TN CT on STATUS AS CREDITOR: Authentication of Documents Insufficient with Self Serving Affidavits

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM

SEE ALSO MASSACHUSEETS SUPREME COURT ORAL ARGUMENT

EDITOR’S NOTE: The walls are closing in on the pretender lenders. The number of Judges that are insisting on applying the substantive, procedural law and rules and evidence is climbing rapidly. The allegation that the loan was transferred is put in factual issue requiring the pretender to plead and prove its case. The burden of proof is shifting back to where it belongs — on the party seeking affirmative relief (i.e., taking the house or collecting force-placed insurance or whatever).

The bottom line is that if a pretender can’t prove they are the real thing in a judicial proceeding, they are not entitled to anything because they lack jurisdictional standing — and that applies whether it is non-judicial or judicial. The use of self-serving affidavits or “representations of counsel” won’t cut it. There must be real evidence of real facts. And documents must be properly authenticated — which means that a witness must forward who is legally COMPETENT to testify.

If you look at the all the affidavits filed in the millions of foreclosures that were initiated, there is an absence of such a witness on the face of the self-serving affidavit or declaration. Without authentication, not even the mortgage can be admitted into evidence, much less transfers of the mortgage. Those witnesses, if they ever existed have long since been downsized (fired) out of organizations that either no longer exist or which have been reorganized and reconstituted.

There are numerous established ways of correcting defects or clouds on the chain of title. The pretenders are not using any of them because the truth is they never loaned the money, they were not at the closing, they never purchased the loan, and the loan documents describe a transaction that never occurred, ignoring the real transaction that occurred between the borrower and the investor-lender which must either be considered undocumented or only partially documented.

THERE IS NO WAY THAT A NON-JUDICIAL FORECLOSURE PROCEEDING SHOULD BE ALLOWED TO PROCEED WHEN THE WOULD-BE FORECLOSER CANNOT EVEN PLEAD A CASE THAT WOULD SURVIVE A MOTION  TO DISMISS IN A JUDICIAL FORECLOSURE. THERE IS NO WAY THAT A WOULD- BE FORECLOSER CAN PREVAIL UNLESS THEY ARE IN FACT THE CREDITOR AND CAN PROVE IT.

TN Court Finds Sufficient, Genuine Issue Regarding Sold Loans, Unrecorded Assignment LEE v. EQUIFIRST

TN Court Finds Sufficient, Genuine Issue Regarding Sold Loans, Unrecorded Assignment LEE v. EQUIFIRST

TERI LEE, Plaintiff,
v.
EQUIFIRST CORP., HOMEQ SERVICING CORP., QUANTUM SERVICING CORP., SUTTON FUNDING, LLC, ROOSEVELT MORTGAGE ACQUISITION CO., and WELLS FARGO, N.A., Defendants.

Case No. 3:10-cv-809.

United States District Court, M.D. Tennessee, Nashville Division.

April 25, 2011.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court is the Motion for Summary Judgment filed by defendant EquiFirst Corp. (Docket No. 64), to which the plaintiff has filed a response (Docket No. 68), and in support of which the defendant has filed a reply (Docket No. 74). For the reasons discussed below, the defendant’s motion will be denied.

BACKGROUND

Plaintiff Teri Lee took out two mortgage loans, the larger of which was for $152,000 (the “Primary Loan”), to purchase her residence in Nashville, Tennessee.[1] Eventually, she missed payments on the Primary Loan. This action arises from the resulting foreclosure.

At the March 2, 2007 closing of the plaintiff’s home purchase, defendant EquiFirst Corp. (“EquiFirst”) held the promissory notes and the servicing rights to both loans. The Amended Complaint alleges that, on May 1, 2007, EquiFirst assigned the servicing rights of the loans to defendant HomEq Servicing Corp. (“HomEq”). (Docket No. 50 ¶ 12.)

The plaintiff’s deed of trust required her to carry an insurance policy on her property, and she allegedly maintained sufficient coverage for the duration of the loans. (Id. ¶ 25.) The plaintiff alleges that on two occasions — May 13, 2008 and October 14, 2008 — HomEq charged her for additional, unnecessary insurance policies, because it failed to discover that she already had insurance. (Id. ¶¶ 27-28.) These charges totaled approximately $4,700, and this expense allegedly caused the plaintiff to fall behind on her loan payments. (Id. ¶¶ 27-28, 34.)

On February 25, 2009, the plaintiff allegedly received a notice of acceleration of the Primary Loan from a law firm, identifying the current creditor as defendant Sutton Funding, LLC (“Sutton”). (Id. ¶ 35.) The next month, Lee received a notice of foreclosure from the same law firm. (Id.)

At that point, the plaintiff called HomEq, which allegedly offered her a forbearance agreement. Under the proposed plan, the plaintiff would immediately pay $3,500 and would then pay increased monthly payments until November 2009, at which point her account would be current. (Id. ¶¶ 36-37.) The plaintiff alleges that she accepted these terms and signed an agreement (the “Forbearance Agreement”) with HomEq on March 27, 2009. (Id.) The agreement provided that it would be binding upon the parties’ “successors and assigns.” (Id. ¶ 39.)

On May 15, 2009, after accepting the plaintiff’s up-front payment and first increased monthly payment, HomEq allegedly transferred the servicing rights for the Primary Loan to defendant Quantum Servicing Corp. (“Quantum”). (Id.Id. ¶ 40.) The letter informed her that she was more than $6,900 in arrears, and it did not reference the Forbearance Agreement. (Id. ¶ 40.) ¶ 38.) Shortly thereafter, the plaintiff received a “Validation of Debt” letter from Quantum, listing defendant Roosevelt Mortgage Acquisition Co. (“Roosevelt”) as the current creditor. (

Quantum allegedly never recognized the Forbearance Agreement. The plaintiff claims that the amounts she paid HomEq under the Forbearance Agreement left her unable to pay the balance that Quantum asserted was due. (Id. ¶¶ 42-43.) Ultimately, on March 24, 2010, after several months of communications with Quantum and its law firm, the plaintiff’s home was sold at a foreclosure sale.

The plaintiff asserts three causes of action: (1) negligence by HomEq for charging her for unnecessary insurance; (2) negligence by HomEq and Quantum for failing to ensure that the Forbearance Agreement was honored when the servicing of her loan was transferred between those companies; and (3) violation of the Real Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., by Quantum, for failing to respond to several “qualified written requests” in the months before the foreclosure.[2] (Id. ¶¶ 24-76.) The plaintiff alleges that EquiFirst is vicariously liable, as the creditor of the Primary Loan and as the principal of HomEq and Quantum, for the first two causes of action. (Id. ¶¶ 30, 46, 52.)

The deed of trust for the plaintiff’s property was recorded by Mortgage Electronic Registering Service (“MERS”), of which all of the defendants are members. This allegedly made it difficult for the plaintiff to determine which defendant was the creditor for the Primary Loan at any given time. (Docket No. 50 ¶ 20.) The plaintiff alleges that “[m]embers of MERS do not publicly list this information in the MERS system, which they use to avoid listing the chain of title in the county registry.” (Id. ¶ 19.)

Defendant EquiFirst previously filed a Motion to Dismiss, arguing, in relevant part, that it sold both of the plaintiff’s mortgage loans before any of the servicers’ alleged negligence had occurred. In support of that motion, the defendant filed the declaration of Karen L. Stacy, an EquiFirst Vice President. (Docket No. 18.) In response, the plaintiff requested more time for discovery.

In ruling on the Motion to Dismiss, the court declined to consider the defendant’s extrinsic evidence. (Docket No. 28 at 7 n.2.) The court held that EquiFirst, as mortgagee, could be held vicariously liable for actions taken by HomEq, as servicer. (Id. at 8.) It also found that the plaintiff’s initial Complaint contained sufficient allegations that EquiFirst was the creditor when HomEq charged the plaintiff for insurance. (Id. at 6-7.) There were no allegations, however, suggesting that EquiFirst was the creditor after February 2009; thus, the court dismissed all claims against EquiFirst, except for the negligence claim related to insurance. (Id. at 7.)

The court stated that, “if the evidence ultimately shows that EquiFirst did sell the loans in March 2007, then [EquiFirst] will not be held liable for actions taken by the servicer in 2008.” (Id. at 8.) It further noted that, “[i]f discovery ultimately shows that EquiFirst owned the loan at a later date, the plaintiff may move to amend her Complaint as necessary to re-assert the relevant claims against EquiFirst.” (Id. at 7 n.3.) The plaintiff did subsequently file an Amended Complaint, which, as mentioned above, alleges that EquiFirst is vicariously liable for HomEq’s negligence regarding the insurance and for HomeEq’s and Quantum’s negligence in handling the Forbearance Agreement.

EquiFirst has now filed a Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. Relying exclusively on the previously filed declaration of Karen L. Stacy, the defendant once again argues that it was not the creditor on the Primary Loan when the servicers’ alleged negligence occurred.

ANALYSIS

I. Summary Judgment Standard

Rule 56 requires the court to grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the [plaintiff].” Moldowan, 578 F.3d at 374.

At this stage, “`the judge’s function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “the mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient,” and the plaintiff’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 249, 252. An issue of fact is “genuine” only if a reasonable jury could find for the plaintiff. Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

II. EquiFirst’s Sale of the Loans

The instant dispute boils down to the factual issue of when, exactly, EquiFirst sold the plaintiff’s loans. The defendant argues that Karen L. Stacy’s declaration shows that it sold the loans on March 30, 2007, so it was not liable for HomEq’s or Quantum’s subsequent negligence. The plaintiff argues that her own evidence shows that EquiFirst still owned the loans on May 14, 2007 and February 20, 2009.

Stacy’s declaration states that, “[o]n March 30, 2007, EquiFirst sold both of the [plaintiff’s mortgage] Loans to Sutton Funding, LLC,” and, “[o]n May 1, 2007, EquiFirst transferred the servicing of both of the Loans to HomEq Servicing Corporation.” (Docket No. 18 ¶¶ 3, 5.) The declaration further states:

EquiFirst was not, at any point in time, the creditor on the Loans during the periods of time in which the Loans were serviced by HomEq Servicing Corporation or by Quantum Servicing Corporation. . . . After EquiFirst transferred the servicing of both Loans to HomEq Servicing Corporation on May 1, 2007, EquiFirst did not have, and EquiFirst continues to not have any ownership interest in the two Loans or the two corresponding liens on the subject property.

(Id. ¶¶ 6-7.) But, “[b]ecause MERS was the beneficiary on the relevant security instruments, no assignment was prepared or recorded in the Register’s Office of Davidson County, Tennessee.” (Id. ¶ 4.)

In opposing the assertions contained in this declaration, the plaintiff relies on several documents. First, the plaintiff has submitted two “Validation of Debt” letters that she received from HomEq, one for each loan, both dated May 14, 2007. These letters, which are dated six weeks after EquiFirst’s claimed sale date, state that HomEq “is responsible for providing monthly remittance processing . . . on behalf of the current owner of the loan EquiFirst.” (Docket No. 68, Exs. 3-4 (emphasis added).) The plaintiff has also submitted five largely identical notice-of-default letters from HomEq, dated February 15, 2008, August 15, 2008, October 16, 2008, January 19, 2009, and February 19, 2009, each of which states that “Barclays Bank PLC” is the Primary Loan’s “current creditor/owner.” (Id., Exs. 6-7.) The plaintiff points out that EquiFirst, which was formally dissolved as of June 2010, was owned, via a string of wholly owned subsidiaries, by Barclays Bank PLC (“Barclays”).[3] (See Docket No. 4 at 1 (EquiFirst’s corporate disclosure statement).) Finally, the plaintiff has submitted a document included in HomEq’s initial disclosures titled “Communication History,” which appears to be an internal log of events and communications related to the plaintiff’s loan file. (Docket No. 68, Ex. 5.) It contains an entry, dated February 20, 2009, labeled “comment log.” In the “description” column, the entry states: “INVESTOR 394 EQUIFIRST BBPLC FORECLOSURE IN THE NAME OF: BARCLAYS CAPITAL.” (Id.)

The court finds that, at least at this stage in the litigation, the plaintiff’s documents are sufficient to create a genuine issue for trial regarding when EquiFirst sold the loans. Significantly, the defendant’s sole piece of evidence is the self-serving declaration of its own employee, which contains the bare assertion that EquiFirst sold the loan to Sutton in March 2007. The defendant has not, for example, attached any supporting documentary evidence of that sale or submitted any relevant testimony from Sutton or HomEq.

In opposition, the plaintiff has produced a letter from HomEq stating that EquiFirst was still the creditor in May 2007.[4] Furthermore, the “Communication History” document states that, as of February 2009, the “investor” for the plaintiff’s loan was “EQUIFIRST BBPLC.” Presumably, “BBPLC” refers to Barclays Bank PLC. The document is ambiguous, but, construed in the light most favorable to the plaintiff (particularly in the absence of countervailing evidence regarding the proper interpretation of the document), it indicates that EquiFirst had some interest in the loan as of February 2009. It also suggests that HomEq might have equated EquiFirst with Barclays Bank PLC in its records. In that event, the five notice-of-default letters naming Barclays as the Primary Loan’s creditor might support the conclusion that EquiFirst owned the loan throughout 2008 and early 2009.

In sum, after reviewing the parties’ evidence, a reasonable juror could conclude that EquiFirst owned the loans during the relevant time periods. On this record, summary judgment is inappropriate.[5] Moreover, although the plaintiff does not argue that she needs time for additional discovery, the court believes that the defendant’s Motion for Summary Judgment is premature. The parties have not had a full and fair opportunity to engage in discovery. In fact, a discovery deadline has not even been set in this case, for various reasons apparent in the case record. Given the apparent lack of transparency regarding which defendant owned the plaintiff’s loans at any given time, the court believes that it would be inappropriate to resolve the instant factual issue before the close of discovery.

Finally, the defendant argues that the court must disregard the plaintiff’s documents because she has not properly authenticated them. (Docket No. 74 at 6-7.) It is true that, at summary judgment, parties must submit evidence that would be admissible at trial. See Fed. R. Civ. P. 56(c), (e). Federal Rule of Evidence 901 requires that, to be admissible, documents must be accompanied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a); see also id. 901(b)(1) (explaining that a matter can be authenticated by “[t]estimony [from a witness with knowledge] that a matter is what it is claimed to be”). Consequently, the Sixth Circuit has repeatedly stated that documents submitted in support of a summary judgment brief must be properly authenticated. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (noting the Sixth Circuit’s “repeated emphasis that unauthenticated documents do not meet the requirements of Rule 56(e)”); Baugham v. Battered Women, Inc., 211 Fed. Appx. 432, 441 n.5 (6th Cir. 2006) (“[T]he documents Plaintiffs submitted in support of their opposition motion were neither signed nor authenticated and, therefore, are inadmissible evidence for purposes of summary judgment.”); Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 532 (6th Cir. 2002) (“[The] memo [submitted by the defendant] was not accompanied by an affidavit or document that attested to its validity or authenticity. . . . `[D]ocuments submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded.’”).

But Federal Rule of Civil Procedure 56, as amended effective December 1, 2010, provides that, “[i]f a party fails to properly support an assertion of fact,” the court may “give an opportunity to properly support or address the fact.” Fed. R. Civ. P. 56(e)(1). The Advisory Committee’s notes to the 2010 amendments state that, “[i]n many circumstances[,] this opportunity will be the court’s preferred first step.” Here, nothing suggests that the documents submitted by the plaintiff are actually inauthentic, and the defendant does not dispute that the plaintiff canSee Docket No. 68, Ex. 5.) Accordingly, the court will give the plaintiff an opportunity to submit declarations authenticating the documents.[6] authenticate the documents. Indeed, the Bates label on the “Communication History” document clearly indicates that it was produced by defendant HomEq. (

CONCLUSION

For all of the reasons discussed above, the defendant’s Motion for Summary Judgment will be denied, although EquiFirst is free to file a renewed motion after the close of discovery. The plaintiff will be ordered to file declarations that properly authenticate the documents that she submitted in support of her summary judgment opposition.

An appropriate order will enter.

[1] Unless otherwise noted, the facts are drawn from the parties’ statements of undisputed facts (Docket No. 64, Ex. 1; Docket No. 68, Ex. 1). The court draws all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Brown v. United States, 583 F.3d 916, 919 (6th Cir. 2009).

[2] The Amended Complaint does not explicitly set out a claim for wrongful foreclosure, although it does allege that the defendants’ negligence “helped facilitate the eventual wrongful foreclosure of her home.” (Docket No. 50 ¶ 34; see also id. ¶ 54.)

[3] The plaintiff’s Amended Complaint added Barclays as a defendant. (See Docket No. 50 ¶ 7.) Soon after, however, the plaintiff voluntarily dismissed Barclays without prejudice, because she was unable to serve process on it. (Docket No. 59.)

[4] EquiFirst argues that this letter, which was not created by EquiFirst, was mistaken. (Docket No. 74 at 9.) Although that is certainly possible, at summary judgment, the court must view the evidence in the light most favorable to the plaintiff; thus, the court cannot simply assume that the letter contained mistakes.

[5] The defendant argues that the plaintiff does not oppose entry of summary judgment in favor of EquiFirst on her RESPA and wrongful foreclosure claims. (Docket No. 74 at 2.) But the Amended Complaint does not seek to hold EquiFirst liable for any RESPA violations, and it does not contain a separate wrongful foreclosure claim. (See Docket No. 50 ¶¶ 55-76.) The defendant further argues that, because the plaintiff’s brief does not sufficiently address the issue, she has waived any argument that EquiFirst is vicariously liable for the servicers’ negligence regarding the Forbearance Agreement. (Docket No. 74 at 8.) The court disagrees. First, the defendant’s initial motion papers did not mention the plaintiff’s Forbearance Agreement claim, so the plaintiff could not possibly have waived any arguments by failing to discuss that claim. Second, the plaintiff argues that the “Communication History” document shows that EquiFirst owned the loan in February 2009, the month before she signed the Forbearance Agreement. The clear implication is that EquiFirst owned the loans during the time period relevant to the Forbearance Agreement claim.

[6] It should be enough (1) for the plaintiff to declare that the letters are true copies of letters that she received and (2) for her attorney to declare that the Bates-labeled documents are true copies of documents that HomEq produced in its initial disclosures.

24 Responses

  1. Question: If during foreclosure litigation, Ocwen acquires Homeq and counsel is still actively representing Homeq as if they are the current servicer, with no mention of Ocwen, should the court be moved to join Ocwen? I’m confused. What happens when a company has been transferred during litigation?

  2. Does anyone remember the name of the case in Pennsylvania where the judge allowed the federal claims to proceed in federal court but remanded the equitable issues in the foreclosure to the state court

  3. so…how DO you get “rid of the fed”?

  4. hmmm another bureaucracy that will make everything better….and those evil republicrats …I mean democans…I mean…oh well…and by the way…the check is in the mail and I will not c*** in your mouth, and blah the effing blah and are you people really going to believe this crap again????Is this “professor” talking about shutting down the Federal Reserve Bank and the central banking system???No, because she has her marching orders and if you think she is your friend then you deserve more of what you already got. The Huffpost….yeah no agenda there…you might want to really think about who you are getting into bed with before you go running around quoting sources like this. And those people down at the shareholders meeting in Frisco….hmmm can you say communist, marxist, want the whole country to go down in flames and see this as an opportunity to agitate the great unwashed and maybe get a little chaos out of it. I am sorry but I am afraid for this country. read the coloumn by charlie reese in the Orlando Sentinel, the gist of which is this, between the senate the house and the supreme court 545 people rule this country, FIVE HUNDRED AND FORTY FIVE PEOPLE RULE 300,000,000. AND IT IS A HUGE CON JOB THAT BOTH PARTIES ARE IN ON. Until we get rid of the Fed, and them we are slaves and no amount of rePUBICrat or DEMONcan bashing bulls*** is going to fix it. go E. Warren my ass!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  5. Anonymous.

    “NEVER pay anyone — unless it can be demonstrated that they are are the current creditor”

    Now you know why I defaulted on everything 2 1/2 years ago.

    And during this confusion of crap, nothing has been done against me. I ignore all phone calls and stupid letters. I would love to pay back the original creditor, make it whole. I really would. But nobody has come forward saying they are out loaned money. Oh well, I don’t lose any sleep over it.

  6. Crude oil went down 10 bucks today. Silver and gold tanked as well, other commidities as well. If fundamental value is priced into the market, then nothing would tank or decrease in value that much. Why does it decrease in value so much? Simple – it’s speculation and traders taking profit. But who gets screwed on the ramp up of prices – everybody buying the products that need the commondity or middle class who can’t do a thing about it. .

  7. Yes Carrie, and why, because back then loans where created from nothing, just accounting entry, you owe me or IOU – promise to pay. Then when they released glass stegal, they got pensions, hedge funds, IRA,state or anybody with funds to invest to take the risk from their accounting entry or book entry loans, thus loans get transferred immediately off bank or mortgage originator books or accounting required to report to IRS. It’s so simple but yet made to be complicated.

  8. ‘The purpose of the Glass-Steagall Act was to control speculation and prohibit a bank from owning other financial institutions which would create a conflict of interest, such as investment banks and insurance companies. The Glass-Steagall Act was enacted in 1933 after excessive risk-taking that contributed to the Great Depression. Jean-Marie Eveillard, of First Eagle Funds, has said: “Glass-Steagall protected bankers against themselves… Bankers are sheep. They don’t mind going over the cliff if everyone else goes over the cliff.”

  9. Loans were never transferred — could not be transferred. Only “collection rights” to already classified default debt transferred. That is what subprime was all about.

    Cannot “fix” it and make it right now — way too late — impossible.

    Do collection rights exist — somewhere?? Yes. But, rarely to the stated plaintiff. And, at a steeply discounted price that should be subject to valid principal correction and loan modification. But, of course, no valid modification is possible without current creditor and status of loan identified.

    Valid loan modification is impossible. And, with each month that passed — homeowners were denied the right to confront their current creditor — and fairly negotiate.

    Homeowners denied every right under HAMP — every right under laws that demand the identification of the current creditor (as to collection rights that remain after charge-off of receivable note). Damages — yes — fraud — and fraud upon the court — prevented homeowner right to rectify the situation.

    NEVER pay anyone — unless it can be demonstrated that they are are the current creditor. Every debt collection under a false name is — invalid and illegal. Every homeowner had the right to NOT pay the stated creditor –if the stated creditor is not the CURRENT creditor. Any money paid under false pretense – is money out the window. You will NEVER be credited for same – and always held responsible — even if foreclosure goes through. Any false modification under false creditor name – is a false contract.

  10. But as to the random investor reading here at LL, this ‘provision’ is likely not enforeceable as to shield the Trustee because it is UNCONSCIONABLE.

  11. No, affidavits and declarations don’t support authenticity. They sure as hey shouldn’t.. Consider the following outrage from an actual Trust Agreement.

    ” (b) Within 45 days after the Closing Date, the Trustee or the Custodian on behalf of the Trustee, will, for the benefit of Holders of the Certificates, review each Mortgage File to ascertain that all required documents set forth in Section 2.01 have been received and appear on their face to contain the requisite signatures by or on behalf of the respective parties thereto, and shall deliver to the Trustee, the Depositor, the Master Servicer and any NIMS Insurer an Interim Certification in the form annexed hereto as Exhibit B-2 (or in the form annexed to the Custodial Agreement as Exhibit B-2, as applicable) to the effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan prepaid in full or any Mortgage Loan specifically identified in such certification as not covered by such certification), (i) all of the applicable documents specified in Section 2.01(b) are in its possession and (ii) such documents have been reviewed by it and appear to relate to such Mortgage Loan. The Trustee, or the Custodian on behalf of the Trustee, shall determine whether such documents are executed and endorsed, but SHALL BE UNDER NO DUTY OR OBLIGATION to inspect, review or examine any such documents, instruments, certificates or other papers to determine that the same are valid, binding, legally effective, PRPERLY ENDORSED , GENUINE, enforceable or appropriate for the represented purpose or that they have actually been recorded or are in recordable form or that they are other than what they purport to be on their face. Neither the Trustee nor the Custodian shall have any responsibility for verifying the genuineness or the legal effectiveness of or authority for any signatures of or on behalf of any party or endorser.”

    This language absolves the trust trustee of all responsibility. NO one, NO one was assigned the duty of diligence on these Notes and other documents. Who the heck was representing the ‘investors’ in this deal? Looks to me like no one.

    If the trustee can’t even swear to authenticity, how could anyone else down the line? If endorsements weren’t made at the time of the alleged event, the loan was NOT transferred into the trust and never will / can be. I would cite this paragraph from this trust agreement and any like it in other trust agreements in any litgation wherein a trustee or his buddies attempt to authentic jack, especially as to the alleged date of the endorsement.
    This is from the BNC Mortgage Loan Trust 2006-1 which can be found at realdocdocs and probably elsewhere.

  12. confused – i looked up all ads in davidson county between 5/1/11 and 5/5/11. i see references as you describe, but none of them are actually foreclosing in the name of mers. the snippets you list are taken from a longer description of brief chains of title recited in the ads.

  13. confused – very interesting since no one should be foreclosing in the name of MERS. do you have site addresses for those ads?

  14. Neil- from the advertisements below the foreclosure mills in Tennessee are still foreclosing in the name of MERS; some examples below advertised in the paper as the foreclosing party;

    Mortgage Electronic Registration Systems, Inc. As Nominee For Ameritrust Mortgage Company

    Mers A Seperate Corporation Acting Solely As Nominee For Countrywide Home Loans, Inc.

    Mortgage Electronic Registration Systems, Inc., As Nominee For Liberty Mortgage Corporation

  15. and an issue with the editorial comment (although I applaud new, non-cut and paste text walls, lol) : the issue of the lack of authentication was directed to the plaintiff/borrower, which she has apparently since rectified. still, an interesting read on the issues from what is usually a pro-creditor court and region

  16. Plaintiff’s attys are:
    Charles W. Faquin
    Thompson Law Group, PLLC
    301 S Perimeter Park Drive
    Suite 218
    Nashville, TN 37211
    (615) 832-2335
    Fax: (615) 832-2235
    Email: cfaquin@tlgpllc.com
    ATTORNEY TO BE NOTICED

    Christopher K. Thompson
    Thompson Law Group, PLLC
    301 S Perimeter Park Drive
    Suite 218
    Nashville, TN 37211
    (615) 832-2335
    Fax: (615) 832-2235
    Email: kthompson@tlgpllc.com
    ATTORNEY TO BE NOTICED

  17. http://newbottomline.com/hundreds_rally_at_wells_fargo_shareholders

    NOT ONE PEEP ABOUT THIS IN THE MEDIA?

    OF COURSE NOT!

  18. check this out:

    newbottomline.com

  19. A quote from the article re. Elizabeth Warren:

    “Her message is simple: the consumer “market” for financial products does not operate like a proper market because leading firms (bigger banks and also nonbanks, like some payday lenders) have figured out how to make a great deal of money by confusing their customers.”

    Ya think?

  20. A Must See!

    Take a look at the new robo singer machine click on this link thin scroll down:

    http://fmi-audit.com/default.aspx

  21. It’s almost like your reading my mind Neil, Thank You

  22. would like to know who the attorney was in this case.

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