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Livinglies fulfills its commitment to becoming the #1 internet resource in foreclosure defense and offense (claims for damages for wrongful foreclosure or improper lending practices).
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DON’T ASSUME YOUR LOAN IS IN DEFAULT — IT PROBABLY ISN’T EVEN IF YOU DIDN’T MAKE A PAYMENT!
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DON’T ASSUME YOU OWE THE MONEY!
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DON’T ASSUME YOU ARE UNDERWATER — YOU HAVE CLAIMS THAT MAY MORE THAN OFFSET THE LOSS!
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DON’T ASSUME YOU HAVE A MORTGAGE — YOU MAY HAVE A DEBT BUT IT PROBABLY IS UNSECURED!
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DON’T ASSUME THAT YOU DID SOMETHING WRONG!
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DON’T ASSUME YOU WILL LOSE! THERE IS HOPE!!!!
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AND WE HAVE THE TOOLS NOW TO HELP YOU—–
SEE OUR YOU-TUBE VIDEOS FOR FREE! FORMS, CASES, STATUTES FOR NO CHARGE ON THIS SITE. WE WANT YOU TO WIN, NOT JUST DELAY. LAWYERS, JUDGES AND GOVERNMENT OFFICIALS ARE GETTING ON BOARD FOR PRINCIPAL REDUCTION EVERY DAY. IT WON’T BE LONG BEFORE WE REACH CRITICAL MASS!
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WE CAN HELP! YOU CAN SHOW BREAKS IN CHAIN OF TITLE, ABSENCE OF ASSIGNMENTS, REPORTS TO INVESTORS THAT YOUR LOAN IS NOT IN DEFAULT (BECAUSE OF THIRD PARTY PAYMENTS), FABRICATED DOCUMENTATION AND MORE!
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YOU MUST FILL OUT THIS FORM TO GET THE NAME OF THE TRUST
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Don’t be so fast to leave your home just because you are “behind”. Those payments might not be due at all or if they are, they are probably not owed to the people you are paying.
We are very pleased with the responses from our devoted readers, many of whom are direct contributors to this site. The insights, forms and analysis from the many soldiers — lawyers and laymen alike has made this site the premier resource for assisting distressed homeowners in gaining relief — sometimes total relief — from Mortgages based upon false appraisals, using predatory lending practices and withholding vital information from borrowers at the closing table.
How many borrowers would have signed on the dotted line if they had known that they were signing a ticket for unprecedented and unjustified fees and profits earned by unknown parties — sometimes as much as the mortgage itself?
How many investors would have put up the money if they had known that only some of it was being used to fund mortgage transactions and that the rest was being kept as fees, profits and reserves to pay them out of their own money? EDUCATE YOURSELF! DOWNLOAD THE ATTORNEY WORKBOOK WITH FORMS, DISCUSSION, PRESENTATION SLIDES, GRAPHS, GLOSSARY AND STATUTES OR BUY THE LAWYER\’S DVD CLE FULL-DAY SEMINAR SET
The victims here are all homeowners and all consumers and all investors and all taxpayers. The companies seeking to foreclose never owned the mortgage, note or obligation. They have no right to your property or the proceeds of sale to your property. Use this blogsite as your resource to educate yourself. Consult with local counsel. AT LEAST START WITH A LOAN SPECIFIC TITLE SEARCH WITHOUT COMMENTARY AND SEE FOR YOURSELF WHERE THE BREAKS ARE IN THE CHAIN OF TITLE. SUBSCRIBE AS A MEMBER TO GET MULTIPLE BENEFITS AND DISCOUNTS Get a forensic review NOT just a “TILA loan audit” and challenge EVERYTHING!
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Filed under: bubble, CASES, CDO, community banks, CORRUPTION, currency, Eviction, expert witness, Fannie MAe, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, inflation, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, taxes, workshop | Tagged: bankruptcy, countrywide, disclosure, Eviction, foreclosure, foreclosure defense, foreclosure offense, housing, Lender Liability, predatory lending, principal reduction, quiet title, rescission, securitization, TILA |
I realized that the guy I’ve been sending anonymous, dirty emails to knows who I’m. My signature, which incorporates my full name, was instantly extra to the finish of each and every e-mail.
Three Years already! How time fly’s when your having fun. Great Work Neil, thank you for all you have done.
[…] 3,100,000 visits, moving faster, Our 3rd Anniversary! Thank You READERS! […]
WE SHOULD ASK FOR MONETARY DAMAGES NOT THE PROPERTY BACK. THE PROPERTY IN MOST CASES IF NOT NOW IN TWO YEARS WILL BE WORTHLESS.
THINGS ARE GETTING WORSE NOT BETTER.
WHATEVER OUR PROPERTIES ARE WORTH NOW THEY WILL BE WORTH LESS AT LEAST HALF OF TODAYS OVER ARTIFICIALLY INFLATED PRICES.
SAD BUT TRUE
Need an attorney that “gets it” in Chicago. Any takers? Lots of irregularities.
CO MINGLING OF FUNDS.
NEVER AGAIN
GOD BLESS AMERICA
there so are a few good men. Neil your site has been my bible, Beth Findsen is a doll, a very very smart one. Just wanted you and bloggers included he info i glean is an awesome and essential source of support during what has been and continues (sadly) to be THE biggest fight of my life. As Winston Churchill once said “i will never surrender” just got the Tilte report thankyou, couple of surprises there!
Doing A QWR to the lender here and i need to check to see for OHIO what the time frame is that i should give them to respond.. ???
thank you in advance !!!
sharon
The derivative mass destruction is world wide –
http://www.bloomberg.com/apps/news?pid=20601109&sid=a30KHZKX1WJo
Hello Everyone!
I know it has been a while since I have posted…
We have been working hard… and are having an incredible success rate with saving homes in all states!
Listen to the replay of a webinar that explains how we do what we do!
http://drop.io/ftstemp
Keep up the good fight… You can do it!
Allan Hennessey
Author
StopForeclosureToolbox.com
800-552-9313 Ext 111
Hi All! Thank You so much for this website! The information given for free is unbelievable. I am now a housewife who knows about securitization and credit default swaps and why it applies to our loan!
We are in need of an Attorney in Cincinnati Ohio. I believe we have a case for Offensive action. I have spoken to a dozen or so and none of them seem to get what I am talking about 🙁
Our lender of record is First Franklin the servicer is Select Portfolio Servicing. Our loan was sold or transferred to First Franklin Financial Corporation. There is no assignment recorded in my County. The recorder lists First Franklin and MERS as mortgagee. The broker is out of business but the owner still lives here. The title company is gone for tax evasion but is possibly a renamed LLC at the same address. The Appraisal co is still in business with the same adress and Agent but now an LLC after being shut down for tax issues as an Inc.
Please get in touch if someone can refer an Attorney in Cincinnati or is an Attorney. I am not interested in loan modification or any of the new programs in place. We are facing foreclosure because of this process. We are certain that Court is the only way we can get relief.
Please contact at cocothenewchi@yahoo.com .
No “maidens”, just “whores”
Hey! go to Bloomberg News. The New York Fed just released the contents of the Bear Stearns/AIG Bailout concerning the “Maiden Lane,Maiden Lane II, and Maiden Lane III”. I found the credit default swaps for my trust. Go take a look.
I am collecting any assignments or other docs with the name PAT KINGSTON on them. I have two from my personal file that have PAT KINGSTON listed as asst. sec. and asst. v.p. of two different companies (one being MERS) and the signatures are different. I also have three others thanks to you good folks where he / she is listed as asst. v.p. of three more companies. Any help will be appreciated since I have a hearing next week and want to have as much ammo as possible. Thanks
Mike,
Send me your email and I’ll send you Neil’s list and my own of attorneys in S. California you can contact to send clients to.
Thanks,
Charles Cox
charles@bayliving.com
Hi Mr.Garfiled,
I need to get a hold of you or a member of your staff immediatly, i have a credit repair business and have had many clients here in california ask me for help with thier foreclosures. I do have a commercial real estate backround and also a finance backround, and have been reading living lies for some time now. Based on everything you say and my own research and knowledge of the banking sysytem specifically real estate finance, i think i can be of significant assistance to my clients. But i am having a difficult time finding an attorney who gets it. This is why im asking for your help. We are in Southern California. Any help or advise is greatly appreciated, also would love to attend your next work shop in the southern california area. Thank you in advance for any assistance.
Regards,
Mike Chamasmani
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David,
That could be but the loan servicer is not foreclosing on me, who is foreclosing on you? I am not so sure that the foreclosing party is exempt in my case.
Dan Edstrom
dmedstrom@hotmail.com
I think I answered my own question:
The state made exemptions easy and available to every loan servicer in the world. All they needed to do was apply for the exemption and check off the qualifying condition.
So they all became exempt weeks after the June 2009 law went into effect.
So much for that “consumer” legislation.
Responses to my question below:
davidwood100@yahoo.com
I’m a pro se litigant constructing my suit. The following from a lawsuit I’m reading:
“Furthermore, The California Foreclosure Prevention Act, which became effective June 15, 2009, delays the non-judicial foreclosure process by requiring an addition 90-day delay (beyond the current three-month period) between recording a notice of default and a notice of sale for certain residential properties. The law applies to:
1. Loans recorded between January 1, 2003 and January 1, 2008, inclusive,
2. The borrower occupies the property as his/her principal residence and occupied it at the time the loan became delinquent;
3. A notice of default has been recorded on the property; and
4. The loan is secured by a first lien on residential property that is located in California.”
Ok,
My loan closed in Jan of 2006
It was owner occupied continuously
A notice of default recorded November 2009
Secured by a first lien in California.
Notice of Sale is now recorded. Am I right that this is a clear violation of California law which requires 6 months rather than 3?
What can the plaintiff do with this? I’ve got guts, but not enough to let the auction go.
I have SOOO much I want to tell everyone and it’s all good too!!!
I cannot until we are completed with our Quiet Title Suit which is in the final stages!!!
We are dealing with DOCX too and I cannot WAIT to give these to our Attorney!!!
What’s the saying….
“PIGS GET FAT AND HOGS GET SLAUGHTERED”
Soon we will all have them on a silver platter thanks to this wonderful website…
Thanks Neil!!!
Tracee,
There are hundreds, possibly thousands of these BOGUS Docx / LPS assignments all across the country. People are losing their homes to these criminals. As I said before, and will say it again, where are the damn Feds…
The Whole Country is BOGUS – Fabricated Mortgage Assignments All Over the Country
4closureFraud
Oh wait there’s more on DOCX and “BOGUS”…
Oh my…
Another DOCX assignment with Linda Green/Tywanna Thomas acting as VP/AVP for the following company…
“BOGUS ASSIGNEE FOR INTERVENING ASSIGNMENTS”…
Pretty much sums up how “Bogus” DOCX actually is!!
This should be the “smoking gun” for a lot of you…it looks like they just “cut and paste” a company as needed and insert in place of “BOGUS”…
What is even more sad is that this was RECORDED against this property!!!!
http://www.scribd.com/doc/26661237/Beyond-Bogus-Docx-Assignment-of-Mortgage-Bogus-Assignee-for-Intervening-Asmts
Can anyone forward to me a good quiet title compaint form or template for use in California?
David
davidwood100@yahoo.com
Frustrated Owner Bulldozes Home Ahead Of Foreclosure
Moscow, Ohio – “Terry Hoskins has had troubles with his bank. But his solution to foreclosure might be unique.”
“Hoskins said he’s been in a struggle with RiverHills Bank over his Clermont County home for nearly a decade, a struggle that was coming to an end as the bank began foreclosure proceedings on his $350,000 home.”
More at the link.
Xhttp://www.wlwt.com/news/22600154/detail.html
The American people are a hard working and fair minded people. The only reason that something like this happens is because of injustice.
B of A is up to their old tricks…
Unfortunately this is becoming the “rule” and not the “exception…
http://www.tampabay.com/news/business/realestate/article1072632.ece
Is anyone working to get around forced arbitration? I’m in Arizona.
Richard 1-27-10: I emailed Elizabeth Warren 1-month ago as well Barack Obama and my Senator and Rep .. directing them to Neil’s website here as the #1 source & in effort to get our economy and the Congressional Oversight Panel’s questions to all those pretender lenders to be focused on MERS and the fraud. She is gratious and replied last week, as did Gov Jim Doyle. Yet Elizabeth told me Congress only gave her power as Chair to ask questions & not act. Obama’s now making a middle-class task force, I call and email him weekly. I think they want to act but need the direction of Neil’s expertise; which apparently young HUD Secty Donovan lacks by now infusing $20B into local banks yet nothing for principal forgiveness & reduction to homeowners, thus instantly reviving the economy as our credit has been damaged & that would allow us to borrow & give banks status to lend based on our home
equity to borrow against & start anew(?) and instilling TRUST in our communities, banks, small business. We really want to grow, but are hold back by MERS scam which must be shutdown Now! Will Barack listen this month to shut down their defrauding us??
Todd Schmidt
Appraisal/Eminent Domain Expert Witness
HeritageAppraisal@gmail.com
Neil,
You need to get the video of Elizabeth Warren when she was on the daily show last night 01/26/10 and post that on the site. Because she did a great job explaining the financial problems, just like you!
Rich
so many comments in here…. i just read this time… good topics….
Hi, I post so much I forget to go back and check! Thanks for the advice. I sent an email to the Clerk to see if I can be notified of anything sneaky.
Dave
To Dave ,
My ” ECF” in Orlando Circuit Court ..does send me email alerts everytime someone files anything in my case…..the service is free.
” Keep up the Fight ”
LF
I’m lucky that I can access Clerk of the Circuit Court records on line. I need to be diligent in checking the website for new filings. I think there is a way to have email alerts sent in anything new is added (for a fee).
Come Monday, that is where I’m going to focus my efforts – mining through court filings.
You just gave me another idea…is there a way to place an enforceable requirement that I be timely notified of anything that gets filed? It seems there should be and I’ll add that to my list of things I need to find out.
Hmmmm….makes me wonder what should I be doing without telling “them”.
Unless I come up with something that compels me otherwise…I think next week I’ll send out the QWRS.
Thanks, Dave
To : Dave ,
” You stated :
I sent my Right of Rescission Letter and indexed in the appropriate Court here in FL ….after receiving a foreclosure summons in July 2009. Haven’t heard much of anything since then. ”
Dave be very careful when you don’t hear anything from your Plaintiff’s. I answered my summons …the next notice I got ..was the date for Sale for my house.
” The Florida Default Law Group ” to me and to many others is an outright …white collar – Criminal Enterprise. …Gran Theft Home Stealing is their main …M.O.
They will sneak behind your back and request a unilateral hearing . ……….Whats that?
.[ they will request a summary judgment hearing ,and do not send you a notice You don’t show up for the S.J hearing , and your plaintiff wins the judgment by your defaulting. ]
That happened to me a year ago…and it’s very hard to Vacate the Judgment…
I live in Orlando Florida and I joined the ECF on line.
Circuit Court [ Electronic Court File ]
You will receive notice of every paper -motion-etc..that is filed in your case.
LF.
I tried to clear up my question but I think I made it worse. I have yet to send a QWR…and am trying to decide if I should do that now. It’s been 4 months since the foreclosure sale was stopped in RI and 5 months since I received my foreclosure summons in FL. The response I received regarding my Rescission Notices were merely payoff statements that included eye-popping penalties and legal fees.
While walking back from my mailbox today I opened a letter from my homeowners ins. co. They say they have submitted the bill to lender and not been paid. I have 12 days to decide whether or not to pay and right now I think it’s best that I do pay it. I paid the property taxes the day I received the statement even though it said it was not a bill and would be submitted to lender.
Hopefully someone can put their 2 cents in regarding sending a QWR (and to whom) at this stage.
I really wish those of us on the Treasure Coast would get together and form a group locally. It would be great to establish teams and actually attend and observe what happens at these hearings.
Dave
Hi Usedkarguy,
I don’t think I explained my situation clearly. If I sound confused it’s because…I’m confused 😉
Since February of 2009 I played along with the loan modification hoax sending forms, resending forms, faxing, calling the lender every week, etc. I consulted with a bunch of HUD Counselors. The whole bit.
I even sent letters to my Senator/Congressmen who, to my surprise opened an inquiry with the Comptroller of the Currency on my behalf. A response to the inquiry by the OCC from the lender’s “Default Executive Office” to the OCC (which I was cc’ed) was riddled with misleading and false statements that I subsequently proved in my written response.
Also the Lender’s “Default Executive Office” suggested in their response to OCC that I resubmit yet another “workout package” despite the fact that I had already been served a foreclosure summons!
In the mean time, by the Grace of God, I found this website.
With the help of some very kind (and well-versed) contributors to this blog I managed to forestall not 1 but 2 foreclosures via Rescission, Emergency motions to dismiss, followed by a Cease and Desist and finally Lis Pendens indexed in two states. One in RI (non-judicial) and 1 here in FL I pounded the lawyer with faxes of everything I had indexed in RI EVERY SINGLE DAY. On the very same day the auction was scheduled it was canceled!
The original lender on the house in RI has stated in writing we never had a mortgage with them, when in fact they were the original lender and we subsequently did a refi with them. That institution has since sold it multiple times.
RE: The house in FL we’ve got 1 HUD-1 statement that states our combined income as 0.0 and another with our true income which was clearly insufficient. Yes, we made some very bad mistakes. The house evaluation in RI turned out to be off by a mere $400K (which we counted on to pay off the FL house in full) My estimate is the FL house was over-valued by at least $200K.
Now…I’m wondering what to do next…sifting through SEC, trying to find a good lawyer, reading this blog, Neil’s book, etc. I feel like I need to take some affirmative action…but unsure what that is.
What makes it even more fun is the fact that I am on Temporary Total Disability and can’t work. The Worker’s Comp Insurance Co. is synonymous with Credit Default Swap Swindles. They’ve once denied my benefits, then had to deny denying them when I got an attorney per THEIR own Doctors advice and they continue to portray me as a loafer seeking a blissful carefree existence at their expense.
This is not my tenth “slip and fall”…I was struck by lightning while at work! Funny thing is…we moved here for the weather! Gimme a chance to catch up folks…someday I hope to learn something that will help others.
Thanks to all!
Dave, that eerie silence you hear is the result of the QWR. They are not contacting you because of the (90 day?) stop-collection result of a properly written demand letter. There will be continued efforts at a modification, deed in lieu, payment plans, etc., but nothing will change. Collection efforts will resume. They will initiate the foreclosure action eventually. Save your money for the attorney.
OK, we tried but didn’t stop the third NOD; our home was auctioned this past Monday. The lender bought it, as there were no bids that morning, but there was a beginning bid given by the ‘auctioneer’, (guy with paperwork who originally said the auction was postponed).
We failed to get a TRO, in spite of blatant CRIMINAL violations that are well documented. We failed because, as Pro Se Plaintiff’s we combined the motion for a TRO and a motion for a Show Cause Hearing in the same document; EXACTLY the way the attorney we paid $6,000 to stop the second NOD last spring. It seems that to some judges, the Supreme Court Ruling that Pro Se’s should not be held to the same standards as attorneys doesn’t mean squat.
My question is what can we still file the RESPA QWR that we paid someone to do two plus months ago, (who flaked and didn’t do it), even though we technically no longer have a mortgage with the lender?
Or would we have to wait until we get the foreclosure reversed later down the road, (we will NOT be PRO SE for that!).
————-
On another note, I want to thank Dave for bringing to the blog the info about the article on the ABA BJ site about QWR’s.
“ABABanking Journal.
http://www.ababj.com/briefing/scare-mail-beware-of-qwr-s.html”
I took the fifteen minutes to read it and ANYONE preparing a QWR or considering a QWR should read this to get an idea how the ‘other side’ is being counseled on how to respond to QWR’s.
The article is a repost of a Aug 6, 09 posting, with notations and comments added. The current author doesn’t say if he wrote the original or if the notations & comments were added, but he gives credit to a summer intern group for their legal research.
There was one unsubstantiated, out of context statement that severely troubled me – it said, “In fact, loan accounts that are deemed in default are generally considered to be out of the scope of RESPA’s escrow and servicing requirements.”
This is troubling, but it was tagged on to some comments about a QWR not stopping a foreclosure, but unlike other ‘fact’ statements, it had no citation.
I would certainly like to hear a rebuttal analysis from Neal, et al or from any attorney(s) currently utilizing a RESPA QWR.
I am also looking for a litigator in OREGON, please help if you know of anyone. We have a strong case of blatant disregard of the law, well evidenced and documented. Our case is MUCH more that MERS, trust deed or securitization shenanigans.
Thanks to all, in advance,
GeoD
(This a copy/paste from the “Foreclosure Defense Forms” section…. I posed the question there originally but there isn’t much conversation on that thread so I apologize for the re-post. Things are just too quiet and feel the need to do something)
As always, thanks Brad, Neil, and all the contributors to Livinglies.
Been reading the blog all day and couldn’t decide where to put this.
I have a question (actually more like a thousand questions!) but before I ask I want to say I just purchased Neil’s Homeowner’s Work Book and must say it is worth every penny. If I behave maybe Santa will buy me the Lawyers Hand Book.
I sent my Right of Rescission Letter and indexed in the appropriate Court here in FL after receiving a foreclosure summons in July 2009. Haven’t heard much of anything since then. Now I am struggling to decide if I should send the QWR in Neil’s Book. While rummaging for an answer I came upon this rather jaundiced view of QWRs on ABABanking Journal.
http://www.ababj.com/briefing/scare-mail-beware-of-qwr-s.html
Would anyone care to comment on whether or not a QWR would be a wise move at this time? Should it be notarized and to whom should I send copies? I’m learning as fast as I can and hope to some day add something to the blog besides questions.
Sincerely, Dave
chunga85@ h o t m a i l .com
need your opinion,not looking for legal advise,
judge asked plaintiff’s lawyer to prove standing (provide necessary documents to prove they have a right to foreclose),they asked for a 10 day extention which is up in a week.Is this a right time to send them a QWL???
thanks
steve
The Note, the Transferee and the Wardrobe
By: Edward Cherry © 2009.
1. The Mysterious Plaintiff
Imagine Wells Fargo Bank, N.A. as Trustee for REMIC Trust 2007-CP1 Asset-Backed Certifi-cates, Series 2007-CP1 is suing your client for foreclosure of real property and to re-establish a lost note pursuant to Florida Statutes §673.3091.
The Plaintiff alleges that it is the legal and/or equitable owner and holder of the Note and Mort-gage by virtue of an unrecorded assignment. In support of its Motion for Final Summary Judg-ment, the Plaintiff has attached a copy of a mortgage identifying UOWNIT.COM as the Lender, MERS as the Nominee, and your client as the Mortgagor and a Copy of a “Pick-A-Payment” Adjustable Note issued by your client and payable to UOWNIT.COM without any indorsement specifically to the Trust or in blank.
An affidavit is submitted by an individual who is employed by America’s Home Servicer attest-ing to the amounts due and owing and that the allegations contained in the Complaint are true and correct based upon the affiants personal knowledge of the books and records of the Plaintiff that are kept in the ordinary course of business.
The Note and Mortgage are dated February 21, 2007 and a search of the records maintained by the Florida Secretary of State indicates that UOWNIT.COM has been administratively dissolved since September 2007.
The hearing is special set in 20 days in front of Judge Sasser.
2. Narnia
In Florida, the person holding the mortgage must have the right to enforce the secured obligation in order to foreclose. In the example above, the right is alleged however the attached exhibits contradict the allegations contained in the complaint. Or do they?
The Florida Uniform Commercial Code speaks of the transferable right of enforcement of the secured obligation, commonly referred to as the “promissory note”. Generally, the right of en-forcement of the promissory note is transferable only by delivery of the instrument itself to the transferee.
The key issue is transfer. Defense counsel must identify the circumstances surrounding the transfer of the Note. This is important in instances where evidence exists that the note has been transferred such as when a Trust is suing, or in instances where evidence is not readily apparent that the note has been transferred such as in the case of Wells Fargo Bank, N.A. suing in its own name, or Chase Home Finance, LLC as successor in interest to JPMorgan Chase Bank, N.A. suing in its own name when the Note and Mortgage is titled in the name of JP Morgan Chase Bank, N.A.
In the case of a securitization scheme, the process is as follows:
The originator of the “loan” UOWNIT.COM transfers the asset to a Special Purpose Vehicle such as the Wells Fargo Asset Acceptance Corporation at face value or at a discount. The Asset is then transferred to a Qualified Special Purpose Vehicle Trust such as the REMIC Trust 2007-CP1 Asset-Backed Certificates, Series 2007-CP1 or a Records Custodian serving as Agent to the Trust under the pooling and servicing agreement mentioned supra.
The rights of the instrument holder are detailed in the pooling and servicing agreement that also includes the declaration of trust. In order for the Trust to acquire rights to the instrument, the instrument must be transferred. “An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument”. F.S. §673.2031(1).
Accordingly, the instrument must have been transferred to the Trust in order for the Trust to have acquired rights to the instrument with or without an indorsement. Addressing the enforceability of the instrument, F.S. §673.3011 sets forth:
To be a “holder” of an instrument, one must possess the note and the note must be payable to the person in possession or to bearer. F.S. §671.201(21)(a) (emphasis added). The “holder” option is not available in the event that the note is not payable to the Plaintiff or payable to bearer.
This option is not available for Wells Fargo Bank, N.A. has affirmatively pleaded that the Note is lost. The issue is whether Wells Fargo Bank, N.A. can equitably or legally be the holder of a lost Note. This writer thinks that they cannot, however, it does not preclude them from enforcing the Note in certain circumstances to be discussed in a moment.
Let us assume however that Wells Fargo Bank, N.A. notices the court that it intends to produce the original Note at the hearing. However, the Note is still not indorsed specifically to the Trust. F.S. §673.3011(2) provides that a nonholder in possession of the instrument with the rights of a holder may enforce the note. In this instance, Wells Fargo Bank, N.A. as Trustee is a nonholder in possession of an instrument with the rights of a holder. However, the official comments indi-cate that this is not enough and that Wells Fargo Bank, N.A. must prove the transaction by which they acquired the note:
Assuming that Wells Fargo Bank, N.A. cannot produce the note as it has been allegedly lost, sto-len, or destroyed note, the code allows a Plaintiff to re-establish the lost note. F.S. §673.3091 sets forth:
Re-establishment however is the first step, because in the above scenario, the re-established Note will not a holder make. In the event that the UOWNIT.COM note is re-established, the Trust will still be a nonholder in possession of the note if an only if transfer was accomplished and must still “prove the transaction by which it acquired the note”.
3. Practice
The fact remains that the Plaintiff must prove the existence of the underlying debt obligation, a default, and that they are a person entitled to enforce the instrument.
In addition, assuming that the Plaintiff is not a holder in due course, the Defendant should raise all defenses that would be available if the Plaintiff was enforcing a simple contract. F.S. §673.3051(1)(b).
Such defenses include Payment, Failure of Consideration, No Damages, and Fraud in the In-ducement. In the event that a transferee Plaintiff exists, the circumstances surrounding the ac-quisition of the Note are relevant not only to investigate the nonholder in possession or the rees-tablishment of a note that does not contain an indorsement but to establish whether contract de-fenses exists under F.S. §673.3051(1)(b).
When transferees are involved, the Evidence Code relating to personal knowledge of Books and Records and Best Evidence is important. Motion’s to strike affidavits that attest to the books and records of the original payee on the Note are important.
Objections to Discovery that relate directly to the existence of the debt, circumstances surround-ing the default, and the rights of the Plaintiff to enforce the note should be met immediately with either motions to compel, fine crafted Request for Admissions, and a Motion to Strike Affidavits submitted in support of any Motion for Summary Judgment. In addition a Motion in Limine to Exclude Evidence from trial should be filed once Summary Judgment is denied.
Sections of the Florida Uniform Commercial Code.
671.103 Supplementary general principles of law applicable.–Unless displaced by the particular provisions of this code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.
671.201 General definitions.–Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other chapters of this code which apply to particular chapters or parts thereof, have the meanings stated. Subject to definitions contained in other chapters of this code which apply to particular chapters or parts thereof, the term:
(21) “Holder” means:
(a) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession;
(24) “Money” means a medium of exchange currently authorized or adopted by a domestic or foreign government. The term includes a monetary unit of account established by an intergovernmental organization or by agreement between two or more countries.
(29) “Purchase” means taking by sale, lease, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift, or any other voluntary transaction creating an interest in property.
673.2011 Negotiation.–
(1) The term “negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.
(2) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.
History.–s. 2, ch. 92-82.
673.2031 Transfer of instrument; rights acquired by transfer.–
(1) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
(2) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
(3) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.
(4) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this chapter and has only the rights of a partial assignee.
History.–s. 2, ch. 92-82.
673.2041 Indorsement.–
(1) The term “indorsement” means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of negotiating the instrument, restricting payment of the instrument, or incurring indorser’s liability on the instrument; but, regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement. For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.
(2) The term “indorser” means a person who makes an indorsement.
(3) For the purpose of determining whether the transferee of an instrument is a holder, an indorsement that transfers a security interest in the instrument is effective as an unqualified indorsement of the instrument.
(4) If an instrument is payable to a holder under a name that is not the name of the holder, indorsement may be made by the holder in the name stated in the instrument or in the holder’s name or both, but signature in both names may be required by a person paying or taking the instrument
for value or collection.
History.–s. 2, ch. 92-82.
F.S. §673.3011 Person entitled to enforce instrument.–The term “person entitled to enforce” an instrument means:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).
A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
History.–s. 2, ch. 92-82.
673.3021 Holder in due course.–
(1) Subject to subsection (3) and s. 673.1061(4), the term “holder in due course” means the holder of an instrument if:
(a) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
(b) The holder took the instrument:
1. For value;
2. In good faith;
3. Without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;
4. Without notice that the instrument contains an unauthorized signature or has been altered;
5. Without notice of any claim to the instrument described in s. 673.3061; and
6. Without notice that any party has a defense or claim in recoupment described in s. 673.3051(1).
(2) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under subsection (1), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.
(3) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken:
(a) By legal process or by purchase in an execution, bankruptcy, or creditor’s sale or similar proceeding;
(b) By purchase as part of a bulk transaction not in ordinary course of business of the transferor; or
(c) As the successor in interest to an estate or other organization.
(4) If, under s. 673.3031(1)(a), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.
(5) If the person entitled to enforce an instrument has only a security interest in the instrument and the person obliged to pay the instrument has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.
(6) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.
(7) This section is subject to any law limiting status as a holder in due course in particular classes of transactions.
History.–s. 2, ch. 92-82.
673.3031 Value and consideration.–
(1) An instrument is issued or transferred for value if:
(a) The instrument is issued or transferred for a promise of performance, to the extent the promise has been performed;
(b) The transferee acquires a security interest or other lien in the instrument other than a lien obtained by judicial proceeding;
(c) The instrument is issued or transferred as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due;
(d) The instrument is issued or transferred in exchange for a negotiable instrument; or
(e) The instrument is issued or transferred in exchange for the incurring of an irrevocable obligation to a third party by the person taking the instrument.
(2) The term “consideration” means any consideration sufficient to support a simple contract. The drawer or maker of an instrument has a defense if the instrument is issued without consideration. If an instrument is issued for a promise of performance, the issuer has a defense to the extent performance of the promise is due and the promise has not been performed. If an instrument is issued for value as stated in subsection (1), the instrument is also issued for consideration.
History.–s. 2, ch. 92-82.
673.3051 Defenses and claims in recoupment.–
(1) Except as stated in subsection (2), the right to enforce the obligation of a party to pay an instrument is subject to:
(a) A defense of the obligor based on:
1. Infancy of the obligor to the extent it is a defense to a simple contract;
2. Duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor;
3. Fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms; or
4. Discharge of the obligor in insolvency proceedings;
(b) A defense of the obligor stated in another section of this chapter or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract; and
(c) A claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.
(2) The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in paragraph (1)(a), but is not subject to defenses of the obligor stated in paragraph (1)(b) or claims in recoupment stated in paragraph (1)(c) against a person other than the holder.
(3) Except as stated in subsection (4), in an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument (s. 673.3061) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.
(4) In an action to enforce the obligation of an accommodation party to pay an instrument, the accommodation party may assert against the person entitled to enforce the instrument any defense or claim in recoupment under subsection (1) that the accommodated party could assert against the person entitled to enforce the instrument, except the defenses of discharge in insolvency proceedings, infancy, and lack of legal capacity.
History.–s. 2, ch. 92-82.
673.3091 Enforcement of lost, destroyed, or stolen instrument.–
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
History.–s. 2, ch. 92-82; s. 1, ch. 2004-3.
LOST NOTE AND ASSIGNMENT GIBBERISH
By M. soliman
Consideration is a critical element for the transfer of the assets. A gain on sale is entered by comparison versus cash accounting for points and fees. A gain on sale will assume ownership prior to sale. The date of sale should be only entered by an accounting verification of the assignment recording. (declaratory relief for the pleading).
I walked away from two separate securitizations for which I was offered a piece of the underwriting and back end. That was 1998 (REMIC through Bear and 2007 and for an anticipated CDO registration) Counsel for the latter was Frosch Esq. /securities and Pham Esq. / as General Counsel. For over a decade I have touted that Securitization does not work!
What was at risk? A homeowner can argue their house is paid for and the registrant has no right to the collateral! A sale is a sale and the lender forever walks away from the transaction. Repo under any circumstances will not permit the sale to conclude as anything other than debt and borrowering.
Assignments are required to trigger recognition. The only assignment I care about is the one from the seller to the buyer or Indentured Trust. Therein I asked the FDIC why it trails so late in the game; only recording days before a TRUSTEE SALE. No answer was forthcoming and that tells me the fraud is greater than we think; or the Trust was set up to cover the banks while they circumvent FIERRA and “put” back to Wall Street investors only impaired assets.
The consideration was received in cash by the lender. This is to tell you the delayed assignments are violating GAAP and Enron could not use this as an affirmative defense.
Gain-on-sale accountings are the requirement under FASB 125 to recognize upfront gains or losses on securitization of financial assets. Justifiably so, gain-on-sale accounting is being challenged y the smart money on other web sites. These challenges are from certain instances rapid decline in profitability. Another consideration for GAAP here is failure due to the element of subjectivity inherent in such estimation.
That subjectivity is the result of perception and forcing upon the courts the merits of MERS for delayed recordings and assumed assignments (of sales) that are not entered onto ledger and hidden behind the “nominee”.
Any attorney seeking to take a class action suit to fruition is a moron if with no understanding of the full impact and scope of GAAP and gain on sale accounting. The lost note gibberish and corn on the kop nuclear antidotes are more lost than the note nonsense. If I can crush the arguments for a lost note and satisfactory condition for a note affidavit so too will Wall Street top guns representing their clients against the class.
Note however, where several securitizers have in fact announced recently announced discontinuing “gain on sale” accounting. The discussions are highly technical and subject those familiar with FAS 125 and related accounting pronouncements.
The FASB and the SEC staffs (EITF D-69) determined that gain (or loss) on sale accounting is not elective in a securitization that is accounted for as a sale. In other words, prepayment, loss or discount rate assumptions may not be tailored so as to force a zero gain. Securitizers should remain cognizant of making a disclosure as to the lack of ability to evaluate the creditworthiness of the pool. When reporting zero up-front gain, the securitization assumes a structure as financing rather than a sale in virtually every case.
What does this mean to you? Forget a modification and “Win in court “back your home”. “Lose” and the lender or registrant falls into bankruptcy with your bringing a citizen’s private right to action and a call to receivership.
Guidance is limited for accounting practitioners to determine when “it is not practicable to estimate the fair value of liabilities.” Look, FAS 125 does not give guidance on the subsequent accounting, leaving many questions unresolved. If income not to be recognized at all until it becomes practicable to estimate the fair value of the liability so how is it the registrant does not violate one accounting rule leading to another? I refer to this as “Morton’s Fork”.
Have we not said to rely on the auditor attestation reports provided by the accountants that compile the annual reports through the 10k audits? Therein is your proof with violations of 1122AB that falls under SEC enforcement.
Now that Wall Street is gone and many investors have walked away…assets are written down to zero in some cases and the collateral is viewed as a recovery cost. In other words that seller is left standing in the cold and has resigned to a shot in the dark while eyeing your home. And, only as a remote interested party.
Lender services attorneys, ex-executives, brokers and trustee services are keeping this alive and trying to make commissions and fees out of nothing while the lenders say “go for it…but be also ready to do the time.
Wake up America and get your home back. Our gift is testimony that follows the only sane formula for prevailing without deterring one step. Again, if income is not recognized until it becomes practicable to estimate the fair value of the liability how can the registrant not violate one accounting rule leading to another?
And now you want to get an audit? Do a Modification? Get a Short sale competed? Lenders won’t work with you for a reason – THEY DONT OWN YOU LOAN!
M.Soliman
Expert Witness
mail to: expert.witness@live.com
Working hard,
So if I go down to the recorders office and record an assignment of the note to myself, this would result in bringing along the security also. That sounds good.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Working Hard, on November 24th, 2009 at 6:40 pm Said:
Cal.Civ.Code § 2936
“The assignment of a debt secured by mortgage carries with it the security.”
>What if the security has been stripped away [unsecured] prior to assignment?Again, what if it is no longer secured [before trading]?<
Charles Cox
Cal.Civ.Code § 2936
“The assignment of a debt secured by mortgage carries with it the security.”
“Under California law, a secured promissory note traded on the secondary mortgage market remains secured because the mortgage follows the note.” In re Vargas, Bkrtcy.C.D.Cal.2008, 396 B.R. 511
usedkarguy,
Yes I have gone through a lot of paper in the last year! Awesome.
I am a BIG fan of putting everything into pleadings, including the kitchen sink. However, the following article gave me pause. You have to provide a sufficiency of pleadings, even if you are the defendant. Don’t make generalizations – be specific on why you are providing a pleading.
This is very good – everyone should read it, especially attorneys …
From http://www.michigancollectionlawblog.com/2007/10/defense_attorneys_be_careful_w.html
Defense Attorneys – be careful when filing those affirmative defenses. My colleague, Mary Jane Elliot has been sued by Frank Glover for violation of the Fair Debt Collection Practices Act. I know Mary Jane. She is a very bright, and very astute individual. I don’t know the facts of this case, but merely want to talk about a recent development in this case that has made money for the Plaintiff’s counsel at her expense.
Mary Jane’s attorney filed a veritable laundry list of affirmative defenses in connection with her answer. I have seen this done literally, hundreds if not thousands of times. Under the court rules, generally any affirmative defense not asserted is waived. Mary Jane’s attorneys were probably concerned about inadvertently failing to assert a defense on her part and so, they listed a number of affirmative defenses that were really not relevant. Plaintiff’s counsel seized the opportunity and filed a motion to strike these affirmative defenses and ask for sanctions. In a tersely worded opinion the court held in part:
Tenth Defense. As noted above, the tenth defense attempts to incorporate by reference all affirmative defenses recognized in Rules 8(c) and 12(b) of the Federal Rules of Civil Procedure. This is utter nonsense. It is inconceivable that every defense known to the law could be applicable to a case of this [*12] simplicity. The tenth defense does not given plaintiff fair notice of anything and will be stricken.
Eleventh Defense. Defendant asserts that plaintiff has suffered no damages as a result of any act or omission of defendant. This is not an affirmative defense. Plaintiff has the burden of demonstrating that he is entitled to whatever damages the statutes allow. The eleventh defense is a waste of ink and will be stricken.
Twelfth Defense. Defendant raises the equitable defense of unclean hands. The unclean hands defense will, in certain circumstances, provide a defense to claims for injunction or other equitable relief. See, e.g., Performance Unlimited, Inc. v. Questar Pub., Inc., 52 F.3d 1373, 1383 (6th Cir. 1995). As plaintiff seeks no equitable relief, the unclean hands doctrine is inapplicable to this case and insufficient on its face.
Thirteenth Defense. The thirteenth defense alleges verbatim: “Plaintiff’s and/or their agents have engaged in the unauthorized practice of law.” Leaving grammatical errors aside, the court notes the utter futility of this so-called defense. Although called upon to do so by the motion to strike, defendant has not attempted to justify its accusation that [*13] plaintiff has engaged in the unauthorized practice of law. If the accusation is aimed at plaintiff’s counsel, it appears completely frivolous, as counsel has been admitted to the bar of this court. This nonsensical defense will be stricken.
Fourteenth Defense. In five words, defendant asserts the right of setoff, but does not identify any debt or claim owing to defendant that would give rise to such a right. Again, this is boilerplate pleading that the court will not tolerate. The defense will be stricken.
Fifteenth Defense. Defendant asserts that plaintiff’s claims are barred “due to impossibility.” The doctrine of impossibility may have some relevance to a contract claim or an action under Article II of the UCC. It is hard to conceive of a more ridiculous defense to an action under the Fair Debt Collection Practices Act.
The sharpness of the court’s rebuke of of defense counsel’s affirmative defenses grew with each successive affirmative defense. But, beesides the obvious embarrassment to Defense counsel, whats the harm? In this case, I see it as two fold: First, under the FDCPA, the Plaintiff may be awarded attorneys’ fees if it prevails. This motion and the fact that partial relief was granted on it, will undoubtedly add to the Plaintiff’s pot of attorneys’ fees at the end of this case or during settlement negotiations.
Secondly and perhaps more importantly, Plaintiff’s counsel took a chunk of Defense counsel’s credibility from the court. Attorneys win and lose cases not just on the facts, but on their credibility. In close calls on rulings, one would be hard pressed to believe that a court does not look to the credibility of counsel. I am not throwing stones at Mary Jane’s attorneys. Hell, I throw every affirmative defense into a case so as not to waive anything on behalf of my client. From now on, however, I will be quite sure to review those affirmative defenses. So will Mary Jane’s attorneys, I am sure.
Posted by Gary Nitzkin
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Hello, for the last couple of years I have been looking for the truth about mortgage fraud.. I have a good one for you!….
I was in a BK to hold-off a foreclosure and the alleged “note holder” attempted to remove the stay… They, Aurora Loan Services filed a “corporate assignment” with the BK courts and County recorder’s office.. After reviewing this corporate assignment I found a serious flaw!!!! This document was allegedly signed and dated about 30 days after my loan closing (12/05/2006) transferring ownership from MERS to Aurora Loan servicing… It was even notarized on that same date.
After reviewing the Notary seal I discovered the notary stamp showed an expiration date in 2012. In the state of Nebraska (where this was notarized) Notaries are only good for four (4) years, which means this notary stamp didn’t exist in 2006.
This document is fraudulent. I believe they back dated this document because my Original lender Aegis Wholesale Mortgage went out of business about seven (7) months after this loan closed and if they did the assignment after that date MERS no longer has an interest in the property. My understanding… In order for any company to use MERS they must have a membership agreement between them and MERS. Since that membership broke at the time Aegis went out of business MERS no longer has an interest in the transaction.
I too have also found that the person fraudulently notarizing the corporate assignment works for Aurora loans and has signed other corporate assignments as an officer of MERS.
I am in need of a Quiet Title Suit for my Missouri Property. The debt was Bk’d discharged and they have recently started the foreclosure process again. I filed a petition for an Injunction and was granted a 15 day stoppage. Now I want to go on the offence and stop these “alleged note holders” from continuing the foreclosure process.
This is a great web site and I thank all of you for your contributions!!
Bob
Talk about a part-time job! Yes, since August of 08 this IS my job! Dan, you and I landed here about the same time. I feel like I could walk into a room full of strangers and pick you out of the crowd! And talk about getting chewed out (HEY! WHO PRINTED THIS 458 PAGE POOLING AND SERVICING AGREEMENT??????)!
Dan,
Dan Edstrom, on November 16th, 2009 at 8:32 pm Said:
Nearly ALL of the arguments listed here and elsewhere will NOT work when used independently – or when used without setting the proper framework. This involves building your case to show what truly happened.
Without building a proper case, the judge will just see you as trying to get out of your loan or trying to prolong the invevitable. Even if you have a couple of “good” arguments.
I am not an attorney and this is not legal advice.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
***********************************
You’ve got it right Dan,
It is really frustrating when I hear/read that this or that won’t work in California. That it DIDN”T WORK doesn’t mean that it won’t work. Most every case I’ve looked at that something “didn’t work” was a result of an improperly laid foundation, bad approach, simply bad lawyering, poor pleadings or poor arguments. As Neil and others say, you generally will not be sucessful if not preparing and arguing the case properly.
Remember, judges need to be educated on all this too. Although there is a lot of background going back decades, this problem we are working on is only a couple of years old and we’re fighting those with unlimited resources making the challenge even more difficult.
Keep up the fight!
Charles Cox
charles@bayliving.com
I am not an attorney either
Thanks Deontos,
I have looked into it. I actually have a full time job in my spare time. I have probably > 2,000 hours invested in deciphering this. It could be quite a bit higher – I haven’t kept track. But I haven’t done much of anything else since last September (2008) when I found Neil’s site. THANK YOU NEIL!
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom,
Will you PLEASE stand for the California Bar examination!
I promise I will be your first “pro bono” client.
Thank you Sir, for your always legally logical observations;
but stated so a layman can “get it”.
Now take the TEST!
Nearly ALL of the arguments listed here and elsewhere will NOT work when used independently – or when used without setting the proper framework. This involves building your case to show what truly happened.
Without building a proper case, the judge will just see you as trying to get out of your loan or trying to prolong the invevitable. Even if you have a couple of “good” arguments.
I am not an attorney and this is not legal advice.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Working hard,
Do you have “Statutes” that you can reference as to WHY
“The argument about separation of the Note and the Deed of Trust will not work in California. An assignment of the DOT also assigns the Note and vice-versa.”
The Case File cited just below your entry seems to say the opposite of your conclusion?
“……..See Carpenter v. Longan, 83 U.S. 271, 274, 21 L. Ed. 313 (1872)(stating that “[t]he note and mortgage are inseparable; the former as essential, the latter as an incident”; adding that “[a]n assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity”); In re Leisure Time Sports, Inc. 194 B.R. 859, 861 (9th Cir. 1996) (stating that “[a] security interest cannot exist, much less be transferred, independent from the obligation which it secures” and that, “[i]f the debt is not transferred, neither is the security interest”); Kelley v. Upshaw, 39 Cal. 2d 179, 192, 246 P.2d 23 (1952) (stating that assigning only the deed without a transfer of the promissory note is completely ineffective)…..”
The argument about separation of the Note and the Deed of Trust will not work in California. An assignment of the DOT also assigns the Note and vice-versa.
Regarding MERS and why they have a big problem with no quick solution. This is because MERS is the Beneficiary of the Security only and they nothing to do with the Note and are not a party to the Note.
The problem is that an Assignment is worthless if it only transfers the Deed of Trust without the Note. So to get around this major problem, MERS simply ignores it which has worked up until now because no one really understood the role of MERS.
Now that the cat is out of the bag, every Assignment they record is fraudulent and in fact separates the Note from the Security.
Here is the case!!
2008 U.S. Dist. LEXIS 100056, *
SAXON MORTGAGE SERVICES, INC., et al., Plaintiffs, v. RUTHIE B. HILLERY, et al., Defendants.
No. C-08-4357 EMC,(Docket No. 7)
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Almost a year later, on or about June 20, 2008, MERS, acting as nominee for New Century, assigned the deed of trust to Consumer. In the assignment, MERS claimed to assign not only the deed of trust but also the promissory note itself (i.e., the debt owed by Ms. Hillery to New Century for the loan that was extended to her). See Compl., Ex. D (assignment, recorded on 7/21/08). However, there is no evidence of record that New Century ever assigned MERS the promissory note or otherwise gave MERS the authority to assign the note.
THE COURT
There is evidence that the deed of trust was transferred to Consumer. As noted above, New Century designated MERS the beneficiary of the deed and gave MERS broad authority to act with respect to the property. See Compl., Ex. A (Deed at 3) (stating that MERS “has the right to exercise any or all of those interests [granted by Ms. Hillery] in this Security Instrument”). The Court thus assumes MERS had the power to assign the deed to Consumer, which it apparently [*15] did on or about June 20, 2008. See Compl., Ex. D (assignment, recorded on 7/21/08).
However, for there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. See Carpenter v. Longan, 83 U.S. 271, 274, 21 L. Ed. 313 (1872)(stating that “[t]he note and mortgage are inseparable; the former as essential, the latter as an incident”; adding that “[a]n assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity”); In re Leisure Time Sports, Inc. 194 B.R. 859, 861 (9th Cir. 1996) (stating that “[a] security interest cannot exist, much less be transferred, independent from the obligation which it secures” and that, “[i]f the debt is not transferred, neither is the security interest”); Kelley v. Upshaw, 39 Cal. 2d 179, 192, 246 P.2d 23 (1952) (stating that assigning only the deed without a transfer of the promissory note is completely ineffective); see also Restatement (3d) of Property (Mortgages) § 5.4 (stating that “[a] mortgage may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation that the mortgage secures”) (emphasis added). As Kelley establishes, this is true under California [*16] law which presumably applies here.
As noted above, MERS purportedly assigned both the deed of trust and the promissory note to Consumer. See Compl., Ex. D (assignment, recorded on 7/21/08). However, there is no evidence of record that establishes that MERS either held the promissory note or was given the authority by New Century to assign the note. Indeed, Consumer’s own complaint contains only an allegation about assignment of the deed of trust — and not the note. See Compl. P 17 (alleging that “New Century assigned its beneficial interest of the Deed of Trust to Plaintiff Consumer Solutions”).
Vermont Case Files now on scribd LINKS:
http://www.scribd.com/doc/22470302/Vermont-US-Bank-NA-v-Wyman-MERS-Lack-of-Standing-2009-10-29-1
http://www.scribd.com/doc/22469967/Vermont-Mers-v-Johnston-Foreclosure-Default-Vacated-and-Case-Dismissed-2009-11-3-1
deontos,
thank you very much,i will keep an eye on wyman case as it effects my case directly.I will keep you all posted.
Vermont GETS IT
Steve!
I found the Vermont Litigation you alerted everyone too. Thank you very much! I have posted the “Orders” from those documents with links to the full Case Files. GOOD LEGAL READING THERE.
Vermont is “getting it”. Neil’s prophetic insights are TAKING HOLD.
Neil,
I hope you are feeling well enough to read this. Your dedication and championship of this cause has been vital and the results are becoming apparent.
Godspeed Neil.
See:
http://livinglies.wordpress.com/2009/11/10/officials-who-sign-for-mers-false-fraudulent-fabricated-forged-and-void-documents-in-the-chain/#comment-28645
http://livinglies.wordpress.com/2009/11/10/officials-who-sign-for-mers-false-fraudulent-fabricated-forged-and-void-documents-in-the-chain/#comment-28646
Also INCREDIBLE admission of **Violation** of “black letter law” by Freddie Mac General Counsel to Florida State Supreme Court.
LINK:
http://4closurefraud.wordpress.com/2009/11/11/freddie-mac-comments-on-the-final-report-and-recommendations-on-residential-mortgage-foreclosure-cases-florida-supreme-court/
deontos,
i don’t have a link to those files
sorry
Steve!
regarding…..
———————————————————–
steve, on November 11th, 2009 at 7:26 am Said:
HI everyone,
Our house in vermont is in foreclosure (judicial),i’ve been fighting with citi since may 09,judge hasn’t ruled on summary judgement yet,and recently deferred ruling on it based on two cases that were dismissed because of standing in rutland county vt.
us bank national ass v wyman ,Doc.No 466-09 Rdcv
mers v Johnston,el al,Doc.No. 420-6-09 Rdcv
———————————————————–
CAN YOU PUBLISH A DIRECT LINK TO THESE FILES?
correction regarding two VT cases.
One of them, judge vacated his previous decision and dismissed the case,second ordered plaintiff to clearly establish standing.
steve
HI everyone,
Our house in vermont is in foreclosure (judicial),i’ve been fighting with citi since may 09,judge hasn’t ruled on summary judgement yet,and recently deferred ruling on it based on two cases that were dismissed because of standing in rutland county vt.
us bank national ass v wyman ,Doc.No 466-09 Rdcv
mers v Johnston,el al,Doc.No. 420-6-09 Rdcv
Plaintiff has untill nov 28’th to clearly establish standing,so ordered by the court.
Mers is named as a defendant along with me and my wife,it was the nominee for Mortgageit in original note and mortgage docs.
If they come up with bogus assignments and judge decides acceptable and rules against us what is my next recourse….
please help
thanks
steve
We got SUED for defamation for exposing fraud, would’nt it be better if they tried false accusations instead…
I can’t wait to go to court.
Case Number: MC020971
TERESA RISPOLI VS ROBERT TAPIA, ET AL
Filing Date: 10/27/2009
Case Type: Defamation (Slander/Libel) (General Jurisdiction)
Status: Pending
Future Hearings
03/08/2010 at 08:30 am in department ATV11 at 42011 4th Street West, Lancaster, CA 93534
Conference-Case Management
Parties
AVENUE S MORTGAGE DOCUMENT AUDITING
RISPOLI TERESA – Plaintiff
TAPIA KARINA – Defendant
TAPIA ROBERT – Defendant
WARSHAW ADAM S. – Attorney for Plaintiff
Documents Filed (Filing dates listed in descending order)
10/27/2009 Complaint Filed
10/27/2009 Summons Filed
10/27/2009 Notice (OF ASSIGNMENT )
Filed by Clerk
10/27/2009 Notice-Case Management Conference (03/08/10 830AM A-11 )
Filed by Clerk
10/27/2009 Summons Issued
Case Number: MC020972
TERESA RISPOLI VS JOSEPH GURROLA, ET AL
Filing Date: 10/27/2009
Case Type: Other Contract (General Jurisdiction)
Status: Pending
Future Hearings
03/08/2010 at 08:30 am in department ATV10 at 42011 4th Street West, Lancaster, CA 93534
Conference-Case Management
Parties
GURROLA AMERICA – Defendant
GURROLA JOSEPH – Defendant
RISPOLI TERESA – Plaintiff
WARSHAW ADAM S. – Attorney for Plaintiff
Documents Filed (Filing dates listed in descending order)
11/02/2009 Notice-Case Management Conference (AMENDED, 3/8/10 830AM DEPT A10 )
Filed by Clerk
10/27/2009 Notice (OF ASSIGNMENT )
Filed by Clerk
10/27/2009 Complaint Filed
10/27/2009 Notice-Case Management Conference (date left blank )
Filed by Clerk
10/27/2009 Summons Filed
10/27/2009 Summons Issued
avenue-s.us/iPSS.html
Sorry, I did not mean to stifle anyone’s commits. It is true that when you set out to defend yourself in court you have a fool for a client. But when you can not find representation, you must defend yourself.
The law is best enforced by people of detached interest of the particular subject at hand. Our court’s are just now coming about learning about the great fraud that has been perpetrated, not just in our country, but the world.
Yes continue on looking for a attorney who “gets it” and is willing to follow basic black law teaching’s of rules of law. I need one in Florida.
Pat,
Good luck finding a Lawyer who will even talk to you if you have started off Pro Se.
I have in Florida with what should be a slam dunk win with bonus money. But I know I am going to have to do it myself. Study the rules of procedure in your state, and act. Don’t worry about it not being perfect, there work won’t be ether.
Again Good Luck.
John Anderson
I NEED AN IN-THE-KNOW CA ATTORNEY ASAP!
I am very close to filing a Quiet Title Action in California. I will be filing Pro Se. I have developed the necessary court papers, by doing a great deal of research and then using CA court document templates to guide me. I initially intended to turn the matter over to an attorney, but cannot find one who has done the necessary due diligence, so as to be up to speed on this rapidly developing and rapidly changing legal matter. I never expected, that locating a knowledgeable and qualified attorney, would be AS frustrating as dealing with a mortgage servicer….but it is. I have spoken with a few real estate attorneys so far, that are clueless about securitized debt instruments and MERS and servicers and the relevant court opinions being handed down.
Because I was ruthlessly and unethically abandoned by a so-called reputable law firm, that I retained to negotiate a loan modification, my faith in attorneys is at a very low point. I have however, discovered that a local District Attorney may be a valuable source of homeowner-friendly support, and I want to pass that along. I phoned my local District Attorney office to report my experience with the disreputable law firm. The assistant DA I spoke to, was very eager to learn more about the experiences I’ve been having, as a local residential, toxic asset real estate owner. Apparently, some DA’s are setting up divisions to specifically deal with residential real estate matters.
I am in need of a knowledgeable California attorney, to review my Quiet Title Action court papers, before I file. I want to ensure that I have covered all of the necessary legal bases. I have posted requests for a knowledgeable attorney on other sites and have received emails from a number of homeowners in situations similar to my own. Those homeowner’s have asked me to inform them, when I locate an ‘in-the-know’ attorney in California. I am seeking an attorney to review the court papers I have prepared and to perhaps take over the case, at a later time. Some of the homeowner’s who have contacted me, will likely want a ‘full service’ California attorney, to handle their matter. If you are a knowledgeable, qualified and interested California attorney, or know of one, who is also on the side of responsible homeowners, please contact me ASAP at PlanZahead@yahoo.com. Thank you.
Pat
(PlanZahead@yahoo.com)
[youtube=http://www.youtube.com/watch?v=g32ObW8PoOg&hl=en&fs=1&color1=0x5d1719&color2=0xcd311b]
Working Hard: Yes. That is exactly true. Both lawyers and Judges have ignored that very basic truth. You are not obligated to tender what you don’t owe. If your offset or claim for offset is greater than the required tender, nothing is required except an evidentiary hearing on the merits of your claim for offset.
Neil F. Garfield, Esq. ngarfield@msn.com
I may have discovered a way around the tender issue.
See Hauger v. Gates, 42 Cal.2d 752, 269 P.2d 609 (1954), which holds that a Plaintiff challenging a foreclosure sale is entitled to an equitable set-off for his claims.
In other words, a Plaintiff that has claims for damages can allege that those claims against Defendant will more than satisfy any tender.
TW
I have a very similar situation with my assignment and have allot of info on these people if it is the same group. Let me know if you want to exchange notes…
4closureFraud
In many cases “produce the assignment” may work, or perhaps even “produce the mortgage” or “produce the title insurance policy”.
My assignment of mortgage from MERS to _______ (large banking & financial institution that recently announced hefty quarterly profits… hmmmm aren’t they supposed to be losing money with all these foreclosures on their books) was executed by two individuals claiming to be Vice Presidents of MERS – when in fact, they are Vice Presidents of the very same large banking & financial institution that received the assignment – WTF???
Not to mention the fact that __________ (other large financial institution that will remain nameless) never appears on record as having held an interest in my loan when in fact they have. They were skipped over in the chain of custody as recorded in public land records.
This is in addition to the fact that MERS is listed as both nominee AND mortgagee on my mortgage & insured as mortgagee on my title insurance policy. Yet by their own admission MERS does not and never has owned any beneficial interest in any recorded mortgage. They are merely a tracking service (per the company website).
So while I agree that you can fool some of the people some of the time, and some of the people all of the time, you definitely cannot fool all of the people all of the time and the judicial branch is now starting to GET IT!
GOD BLESS YOU, YOUR FAMILY AND THE UNITED STATES OF AMERICA!!!!!
*Working Hard –
Produce the note is merely a pimple on the @ss that is the biggest mass fraud in US HISTORY.
Although I am not a lawyer and by no means a legal expert – I submit that “produce the note” is merely a starting point for some and nowhere near encompasses the level of fraud, theft, deceit and conspiracy that has soaked US TAXPAYERS FOR TRILLIONS AND TRILLIONS OF DOLLARS. Yourself included!
History has taught us that we must defend ourselves, our rights and liberties given to us under the Constitution of the United States against tyranny – whether foreign or domestic. Good thing there’s RESPA, TILA, UCC, HOEPA, USPAP, RICO, etc.
Our rights and liberties are non-negotiable… either you have them or you don’t.
In a case where the homeowner is the Plaintiff, FRCP 17 does not apply. Standing is a requirement for a Plaintiff. A defendant is being sued, and therefore has standing.
All of the cases that deal with standing are in BK court and deal with whether the bank has standing to bring a motion for relief from a stay. (Google In re Hwang, In re Mitchell, etc. or Judge Buford)
The biggest hurdle in California is tender. And in the Ninth Circuit, the Court can require the homeowner to offer tender first. (google Yamamoto and tender). If anyone has successfully gotten around the issue of tender, I would love to hear it.
Finally, produce the Note will not work. You can try it, but it won’t work. I have personally seen that argument rejected 7 or 8 times in California. It is a losing argument. Those two cases or just two of SEVERAL cases that have rejected this argument.
Dentos,
Send me your email and I can send you the cases. I ran them off Pacer the last couple of days.
They are hardly conclusive and were poorly plead and poorly argued as well from the looks of it. Not good examples of the problem which still needs to be dealt with in California.
I don’t understand why FRCP 17 is not employed as well as numerous UCC codes on this issue.
“Working Hard” does have it right though that there aren’t any cases (I could find) that get around the Statutory issues of the Civil Code 2924 at least as they’ve been plead so far.
See : “Are Courts in California Truly Limited by Non-Judicial Foreclosure Statutes?” written by By Michael Doan on May 2, 2009…good article on this issue.
It is my opinion it can be done and I’d love to be the paralegal (I am a paralegl here in California) working for the attorney that gets it done.
Charles Cox
charles@bayliving.com
[…] or maybe a full pot, you probably will not sleep once you start reading the below information. 1,310,000 Visits and moving fast. Thank You Readers!! Livinglies’s Weblog In Virginia there are several attorneys who can help. Here is a post from one of them. Go to […]
I don’t have access to PACER.
Could someone PLEASE look up these
cases. A poster said “Produce the Note”
defense is futile in California and cited these
cases as PROOF.
I would like to be able to READ the case files directly.
Thanks for any help on this!
————————————————————————-
The “Show me the Note” argument won’t work in CA. It has been expressly rejected by several district courts. See e.g.
Farner v. Countrywide Home Loans, 2009 WL 189025 (S.D.Cal.); Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D.Cal.).
————————————————————————-
I FOUND THIS REFERENCE ON “Justia” TO ONE OF THE CASES.
Sicairos v. Ndex West, LLC. et al
Plaintiff: Arturo Sicairos
Defendant: Ndex West, LLC., America’s Servicing Company, DOE 1 and Does 2-50
Case Number: 3:2008cv02014
Filed: October 30, 2008
Court: California Southern District Court
Office: Real Property: Other Office [ Court Info ]
County: Los Angeles
Presiding Judge: Judge Larry Alan Burns
Referring Judge: Magistrate Judge Barbara Lynn Major
Nature of Suit: Real Property – All Other Real Property
Cause: Federal Question
Jurisdiction: Federal Question
Jury Demanded By: 15:1601 Truth in Lending
“Show me the note” does not work in California. There are several district court cases that have held that possession of the note is not a pre-requisite to a non-judicial foreclosure sale.
Also, arguing that the Deed of Trust and Note have been separated does not work in California. The Note follows the Deed.
The “Show me the Note” argument won’t work in CA. It has been expressly rejected by several district courts. See e.g.
Farner v. Countrywide Home Loans, 2009 WL 189025 (S.D.Cal.); Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D.Cal.). Occasionally, it will work in Bankruptcy court because without the Note, the creditor does not have standing to seek relief from the Bankruptcy and proceed with the trustee’s sale.
Moreover, arguments regarding the separation of the Note from the Deed of Trust will also fail in California.
Finally, be prepared for the tender argument, which is an almost impossible hurdle.
John,
For what it’s worth (probably not much), I noticed that “Ron Meharg,” the “DOCX” representative mentioned in your assignment, made a few interesting posts to the mersinc forum several years ago regarding rejections of MERS mortgages.
You can Google “Ron Meharg” and “mersinc.” His name was also apparently misspelled on a couple posts as “Ron Mehrang” which you can find the same way.
Again, not that it means anything or is damning.
P.S. – Sorry, forgot to tell you great post!
John,
For what it’s worth (probably not much), I noticed that “Ron Meharg,” the “DOCX” representative mentioned in your assignment, made a few interesting posts to the mersinc forum several years ago regarding rejections of MERS mortgages.
You can Google “Ron Meharg” and “mersinc.” His name was also apparently misspelled on a couple posts as “Ron Mehrang” which you can find the same way.
Again, not that it means anything or is damning.
Dan,
You have a great point here:
“Isn’t an assignment a security? They are saying that they have given consideration and transferred a note (note, Deed of Trust, and all pmts due). They would need to be in possession of these originals in order for this to be valid. They also claim to be the Trustee (they already perfomed a substitution of Trustee).”
I don’t think an assignment is a security in and of itself, but it seems that an assignment forms the basis for a security or is an integral part of the underlying structure for a security. In other words, an assignment is not a security, but a mortgage-backed security cannot be created legally without an assignment of the note and mortgage.
I haven’t had much success in finding info about the woman who signed my fraudulent assignment documents as “assistant secretary” of BAC Servicing, Recontrust, AND MERS. Her name is Jill Arnold.
At any rate, I think this practice of having one person sign documents for multiple companies has to be a violation of SOME law–possibly RICO, collusion, general racketeering, securities fraud, or something. Another site I read mentioned “slander of title” (which comports with Neil’s recommendation of a quiet title complaint) as a possible/plausible cause of action for these types of assignments in which a party that doesn’t own the note purports to assign it to another party for purposes of stealing someone’s house–I mean, “foreclosure.”
John,
Look on this site for summary judgment. I have read postings but I don’t remember what they said. There are options but I am not an attorney and don’t know what they are.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
A quick question guys. I friend of mine waited to long to file an written response to his foreclosure, and has had a summary judgement filed. There has not been a sale yet. With the new Kansas ruling is there something he can file to get back in the game?
John Anderson
jandersonpaper@yahoo.com
I need to clarify. I can not be sure that the Korell Harp who signed my backdated assignment, and claims to be Vice President and other official titles of responsibility of many lenders, is the Korell Rashurd Harp 24 year old of Barnsville GA.. who was indicted then plead guilty to possession of false ID.
If there are any other, Korell Harps in Georgia that are not one of these two, if two gentlemen, I apologize.
Dan, I think maybe the SEC, they need a cause after the Madoff scandal. The real problem is lenders are trying to create a paper trail that there fraud kept them from creating in the first place.
John,
Good catch. It is very common for these people to work for 2 or more companies (or claim to work for them). In my case the guy is Chief Counsel of a law firm, works for MERS and also works for a debt collection company.
In my opinion he knowlingly created a fraudulent document, which I believe is a security. Isn’t an assignment a security? They are saying that they have given consideration and transferred a note (note, Deed of Trust, and all pmts due). They would need to be in possession of these originals in order for this to be valid. They also claim to be the Trustee (they already perfomed a substitution of Trustee). The indictments are interesting. Maybe I should notify the FBI in my case.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
As to the asst VP Tywanna Thomas who was mentioned in earlier posts as Asst VP for Ameriquest Mortgage below she’s with Option One Mortgage
http://mylandrecords.appspot.com/pdf/ma025-44848-315/a9ka5zh0q9O/assignment.pdf?actual=1253726919
THIS DUO IS A TOTAL FRAUD.
Now how best to present this to the court?
John Anderson
jandersonpaper@yahoo.com
It gets even better, the person who signed the assignment asVice President of MERS Korell Harp is under Federal Grand Jury Indictment.
http://www.usdoj.gov/usao/oke/press0109.html
WILLIAM EARL BILL, age 32, of Dallas, Texas
KORELL RASHAUD HARP, age 24 of Barnesville, Georgia
KELVIN LAMONT JACKSON, age 32 of Dallas, Texas
Possession with Intent to Use Five or More False Identification Documents, Aggravated Identity Theft, and Eleven Counts of Possession of a Counterfeit Security with Intent to Deceive.
The indictment alleges on September 10, 2008, BILL, HARP and JACKSON possessed five or more false identification documents and numerous counterfeit checks. The charges arose from an investigation by the Federal Bureau of Investigation.
Possession with Intent to Use Five or More False Identification Documents is in violation of Title 18 U.S.C. Sections 1028(a)((3), (b)(2) and 2, (Up to five years imprisonment and/or up to $250,000 in fines);
Aggravated Identity Theft is in violation of Title 18 U.S.C. Sections 1028A(a)(1) and 2 (Up to two years imprisonment and/or up to $250,000 in fines);
Possession of a Counterfeit Security With Intent to Deceive is in violation of Title 18 U.S.C. Section 513(a) and 2 (Up to ten years imprisonment and/or up to $250,000 in fines.)
Assistant United States Attorney Christopher Wilson
Again here he’s a offical with USAA Federal Savings Bank. Same signature as on the assignment.
http://mylandrecords.appspot.com/pdf/ma025-45069-335/awhWWZLJ0q2/release.pdf?actual=1253721439
AND HERE he’s a VP and asst secretary for Argent Mortgage Co/LLC CityResidental Lending. Changed his signature a little. All out of Georgia.
http://mylandrecords.appspot.com/pdf/ma025-44930-40/av8rb1nWWdj/assignment.pdf?actual=1253721880
However the federal indictment was droped and the three men pled guilty in Pittsburg County district court to one felony count of possessing false identification, The men received two years of unsupervised probation. Full story below.
http://www.tulsaworld.com/news/article.aspx?subjectid=11&articleid=20090220_12_0_KREBSA82341
So at lest we know he a felon, and a liar.
John Anderson
jandersonpaper@yahoo.com
John Anderson: You are right if that is the way it went. Go get ’em!
Ok Kids,
On 10/30/2008 Foreclosure suit was filed by Liquidation Properties Inc
On 07/14/2009 a hearing was held. Judge ordered plaintiffs to file the assigns, and postponed hearing.
On 09/01/2009 I filed “Defendant’s Opposition to Plaintiffs Motion for Summary Judgment”
http://www.box.net/shared/15nismf8k7
On 09/15/2009 Hearing was canceled by plaintiff.
I checked records and found these recorded assigns
http://www.box.net/shared/dcdt8yfm6z
It shows that no assigns were filed untill 07/27/2009 on my mortgage of 04/21/2006 with Quick Loan Funding/MERS.
Upon viewing the Doc it states Assignment of mortgage for good and valuable consideration. And under Misc Comments it states Assignment Effective Date 10/1/2009 Interested parties can view the Doc at
http://www.box.net/shared/42etxt14je
My question is don’t this flaw the suit, as they filed suit before filing assigns?
Any case law covering this?
John Anderson
jandersonpaper@yahoo.com
<<< pdx
Have you been getting monthly invoices? Have you been assessed late fees? Are you on autopay?
We successfully stopped the 2nd foreclosure process against our house by filing a TRO via an attorney and feel we have an ace in the hole on the current (3rd) foreclosure action against us.
I stumbled upon ORS 86.160(3) "Unless the note or mortgage held by the lender provides for payment of a late charge on delinquent periodic installments AND a monthly billing, coupon or notice is provided by the lender disclosing the date on which periodic installments are due and that a late charge may be imposed if payment is not received by lender within 15 days thereafter. " (emphasis added on 'and')
note** you should find and read this yourself or seek legal advice as the next sentence states that an exception exists for 'autopay' situations.
The criminals who bought our 1st mortgage in Sept 06 have never sent us an invoice. Because of that, they have no legal right under Or Law to charge us a late fee. While this is only germain in Oregon, what it has created is a situation where every late fee assessed took monies from our payments that should have been used to reduce principal. THIS is sure to be a nightmare for the mortgage comp in a RESPA audit as it rightfully should. According to the attorney who filed the TRO on #2, we can wait until the last minute on #3 and file another TRO to stop it. If there isn't something else, we'l' pull the 'ace' and move for stopping #3 on the basis of the late fees issue.
Perhaps this could help you, as well, to lessen the anxiety over the Nov auction while you hammer them with a RESPA request.
In the past few days, I have learned a tremendous amount about RESPA and it's potential when combined with other Federal laws and pushed to the limit of thought and creativity.
I just read a 14-15 page RESPA request that is going to have these criminals I've been fighting with 'sh***ing biscuits when it arrives next week.
RESPA is considerably more powerful than it appears on the surface when simply reading the act. It's like referring to a nuclear bomb as an 'explosion'. It just doesn't explain it's true power.
goodluck
GeoD
Alina – no worries – we’re all in this together!!!
TW,
Sorry, I was defining sanction as a penalty. As in the “court sanctioned the defendant for not responding to Plaintiff’s discovery.”
Forgot there is another definition for sanction.
Thanks.
Alina/TW,
TW is correct. My Deed of Trust says this:
CALIFORNIA-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3005 1/01
I am not sure what that means and I don’t know much about Fannie Mae/Freddie Mac. I thought they were private companies (at least until they were supported by the government in the meltdown?) … And I don’t know who provided these forms – are they from Fannie Mae/Freddie Mac or did somebody else just put this on the form to show they would be accepted by FNMA/GNMC?
Deed of Trust says:
– Security Instrument is the Deed of Trust
– Lender is shown as the originator
– MERS is the Beneficiary under the Security Instrument
– Note means the promissory note
– Note states the borrower owes Lender $xxx.xx
– Loan means the debt evidenced by the Note
Its amazing what you find when you read them. I read them at closing but I sure had no clue what any of this meant.
THANK YOU NEIL for helping me to understand this!
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
-posted comment by leochen24551; Washington Post article “Banks asked to Ramp Up Mortgage Help”.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/28/AR2009072802640.html
Ever wonder how so many Collateralized Debt Obligations (CDO) were able to get their footing?
Of course, the banks are eager to blame the borrowers, who they say were reckless and bought homes above their income brackets. But no one talks about the bank’s participation and the concept of “packaging.” Well, no one was really talking about it before this week, anyway. But that might be about to change. We’ll get to “why” in a moment.
Just Because it’s a Package, Doesn’t Mean it’s a Gift
Packaging is nothing new in the banking / brokerage world. It’s the norm, not the exception. But in the case of CDOs, this was “packaging on steroids.” Many do not fully understand what happened behind the scenes and many others may be facing foreclosure. So I thought I’d give you some insight as to what happened that might help you understand or even take action if you may be faced with foreclosure yourself.
What are CDOs? Wikipedia has this “unintelligible” definition — collateralized debt obligations: a type of structured asset-backed security (ABS) whose value and payments are derived from a portfolio of fixed-income underlying assets. Sounds ominous, doesn’t it?
Here’s a “behind the scenes” look at this gift that keeps on giving … a lot of pain. While many borrowers might have bought above their means, the banks were just as complicit in creating the CDO disaster.
Passing Notes
When you purchase a home with a mortgage, you sign a note. The loan-originating company sells the note to an investment banker or hedge fund and collects the full value of the note upfront. A copy of your note is created and stamped “paid in full.” The loan-originating company has no right to foreclose because it received all its money when it sold the note.
Before greed took control of the market, the holder of the note (i.e., an investment banker) would store the note in a vault. If someone defaulted on their loan, the investment bankers would produce the note to prove they owned it and that they had bought it from the loan-originating company.
But greed changed all that.
Instead of vaulting the original note, those notes were “re-packaged” with thousands of other notes into what became known as CDOs. There were low-risk CDO mortgage packages, moderate-risk CDO mortgage packages and high-risk CDO mortgage packages. The low-risk mortgage packages were easy to sell to conservative investors looking for long-term income. Most of those original packages are still valid and producing income.
However, the moderate-risk and high risk-mortgages were not easy to sell. To resolve this, these mortgages were re-packaged by mixing them with low-risk mortgages, and sold to conservative investors. The same mortgage could have been re-packaged and sold a dozen times.
Remember, the investment banker paid only one time for the instrument and only has the right to place the note in one package. Repackaging was a highly illegal use of mortgages. In order to hide the trail of their activities, investment bankers destroyed the notes so no one could trace which CDO packages the note was actually put in. But since the notes are destroyed, ownership is difficult to establish.
Who Really Owns Your Loan?
When borrowers default on their loans, investment bankers want to foreclose quickly so they can retain some value to their mutual funds. They quickly sell the mortgage to a foreclosure bank. They can’t sell the note because it was destroyed. This leaves the foreclosure bank vulnerable because it does not have proof that it owns the note.
Remember, the only thing that the borrower signed is a note. The borrower did not sign the right to repackage the mortgage. The only asset is the note that represents the actual property. And even though the investment banker has a record of monthly payments that he sells to the foreclosure bank, this may not be sufficient to establish actual ownership.
When a borrower is foreclosed upon, the foreclosure represents a lawsuit. The foreclosure bank brings a lawsuit against the borrower for failure to pay. The bank is the plaintiff and the borrower is the defendant. Since the borrower is the defendant, he has the right to call for “discovery.” Discovery is the pre-trial litigation procedure in which both the plaintiff and defendant request relevant information and documents from each other. Discovery generally includes depositions, requests for inspection and document production. In the case of foreclosure, the defendant requires the plaintiff to produce the note.
The problem for the foreclosing bank is either it does not have the note at all because it was destroyed to stop the audit trail, or it says “paid in full” — in which case, nothing is owed to the bank.
Yes – it is standard, boiler-plate language usually appears at the bottom left of the mtg or dot docs. It will read Fannie/Freddie MERS or something similar.
TW,
You mention that MERS was sanctioned by Fannie Mac? Do you, by chance, have a copy of that?
Thanks.
Alina
Another thing to find out is which party was served notification as this is a fundamental part of due process. US Constitution says we shall suffer no loss of property without due process of law. Why are there people still not receiving due process of law regarding their property in this day and age. I heard someone else say that the legislative and executive branches have failed us… let’s hope the judicial branch “gets it”!!!
“All that is necessary for the triumph of evil is that good men do nothing.” (Edmund Burke)
Yes as TW stated, get a copy of the recorded documents. Go to the county recorders office (some states are different?) and get a copy of ALL of the notices recorded for your property or properties. Look at them carefully – including the dates. Then compare them to the dates for the Notice of Default or foreclosure lawsuit or whatever method “they” are using to foreclose. This will give you an idea of what is really going on. Don’t forget, in California AFTER the Notice of Default, keep checking and getting any new documents recorded. These tell a story which is probably difficult to understand unless you know what they are doing. Ask questions and get a lawyer.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
That’s why it is imperative that you pull copies of all recorded docs on your property at the county level and look for MERS in paragraph C or D on your mortgage or Deed of Trust (depending on what state you’re in).
MERS is the issue and the problem. Sanctioned by Fannie/Freddie (and rumored to be the brain child of former Countrywide genius Angelo Mozillo) and a whole host of other institutions – this is the “get away vehicle” that allowed for the integrity of the chain of custody of notes to become compromised, thus complicating foreclosure matters.
Moreover, County Clerk of Court of Register of Deeds offices have been missing out on transfer taxes and recording fees that usually stem from proper assignment and recording of mortgage and/or deed of trust instruments in public record.
Back in the day mortgages and DOT’s were recorded, assigned and discharged in public record, MERS changed that. If you read any document containing MERS you will see they word their capacity (nominee, trustee, mortgagee) is stated in such an ambiguous way that it is difficult to see and understand their true function.
Yet MERS by their own admission on their very own website states they are simply a tracking service. It is BOGUS!
Kimster,
It seems to me that the Trustee (in securitization) is not really the “owner” of the note. They have been assigned the note (allegedly), but the note was “deposited” into the Trust. The Trustee is the “owner of mortgage loans on behalf of issuing entity for the benefit of holders of certificates” …
The Trustee is declared the owner and the SEC filings also declare that the Trustee has perfected title (as if saying it makes it so). However, they never gave consideration (my assumption) – they didn’t pay for the note (do you really think the Trustee (US Bank in my case) would actually pay money for the assignment? The money came from somewhere else (maybe the trust, but my initial analysis is the trust gave no money for it either).
Either way, the “issuing entity” is the Trust. But it is all for the benefit of the “holders of certifcates”. The Trustee operates on behalf of the Trust. This means the Trust has to be named in the foreclosure, as well as the “holders of certificates”.
Don’t forget that at the time the Notice of Default was filed, the note was “pledged” by somebody else. So are all of the assignments even valid if they were not full sales? They were financed. This means they did not pay for them in full at the time they were executed!
The assignment done AFTER the Notice if Default is what “they” use to convert all pledges into real assignments. But you already know that assignment is invalid (how can the entity named as the owner be assigned ownership AFTER the Notice of Default?) Or put another way, what came first? Ownership or Default?
I am not a lawyer. This is information that I believe applies to my loan / securitization and I believe it is substantially similar to what others are experiencing.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
John,
Yes it was not difficult to find information on Quick Loan Funding. They went belly up in 2007 and all licenses (in California) revoked in 2008. So yes, the question is how did they acquire it. What date did your loan close? Quick Loan Funding and Option One both worked with Lehman Brothers. Quick Loan Funding also worked with Citi.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Lisamarie,
I don’t really know what a corporate assignment is. My guess would be the following:
It is similar to what I see on the sworn SEC filings. In my case they state the assignment chain. They also state that the Trustee has perfected title as if that makes it perfected, while at the same time stating that others have an interest. I have heard that the recorded assignment is just the “proof” that an assignment occurred. Typically an agreement will be in writing between the parties to do the assignment
My understanding of an allonge is that it is an attachment to the original note which shows the assignment(s).
Thanks,
Dan Edstrom
Thats weird, I wrote the Attorney Generals office here in Florida to explain my problems and that office informed me American Home mortgage services owned my loan, the entity sueing me is HSBC and the only lein on the house is filed in the court house by M&I home lending solutions!
Dan.
Liquidation Properties was the party who initiated the suit. And although I had made payments to quick loan funding, then Option One, then Regions Mortgage. When I fell behind on my payments, they transfered my loan to AHMSI ” American Home Mortgage Servicing Inc, who I have discovered purchased Option One when it went broke. But no assignments were filed untill 2 weeks after the judge ordered them to file there assigns. No Option One Assignment, no Regions Mortgage Assignment, No AHMSI Assignment. Straght from Quick Loan Funding to Liquidation Properties almost 1 year AFTER they filed suit.
Me thinks I win.
Bless your heart Dan, that sounds like the best answer yet. Legal and reasonable. What is the difference between an allonges and a corporate assignment? Thank You, Lisamarie
Great news John!
When the foreclosure started, who was identified as the creditor (and/or who initiated the foreclosure)?
Was this party assigned the loan AFTER they initiated foreclosure?
Did it say “for value received” or that there was consideration or a payment?
Ask for a copy of the proof of payment. Ask for proof of who signed the assignments and their employment history. There is much more – this site has tons of information on discovery. I am not a lawyer so I don’t have the specifics.
Ask who assigned the loan and who actually received the money if the company was defunct – especially if they were bankrupt. What authority did they have to sell the loan?
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
This is a great day. yesterday I showed up at court and was told that the plaintiffs had canceled the hearing. I felt good as I was worried that they were going to try to pull some trick to get around the judges order to file the assigns.
This morning I researched Florida requirements on fileing assignments and it said that they had to be filed within 30 bussiness days. I then went online to the pinellas county clerk of court website, and it was a little confusing, but there was a phone # so I called and found out that the mortgage that was filed in may 2006 in quick loan funding/MERS did not have any assignments filed untill 07/27/2009 where it shows it transfered from MERS to Liquidation Properties Inc and from Quick Loan Funding to Liquidation Properties Inc.
This is sweet because they filed suit in oct 2008 and I don’t think they can file suit and then file assigns. I am going down to the courthouse to look at the Quick Loan Funding assign as there license was revoked 05/27/2008 and they closed there doors in 2007 so who signed for them? Maybe Bryan Bly, Maybe someone in the plaintiffs office who is authorized to sign for the defunked Quick Loan?
I know that the suit from Liquidation Properties is going to be thrown out, or should be. My question now is who all can I sue?
SWEET.
Lisamarie,
I am not sure how you communicate to the judge but I would say I am willing to settle with the other party once they have provided answers to discovery. I need to make an informed decision.
I also have this one I might try someday (I am not a lawyer and have never tried it). Let them make you an offer and respond this way:
In the matter of [alleged lender]’s loan modification offer to Lisamarie (hereinafter “borrower”), borrower hereby accepts for value [alleged lender]’s presentment and conditionally agrees to accept their offer.
Condition:
Upon proof of claim that [alleged lender] is the legal holder in due course and has fully complied with all the requirements under the laws of [your state] and the United States. The aforesaid proof required by law is the following:
• a sufficiency of pleadings
• all of the following:
• An original contract signed by Lisamarie, with all valid assignments and allonges
• Sworn testimony of a competent witness with first-hand knowledge that Lisamarie received consideration from [alleged originating lender], which constituted a loan, a lenders capitol (money) put at risk by the lender.
You have the right to make sure you are paying the correct party so that you are not in double jeopardy.
My guess is that at this point they would magically produce the document and an affidavit. The document would probably be one of the infamous copies that looks incredibly real (hold it up to the light and see if your signature is pushed out where you pushed down with the pen). The affidavit would be like almost all of the ones filed that I have heard about – from somebody who is not competent and was not in the room with you when you signed the loan.
You may be able to throw in answering discovery as one of the conditions.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
The judge has done that twice. Weve already been in front of the Judge twice, the last time HSBC put in the file ‘filed original mortgage assignment’ and slid the same copy dated AFTER the foreclosure proceedings were under way. The Judge did not sign their final summary judgement, I guess now we wait. Legal aid is representing me and they told me HSBC does not want to litigate they want to do a mortgage modification. I’m just not sure thats in my best interest giving that they are acting shadey. Do I want to continue with these people? I just want to get my mortgage in the right hands, with the true owner of my note. I appreciate everything Legal aid is doing for me, but I was told by law they can’t defend me in litigation, they are trying to make evrything OK all the way around and I just dont see that happening. They arn’t aggressive enough and I know its because their plates are full. I need a lawyer to dedicate hisself to me and my problem.
Lisamarie,
After 30 days you should be able to ask the judge to compel the other party to respond to discovery. I am not an attorney so I am not very familiar with this procedure.
It is my understanding that this will happen multiple times before the judge gets fed up with their failure to comply.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
it is true, in California getting to the note is tricky. Because the power of sale is assigned to the trustee instead of the beneficiary, the trustee only has to prove they have legal rights to the deed of trust.
However, I am looking at how the foreclosure process is started. There has to be a declaration of default. That declaration of default has to come from the beneficiary — and on all of the forms it states the beneficiary has to give the trustee the deed of trust, original note, assignments, modifications, etc. (Look at foreclosure firms, they post the forms and on those forms they list the documents the beneficiary (or beneficiary’s servicer) needs to provide. ) We are arguing that since the beneficiary had no legal valid assignment of the deed of trust, they could not declare a default triggering the trustee’s right to exercise the power of sale. I believe this also means they separated the deed of trust from the note, thereby un-securing the deed. The only legal way to sue for the note is to sue me on the note…which THEN they would have to produce the note. Not sure on all of this. I’m not an attorney, just a homeowner fighting to get to the true party of interest on my mortgage.
Lisamarie,
You can do a loan mod anytime you want, but be very careful. If you do a loan mod with the wrong party, you have a new loan and the “old” note could still be enforced. These are title issues that require a competent lawyer. I am not a lawyer. I would say there are many other issues you can bring to the table – joinder is an important one – the real parties in interest, real and indispensible parties, etc. Look at my other posts and the posts of others – especially Neil as he says it best. If you have the SEC filings (assuming your loan was securitized) you can find this information (its not easy though).
Also, you stated that they foreclosed but were assigned the loan later. This is a huge red flag. They couldn’t have initiated foreclosure (judicial or non-judicial) if they did not own the loan at the time it was started. How could they have suffered damages if they didn’t own the loan? Why would they buy the loan after it was declared as non-performing and being foreclosed on?
Make sure the originator of the loan did not declare bankruptcy (or at least the party the assignment was done from). In my case the originator declared bankruptcy in 2007. In 2009 (while the originator was still in bankruptcy) the debt collector (acting as a MERS employee) assigned the loan from the originator to the Trustee for value received. This is bankruptcy fraud if the originator did not list the asset in bankruptcy and did not get the judges approval to sell the asset (I am sure they didn’t because they sold the loan in 2005). Plus of course no consideration (money) was paid for this note. Also, when foreclosure started they claimed the trustee was the creditor, but the assignment later showed they were assigning to the creditor. You can’t have it both ways.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Alina,
Sure. I sent a QWR to the servicer (and others) stating that I rescind my loan (for various reasons). Although this was done without knowledge that foreclosure proceedings had been initiated, they had in fact started at least 1 week before this notice (the servicer knew that). An employee of the servicer responded in a letter and said inter alia:
Our records indicate your extended right to rescind this loan expired on September 7, 2008. Therefore, this loan no longer qualifies for rescission.
Of course the law says the extended right to rescind is available in foreclosure (I believe it is with limitations).
Not only is she / they denying me due process, they are making a decision only a judge (and/or jury?) could make. In fact, she / they are not even following the law in their response (they should have returned all money paid within 20 days or initiated a lawsuit to protect their interest – or notified the true holder in due course as I requested). I guess this also means they made the decision on their own without the holder in due course.
In addition, they are performing a foreclosure for another party (the Trustee). This should only be done by a lawyer. They are practicing law and making legal decisions that impact others – without due process.
I am not a lawyer and this is only my opinion. I believe it applies in my case but the outcome would only be known if and when I pursue this in litigation.
But, at the time I did not know that they are really claiming to be the holder in due course. They claimed in the letters 1 week before my rescission that they were Attorney in Fact for the Trustee. This means they were making all of the decisions for the Trustee and in (in my opinion) that they were the operating Trustee (although I have no idea what authority, if any, they were given).
So the issue is complicated but probably doesn’t matter anyway – they are not the real party in interest and they have failed to bring the real and indispensible parties along for the ride.
Remember – when foreclosure was initiated the note was “pledged” to them. They did not have a perfected interest.
I think this is a fairly complex issue but basically it means that all parties who are in the chain of the “pledge” are all intertwined so tightly that they cannot be unwound.
They try to reattach the deed of trust and the note that were split when the loan was securitized (I am in a non-judicial state) by the assignment that occurs AFTER the Notice of Default.
I think I have strayed off topic but this is all inter-related.
Did I say I am not a lawyer and these are my opinions?
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan, thank you for the response. I’ll try to put this in a nutshell. I did a demand for production that was responded to by the bank producing a corporate assignment dated AFTER the foreclosure was filed on me(. In the court house the original lender is still on the mortgage, that never changed) The only thing filed in my alleged lender’s name is a Lis-pends? The judge demanded the original note for the second time, another copy of the corporate assignment was produced. Now we are at a stand still. I did the rescission based on the fact I was never given the right to cancel, 9 mths later they came up with a right to rescission letter I supposedly signed. (I did not). They want me to fill out forms for a loan mod,Point is this, Nobody has my original note, or at least they can’t produce it. What do I do next??? I can’t do a loan modification without seeing my note, can I?
Dan Edstrom,
Can you elaborate on your statement that the servicer is denying your rescission based on the unauthorized practice of law?
This is an interesting angle.
thanks.
I’ll admit, I know quite a bit about the topics and arguments at hand, my thesis is being developed around my personal situation… but at the end of the day you need a “warrior” attorney “WHO GETS IT”. I found one who is smart and competent about litigation in not only state but federal venue as well. Know your rights, question everything and seek competent help!
Mario Kenny and Dawn Rapoport of Rapoport Law Group have been extremely helpful to me and my situation!!!
It is money well spent!
Lisamarie,
I read one of your posts, not sure if you posted anything else. Rescission is just one argument but typically the lender denies it anyway (yours may not have which is interesting). The real lender probably didn’t give you a notice of rescission (if your loan was securitized). In my case I rescinded for TILA, RESPA and other violations – but it was after the 3 yrs. Yours is before the 3 yrs. I don’t think it matters why (as far as you listing the reasons) but you should list all of them from the sample letter here. In my case I found out that the finance charge was inaccurate enough to warrant rescission after 3 yrs in foreclosure. However, the servicer is using the unauthorized practice of law to state that I am not able to rescind. You need a QWR and many questions – an important one is WHO IS THE HOLDER IN DUE COURSE? WHO IS THE CURRENT OWNER OF THE NOTE?
Usually (from what I have seen) none of this will stop the foreclosure – you still need to file bankruptcy or file a lawsuit (or if you are judicial you would have to respond to a lawsuit). They usually do not roll over for anything – especially before litigation.
This is my opinion and I am not a lawyer. You really need a competent lawyer to fight this.
Thanks,
Dan Edstrom
dmedstrom@hotmail.com
you need to visit (in person or online) your county clerk of court and pull up your deed, mortgage and any other ‘public record’ to see what exactly has been recorded. then you need to examine your mortgage and/or note to see if the words MERS appears – how soon can you do that?
Well, 9/15 came and I went to the courthouse at 9.30 and the plaintiffs attorney had canceled the hearing. I see it as a good thing. I guess they still need more time to phony up the assigns. I still need to find out how to challenge them. There should be one from Ameriquest, to Quick Loan Funding, to Option One, to Regions Mortgage, to AMOSI / Liquidation Properties.
If someone knows how to ck on these, thru SEC filings, or courthouse fileings I would appreciate it. I am sure that the judge would be willing to rule against me if they showed up with the bearest excuse of them. In fact the was a article on the St Pete Time about a document mill in Palm Harbor FL
A portion of the article published 5/03/2009
Despite the turmoil in the lending industry, Bryan Bly seems to have no trouble finding a job.
On Aug. 3, 2007, Bly signed a document as vice president of Option One Mortgage.
On Feb. 13, 2009, Bly signed a document as vice president of Deutsche Bank.
And on Feb. 18, 2009, Bly initialed dozens of documents – this time as vice president of Citi Residential Lending.
In fact, Bly never worked for any of those. His real employer is Nationwide Title Clearing, a Pinellas County company that helps lenders clean up problems that can complicate efforts to foreclose.
READ FULL ARTICLE BELOW
http://pqasb.pqarchiver.com/sptimes/access/1697403571.html?dids=1697403571:1697403571&FMT=FT&FMTS=ABS:FT&date=May+3%2C+2009&author=SUSAN+TAYLOR+MARTIN&pub=St.+Petersburg+Times&edition=&startpage=D.1&desc=SO%2C+WHO+OWNS+YOUR+HOME+LOAN%3F
After the judge denies all your motions and claims in the local county court, is there anything that precludes you from filing a Federal action against the originator, servicer, securities underwriter, trustee, etc., for RICO, TILA, concealment, fraud (inducement, in factum)? this is my next step. Prudent? I will contact and contract an attorney first, but am I going in the right direction?? Would Rooker/Feldman apply as none of these claims were addressed in the local foreclosure action? Please advise. Thanks folks!
Yes, I filed it before the 3 year time frame, that the judge did not address. It was refiled on the doc’s that they claimed they did not recive. I hope the original papers will turn up in the judges file, so he will know I was not lying. I refiled adding my wife and son on, plus noting that the court order to produce the assigns had not been complied with. This time I sent the Defendant’s Opposition to Plaintiff’s Motion for Summary Judgement. via certified mail.
I do not know what will happen on the 15th. I know that it will not be the end.
Those who would like to review what I have filed I have listed it in a website. It has all the filings back and forth, except the motion from The Florida Defence Team that I agreed not to share.
Right now there is a problem with my loan doc’s that I will have downloaded soon.
What all claims can you make to rescind a loan two and a half years later? I tried to rescind my mortgage and the bank sent my lawyer a copy of the right to cancel form I supposedly signed. (never seen it before) But the bank states they still don’t want to litigate, they want to do a mortgage modification. The original loan note remains lost. I don’t feel comfortable modifiyng my loan with peopel who can’t prove ownership of the property. I don’t know what to do either.
Did you rescind your loan? If yes, what claims did you make?
John – your welcome. It shows a clear picture of how those in power can manipulate the system and leave us to pick up the bill.
I examine title in all 50 states, have seen many MANY screwed up or missing assignments and deeds coming out of trustees for the pass through certificates, MERS, etc. etc.
Did you send your rescission letter yet?
Yes it sums it up but I have a Sept 15 court date, and I don’t think the judge will watch this video. But thanks for passing it on.
I hope this posts okay – a video that pretty much sums it up!
[youtube=http://www.youtube.com/watch?v=uks5NfaVnpM&hl=en&fs=1&]
Yah, who was the Judge? I tell you, I’ve been before the county Judge and he don’t play. If HSBC hadn’t flat out lied to him he would have probably signed their summary for final judgement. He asked them where the original loan note was after we did a demand for production 8 months earlier, they filed a shoddy, unnotorized corporate assignment, stating ‘filed; original mortgage note. The judge started flipping through my file and NO it was not there! And that wasn’t the first lie he caught them in. Long story. You can tell the Judge is not happy with them. Is it true after three shots in the court room their out???
Alina,
Who was the judge.
Re Judge Anthony Rondolino St Pete Fl
This is from a april 3 2009 story in the St Pete Times
Pinellas-Pasco Circuit Judge Anthony Rondolino retired last November, but it was hard to tell. By January he was back on the bench, just as before, with one notable exception.
His annual income took a leap of $124,104 – the pension he’s collecting after his “retirement.” Add that to his judicial salary of $145,080 and the grand total is $269,184.
Rondolino is one of the state employees who have been called “double dippers,” because they are getting pension payments and salaries for the same jobs.
But unlike some state employees, Rondolino is an elected official.
Check out full article a http://www.tampabay.com
WOW! No wonder the judge is in such a hurry, with over $5000.00 a week coming in from taxpayers, he hardly has time to count.
http://pqasb.pqarchiver.com/sptimes/access/1672431961.html?dids=1672431961:1672431961&FMT=FT&FMTS=ABS:FT&date=Apr+3%2C+2009&author=CURTIS+KRUEGER&pub=St.+Petersburg+Times&edition=&startpage=A.1&desc=PINELLAS+JUDGE+DOUBLE+DIPS
John Anderson,
I am also fighting a foreclosure in Florida and am going pro se. In my situation, I filed a Motion to Dismiss on several grounds, namely TILA, lack of standing, not meeting conditions precedent, etc.
The judge told me that he had no knowledge of TILA and could not comment. Counsel for plaintiff told the judge in open court that they had mailed a notice of default/acceleration per paragraph 22 of my mortgage. The judge then denied my motion and instructed plaintiff’s counsel to file the NOD. The supposed NOD was dated 2 years before and was just a letter stating that my payment was late. The last paragraph of the letter stated that it was not an NOD. I went back to the judge with a motion for reconsideration which was denied without explanation.
There are other posters here from Florida. Hopefully, we can all help each other. I have been unsuccessful in locating an attorney and gave up.
My mistake the hearing was 7/14/2009
This is a copy of a letter I sent to Sherman Balch of the Florida Defence Team who at the last moment studied my case and prepared a Oposition Motion.
Sherman;
I went to the Summary Judgement hearing 07/14/2007. in front of Judge Anthony Rondolino My head was spinning for two days. I wrote for three days a accounting of what was said and done, to post on my website and comment area on Living lies and to send you a copy. I lost the thousand word work, because windows had to shut down.
Short version.
I could tell by the way the judge was shifting papers that had had not read any of it. Far from acting as my advocate, he goes on attack stating that I borrow $100,000.00 and now I don’t want to pay it back? I replied that I wanted to make sure it was paid to the proper party’s. He was not impressed. I brought up the subject of the Opposition to Plaintiffs Motion for Summary Judgment. He looks through his pile of papers and said he could not find it. He asked the Plaintiffs Attorney if she had received the papers Sarah Barbaccia Fl Bar #30043 she said that she had not. My wife went with me to the post office to mail them at 2.30pm on July 1. I don’t know how much the shock showed on my face. I could not call the judge a liar,or his staff incompetent. All I could do was state to the judge that I had mailed these on July 1, and handed my copy to him. He reads the title and Statement of Facts then glances down and blurts out “unclean hands, rescind the transaction?” Did you return the money you borrowed? I replied that I had not, and before I can say they had not returned my payments. He started lecturing me how this is not high school where you can say YEA WHAT HE SAID and get a grade. Where do you get this motion? I told him that it was prepared by a legal defense group. He handed it back to me and stated it was undated. I looked it over and saw that I had accidentally placed two pages of other doc’s with it, and showed him the date at the certificate of service. I the brought up the matter of the Notice Required by the Fair Debt Collection Practices Act that if I disputed the debt, that they would suspend collection efforts, obtain verification of the debt and a copy would be mailed to me. I asked the judge if claiming fraud disputed the debt? Whats that filed on? I flipped the papers over and showed that it was on the Lis Pendens. He looks over her papers, and asked her if she had filed the assigns? She replied “Aren’t they with the papers? He launched back into me again and said ” So your argument is that your mortgage is transferred from one party to another? This is allowed for servicers to transfer to different party’s. I stated that I did not see how went my deed is listed with quick loan funding/MER’S be foreclosed on by Liquidation Properties? as with most of my questions it went unanswered. I then asked about the note. We have a copy of the note he loudly states, and hands me a copy. I look it over carefully, slowly, and said that I would be happy to provide the plaintiffs a copy of some money if they would like.
You will have to file the assigns, hearing is postponed. He said it so fast that the attorney on the phone had to ask what he had said. He then told me that I should hire a lawyer or spend some time at the law library and that my wife and my son needed to file separately. We nodded and was getting up and leaving when the judge asked one more question ” So you don’t think you owe anything?” I replied that I might owe, but not to them.
So now I wait for the plaintiffs to file there assigns. I told the judge at the beginning that I intended to fight when he asked me what I was going to do about this. But it is going to be tuff to win when a judge don’t have the time to read the papers. This judge has a lot of experience. A t first I thought that this could work to my advantage. However I thought the judge with a Pro Se defendent would at least let the plantiffs attorney ask the questions, her only words was stating her ID, “Aren’t they with the papers” and “What did you say?”
I need to find the best way to challange the assignments. If anyone can offer advice I would be gratefull.
John Anderson
jandersonpaper@yahoo.com
Links concerning Judge Rondollino April 8 2009 http://www.tampabay.com/opinion/letters/article990449.ece
I’ll tell you what, there is something to what your saying becaue my mortgage rescission got shot down also. I can’t disclose much except that Legal Aid is not legally able to fight your foreclosure with a rescission, I must retain a Lawyer thats not affiliated with the Legal Aid system. I think they are in a position to try and make everybody happy including the bank. Sometimes that just can’t happen. And regardless of what anybody says, if they dont have the paperwork, (signed letter from you giving your right to cancel, ect…) Well, they’ll just make it up. They don’t even have to look for it if they don’t feel like it. My alledged lender has falsified documents. They still maintain they can’t “Produce the Note” ,I’m just waiting for them to make up one of those too. I’m getting me a kick ass Lawyer with the money I’ve been saving to put towards a modification. Don’t want to deal with crooks NO more!!!
As I thought, rescission doesn’t seem to apply to mortgages. Even the link you provided states “(2) This section does not apply to the following:
(i) A residential mortgage transaction.” This is disappointing in that I’d gotten my hopes up that there was something I could do. Very disappointing.
Check it out here if you have any questions on TILA
http://www.fdic.gov/regulations/laws/rules/6500-1800.html#fdic6500226.31
I don’t get it – there is nothing that I can find that says a recission can be applied to TILA in regards to real estate mortgages. CAN ANYBODY EXPLAIN WHERE THIS INFORMATION IS?!
oops i meant Oregon does NOT drag you to court.
Oh sorry – i posted more details in another section and didnt want to spam…
Here goes.
Oregon is non-judicial.
I got a certified letter from a “trustee” informing me of a auction for mid november.
I have no second and I never refinanced. I bought in 2007 30/yr fixed from bofa.
I know it has been securitized because someone on the phone at bofa told me.
As soon as I got the letter stating my house was scheduled for power of sale auction for november.
I sent a two certified letters to the trustee both from this site. “objection to trustee sale” and “initial dispute of debt”
Now I am about to send a Qualified Written Request. Still, I’m stumped about how to stop the auction in the mean time. Oregon does drag you to court they can just illegally take your house without a trial.
So am I right in thinking that my next step is sending the QWR? If so what is next? What do I need to file with the courts to prevent the sale or at least delay it a bunch? I don’t have the luxury of using the “produce the note” tactic if their is no trial.
I sincerely appreciate your replies. Thanks!
– PDX
Ya, that!!!
PDX,
You need to provide more information about your case.
Is Oregon a Judicial Foreclosure state?
Did you Answer a Complaint, Summary Judgment properly?
Have you filed a Request for Discovery?
If a Sale is scheduled, it probably means a default judgment was issued.
If so, you can try to file a Temp Restraining Order stopping the Sale. Ask the Judge for an Evidentiary Hearing to prove the Plaintiff is the Lawful Holder of the Note, Show him your proof of sending the QWR, and ask the Court kindly, to PROVE THE PLAINTIFF IS THE INJURED PARTY. Submit an Affidavit with the Motion for a TRO, that you did not execute a Promissory Note to the Plaintiff (if that is the case)
Entitlement. Sorry
PDX, have you requested for the bank to “produce the note” yet? Do it and everything will come to a screeching halt. For a while anyway. Perhaps it will be enough time for you to get your ducks in a row. It’s working for me.’ Produce the note’ is a legal intitlement you have. Everybody has the right to know where there original mortgage note is. Please keep us posted. Sincereley, Lisamarie
I live in Oregon. My house is scheduled to be auctioned in November. Let’s say I sent a QWR and had an extensive audit done… How does this help if I can’t stop the auction?
How do I stop the auction?
Can I somehow reassign the the trustee? I have heard that i can revoke their power of attorney (or something like this) but how does that work.
I only have so much money to throw at all of this and I can’t have my family out on the streets in the winter.
Is bankruptcy the only way to force them to prove in court that they own the note? Neil mentioned once something about…
“reconveyance through power of attorney” – how does this work.
What do I need to find out from the county clerk? I need to do all of this pro se but im in a chicken and egg situation where i dont know where to begin.
any light that can be shed would be so very much appreciated.
thanks
pdx
I’d like to know the answer to this also. I did the ‘produce the note’ and two years later we are still at a stand still with no note thus far. Now the bank states they don’t want to litigate, they want to give me the loan modification. A rescission letter has popped up with m y signature??? on it. that I’ve never seen before in my life! Leaving me very mistrusting Also I;m leary to modify a loan with a bank that can’t even prove they own my mortgage. I’m just afraid of doing the wrong thing for my family.
My case is in Appeals should I file a Lis Pendance Awaiting the outcome of the appeals decision?
Thank you for your fast response.
How can I avail of your services and how much is the fee?
Do you also do investment/non-owner occupied property?
Pls advise.
Thank you for your time and expertise.
Lional Madamba: Show me the note always works up to a point. But alone it leaves you frequently standing naked in front of the Judge when they produce the note. A Forensic review which is accompanied by a Qualified Written request will ask a lot more questions that they probably can’t answer. There is no single magic bullet. Securitization of loans, deeds that name Nominees like MERS, credit default swap insurance payments, federal bailout payments, etc. all enter into the equation. If you really want to win you need to hit them with the whole book.
Hello,
I was informed by a lawyer in California that because it is a non-judicial state the “show me the note” theory won’t work.
Pls clarify.
Thank you.