreggs@eggsistense.com.

    Here is what Fannie Mae “Announcement 08-31” says regarding its role with respect to the MBS trusts:

    “Fannie Mae also is the master servicer for the MBS Trusts, and, in that capacity, contracts with the servicer as the direct servicer and has the responsibility for assuring
    that servicing is performed in accordance with the applicable MBS trust documents.” (p. 18)

    So Fannie Mae is a servicer. Does that mean that it can’t also be a noteholder? Not necessarily. Fannie Mae apparently also has bought some of its own MBS (does that stand for “mucho bull sh!t”–one wonders), so it apparently does own SOME loans. But my sense is that, by and large, Fannie Mae does not OWN the vast majority of the loans in its MBS trusts, it merely acts as master servicer and trustee for those MBS trusts.

    So in my case, and sounds like in bt’s case, a sub-servicer (i.e., BAC Home Loans) is acting at the behest of another servicer (i.e., Fannie Mae)–as opposed to a noteholder–by instigating foreclosure. Meanwhile, the true creditor(s)–the noteholding investors–have no knowledge that foreclosures are being pursued because the debt pools in which they have invested are hemorrhaging defaults. Wait, I take that back. Surely the investors have knowledge about the foreclosures–they read the news, one presumes–but at least they are not affected by the defaults/foreclosures because the taxpayers have bailed out Fannie and Freddie while taking the homes of millions of those taxpayers.

    Here’s the mind-blowing part–to me, anyway–these foreclosures are being done BY THE SERVICERS, NOT THE NOTEHOLDERS, while using MERS and trustees to give the APPEARANCE and create the legal presumption that these servicers ARE noteholders. And even more insane, THIS IS OFFICIAL FANNIE MAE POLICY:

    “Fannie Mae is now requiring that servicers foreclose while loans are in the MBS trust.” (p. 14 of Announcement 08-31)

    If I’ve learned anything from this site, it’s this: a party that doesn’t own a note has no right to take property, or to declare default, or really do ANYTHING. Yet they’re doing it and getting away with it.

    But here’s a personal example of how this works. BAC Home Loans is my servicer. In its notice of sale prior to its attempted foreclosure of my loan, BAC declared itself to be “the legal holder of said indebtedness,” i.e., the Note (this was the result of an “assignment” from MERS to BAC). Meanwhile, Fannie Mae was telling me via the loan lookup tool (which Fannie says is updated monthly), that Fannie “owned a loan” at my address.

    So I called BS on that and sued BAC and the trustee. In its answer to my complaint, BAC said the following, and I quote:

    “The Defendants admit that the loan that is the subject of this litigation was held by Fannie Mae at the time the Complaint was filed in this litigation.”

    So that completely contradicts what BAC said BEFORE I sued them–at that time, BAC claimed to “the legal holder” of the note. However, AFTER I sued them, they changed their tune completely and said that Fannie is the holder.

    Here’s the best part, though–I went to the Fannie Mae online loan lookup tool today, 5 MONTHS after BAC’s above-mentioned admission, and 7 MONTHS after the purported assignment of my note from MERS to BAC and guess what? “Match Found”–it appears that Fannie Mae is still the owner of my note, in their words. Keep in mind that Fannie Mae is supposed to update its loan lookup tool database monthly.

    And I find out today that–unbelievably–it is Fannie Mae policy to have its sub-servicers foreclose on loans that they don’t own. Meanwhile, I’m stuck in a suit with BAC that has been removed to federal court and I can’t get a local attorney to touch it for less than $30K with no guarantee that I’ll win and all signs pointing to a devastating loss for me, even though I believe the above info is DEVASTATING to any case that BAC could put forth.

    All right–correct me if I’m wrong. Chastise me. Ignore me. Comment. I’m not a lawyer; this is not legal advice, etc.
    By the way, that “Announcement 08-31” was from December 8, 2008 and the policies therein that I got so worked up about may have been revised since then. I don’t know. Maybe one of you guys knows. I have a feeling that the policy stands, if only given the evidence in how the policy apparently has been applied to me.

  38. Neil, I have to thank you for all you’re doing. But, with this system and these bias judges is almost impossible for any pro-se litigant to win. These judges know the plaintiff’s lawyers are lying, stealing, cheating and no matter what a pro-se would say matters. these judges are lawyers themselves and they know and allow what’s happening. this is a very sh— system in this country…

  39. After all of this, there are still no lawyers to be found… Incredible, i know for a fact that there are some here reading this blog…

  40. zurenarrh- I would love to pick your brain more on the Fannie mae and BofA stuff. I have an investment condo that is fannie mae and some out of state trustee just sent me a notice of foreclosure sale on behalf of BAC Home Loan Services, LLP (BofA new service company)

    The confusing paper trail-

    1)BofA is said to be servicer
    2) BofA transfers loan servicing to BAC Home Loan Services, LLP
    3) Bof A said Fannie Mae owned the loan in a QWR
    4) BofA also said the creditor is FNMA SS IO 3027
    5) BofA said the investor is Fannie Mae
    6) NOW some out of state Trustee Firm sent a notice of foreclosure letter stating BAC Home Loan Services, LLP is foreclosing the loan-I do not think they are even master servicer. I can’t wait to file a TRO lawsuit to against Fannie to stop my nonjudicial foreclosure

  41. 2 Zurenarrh, I am of the same opinion. I find it odd that Fannie, says “it appears”. That sounds to me like asking what the definition of “is” is!

    I am also of the opinion that they are making the rules up as they go, since all involved appear to have to have been negligent in their fiduciary duties. The announcement last week that Fannie/Freddie, and not the originating banks, will be taking back all toxic loans, says to me that there were class action law suits coming down the pike by investors/trust’s.

    However if the Trust’s can be made whole based on fraudulent information about the MBS pools, why not the “responsible homeowner”, who took a loan in good faith, only to find out that it had been sold,sliced and diced.In fact we all can agree that this was the basis of the economic meltdown in the first place. Faced with job loss or under-employment, many people seeking modification’s are being told their situation is not “permanent”.

    There are plenty of people out there that were in their homes meeting their obligation that have been broad-sided by this “man made” disaster! In my opinion it is time for a few well planned Class Action’s” by and for the people, infact againist the Trusts, the Servicers and the GSE’s!

    Just my opinion!

  42. Doing some more research on Fannie Mae, foreclosure etc. Fellow poster “dny” had some comments on this topic a while back, and some stuff I found today seems to confirm what he said:

    -Fannie Mae itself is really only a servicer for the investors in the MBS trusts. I know this is not a big revelation or anything, but what that means struck me today in a way that it hasn’t before.

    That is, as dny’s sharp eyes pointed out, even the Fannie Mae online loan lookup tool says not that Fannie “owns” a loan at a given address–it says that “it APPEARS” that Fannie owns a loan. However, in the FAQs, Fannie does say it owns loans.

    We know that isn’t true however, and Fannie admits it, like in its “Announcement 08-31” document. Fannie refers to itself as “Master Servicer.” Well, if subservicers like BoA, etc. can’t modify loans because they are only servicers and not owners, then Fannie Mae can’t modify either because THEY themselves are only servicers.

    -In this Announcement, Fannie says that it will require its sub-servicers to foreclose on loans WHILE THEY ARE STILL IN THE MBS TRUST. That seems crazy because it necessarily means that servicers doing foreclosures are really and truly NOT the owners of the Notes and therefore don’t have legal authority to foreclose. But I guess the logic of that requirement from Fannie’s standpoint is that the investors would get wise to the scheme if loans kept being taken out of the trusts all the time.

    -Servicers are also required by this Announcement to repurchase loans out of the MBS trusts in no more than 60 days after the foreclosure sale. I assume that this is so that these repurchases can be financed by the auctions of the homes. The auction funds are then presumably laundered to the investor from the sub-servicer through Fannie Mae, so that to the investor, it appears that Fannie Mae is simply exercising its repurchase option, which dny pointed out is mentioned in their trust agreements/indentures but which is not required of them. And in fact, if a repurchase occurs, the money comes not from Fannie Mae, but from the auction of the foreclosed home. And if there’s a difference between the repurchase price and the auction proceeds, the taxpayers make up the difference.

    Admittedly, a lot of this is conjecture on my part, but I think it makes sense. Trying to write this in a hurry before I have to go to my second job…Let me know if anybody thinks this is bona fide or if it’s just BS…

  43. I’ve also created a site that compliments what Neil is doing called Discovery Tactics (www.discoverytactics.com) The site is dedicated to using electronic discovery as a foreclosure offense as well as other strategies to help attorenys and homeowners fight the banks. All are welcomed as I continue to upload data to the site.

    Anthony Martinez

  44. Neil,

    I would love to hear your thoughts on the Bearer Paper argument with Fannie Mae loans.

    How can these Servicers waltz into court and claim to be temporary holder of Fannie Mae’s note?

    Endorsements in blank that are not Notarized? Can this pass the Rules of Evidence 901a as Authentic?

    In fact, a copy is a copy, a photocopy on the back of a photocopy is not best evidence. Am I wrong???

  45. THANKS NEIL AND BRAD FOR ALL YOUR HELP.

    Object object and don’t let them put anything self serving in the record. Use of Judicial notice of self serving documents.
    OBJECT JUDICIAL NOTICE
    http://www.scribd.com/doc/26388162/Davies-vs-Ndex-objection-to-Appendix-of-ONEWEST-AND-NDEX-WEST-LLC-FOR-JUDICIAL-NOTICE-OF-RECORDER-DOCUMENTS

    OBJECT SAME ATTORNEY REPRESENTING SEVERAL PARTIES WITH DIFFERING INTEREST. NOW THEY WANT TO COVER 3

    http://www.scribd.com/doc/26436469/Objection-to-Attorney-Treder-From-Representing-NDEX-WEST-LLC-and-OneWest-Bank-Fsb

    COMPEL DISCOVERY

    http://www.scribd.com/doc/26895075/Motion-to-Compel-Universal-American-Mortgage-Company-of-California-to-Produce-Discovery-DBNTC-ONEWEST-BANK-2923-5-2924-b-p-code-17200-fraud-tila

  46. Here’s more good news… Atty George Gingo “GETS IT!”

    He offers free self-help for homeowners facing foreclosure on his website;

    http://www.gingolaw.com

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