Why Show Me the Note Isn’t Enough

see no-silver-bullet

The reason lawyers should attend the forensics workshop is not so they can do forensic analysis (although they certainly would be in a better position to do so), but rather because they need to know what to do with the information once they get a report of results from a forensic review and analysis.

My observation is that many lawyers and pro se litigants are left with their mouths hanging open when the the other side (pretender lender) does in fact produce a note, copy of a note, assignment, separated allonge, indorsement or other document giving the appearance of propriety. You have to ask yourself what if I was physically holding that note, copy etc.? Would that mean I had the power to enforce it?

Those who have not studied securitization don’t know what to say because deep down inside they think the show is over — when in fact it has only just begun, which is the point of Brad’s Workshop on forensic analysis.

Lawyers have complained that we tried to pack too much information into one day in the our workshops we did over the last two years. They are right. The reason lawyers should attend the forensics workshop is not so they can do forensic analysis (although they certainly would be in a better position to do so), but rather because they need to know what to do with the information once they get a report of results from a forensic review and analysis.

That note or copy they produced is probably not the evidence that is required. It probably is a copy of the note as it existed at the closing, and does not contain the chain of custody, assignment, indorsements or other indicia of ownership.

There is no doubt that a workshop on motion practice and discovery for lawyers only needs to be done and I am working on that. My problem is the same as any trial judge would have. How can we go that level unless the lawyer knows what evidence exists, what evidence to ask for, and how to use that evidence? That is the purpose of the forensic workshop. Unless the lawyer or pro se litigant knows what to do and say about the information produced in a forensic analysis, it is of little use. Logically, they could not possibly know what to say or do with the information unless they understood the significance of the information when it is presented to them.

Brad’s forensic workshop, together with my participation and other guest speakers, weaves together the issues presented by the loan transaction itself, the securitization of the mortgage, the transfers and chain of title issues combined with what works and doesn’t work with Judges because it is seen as truly significant as opposed to merely technicalities designed to delay the proceedings. Indisputable evidence that raises questions of fact that helps the Judge “get it” is what is necessary to win.

49 Responses

  1. Thanks Jan, My email is sfmjam@yahoo.com. How am I able to post the documents here?

  2. to “getgood” :

    The “electronic” Indorsement page is a convenient fabrication, created specifically to slide by the Proof of Claim problem in the BK Court. In short, both you and the BK Court are being defrauded.

    To give you a fuller analysis, you would need to send along a scanned version of the Note and the “Indorsement” page, and an e-mail address. Post on this Page as I do not subscribe to most of the L.L. columns, including the ones I have written on.

    What you describe was not common practice. Thus, the only conclusion is that it is specially tailored to get your Servicer a position of standing in the Claims protocols. In short, fraud. Depending on how much time has passed and what really happened in the financing chain (which for sure is not what is being described in the e-file Indorsement), your Obligation may well already be fully paid by insurer or surety or guarantor, of which you know nothing, and there is no longer any Obligation. Keep in mind that anything Countrywide was involved in, more likely than not is tainted.

  3. Jan, I am in Chap 13 at the stage for proof of clams to be submitted. BOFA, the servicer of a loan alleged to be owned by Freddie Mac just submitted by email to my Attorney, the Note, the attachment says this:

    Exhibit A-Enote.PDF:

    It is a copy of the original 3 page note I signed with no endorsements. A 4th page is a blank page with 3 endorsements without recourse, starting with the originating First Magnus to Countrywide Bank FSB and then Countrywide Bank to Countrywide Home Loans Inc and then a blank endorsement from Countrywide Home Loans Inc.

    I am curious that it is signaling Enote in the attachment, could/does that indicate that the original was digitized into note they are presenting and the original was destroyed? No indication of the 4th page being on the back of the note or a seperate page. There was sufficient room on the 3rd page of the note for a stamp (s), why none of them were endorsed on the 3rd page?

    Any insight would be appreciated.

  4. Jan van Eck-
    Great post! A touch of well-directed sarcasm helps make all your points. I have wondered why, in 3 years of livinglies, there have only been 2 or 3 posts from legitimate forensic document examiners, going back to Mario Kenny’s “yellow dots” articles, which explain the encoded tracking dots, visible under blue light and magnifying glass. These yellow dots are encrypted with the copying machine identity. Millions of copying machines, all with different yellow dots. This way you can see where the copies came from. Any updates on this or any other forensic details? Glad to see you posting again, we have touched base in the past.

  5. To “Ilona:”
    Your case is complicated given that your Note seems to have vanished into the “black hole of outer space” and the mortgage along with it. Where did the Note go?

    There are some possibilities. The actual “Original Note” may have been digitized, converted into a digital image electronically and then the paper item that you signed was shredded. This (amazing but true) was a common enough practice. The “industry” has developed some very sophisticated machines that can “re-create” the Note, complete with a blue-colored-ink signature on a black document, that looks for all the world just like what you actually signed. The industry (and the Courts) call this the “wet-ink Note.” You cannot tell the difference by looking at it, of course, and that was the whole idea: it is an exact reproduction, compliments of the miracles of electronics. There are millions of Notes that were simply shredded. PS: you cannot collect on a shredded Note. If you as the Owner do not want to protect your Note, why should the Court?

    How do we know this is true? Aside from seeing photos of these infernal machines, there are two spectacular cases that have surfaced, one where two different banks showed up in Court competing for a claim to the house, and each one had an “original blue-ink” signature! Both, of course, were electronic fabrications. In another case, the homeowner had a Notary that absolutely insisted that she sign the Note in a black-ink pen, and the one that showed up in Court was conveniently blue-ink. All these Notes came along with attorney-written and bank-officer-signed Affidavits testifying that they were the original Notes, kept in some vault. The bank attorney shovels the forged Instruments at the Judge and says with a straight face: “Here’s the original Note. Give me a foreclosure. ” Oops.

    So the only real way you can tell is to do an examination of the paper. Most paper manufacturers use a “watermark” that date-stamps the day the paper was physically made. As the later versions of Notes being fabricated so creatively by electronic machines and fobbed of to the Judge as the Original will be on paper made long after the date on the Note, you have one way to blow them up. It requires sending the “Note” out for a criminal forensic examination. [You do that by Court Motion and Order].

    Under certain circumstances, the “Original” might, particularly if Deutsche Bank National Trust was involved, have been sent off to some giant vault located apparently in Southern California. I say “might” because DB and DBNT are notorious forgers and liars, and routinely forge documents and shove them at Judges (who are either gullible, naive, or flat-out stupid enough to take that trash at face value). So, possibly, your Note might just be sitting in some vault, and the electronic versions are getting fobbed off around the planet, being sold and sliced and diced. Now in that case, your Note will be “insured” as to principal and interest by a credit-default swap, known generically as a “derivative” instrument on Wall Street, and the implication of this is that your Note is already fully paid off, as more than 91 days have gone by with no payment from you. The insurance policy simply paid it off, quietly, and nobody outside the Street even knows about it.

    So, at some point, somebody else, some so-called “servicer,” is going to show up and demand cash from you on your already-paid Note, and they do that to enrich themselves at your expense. And this has been going on over some 60 million mortgages and Washington (and the Courts) have absolutely no clue, which shows you what a collection of lunk-heads you have elected and also appointed to the Bench.

    What can you do? Well, since you have no idea who is your counter-party, and no idea if your Note is caught up inside the bankruptcy of the “original lender” outfit, and nobody can tell you who owns the Note, or even where it is, there are three options: (1) you can stop paying and see who sues you and start slugging it out with that entity, which is probably some pond-scum outfit that will cause you grief; (2) you can pay the pond-scum now, and take your chances that you are paying the wrong outfit (in which case, when the right outfit shows up, you lose your house, joining 3 million others that have already gone down that road); (3) you can go to your local attorney, ask him to open up a Trust Account as “Harry Blank the lawyer, trustee”, and send HIM the monthly payment, have him as trustee pay the taxes and the insurance on the property, and send your so-called “Servicer” a Letter telling them that that is where the cash goes until they establish (1) who owns the Note), (2) produces the Note for inspection, (3) produces a contract known as the Servicing Agreement that grants them the authority to go collect, and (4) whatever else your attorney thinks is appropriate), and then each month you send them a registered letter with a copy of your trustee payment you made to your attorney, and you re-confirm that the payment goes into trust until they can establish what happened to the Note, etc.

    Now, anticipating that some day you end up in Court, you really impress, and I mean seriously wow, the Judge with your impressive documentation trail, and all those petty complaints from the Bench about “Oh, you just want a free house, you moocher, here’s your foreclosure, go sleep under a bridge” completely vanish. And now you are in the driver’s seat, and you sue the asses off all that pond scum, all the bum outfits on wall Street, and the Servicer, and you collect the Big Bucks – a lot more than the house was ever worth. Say, about 3 million. SO: living well is the best revenge.

  6. To Jan van Eck,
    Thank you for the detailed response. I already sent a letter to the Servicer Cenlar, requesting all the information. They have 60 days to respond. In the mean time what do you suggest I should do? Have a title search done, or? How do I find out who is the original Note owner? TBW did not have time to transfer the note, because the time between us signing the mortgage papers and the sudden shot-down was less than two months. We never even had the chance to pay our first payment.
    If we choose to default on the payment, someone probably will come after us to collect, that would be one way to find out who is the “pretender lender” The problem with that is, my husband has a 772 credit rating, and we would not like to destroy that. Any other suggestions about this? We are resigned in Illinois, are you taking cases in our state? If yes, can you help us finding things out?
    Thank you!
    e-mail: ibecker17@aol.com

  7. @stop whining: STOP WHINING! Go pound sand. You don’t know anything, so why don’t you shut up? Moralistic asshole.

  8. to ILONA:

    Your case is different from most in that the “original lender” on your Note and Mortgage is bankrupted, either liquidated or still in some BK procedure (or Filing). Speaking generally, if the “lender” holding the Note files for bankruptcy, then the Note cannot be transferred or sold without an Order approving the sale by the BK Judge. Speculating here, possibly a “bulk sale” of Notes has taken place, where the Trustee in the BK Estate has sold off a portfolio of Notes to some other bidder, probably at a discount. But you cannot determine this without some examination of Documents and disclosure by the entity claiming to hold the Note.

    You need to find out a ton of things: the “chain of title” to your Note, an examination of assignments of your Mortgage (both recorded and unrecorded), whether there was an Order within the BK Court to sell the Note (possibly as part of a basket of Notes, or a Pool), copies of documents substantiating the claim of the “servicer” as to authority to collect; who the real Owner of the Note is (and it may have been securitizied); whether or not any surety payments flowing from an insurer of the credit have been applied to the loan. The “servicer” has a general obligation to provide you with all of this, but start with the identity of the “owner.” Once you get that, then under the doctrine of the “implied covenant of good faith and fair dealing inherent in all contracts,” and remembering that your loan transaction is a Consumer Transaction (which affords you extra protections), the “owner” is obliged to start disclosing (or instructing the ‘servicer” to disclose) all of the above.

    In answer to your specific question, the entity entitled to ‘foreclose,” or enforce the obligation, is the entity that is the “Holder” of the obligation. That entity has to BOTH be in physical possession of the Note AND have the authority to enforce the Note. That latter is a bit of a quagmire legal term but taken to its simple level, it implies that the Mortgage is “perfected,” i.e. the chain of title and custody of the mortgage is complete and can be demonstrated to not be impaired. Obvious “breaks” in the chain, for example where the Note is Indorsed to party A and the Mortgage is Assigned to Party B, render the note “unperfected” and you have a money obligation on the Note but not secured by the property any more. it happens, but not very often, unless you know where to look and how to dig.

    “Quiet title” [not “Quite” title”] is a legal concept that cleans up the record of ownership of a property and sets forth thereafter who is the proper owner and who has a lien, or claim, on the property. It is typically filed in suit to dispose of a challenged, or unperfected, lien. Filing such a suit does not accomplish much in your case unless you uncover evidence that the mortgage in not perfected, due to some defect in some Instrument, typically an Assignment done wrong or to the wrong party. However, remember that typically (in most States) that are “title theory” states, the mortgage follows the Note around, so even if there is no transfer of mortgage, recorded or otherwise, the Note-holder still has the right to obtain rights to the mortgage. I would not file such a suit at this point. Your first job is to find out what credits have been paid on your behalf against the Note by outside sureties (possibly the entire principal balance has already been paid! More likely than not, in your case), thus what is remaining to be paid to the investors in that Note, and where the Note sits and what Indorsements are on it. Also, find out if the Note has been ‘securitized” as such pools typically have sureties attached to them, who have been paying the missing payments all along (so your Note is actually quite current at this point – entirely possible, even likely). Hope this helps.

  9. We have an unusual situation. I would appreciate any advice.
    We refinanced our property in June of 2009 with Taylor, Bean and Whitaker. The company went bankrupt in August of 2009. Actually the CEO Lee Farkas was sentenced to 30 years in prison selling fraudulent loans and who knows what else. We never had a chance to even make one single payment. They sent us a letter on July 14th that they transferred/sold the mortgage to Freddie Mac. When our first payment was due in August, Cenlar contacted us that they are our servicer, because TBW went bankrupt. I myself never signed any mortgage papers with them, only my husband, however there is one portion that they say: spouse to sign MTG/TIL/RTC is this acceptable?
    TBW is the first lien holder on our property, but Cenlar is collecting the payments. Our home is deeply under water, we never missed a payment, my husband is retiring next April and we cannot sell the house. In case of foreclosure, who would have a right to foreclose? We also are thinking to file a Quite Title lawsuit. What would be better? I sent a certified letter to Cenlar, asking them to show us the original note. No answer jet. I appreciate your comet on this.

  10. to “Stop Whining:”
    Your analysis is a bit simplistic. Here is the reason the Obligor can and should demand evidentiary proof that the Demander show the Note: If the party demanding payment(s) does not own the Note, and does not have it, and you pay him, then what is to prevent the real Note Holder showing up at some later date and demanding to be paid? I have bad news for you: your proof of payments to another means zero. It does not discharge your debt to the Owner and Holder of the actual Note. So you, as the Obligor, get to pay twice. In the alternative, you get to pay for the obligation to the Demander, and then you get to forfeit the paid property to the Holder of the actual Note.

    You do retain the right to go sue the “Demander” to get your money back. However, if that entity goes bust, you become an unsecured non-priority creditor in that bankruptcy case, an altogether unappetizing position to be in, and probably will recover zero.

    The further problem is that you may not actually owe one thin dime on the Note. The reason is that if the Note was pooled into a trust, then the Trust Indenture carried guarantors and sureties that you know nothing about. Those parties typically had non-subrogation rights, so they do not come into possession of the Note. Nonetheless, under the UCC, the Note is discharged, as the Owner (the certificate holders of the Pool) are not influenced by the source of funds, only the receipt of funds. Finally, remember that the proper party to be Paid (by you) is the party that has the ability to issue a Release of Liability on Note, and that can only be done by (1) handing you the Original Note with the Indorsement stamped PAID and signed off; (2) providing a release and Satisfaction of Mortgage together with a notarized document for Filing, and (3) Filing the release on the County Land Records. Obviously, nobody can do this except the actual person in possession of the Note (and the authority to enforce), together with an accounting as to surety payments applied to the Note. Your “pretender lender” cannot do any of this, and if you remit to that entity, you do so entirely at your own very substantial risk.

    And that is why (1) your assertions are flat-out incorrect, and (2) the Obligor must insist on evidence that the entity demanding payments is the proper party to receive them – only ascertainable by producing the Note (with Indorsements, of course).

  11. Get Good look at the Wall street and the financial Crisis;Anatomy of a Financial Collaspe., It has a lot of answers to Freddie amd Fannie and who did what. The OCC is as crooked as the banksters. But they are getting more into checking things out, being in the hot seat. You will see just how the banksters did what they did and the documented proof and who is in jail over this? None yet. I hope we put them all in jail. I dont know if stop whinning saw the thousands of families in the streets on 60 minutes, but this is a sinister crime, not the normal. How dare this party tell us to quit whinning. Wine and squeek you wheels, this is a horrific crime against Americans. We must use every tool to stop this if it is show me the note. The S.O.B’s made me angry. No decent human being would look at this crime against Americans in the thousands and not be in total shock and sick at heart .. To be so heartless, he has no soul. He has to be a narsictic banker, or closely related to the devil.

  12. Directly to stop whinning: We took out a loan in good faith trying to weather the economy caused by bad faith banks trying to dupe the borrowers,and the investors and the insurance companies, causing an economy that was spiralling down due to their scams. I was duped by the mortgage broker who was paid kick backs and bribes to suck me into a arm loan, when I came to the desk expecting a flat interest rate loan, then tells me the loan is easily refinanced before the interest rate goes up in five years, concealing the payments would accellerate from 2400.00 a month to 4800.00 a month in a short time preplanned for default by the banksters who brag in the Wall Street and the Financial Crisis; anatomy of a Financial Collaspe” senate report, in their e-mails, that the borrowers were unknowingly preset for rapid default, and how they were looking for dupes (investors) to purchase the defaulted or rapid defaulting mortgages, insider trading and betting on their own products to default making billions off our pain and suffering and the duped investors pain and suffering. You must be a banker or a bankers employee. The economy has plummetted due to this crime. My salon business is down over a hundred thousand [net] a year over the banks crimes. People I know in the thousands have lost jobs and businesses and homes due to these banksters. After being told by the servicers, three different servicers to default, is the only time i defaulted. They claimed it was the only way I could qualify in a spiralling down economy to get relief and receive a mod loan. I paid for five months on this approved mod loan after ten months of greuling effort to get all the paper work through the fax. I was told the mod payments were now going to be considered partial payments due to the O’Bamma changes. I had to come up with over twentyfive thousand I was in foreclosure. This is not good faith or honest service. I suggest you read the Wall street and the Financial Crisis. If you still think the way you do and see thousands of families being tossed in the streets then I expect you have sold your soul to the devil and there is no reason to waste another breath on you. Just wish you the same you wish us. We have been duped, screwed and taken to the cleaners by these banksters and if you are one of them I am sorry for your soul take it up with GOD.

  13. Let me get this straight, homeowners who rightfully and knowingly have signed a contract and a legal promissory note are now blaming the banks for their unwillingness to pay back the loan. They are scamming banks by saying “show me the note.” You knowingly under your own content signed a promissory note to pay back the loan. Hence that is a legal contract, a PROMISE. Who cares where the note was sold. I don’t care if a pile of dirt owns the note, you have a legal obligation and contract to pay back the note or you should go through foreclosure. What a scam, you should not have the right to get a loan! You know you owe money on a loan, yet you try and intentionally deceit the lender by saying “show me the note”. Last time I checked that is fraud: intentional deception made for personal gain!

  14. The threads are old now, but I would like to see if anyone is still active and can comment. I have 2 properties, but were closed mid 2007 with table funding lenders, one of which I know was an REIT, since I worked for them. Both went quickly to be serviced by Countrywide, and then BOFA where they are still being serviced. Both loans have been identified with Freddie Mac as being the investor. I have stopped paying on both properties, as I was trying to work out a modfication, which was an awful experience with BOFA. BOFA is still open to re-visiting a modification, but I have asked for proof of the investor/owner of the original note, and they are avoiding my direct questions about this. I keep sending letters to please provide proof so that I know I am dealing with the legal owner. I have filed complaints with the OCC on both as well. I am close to filing a Chap 13 and can dispute the proof of claim through this, and there is favorable court opinion to compel this, here in Washington State. No NOD’s have been served yet. If Freddie Mac says they are the owner, they have very specific language on their website about holding the physical note and procedures for holding it. Has anyone heard of Freddie Mac not being able to produce the note? I am curious to know if Freddie became the owner when I closed this loan. I have requested this information from Freddie and BOFA with no responses yet.

  15. We bought our house in 2003 in Colorado. The mortgage broker on the purchase was supposed to assign the mortgage at settlement or shortly thereafter to Wells Fargo. On our credit report, in the title work, and recorded with the municipality is the mortgage broker. Wells Fargo cannot produce anything other than a stamp on the note saying it was assigned. Is there any way we can benefit from this?

  16. I just recived a copy of 2 notes for one ,both with different terms and rate just to add to the confusion but it is clear that the note is void. The Mortgage and note were separated and the note stayed with the 2nd “originator” as I have evidence of an originator prior to this now defunct one that was not recorded. Anyway, the copy has a plain page with a stamp in the upper right hand courner with an “employee’ of this defunct company signature to a 3 line fill in the blank spot that has been left blank with no date and the wording without recourse on it. So, the note “died” with the defunct company and this is why there has never been an assignment on record. This was more than I expected to receive as I used a dunning notice on the newest “company” to pick this up and try to get something from it. I can bet the other ones are the same. So evidence is pointing that the fed window picked up all the scrap paper out there and are pretending it means something.If I send a dunning notice to the defunct company named and do not recieve an answer is this something that can be used to get it removed from record? No one has ever been bold enough to assign it to themselves.

  17. Note that I’m referring to the case where your property is devalued because you have no freaking clue who actually holds the liens on the property.

  18. To Court,

    This Is Not Legal Advice, but *yes*, this *does* apply. If you can afford it, you can probably file a lawsuit to “quiet title” in order to force them to demonstrate who owns the mortgage, in order to make it possible to sell the house.

    This gets the ball rolling and they have to show up with proof that they have an interest, and you’re into the whole Alice-in-Wonderland world previously described. If you’re really lucky, none of them will show and the entire debt will be expunged!

  19. Are properties that are not in foreclosure able to benefit from contesting the ownerr of the note?
    I have a property that has been severely devalued because of this mortgage manipulation the last ten years and I am unable to sell.
    I have all the documents, look forward to your response.
    Court

  20. Jan van eck,
    Thanks for your thoughts I truly appreciate them.

  21. to Collette McDonald:

    I would (very gently) suggest to you that you are missing a foundational element [so is the Judge, apparently]. You said that Bank of America is the “holder” of the Note, BUT that “Freddie Mac” is the “owner” of the mortgage. It does not work that way.

    Definition: the “Holder of the Note” has, in order to be a “holder,” to meet a two-pronged test. Prong One: the Holder has to have actual physical possession of the Note. the “real” one, the one you signed, not some photocopy. Prong Two: the Holder has to have the “authority to enforce” the Note.

    Now, “authority to enforce” indicates that the “holder” has the proper Indorsement to him, and a complete and continuous chain of title. If the Indorsements are incomplete (or broken, or with allonges that are imperfect) then he no longer has “authority to enforce.”

    In your case, the “authority to enforce” would be the right to file a lawsuit to collect the money value of the Note. BUT: you are not concerned with that, you are concerned with enforcement of the Note by way of “in rem” going against the property. To do that, the “Holder” has to also have a perfected, e.g. complete and unbroken, chain of title to the security instrument, the “mortgage.” (More likely, in your case a Deed of Trust).

    But see, that doesn’t work out, because the “mortgage” [or Deed of Trust} is being held by Feddie Mac. So the chain of title is screwed up. That implies that NOBODY can enforce the Note against the property. B of A can still enforce the Note by suing you personally for the money, but that is something altogether different from selling the property.

    I would take a copy of the Freddie Mac document you located with you to the “sale” and loudly announce to the “buyers” that the “mortgage” or “deed of trust” is actually held by Freddie Mac and any “buyer” that tries to buy from BofA is gong to end up with nothing. Nobody can stop you from making that loud announcement. And you can also announce that anybody who bids is buying themselves a huge lawsuit. Which they are.

    Then YOU can bid for the Note for six dollars, which should be interesting. Although I suspect that BofA will try to “bid” the value of the Note. Nonetheless, even BofA cannot take over the property if the last assignment of mortgage is to Freddie mac (and that assignment is properly recorded on the county land records. have you checked it out?).

    One final comment: the Judge assigned to your case does not understand what he is doing. Unfortunately, that is rather common these days. I would file a Complaint with the Judicial Grievance Committee, but hey that is just me.

  22. Mike, hi I recieved a packet from Freddie mac saying they were the owner of my mortgage. I went to freddie mac .com and enterd my info to see if they owned my mortgage and they did. So i printed it out and brought to the judge,
    https://ww3.freddiemac.com/corporate/
    BOA is the holder of the note, and service r of the account, not the holder in due course. The judge in Colrado did not care. Foreclosure was supposed to be April 2nd but I’ve managed to prevent that by sending letters of omissions and rescission . The new date is now April 30th. I’ll see what happens.

  23. @ Collette

    Collette your first post said this:

    BOA produced a copy of the origional note endorsd by counrtywide ,WITHOUT recourse.

    Freddie mac is the owner of the mortgage not BOA /Countrywide who is the holder of the note.

    How do you know Freddy Mac owns the mortgage? Have the assignments been recorded?

    If this is the case, then once they have been separated you can’t put them back together. Bof A may own the note but the mortgage is no longer the security for the note.

    Did BofA claim they owned both the mortgage and the note?

    My understanding is they could try and collect the note and therefore you would need an audit to find out if they had been paid already through securitization, etc. or they would have to show how they came to have the note separate from the mortgage which was the security.

    You would then have the mortgage unenforceable and the note would be unsecured. BK could take care of note and file for quiet title.

    I am not giving legal advice and am actually asking questions for understanding

  24. to “Angel:”

    If you have “clear title” to your home then either you purchased it with no Note and loan or you took a loan and paid it off. If you paid it off then you “should” have received the original promissory Note with the Note stamped “paid” on it, AND a release of the security interest [the mortgage or deed of trust] on the land title records. Those are the foundational steps to clear title.

    What happened in your case? give us the details and we can help you formulate a strategy. And yes, some pro se do “win”, e.g. prevail, in Court. Not many, but some do.

  25. Question: How many attorneys or Pro Se are winning their foreclosure battle?
    I have been in battle with Greentree for years now. I have clear title to my home but they “claim” to have bought it from another mortgage company and I should be paying them. They went so far as to submit forged copies of the note and the court accepted them and order me to pay into the court. I appealed the order. The mortgage company lacks jurisdiction because they have not produced the original note and they have put fraud upon the court. With all this and more, the courts keep ruling in their favor…. WHY??? The statues have been brought before the court – tons – and they are still waffling.

    Can someone please tell me what the heck has to be done to win when you are obviously right and in the right? Thanks

  26. […] saw a post on Neil Garfield’s website a few weeks ago about the ‘Why Produce the Note Isn’t Enough.’ He hit the nail on the head when he said that it’s not enough to go into court and […]

  27. It appears BOA is using the language “Foreclosure prevention” as a means to offer cash for keys in the manner of Deed in Lieu.

    Be wary of BOA deed in lieu offers that DO NOT waive the deficiency judgment.

    Be wary of accepting these BOA deed in lieu’s when you have an open 2nd mortgage also in default….this DIL will not cover the second.

    For those who are forced into a position(judgment issued against you) of having to leave the fight…. I would consider a Short Sale.

    A short sale is much better than a Deed in Lieu, as it changes the course of a borrower’s future credit score. Also, 2nd mortgages are also negotiated in the process, not leaving an outstanding balance.

    I am happy to discuss the ever evolving short sale process and of course the foreclosure fighting strategies that exist.

    Basically, you must make it VERY hard to foreclose, offer evidence, fabricate assignments and endorsements….this will buy you time. At the end of the day, either a Loan Mod or a Short Sale can be achieved and this is a better alternative than Foreclosure. Of course, complete debt extingishment and/or Damages for fraud are a best case scenario….however, it seems only those who don’t ask for such a measure get it.

    Good luck!

  28. Jan van Eck

    Also want to thank you for getting involved here. Everything you say is right on the mark.

    I thought Countrywide (now BOA) was supposed to be offering significant loan modifications due to the multi-state Attorney General class action settlement.

    What goes on in courts is utterly amazing –

  29. Here’s a flash from Chicago: Sheriff Tom Dart has accused banks of seeking out friendlier courtrooms throughout the county to get evictions accelerated or passed through the court even though there are proceedings underway in another judges courtroom. Dart made the news in October of last year when he refused to perform evictions of tenants who had been paying their rent although the landlords had fallen into default. He also called for a moratorium on evictions.

    And Counselor van Eck, the legal system has become a circuit of Kangaroo Courts. No mouthpiece, no can hear. Period.

  30. Counselor Van Eck, thanks for getting involved here, sir.

  31. to Collette McDonald:

    What kind of insanity in the courtroom is this? It is black-letter law that you cannot just go waltzing in with a “copy” of the Note and say that you have the original. You have to be the Holder of the Note to prevail, and Holder means you have to have “actual possession of the instrument” and have the “right to enforce the instrument.” So it is foundational law that the plaintiff has to produce the Note. Not a “copy,” the actual Note!!!

    A “letter from the County Teasurer saying she has seen something” is utter rubbish. That is pure hearsay, utterly inadmissable. You have to bring the treasurer in to testify as to what she saw or did not see.

    Even after that, just saying you thing you “saw something on file” is meaningless in real-property law. All matters of realty have to be reduced to writing. You have to have the documents available for presentment. I am holding my head in disbelief.

    Who signed the authority for the alleged transfer from CHL to BofA? If not an Officer of the Corporation (eg vice president), then were is the authentication of authority? Is that authentication “firmly attached” to the Certificate you mention? IS the authentication itself authenticated by notary? Man, this is riddled with defects.

    To avoid the Rooker-Feldman Doctrine stopping you cold in the Federal Court, File a Notice of Intent to Appeal in the State Court, then go file your case in the District Court. That State Court is beyond a joke. It might as well be in Uzbekistan. Unreal.

  32. colette, That is very interesting… I hope someone in my case says that.. Am I missing something? they have seen the original but can’t produce it .. blue ink signature? In my request for productions you would not believe how many different copies of the note they have none of which are endorsed

  33. Hi Jan, Colorado, Yes, agreed. off the wall.
    Her thinking is this. They had a copy of the original promissory note, deed of trust, a letter from the county treasurer dated and stamped saying she has seen the original on file. and a certificate showing countrywide transferring the name to BOA., state of Tx. dated April 09. She gave me one day to review the documents. I argued every point I could and she denied me. thanks for the tips. I will defintely pursue both avenues.

  34. Does anyone have any feedback on US Lending Audit in Florida?

    They are the only auditors so far who have said they will look at more than just the closing documents. That’s what we must have.

    Thanks

    GeoD

  35. to Colette McDonald:

    Wow, that is amazing. A witness who only found out about your case file “yesterday” is not credible. The Court should not have listened to any of it. What crazy State is this?

    File a Notice of Appeal, to defeat initialization of the Rooker-Feldman Doctrine. then immediately file suit in United States District Court alleging breaches of the Fair Debt Collections Practices Act (to get Federal Question jurisdiction) and aks for an ex-parte injunction.

    Your State Court Judge is off the wall.

    As another avenue, you can go into bankruptcy court, and file a Schedule listing your house with no debt other than a secured claim of $10 for the “lender.” They will have to file a Proof of Claim for more, and then you challenge the proof of Claim with an Objection. And then you file an Adversary Proceeding within the USBC (no filing fee) alleging damages from the state court testimony without proper foundation, and so forth. You can still prevail.

  36. Hi, You might say it went well. It’s all good, is my attitude. I accomplished my goal of playing attorney for an hour an a half and giving them a run for their money. I objected to everything , cross examined the expert witness for BOA of the litigation dept. and made her look stupid cause she could not answer any of my questions. Except for the question I asked how long she had been familiar with my case. She said, since. Yesterday. That she knew the answer to. And I had a great closing argument. But none the less. the judge sided with boa and I lost and I guess they will set an auction date. But I do intend to continue to do what ever I can to mess with them. I have a fairly strong Bad faith claim I think.
    My question still remains?>>>Is freddie mac required to endorse the Certificate of filing or amendment ? That countrywide and BOA endorsed? Will they be commiting fraud if they go to auction with out the endorsement. ??

  37. to Collette McDonald:

    How did your Hearing go?

    Remember, even if it went against you, it is not the end. There are still lots of avenues to attack the pretender lenders. The first one in the chain would be Standing, which if you prevail would void everything that happened in Court.

    Let us know how you made out.

  38. I think we were too late for Colette. Today is the 11th.

  39. Colette McDonald

    I do not know if anyone is responding to you. So I will give my best advise – and I am not a lawyer, this is for educational purposes only and not to be construed as legal advise.

    Tell the judge that you are not in default with BOA, Countrywide or Freddie Mac – because if you were in default with them they would have charged-off your loan and sold or “swapped” collection rights to a third party. Thus, your loan has been paid in full to BOA/Countrywide. Tell the judge that you have been denied the opportunity to negotiate a modification with the actual creditor because the actual creditor is not being identified. Tell the judge that some undisclosed party is profiting on your loan by purchasing it a steep discount and that this party is not identifying themselves. Tell the judge that BOA has been bundling delinquent loans with other delinquent loans for sale to third parties and ask the judge to have BOA demonstrate that they still account for your loan on their balance sheets – and if not, where did the collection rights go?? Tell the judge that if you were delinquent on any mortgage payments it is because you do not know where your money was going – and that if it was with BOA – they were OBLIGATED to at least consider a valid loan modification under TARP. Tell the judge that Countrywide, under a class action by Attorney Generals in multi-states was OBLIGATED to reasonably modify the terms of your mortgage. (see A recent settlement between the California Attorney Generals office, joined by 10 additional states, resulted in one of the widest reaching predatory lending settlements in US history.

    Under the landmark agreement, Countrywide Financial’s new owner, Bank of America, agreed to proceed with loan modifications on nearly $8 billion in home mortgages, potentially affecting hundreds of thousands of homeowners. )

    Tell the judge you will need to file for bankruptcy to avoid any “deficiency judgments” or any any other potential judgments by parties not named as a plaintiff, and therefore, during such bankruptcy you will request full discovery in order to determine that the discharge of any future “debt” obligation is complete and valid. Tell the judge you want an opportunity to obtain a valid appraisal of your home – and to compare that appraisal to the bank appraisal at loan origination. Tell the judge you want to pay what is due but to the right party and that, under current law, you deserve the right to negotiate directly with the actual creditor who now owns collection rights. Tell the judge if BOA/Countrywide sold the loan to Freddie Mac, then Freddie Mac – not BOA/Countrywide is your creditor. Tell the judge that Freddie Mac is supposed to be doing loan modifications. Tell the judge that Freddie Mac has likely disposed of your loan – which means BOA/Countrywide also have no rights to collateral in your home. Tell the judge that the note produced is only a copy and you need the original.

    Others here are much better then me at “copies” and note production. Someone please also give advise to Colette.

  40. The judge said I must prove tomorrow I am not in default with BOA. How must I go about that. Besides Object to everything.

  41. BOA produced a copy of the origional note endorsd by counrtywide ,WITHOUT recourse.
    Freddie mac is the owner of the mortgge not BOA /Countrywide who is the holder of the note.
    Question: Is Freddie Mac required to sign (endorse) the Certificate of Filing and The certificate of Ammendment as well, which is dated April 21 2009 . I have a hearing agin tomorrow at 9 am . Please reply
    Thanks so much,

  42. Those in Northern Virginia with subrime loans or facing foreclosure are encouraged to contact attorney Gregory Bryl through bryllaw.com

  43. I wholeheartedly agree with Anonymous. Competent lawyers in this area could reap huge rewards, not only monetarily, but personally and ethically from the satisfaction and understanding that they are helping consumers (homeowners) but also that they are participating in a fight to obtain truth and real justice.

    Neil’s classes are the fastest way to get the right knowledge pertaining to this foreclosure fiasco.

  44. I can produce the note> the original , I’m in foreclosure
    after being served with said foreclosure the bank went and put an assignment at ROD…saying they held note and mortgage…. mers did the assignment from the original lender …. original lender does not exist… ( read my story posted under( semantics what a difference a word makes) here on livinglies… plus i never missed a payment, in order to protect my property

  45. I ran into this quite recently in Federal Court where, for the first time since 2003, the pretender lender actually produced the original Note. Also on the witness stand was the Officer of the pretender lender, in this case DLJ Mortgage Capital, unit of Credit Suisse [the outfit that was denounced from the bench as an “international predator bank” by the Court in the case In Re Yellowstone Development Co., USBC Montana].

    On cross, the witness described the upper left corner of each page of the Note and the three pages of Allonges, all held with one staple. The Note had about a dozen staple holes in the pages. The various allonges had about 6 sets of staple holes in them. As you can imagine, none of this met the test of an allonge that it be “firmly affixed” to the Note! After all, it was taken apart and re-fastened a dozen times, and who knows what other papers were affixed, removed and destroyed?

    The witness Officer of DLJ then testified that the last Allonge was in turn stamped and signed off “in blank” but was done by him that morning in the attorney’s office just before the hearing at 10:00 a.m. Oops. The Pleading signed by counsel several weeks earlier claimed that the Note was Indorsed in blank. Except that, at the time the Pleading was prepared, it wasn’t.

    Then buried inside the chain of fraudulent allonges was one signed by a “Document Control Officer” of the “purchaser,” acting as “attorney in fact” for the lender, except that his power of attorney was not attached, and was nowhere to be found. So much for authority to sell.

    Testimony went as follows: “You purchased the Note?” “Yup.” “Well, what did you pay for it?” “Objection!!!” and you get the stiff resistance of the attorneys to the question of “how much.” Reason: because they paid nothing at all; it was part of a transfer of assets to get them off the books of the previous pretender lender [GRP Loan LLC} which was folded up as the cops came sniffing around.

    Then the witness testified that he signed off on the Note in blank so that it could just be filled in by the next speculative pretender lender, in case they were not successful in their blitz on the Court. And there you have it, folks: fraud on a grand scale, by shylocks from New York City.

    Of course, none of the purported allonges restated the original loan number, or any other indicia that would tie them to the Note. Also, the Note itself had a ton of blank space on the last page and the back of the last page was entirely blank – and under the NY version of the Uniform Commercial Code [UCC Sec 302(2)] they have to use that up under the No-Space Test before going on to the first Allonge. And while none of the blank space on each successive Allonge was used up, the various pretender lenders just merrily continued to manufacture further add-on pages. At Oral Argument, I represented that since the two States that use the 1951 version of the UCC – NY and NC – lean on the No-Space Test, the allonges were invalid on those grounds alone. Lawyers for the pretender lender kicked up a huge fuss, stating that notwithstanding that the allonges were all manufactured in NYC, since they were “Delaware Corporations” the NY Rule did not apply. Oops: under Section 25 of the Agreement of Purchase and Sale, obtained from the SEC 8-K Filing, the jurisdiction of all matters related to the Agreement was: you bet, New York!

    So: move to strike the claim, or if you are in USBC, move for a subordinate status of claim under Sec 510(c). Then be sure to sue them all.

  46. Neil,

    I need a forensic analyst for a position with our firm. Can you recommend one? We are in CA.

    James

  47. I highly urge lawyers to attend the workshops. Problem here, that I see, is that attorneys are not yet grasping the financial benefit of representing individual home owners. Not only can attorneys benefit financially from multiple consumer actions, but also an astute attorney could develop class actions that could reap huge profits for the law firm.

    Many law firms have lost their best corporate clients and ability to earn attorney fees as the crisis has unfolded. It is time to redirect energy into consumer issues. This is the future where the largest awards could be reaped. Time to shift direction – corporate representation in foreclosures will die – sooner or later. The people always prevail – sooner or later.

  48. Question on assignment of the Mortgage in FLorida.

    Sued for foreclsure in Nov 2009 by US bank XYX trust 2005. THEN the plaintiff filed the assignment of the mortgage transfer Feb. 2010. I thought you had to show the asingment when it happen, which this 2010 doc shows the mortgage was assigned in 2005, but not the NOTE.

    Any links, or info on Florida law on assignment of the mortgage?

  49. will be the workshop materials available in the video and written format?
    thank you.

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