Trustee Foreclosures Not Working Either

Submitted by Ann: Article by Matt Weidner, Esq. Florida Attorney


Judge Vacates Final Judgment and Sale- Foreclosure Courts are Courts of Equity!
We’ve all seen it and it happens too often…Borrower is in a formal modification with the lender or servicer or has fallen victim to a foreclosure rescue scam and doesn’t respond to the lawsuit. Unbeknownst to the homeowner, the lender is moving right ahead with the foreclosure sale and their home is lost. This happened to a family in Port Charlotte, but rather than losing everything, Elizabeth Boyle and the Super Foreclosure Heroes from GulfCoast Legal got the good judge to cancel the sale, vacate the final Order and allowed the Defendants to Answer. A copy of the Order is below:


A key point made in the order is that foreclosure courts are Courts of Equity. Keep in mind that this bedrock principle is embodied in the law used by these reckless mills to engage in this widespread fraud. We should all begin quoting the following statute in every pleading submitted before the court. We need to constantly remind our judges that courts of equity are fundamentally different than courts of law…here is the cite:

FLORIDA STATUTES 702.01 Equity.–All mortgages shall be foreclosed in equity.

Courts of Equity- A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.

Next thing that Boyle (and anyone else facing Indymac in litigation) needs to do is challenge the right of Indymac to proceed with the litigation. I’m pretty confident that if we pull back hard enough on the Indymac curtain we’re going to find


While we’re on the subject of courts vacating sales, I publish again the fantastic Order Vacating the Order Substituting Party Plaintiff recently entered in St. Johns County.


We’re all aware that Plaintiffs are morphing in and out of cases through ex-party Orders, Assignments of Bid and other improper means. We all know that standing is being falsely created through questionable endorsements and improper Assignments of Mortgage. I particularly like the section of that Order that quotes the Rules Regulating the Florida Bar 4.3-3(a)(1)-

“A lawyer shall not knowingly make false representations or fail to correct a false statement of fact made to the court.”

It disturbs me that this rule is being widely ignored and on the much larger level, I am deeply troubled that billions of dollars in foreclosure judgments are being issued to entities that are not properly identified, that change right in front of the courts eyes and which we have no way of tracking or identifying.






10 Responses

  1. KT,

    A deed of trust essentially serves the same PURPOSE as a mortgage; however, there are important differences with respect to parties involved, title holder, and foreclosure process.

    Unlike a mortgage, a deed of trust involves three parties – the borrower, the lender, and the trustee. The trustee is a neutral third party that holds title until the debt is paid. Who is eligible to be a trustee varies from state to state. In some states, attorneys can act as trustees; and in others, title companies provide trustee services.

    Another significant difference is in the foreclosure process. When a deed of trust is involved, foreclosure can be quicker, less expensive, and less complicated than when a mortgage is the security instrument. If the loan becomes delinquent, the trustee has the power to sell the home. Of course, the lender must provide the trustee with proof of delinquency and request that foreclosure proceedings be initiated. And the foreclosure must progress according to law and as dictated by the deed of trust. However, the foreclosure does not have to go through the court system.

    Regarding the MERS “assignment”, you may notice it to be an “affidavit” rather than a mortgage assignment (although it is recorded as a “assignment of mortgage”).
    The affiant essentially swears that “this is to certify that MERS did assign (on some previous date), the mortgage along with the note, without warrantee or recourse to [servicer]”. You may also find that the affiant (MERS officer) is from the same attorney firm that is representing the servicer in foreclosure.
    If yours is like this, then it is only an affidavit, and a copy of the assignment should have been recorded along with it. Even then, it could be considered a fraud on title and on the court, because MERS, solely as the Lender’s nominee, cannot assign the note at all, and also cannot assign the mortgage “on behalf of the Lender” if the Lender no longer had an interest to assign (e.g., if the note was sold at closing or securitized before default). Another thing that seems clear is, if the note and mortgage were truly assigned as of the date on the affidavit, it means that it was assigned after default, which may also be fraud.
    Most likely, it was securitized and the original paper note was destroyed, as it was marked paid in full.

    “Upon information and belief”

  2. Kona Tina,
    I know nothing, and if I think I know something, I know nothing. I also don’t give legal advice because I don’t know legal things.

    You have the opportunity to file a notice in the public of the FRAUD you’ve uncovered in the filing by the FDIC. These entities will get away with whatever you allow and a document in the public is considered true unless rebutted in the public. They know that. So for right now, FDIC has the ‘capacity’ to do what they did, unless and until you rebut that filing with facts of your own.

    Please don’t make it easy for them to harm you. You’d be surprised how much better your life will be if you’d stand up and speak, (not fight, they are looking for a fight), stand up and speak the truth on paper just like they are speaking lies on paper. It is illicit and illegal to file a fraudulent document. Go and correct your information. They are bearing false witness.

    Title it like this
    In the nature of 5 USC 522a, Data Integrity Board Hearing

    Notice is hereby given regarding the following fraudulent filings:

    File Number xxxxxxxxx Assignment– lender of record xxxxx did not execute assignment, as such, this assignment is void and unenforceable. …blah blah blah (several lines)
    [list pages of evidence and name them Exhibit A-ZZ]
    [Give a description of what the Exhibit reveals]
    Provide your evidence as part of your filing. If you make a mistake, correct it and re-file the original. They will mail the original documents back to you after they’ve scanned it in.

    Think if it like this.
    1 degree of separation. You and the Deed of Trust/Mortgage

    2 degrees of separation You throught Deed of Trust to the Bank/Servicer

    3 degress of separation You throught the Deed through the Bank/Servicer to securitization to investor.

    Try to settle your claim using the closest degree where you find the problem. FDIC playing with your Deed of Trust and making assignments. Hmm. Read your Deed of Trust, and it will say the ‘Lender’ can do things. Look up the Definition of the ‘Lender’ in the Deed of Trust, if it doesn’t state FDIC, then someone is messing with your ‘trust’ document and they have no right.

    no law impairing the obligation of contracts call be made.
    (i’m paraphrasing)
    Anyway, a trust document cannot be interfered with by other parties. Only the parties involved in the trust can do things, and they are limited by the terms of that trust.

    Do not let them make up their own rules and affect you outside of that trust agreement.

    State your claim of fraud in the public. Why? The trust is in the public, and the assignment is in the public, the sale will be in the public, the foreclosure will be in the public, and when they transfer your property it will be in the public. So who’s representing you in the public? You need to.

    Capacity. FDIC doesn’t have the ‘capacity’ to do what they’ve done? Then call it out in the public. You may find that they back off and not go any further. You may find that the Notice is more powerful than your complaint to any of those governmental agencies.

    An assignment is naming a new beneficiary. The current beneficiary is the only person who can transfer their right to a new beneficiary. The Trustee is just supposed to administer the trust.
    If you have no beneficiary, and someone who is not the beneficiary is trying to enter into your trust deed and transfer the beneficial right to someone else to ‘establish’ a new beneficiary to keep the trust alive; then your ‘trust’ is void and unenforceable. Call it out in the public via public notice.

    I always believed our cases could be won outside the courts.
    I still believe that.

    You should skim over documents to help you understand basic trusts and what is required for them to be valid.

    Trusts are as old as the creation of the constitution. Read some of those old 1800 and 1900 digital books on google books or check out this site for some basic ‘trust’ information

    this part is for anyone. Don’t limit yourself to a book in which the topic is specifically addressing what you ‘want’ to learn. There is at least a chapter or a page in every document that can give you keys and clues to your current situation and blow the lid off the fraud and increase your understanding.
    I went through (skimmed over) 43 pages of a document and found a paragraph that addressed mortgages and deeds and the trustee relationship and duties that expanded my understanding and the document was about corporations and partnerships. What I’m saying is everything you need to know is not in one place.
    Neil proves that by doing the analysis he does, all this information is spread around and we have to do our own discoveries to solve these problems ourselves.

    But we are awake!
    Light and Love

  3. Matt Weidner is a true patriot! His hard work to restore “order in the court” should be an example to all in the judiciary and defenders of the people… Matt has refused to except havoc and chaos… as it should be and will be!

  4. Kona Tina
    Their Capacity to maintain judicial action is and was QUESTIONABLE. Please go to the FDIC website and See these certificates and these will tell you where these stand;-
    1. CERTIFICATE # 29730
    2. CERTIFICATE # 58912
    In addition to this please read the PSA and Prospectus of your loan trust. If these assignments are after the cutoff date these are bogus.When the tale of too many hats(Erica Johnson seck) is involved these are 100% bogus.
    Read the prospectus and see the parties involved in the transactions.

    Please challenged every thing and assume nothing.

  5. To Kona Tina- as a former escrow agent , you never heard of an entity with no interest in a mortgage assigning that mortgage- this is exactly what MERS is doing, at least until their game is up, probably in 90 days or less, I am told. Also, Erica Johnson Sucks was deposed by Ice Legal(FLA) you should email them with the particulars of your phone conversation with the FDIC. I would think that her assignments now have negligible factual importance in light of her depositions.

  6. I too have a Indymac/Onewest mortgage that is in foreclosure. The FDIC assigned the mortgage to Onewest on behalf of Indymac on 2/26/10. I called the FDIC to ask how they can be assigning a mortgage if they sold all Indymac assets in March 09 to Onewest. The gal at FDIC said that the only reason they did the assignment was to establish the fact that FDIC didn’t have any ownership in the mortgage (hah!). I told her I had been an escrow agent and I never heard of an entity with NO INTEREST in a mortgage signing an assignment to someone else. This may be some fact that another person will need if the assignment to the servicer has been done by FDIC. The gal that signed the assignment on behalf of the FDIC was Ericka Johnson-Seck (the same gal that acts as VP for various lenders). What a fraudulent game they weave!

  7. KT,
    Please read the following and you will get the answer:-
    MERS act of assigning the mortgage instrument was invalid as it held no beneficial interest in the mortgage instrument for two reasons: 1) a security instrument, apart from the promissory note giving rise to the debt has no value because there is no debt by which it secures payment; and 2) MERS had no beneficial interest in the mortgage instrument that it could assign.
    In Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 274, 21 L.Ed. 313 (1872), the U.S. Supreme Court stated “The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” assigning the mortgage instrument was invalid as it held no beneficial interest in the mortgage instrument for two reasons: 1) a security instrument, apart from the promissory note giving rise to the debt has no value because there is no debt by which it secures payment; and 2) MERS had no beneficial interest in the mortgage instrument that it could assign. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”
    [Note that this does not include a nominee like MERS. There is a reason for that. The legislature intended to create certainty in contracts and actions on contracts. Using a nominee immediately creates the question of agency. The question of agency immediately raises the question of “who is the principal?” As long as that question exists, this statute is violated. If this statue is violated the deed of trust is void.]
    [Note also that without an accounting for third party payments to the creditor in the securitization chain who has succeeded to the position of beneficiary BECAUSE THE SUCCESSION IS SHOWN IN THE COUNTY RECORDS, is voidable because the amount is incorrect, which is a question of fact that must be judicially resolved, which is why NO NON-JUDICIAL sale of securitized property is appropriate.]
    A creditor is not a creditor unless they are owed something. A beneficiary is not a beneficiary unless they are a creditor. In the case of a mortgage note, a beneficiary is not a creditor unless it is the obligee on the note (i.e., the one to whom the note directs payment). There is no escaping this logic. The beneficiary must be an obligee of the secured obligation (usually the payee of a note), because otherwise the deed of trust in its favor is meaningless. Watkins v. Bryant (1891) 91 C 492, 27 P 775; Nagle v Macy (1858) 9 C 426
    “The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009)
    MERS(Mortgage Electronic Registration System Inc. is beneficiary on Deed of Trust, this makes Deed of Trust unlawful. MERS cannot be holder in due course, MERS is a break in the chain of Title and is Deed of Trust is void

    MERS’ role in acting as a mortgagee of record in nominee capacity is simply a tax evasion tool
    Note especially the reference to creating two entities to exercise collection and foreclosure instead of one thus reinforcing the argument of financial double jeopardy. The MERS deed would therefore be void, Thus there would be no security, probably no note and maybe no obligation either if the “Lender” was paid in full at closing by a third party in the securitization chain or if the derivative products were sold and insured.

    The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009)
    When MERS is on the Deed of Trust then there is No Corpus, No Trust,(1). There must be clear intention to create a trust (2). There must be a Trustor/Granter to create Trust (3). There must be a Trust Corpus or assets ( 4). There must be duties assigned to Trustee (5). There must be ASCERTAINED or ASERTAINABLE, beneficiaries 0r put another way, there is no such thing as a “STRAW” or “nominal” beneficiary and, without ASERTAINED or ASCERTAINABLE Beneficiaries the trust Instrument is VOID.( 6). Without Promissory note (Asset & Corpus) there cannot be a valid trust and without a valid Trust there is no longer need for any security called Deed of Trust. Corpus of the Trust is not there. (7). The Deed of Trust is a Trust Instrument and as such must meet certain criteria to be valid.
    In LaSalle Bank NA v. Lamy, 824 N.Y.S.2d 769 (N.Y. Supp. 2006), the Court denied a foreclosure action by an assignee of MERS on the grounds that MERS itself had no ownership interest in the underlying note and mortgage.
    In the case of In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev., 2009), .” (At page 9) The Court found that MERS has no ownership interest in the promissory note. The Court found that though MERS attempts to make it appear as though it is a beneficiary of the mortgage, it in fact is not a beneficiary. The Court stated “But it is obvious from the MERS’ “Terms and Conditions” that MERS is not a beneficiary as it has no rights whatsoever to any payments, to any servicing rights, or to any of the properties secured by the loans. To reverse an old adage, if it doesn’t walk like a duck, talk like a duck, and quack like a duck, then it’s not a duck.”
    The splitting of the note and the mortgage creates an immediate and fatal flaw in title, making mortgage unenforceable, when mortgage is unenforceable the foreclosure is void and a cloud on title exists in the presence of the court judgment to the contrary
    Vacating Judgment s procured by Fraud and all the other basic BLACK LETTER LAW flaws in the securitization of loans

  8. Don’t forget to check the date of the assignment and compare that to the ‘cut-off’ date in the Pooling & Servicing Agreement if your loan was securitized into a securities trust.

    This is very, very important. If your assignment was done after that ‘cut-off’ date, there are implications that may benefit you.

    Essentially, it also would mean that the terms of the Pooling & Servicing Agreement or Prospectus were violated and the investors on the other side were ‘sold’ a lie.

    If the securities trust was REMIC, then the IRS Fraud Investigator would probably like to know this.

    I sent him a letter with a copy of the PSA and the Assignment.

  9. KT,

    Mortgage and Deed of trust are the same thing (the security), the former is utilized in judicial states while the latter is the one for non-judicial states.

    This Assignement should have nothing to do with your Note. However, examine your assignment closely, it may contain language saying that “..the Note is being transferred together with this Assignment..”, or something similar.

    Many Judges have ruled that the Assignment of the DOT does not automatically transfer the Note, but some have ruled otherwise.

    I personally do not believe that the Note gets automatically transferred and I think that I can speak for most -if not all- of this blogspot followers when I say this.

    This is a matter for which clarity is much needed, people are working towards obtaining it.

  10. I have a question, any help would be GREATLY appreciated!!!

    I have a mortgage assignment from my lender to MERS, it states, Assignment of Mortgage/Deed of Trust, all others I have researched says just assignment of mortgage…when MERS assigned it back to CitiMortgage (servicer) prior to FC it states just assignment of mortgage….With Deed of Trust added to assignment, does this mean the MERS claims to own the note??

    Newbie here…3 months into FC…just starting to learn the ropes,
    thanks in advance for any information out there that might explain this to me!


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