9th CIRCUIT AFFIRMS MERS WITH INSTRUCTIONS ON HOW TO DEFEAT FORECLOSURE

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HOW CERVANTES COULD HAVE BEEN DECIDED THE OTHER WAY

SIGNIFICANT QUOTES FROM CERVANTES CASE, 9TH CIRCUIT:

  1. “In the event of a default on the loan, the lender may initiate foreclosure in its own name, or may appoint a trustee to initiate foreclosure on the lender’s behalf. However, to have the legal power to foreclose, the trustee must have authority to act as the holder, or agent of the holder, of both the deed and the note together. See Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 167 (Kan. 2009).” 16985
  2. The deed and note must be held together because the holder of the note is only entitled to repayment, and does not have the right under the deed to use the property as a means of satisfying repayment.” 16986
  3. the holder of the deed alone does not have a right to repayment and, thus, does not have an interest in foreclosing on the property to satisfy repayment” 16986

SEE Olga_Cervantes_v _Countrywide_Home_Loans_Inc

The 9th Circuit Court of Appeals (Federal) has issued a decision in Cervantes that will no doubt be cited by pretender lenders all across the country. BUT, if you read the decision carefully, you can see that there were errors in pleading perceived by the Court. Correcting those errors might change the result completely.

Beth Findsen, Esq., one of the foremost scholars and legal writers of the country believes that the decision points the way to a successful action against the use of MERS. “There is some helpful language among the detritus here,” she said. “The legality of MERS’ role as a beneficiary may be at issue where MERS initiates foreclosure in its own name, or where the plaintiffs allege a violation of state recording and foreclosure statutes based on the designation.  Para. 7”. The obvious point here is that if MERS is the forecloser or if the homeowner alleges that the designation of MERS violates state recording statutes or alleges a violation of state foreclosure statutes, the analysis would clearly be different.

She points out that the Court thought it important to state that “The plaintiffs’ allegations do not call into question whether the trustees were agents of the lenders. Para. 8″. This is an important signal from the Court of Appeals. They see the point. If the Trustees were agents of the putative lenders, then the analysis would also be different. How? Because if the trustees were agents of the pretender lenders who initiated the foreclosure, it would obviously  mean two things: (a) the trustees did not qualify as trustees because they were not serving in the capacity designed by the legislature to protect borrowers and (b) the more direct point would be that the implication would clearly point to the fact that the pretender lenders are forming entities for the purpose of designating themselves as trustees (through nominees — there is that word again).

Findsen also points out that the Court seemed to think it was important that”The plaintiffs have not alleged violations of Arizona recording and foreclosure statutes related to the purported splitting of the notes and deeds. Para. 8.” Here again. The Court is signalling us as to where to go with this. See the briefs and filings of Ron Ryan and Beth Findsen in connection with this issue. It relates to the UCC Article 3 and Article 9 which requires the OWNER of the obligation to be the one claiming the right to foreclose, not some holder or other agent. Lawyers have shied away from the Splitting the note and mortgage” under the simplistic notion that the general rule is that the note follows the mortgage and vica versa. It doesn’t actually work that way and the appellate court here is telling us just that. What is clearly happening is that the pretenders are foreclosing on the mortgage without (a) perfecting the lien in the first place and (b) without even asserting that any money is due them from the borrower. There are virtually no decisions anywhere that support such a notion.

To have the legal power to foreclose, Findsen says, the trustee must have authority to act as the holder, or agent of the holder, of both the deed and the note together.    She’s right and the 9th Circuit says she is right. The deed and note must be held together because the holder of the note is only entitled repayment, and does not have the right under the deed to use the property as a means of satisfying repayment.  Conversely, the holder of the deed alone does not have a right to repayment and, thus, does not have an interest in foreclosing on the property to satisfy repayment.

EDITOR’S NOTE: The only other thing I would point out is that we may be missing the forest for the trees. Why do we assume the original mortgage represents a perfected lien? We know that the money came from an undisclosed creditor, we know that the creditor was not named or even described, and we know that the creditor was  given a bond with many more terms than the note itself.

If you want a satisfaction of mortgage, you need to get it from the party who is the one to whom the money is owed — not some self-appointed agent. And if the self-appointed agent is claiming agency rights, then they must show the documents supporting that contention AND the facts to show that the documents were followed with respect to the conditions and restrictions for transfer of the loans. We already know that wasn’t done, and so we know that the claim of agency cannot be true. Thus the placeholder at the closing of the loan was merely that and no more. It can’t claim agency and it wasn’t the lender. Somebody explain to me how that could result in a perfected lien!

69 Responses

  1. JohnGault
    on MAY 31 2014 I RECEIVED AN EMAIL from ACRIS, NY DEPT OF
    FINANCE that Bank of America is assigning a fraudulent mortgage held for Frances Turner by them for a fraudulent title to MERS (SHORT sALE ?) the heat is getting to all the players of the foreclosure fraud. Fight on.

  2. Does anybody have evidence of fraud involving Mers signer Marilyn Morgan, Notary Joann Tutt from Texas or Security connections Inc in Idaho?

  3. […] 9th CIRCUIT AFFIRMS MERS WITH INSTRUCTIONS ON HOW TO DEFEAT FORECLOSURE Posted on September 8, 2011 by Neil Garfield […]

  4. […] on September 8, 2011 at 1:12 pm said: Carie, can you please provide your QWR? I have seen so many QWR variations , some of which […]

  5. @myles who said:

    “It’s time for sole practititoners to unionize or organize and start fighting seriously like the financial CARTELS do!”

    Yes, indeed, it is. Most homeowner’ attorneys are on their own, or if they’re lucky, they have a partner. One difference, a huge one, for the banksters is that SOMEone is paying $$$$ for their organization. We need to find a way to solve this disparity, like finding the talent and setting up a fund.

  6. The attorneys really, really should have filed a petition for an en banc hearing representing the entire 9th Circuit. With a lot more judges involved, they would have likely discussed the issue enough to realize the MERS sham.
    Filing the petition would have given large organizations with the resources to win, time to jump in. I’m talking about state attorneys general who could have had a chance to file amicus curiae briefs that could have demolished MERS. I’m talking about attorneys general in nevada, california, washington state, who, by whacking MERS, would have made their jobs much easier.
    There are other organizations, non-profits such as National Consumers Legal Co in Boston, and Public Counsel, in L.A., who likely would have contributed their resources for a case with this much impact, if the attorneys would have filed and put the message out to the public for help.
    I recall seeing online how, before the California GOMES case, bankster and other associations were begging for amicus briefs and all the help they could get from members and other bankster associations, and they got it. They piled onto the sole practitioner and won Gomez.
    It’s time for sole practititoners to unionize or organize and start fighting seriously like the financial CARTELS do!

  7. JOHN GALT
    “And I think this may be part of the puzzle which has been overlooked.”
    good point… thanks..
    fwiw.. i’m going on ud trial # 3 , HA!! what criminal attorneys ??!!

    lied to by TFLG with trial associates Repugnant , Seedy & Sloth!
    fukem!

  8. […] SEE CERVANTES 9TH CIRCUIT OPINION […]

  9. Thanks, Shelley…good info.

  10. I need copies of docs signed by robo-signor Theodore Schultz as an officer of Aurora Loan Services. He signs as (straw) officer of MERS, too, but I am interested in the ones where he signed as officer of ALS. Please send to johngaultwhoam@yahoo.com Thanks

  11. Shelley – bravo for recording something. EVERYone should file something with their county recorder listing their issues imo. We have the power to shut down the machine. Title companies just think they have problems with title now…..wait til we bombard public record with FACTS.

    A week or so ago I posted a generic version of what I recorded on my home, giving notice of the ‘irregularities’ with the NOD and so on. Someone in a judicial foreclosure state asked me what difference would be made in those gripes in jud f/c states. I said i don’t know.

    Anyone in jud f/c states have ideas?

    I can say this, though: since the person who signed your assignment is an employee of someone other than MERS, which is the case 100 percent of the time, I’d start there. I’d state that the assignment is not valid (or you could use the words ‘in doubt’, ‘because that party is not a real corporate officer of employee of MERS – that person is an employee of the assignee. Or you might frame it as “On december 1, 2010, an assignment of the dot was recorded as instrument no. 12355r54. It was executed by John LiarforHire as vice president of MERS. On information and belief, John LiarforHire has never been an employee of MERS and John LiarforHire is in fact an employee of Joe Bankster, the alleged assignee of the deed of trust (or mortgage) . Or else state that JLfH is an employee of Joe Shyster Foreclosure Mill, who ( on info & belief or facts known to me – pick one) is the law firm representing Joe Bankster, the assignee.

    I’m not an attorney and this is not legal advice. It’s just what I’d do if I believed the truth of my statements. Don’t make up stuff – you don’t have to. The facts are in your favor. I think it would be a supreme coup
    d’etat for us all to assign our dots / mortgages to each other or release them, but then we’d all end up in jail unlike the real criminals.

  12. Myles, you seem legally savvy. Please stick around.

  13. Assuming this is only a 3 judge panel decision, the losing party may appeal it for an en banc ruling of of the entire or % of the entire 9th Circuit rather than appealing to the U.S. Supreme Court.. What we have here may be a temporary ruling.

  14. Carie I have done exactly what you have done and sent proof of the clouded title report and forensic analysis I purchased from Livinglies. I also filed the unanswered letter afforded us by the FDCPA on public record at the recording department. Washington state has a Castle law and Adverse possession law that helps if you fit the elements. All states are different. My son has done the same except he has not applied for the livinglies title report and so forth. The state of Washington has a three year statute for unsecured debt and a six year statute for promissory mortgage notes. They are timebarred debt by our state statutes. I have filed all this on public record, at the recorders office. Every State has different statutes for the unsecured debt, and promissory notes that include mortgages. Different Adverse possession law and castle law. Both my son and my home promissory notes are timebarred by unscecured debt law in 2009. This is unsecured debt. The note was invalid on both, because they were never entered into the PSA. My title is clouded and I know my sons is clouded he has a robo signer G. Hernandez and Liticia Quintana on his documents as assist sec to MERS, assigning to RECONTRUST, WHOM I KNOW G. HERNANDEZ WORKS FOR. My mortgage was a Long Beach/WAMU loan. Recommended to the straw man bank by a friend not knowing they were not just the same as any other bank. I have had a lot to learn in the past couple of years. And heavily rely on this web site. I feel Neil is the best to learn from. And a lot of credible bloggers. Rob McKenna has made it easier for Ryan Case with the Washington v. RECONTRUST CASE. RECONTRUST has foreclosed on massive homes in this state and more and has not complied to the Washington State CPA law and the Deed of Trust Act 16.24. Rob McKenna is asking the court to forever [Ban ] RECONTRUST from the state of WA. and to return the homes illegally foreclosed on to the homeowners.

  15. Well, ms, of course I meant if the market has moved to 6.25
    at par (and not 5.75). There’s another commentor on here who might have a contribution because she has a lending background and would understand how market movement impacts sales of portfolios (and how it can wreak havoc). Is it Joyce? I’m starting to think that securitization was a losing
    proposition from the get go, like they missed something which turned out to be huge. The reason I think that at all is because in order to make money,
    which is why the banksters would do this, everyone had to sell the portfolio for more than they paid for it, yes? Companies like Aurora kept it all in the family. Their loans went thru Lehman Bank to Lehman Brothers Holding, Inc. to securitization (assuming any made it). Lehman is the parent and grandparent of the other two. I don’t know if any of Aurora’s loans went anywhere else, but I doubt it.

  16. Okay, MS. You might be the one to delve into the sale of these loans as it has to do with market movements (cost of money). If I am the second guy in the deal and I now have a portfolio of loans with an average rate of 6%, unless I want to take a bath, I can’t sell them to the next guy unless the market is at 6% or less. These market movements had to have impacted the buying and selling of these loans, at least up to if not including the coupons the end investors bought. As I said, one can’t plan when to sell because the market is not constant. But, I’m thinking, maybe the guy I’m re-selling this monstor portfolio to has in fact commited on a 30 day (say) delivery and when day 30 arrives and par is 5.75, he’s majorly messed. It’s hard to believe those guys wouldnt’ have stepped in it over market fluctuations.

    Whatever else happens on ledgers, keeping loans on a warehouse line for longer than ‘contemplated’ is ghastly expensive. Just like a construction loan due to be paid off in a time certain, if it isn’t, the construction lender starts charging points.

  17. I’ve been out there trying to find work for pay.FRN’s being the accepted ‘money’.Anyhow,flooding from Irene,from still more rain….been lucky so far only a little here in the once family home…in Schoharie it’s all in ruins,very sad.

    I am an ignorant ryot;but still I wonder…legal isn’t the same as lawful,right?

    We are all on this small planet together,it is the truth.We need to have all-all-“debt” forgiven.Don’t spray your beverage on tha’ screen…

    Prove it can’t be done…wait,it is impossible to prove a negative…
    so yeah…crooks n liars thieves n murderers…I am soooooo tired…

    respect for law will be present when the law isn’t bastardized to be a weapon of plunder.
    Ditto”currency”.

    I have to catch some rays for a few moments,it was nothing but rain for weeks.

    Bankster slayin’ is hard work…speaking truth is even harder…:)

  18. Johnny G.

    In general, a bank sponsored commercial warehouse line is for a 90 day period. Lets assume no greater than six months. Thereof, aging . beyond six months is not good and the asset becomes classified as scratch and dent or impaired.

    Receivables aged less than six months are deemed short term assets and held as cash or cash equivalent’s. The receivables are booked and carried at their basis and entered as “Loans Held for Sale” “LHFS”.

    Long Term receivables classified after 120 days to “reserved” status and classified as “Loans Held to Term “. The loans a lender will originate are calculated at its accrued basis in assets.

    (Attorneys go crazy when you use term like “basis” or “Settlement” …as they do not carry the same meaning from legal to accounting diction). None the less , in general your carrying cost is added to your basis in assets monthly until the time of execution (sale). Upon execution you determine your profit.

    Remember, The accrued cost of the loan increases the assets value. This is why you reserve after six months. These loans at least are “classified” after 12 months as impaired. The price paid for the loan is calculated at a premium above or discount below the par value.

    If above water, you calculate the difference as a capital gain or Gain on Sale for recording purposes.

    expert.witness@live.com

  19. ms – do you work with an attorney in the vegas area?

  20. MS you really lost me on that one fwiw. I am a lender. I’m not a bank – I’m a mortgage company. I have a warehouse line of credit I use to fund loans I turn around and sell. I borrowed 100k on my loc at x percent and nominal fees. My rate on my loc is tied to some index or other. I sold the money to a borrower, over my cost on the money. When I sell the loan I just made, I retire the 100k on my warehouse line as generally agreed. The ‘warehouse’ package (note , copy of dot) goes to the warehouse lender as collateral or hypothecation ’til I pay off the short term loan (depends on my agreement with warehouse loc provider). I made fees on the re-sale of the money to the borrower in connection with the 30 year loan I made to him. I make a spread because my rate is more akin to overnight while the borrower’s is a 30 yr rate. I might wait to sell the 30 yr loan til market conditions get me a par-plus favorable rate. If I sold the money to the borrower at 6% + 1 pt, I made money and if I want more, I might hold the loan til I can sell it when 5.75 is par. If the note rate is 6% and I sell the note when par is 5.75%, I will score an additional
    1 1/2 to 3 points. What that looks like is I sell a note of 100k for 101,500 to 103000.
    Originators and other lenders have market guys and they play this out routinely. It has taken some of them down when they guessed wrong, held the loans, and the market went to 6.25% at par. If they have a lot of
    loans sitting on their warehouse lines, which means their warehouse lines are full, they are up s-creek without a paddle because they can’t make any new loans. That’s what happened to Taylor-Bean. Not sure if their marketing guys messed up or no one would buy their junk, but at any rate their warehouse lines were full. They might also have double-sold loans.
    I forget.
    At any rate, MS, nothing I have described is a violation of any gaap (not counting what Taylor – Bean did. I don’t know how me operating this way is any violation of any gaap isms. I borrowed money and resold it. Happens every day all day. I didn’t lend my credit. Once I borrowed that money on my warehouse line, it belonged to me and I was free to re-lend it.
    Now as to securitization and holding loans to re-sell to the next guy in the chain in more favorable market conditions, I shudder to think what might have transpired. You have to remember how volatile the market is – it changes every day – in fact it changes during the day. You can’t just formulate a business plan to sell loans on a certain day in the future because of those constantly changing par rates. I think that’s an area which has been totally overlooked in unwinding these transactions. If I bought 5 million in loans at an average par rate of 6%, I sure as heck am not going to sell them on a day when par is 6.25% because I would lose my shirt. Whereas I made 1.5 to 3 points on the example above, I would now have to pay that amt to sell the loans. Please don’t be offended – some of you may not get this, so just let me say that the constant fluctuation in the price of money would have a lot to do with the selling of these notes in their course toward securitization and the constant flux may have something to do with why the notes weren’t endorsed like they should have been, especially if we’re talking sales of say 100 million in loans. And I think this may be part of the puzzle which has been overlooked.

  21. M. Soliman: I’m so glad you participate here and I try to grasp what you say, but I’m a very simple person and you will have to totally dumb down your posts for me. Sorry about that, I know it must be frustrating when folks don’t get it – but I’m not going to lie here – Most of the time I just don’t “get it”. Sometimes I do though. Keep trying to break through. Thank you : )

  22. I’m sorry about the “Beth” pretender lender remark.

    I’m sorry people also think I am harboring the facts. I WROTE SOME OF THE LANGUAGE IN THESE DAMN AGREEMENTS FOR THE ATTORNEYS AND CHANGED THEM TO READ LAWFULLY. I KNOW WHAT THEY ARE DOING TO YOU AND YOUR OFF BASE.

    Not one of you have broken down my arguments to demonstrate where they are flawed. The biggest and baddest attorneys out there will end an argument with me by yelling – NO One gets a house for free. That what law school taught you ?

    As to me business and testifying in court. yes I get paid. But 1) TMI is practicing law and I have been forewarned 2) My information gets researched and then published on the internet for profit.

    You who know what i am talking about – go to hell case as others now suffer.

    Finally – what is the one single most pressing obvious claim i can make as to the issues here.

    A borrowers home is an asset $100,000

    A lender makes a loan that is an asset totaling $100,000 but owes $100,000 for the warehouse line used to fund the loan.

    Lender Analysis
    $100,000 – $100,000 = 0.00

    A warehouse lender makes a loan to the mortgage lender and that is an asset $100,000 from the warehouse line used to fund the loan.

    EXAMPLE:
    $100,000 = $100,000

    When the two come together look what happens
    Lender [$100,000 – $100,000] + 100,000 Bank WH Lender
    = $100,000 Net Asset Value

    You cannot do this under GAAP without entering into a whole new set of RULES . [ i.e. FAS 140, SFAS 140-3 1122AB; Capitalization under converted assets by novation, Contribution and Conversion, Contingent conveyancing; prohibition on controlling interests, rights of emerging grantor and re-classifying the principal debtor

    ARE YOU INSANE COUNSELOR – YOU CANNOT FORECLOSE HERE !

    ——————————————————————————
    QWR , UCC; Article 9; Lost Note, Chilean Sea Bass, cilantro ….What ? Case Law – Circa 1886 Hillbilly Jim and Uncle Elmer sue Bennie and the Jets for teeters and pork rinds under the statutory framework of Michael Franks early 70’s release of Popsicle toes/ World tribe tribunal Romper Room /Decision: Re-peal the banana )
    ——————————————————————————
    Its not that I charge for the information – When I publish I am drowned out by length cut and paste. I’m called a fraud by people who call me under a different name seeking information to publish themselves. Its a cyber crime but crime no less and for the witness they are obstructing justice when a case is pending and they seek to damage credibility. And still the CA Appellate Court remands !

    . . . .it’s when clients and other folks opportunistically take pieces of expert opine and hold seminars and sell phoney BS reports – – – -that gets me saddened – THEY ARE THE MARKETERS OF HOPE BROUGHT IN HUMAN SUFFERING and they are taking people out .
    ——————————————————————————-
    Latest results: – Today – TS Sale Date; 8:00 Am for SFR Henderson, Las Vegas Property -POSTPONED INDEFINITELY .

    expert.witness@live.com

  23. it’s sad really how far this site has fallen in the 7 months i’ve been following it. what was then a free exchange of ideas, theories, celebrations of victories, and commiserations of defeats has become a breeding ground for conspiracy theories, misinformation, bickering, and general nonsense. carie posts the same thing 12 times a day even though it’s never been proven or tested and now she’s gotten people who came here looking for information to save their own homes hooked.

    Neil, you’ve lost control of your own site and the inmates are running the asylum

  24. Unfortunately, not a “theory”—securitization of fraudulent “collection rights” is the Banksters/Wall Street/Government’s greedy little secret…that has destroyed America…and actual physical proof exists of this—NOT a “theory”…sorry.

    “. ..Mortgage Loan Purchase Agreement and Mortgage Schedule cannot be proven…
    …once all proprietar­y “records” are finally divulged, subprime refinancin­g fraud is exposed — game over for those who are still trying to making a buck on the fraud.
    …securitiz­ation of fraudulent “collectio­n rights” — was a scam from the onset — never MBS — get your heads out of MBS — these “refinance­s” (not actually refinances­) — were “loans” REJECTED from traditiona­l MBS — credit enhancemen­t was created from layers of mezzanine tranches for credit default swaps — (purchase of collection rights) — and were NEVER secured mortgages. This is what caused the financial crisis FALL. Understand that subprime securizati­on was manufactur­ed securitiza­tion fraud.
    …the direction in courts — has been fraud upon the court — over and over — and, this is finally surfacing. There was no “funding” — PERIOD. —- All that existed was a purchase of collection rights from GSEs — by which “purchase” was covered by insurance for fabricated default and rejects.
    …if you want to say that any borrower is responsibl­e for any non-”funde­d” loan — that fabricated “funded” loan is unsecured — because there was NO VALID MORTGAGE.
    …There is NO lender. NO LENDER. NO FUNDING — NO MORTGAGE — Just your good “ole” debt buyer shyster — for unsecured fraudulent collection rights.
    Proof?? in the mortgage data base proprietar­y files.”

  25. not one bit of that applies to Marilyn’s situation or argument and frankly a lot of it is just plain wrong anyway. she’s not arguing it was fraud – she’s been claiming it was void as ultra vires on this site for as long as I’ve been following her argument. fraud and void are not the same thing. and you’ve taken carie and Anon’s argument and accepted as as the “whole truth and nothing but the truth”. it’s a theory. it’s their argument. it MAY be proved at some point but hasn’t been successful yet. and it WAY overgeneralizes all mortgage situations into their fairly small argument. Anon has made that claim as to subprime refi’s. somewhere along the way it’s been applied to ALL mortgages.

    this is an example of what I keep saying. each of us may have our own pet theories, but until one is proven to work it is dangerous to latch onto one and exclude the others. the whole “pretender lender” thing is a great rhyming talking point for here, but in court simple works so much better. focus on what works – standing, compliance with the DOT and statutes, proper chain of endorsements and assignments, etc. those are the common theme of the victories that have been had, not the more “wild” ideas floated here.

    keep working the conspiracy angles and the banksters will laugh and laugh……..and take your house

  26. @tnharry

    That is exactly why the Bank want to go for Modification so that they can get your signature on a good contract and eliminate the ultra vires contracts.

  27. tnharry you said:

    “don’t make the void contract argument because that’s the end result if you are ultimately successful. if the contract was void, both parties go back to where they were prior to contract. are you really prepared if you did win”

    This is not a challenge or an argument just trying to make sense of it all and throwing this out there:

    The contract was a fraud. The bankster walks away, (goes to jail, pays penalties, does not pass go) not the homeowner.

    Damages are due for fraud. Triple damages. Forfeiture. Restitution of the payments made to fraudster is due. Not talking recission orhomeowner having to return the money advanced for voided contract.

    Home was encumbered fradulently in an undisclosed unsecured transaction with an imposter “lender” on the Deed and Note with a pretense that it was a secured transaction. Single transaction cannot be both secured and unsecured.

    Payments did not go to any party entitled to enforce the point of sale. Beneficial interest was not purchased for value (UCC 3 and 9). Fabricated documents showing ownership of the home or ownership of the homeowner debt slave are fraudulent.

    There was no contract for undisclosed, unsecured debt payments. Obtaining a signature for a fraudulent encumbrance of the home was an illegal act. Homeowner and investors as in mbs (now m”linked”s in press releases – not) were duped.

  28. and how exactly is that result different from what the “free house” critics point to? a voided contract puts the parties in pre-contract positions. what fraud? what damages?

    and additionally, even ultra vires contracts may be made valid by performance of the duties by the parties. in your example, they provided the money for the purchase or refi, and you accepted it and made payments on it for a period of time. there is a real possibility that your ultra vires argument would not work based upon the performance of the parties.

  29. @tnharry

    When an Ultra Vires contract is rescinded:
    .
    Awarded damages for fraudulent misrepresentation: ,
    the illegality did not bar an
    action in the tort of deceit; this allowed one to recover their money and an additional sum
    for distress. The Bank cannot retain the profi ts of its own fraud.

    So I unmortgage my property and then from their I’m on my own.

  30. you may have an argument, but it’s not to be found in the part of the constitution that you maintain it is. I also would urge you to reconsider the void contract idea based upon what I suggest would be the result of a finding that it is void. that has the potential to be a very hollow victory

  31. @tnharry

    You are not a State so you can make all the money you want and give to all of us,.

  32. no change in argument here – the clause in the constitution you cite doesn’t apply. “no state shall…” is something i’ve pointed to 20 times in our discussions. unless you are prepared to walk away from the house or otherwise give back the money that the note & mortgage represented in your situation, then don’t make the void contract argument because that’s the end result if you are ultimately successful. if the contract was void, both parties go back to where they were prior to contract. are you really prepared if you did win?

  33. tnharry
    You keep changing your argument.
    I am definatively saying the Banks have no right to lend their credit

    There isn’t a Bank Charter that allowws them to lend their Credit.

    Banks are in the business of lending money. Money and Credit are two different things.

    Don’t give me garbage about a free house, I have over $100,000 of equity into my property.

    Just got an email that MSNBC reported the Bank of America was closing 570 of their banks.

    We the people are going to get our property rights protected under the 5th and 14th amendments of the Constiitution. and I hope we hear the clang clang clang of handcuffs closing on these fraudsters.

  34. why do you think the bank has a computer cloned to your IP address? merely doing that would not give them access to your computer. and if you have multiple computers in your home you probably connect via router, which means you have a hardware firewall in addition to any sort of software firewalls you may have. the idea that they have seized control of your computer is very hard to believe. maybe it’s time to change to aluminum foil on your windows and on your head

  35. @marilyn – i agree with you that, based upon the timing you reference, the state court should not have acted. but that’s probably the only thing we’ll ever agree upon. why do you continue to ignore the very section of the constitution that you base your whole argument upon? it starts with “no state shall…”. it doesn’t apply. i haven’t dodge your question as to who gave them authority. it simply doesn’t make sense. if it’s not illegal, then it’s legal. i don’t have to prove a negative. you continue to claim that the practice is illegal but have not basis for that position.

    and that’s not the only flaw. if you want to stick with the argument that the contract is void, then both parties would need to go back to their pre-contract positions. you used the money from that note & mortgage to either buy the house or refi the house. no part of your theory should result in you keeping the house for nothing. i’m sure you have a pure heart, but this is exactly why people point to foreclosure defense theories as “getting a free house”. that’s exactly what you’re seeking, isn’t it?

  36. I went to correct the spelling of the word proud and as I have told you before the Bank has a second computer connected to my IP number and I sometimes lose control of my computer.

    When I type a post there is a gremlin here that changes words, and sequence. As long as the people get the message.

  37. Why can’t M.S. post his magical “ace in the hole”? I know, I know, then he won’t get paid…
    Well, we’re all to broke to pay anyone, M.S….have a heart.

  38. @tnharry
    You are nothing but a front for the Banks.

    You and the Banks want to keep this issue hidden that 99% of the Banks have lent mortgagor is ther Banks credit absolutely prohibited by the US Constitution.

    Two Federal Judges knew this issue of Banks creating their own form of money without any gold or silver backing it.

    These Ultra Vires cases have been heard in Federal Court and the Banks has always lost in Federal Court.

    I have already posted several of those cases in reply to you continually not answering my question for you “cite the authority that gives the bank the right to create money?

    Congress has never given it to them and there is none.

    Both the Hon Cornelius Blackshear and the Hon Louis L Stanton knew exactly what art 1 Para 10 Cl 1 of the US Constitution means.

    My petition was accepted, docketed and removed to the Southern District (NY) of Federal Court upon Federal Question.

    Judge Stanton issued his first order setting conference purs.
    to Rule 16 (b) and made a directive that I send a demand letter for settlement to the Bank .

    The Banks then corrupt debt collector attorneys Mullooly, Jeffrey Rooney and Flynn apparently were able to pressure Judge Stanton
    that I had a Montana Militia mentality and was I was
    trying to change the banking system

    Little did anyone know what was going on beyond this Fraud except the Banks and Wall Street.

    After three months the case was remanded back to State Court
    saying that who could make money is not under Federal Jurisdiction.

    I never gave up .I thought that the Truth would make me as powerful as the Bank.

    On xxxxxxxxxxxx 1998,
    THE SUPREME COURT OF THE UNITED STATES sent me the following letter

    …The petition for a writ of mandamus in the above entitled case was filed xxxxxxxx1997 and placed on the docket xxxx1997 aS No xxxxx.

    A Form is enclosed for notifying opposing consel that the case was
    docketed

    Sincerely,

    William K Suter, Clerk

    by

    xxxxxxxxxxxxxx

    Enclosures

    Tnharry quit giving your opinion on facts you don’t know about. The truth of what the Banks have done to all the true homeowners is coming out and we will be a proad Nation again.

    Enclosures

    So tnharry giving your opinion about things you don’t know the fact of.

  39. as a matter of fact, you tried that “money creation” argument in your own case and got shot down by the court. why are you trying to encourage others to use something that has been proven to you in person to not work? it’s wasting people’s time and giving then false hope and false information. i’ve been reminded by others that Neil posts some of the same information multiple times because new people are coming every day and may be seeing it for the first time. we as a community should make every effort to keep good information here for them to see as opposed to pie in the sky theories. i’m really not trying to attack you personally and you’re not the only one, but good useful information is in short supply and is desperately needed

  40. marilyn take that crap somewhere else. it makes no sense and to buy into your argument one has to ignore the first words in that sentence – “no state shall…” you have no authority and what you’ve cited before doesn’t come close to applying.

  41. […] Livinglies’s Weblog Filed Under: Foreclosure Law News, Foreclosure News Tagged With: crisis, foreclosure, […]

  42. You can’t have a lien on an Ultra Vires contract.

  43. The origination mortgage and note are an Ultra Vires contract.

    because

    The abominable banking system that is in place today, gives a bank great incentive to foreclose on an Ultra Vires contract, as the bank demands lawful money returned for the unlawful money lent.

    By what Authority are the Banks doing this? There is no authority for doing this. This is in complete prohibition to Art 1 Para 10 Cl1 of our US Constitution.

    All of our cases with slightly different facts all stem from the same Fraud.
    The Bank did not lend you ‘LAWFUL MONEY” but the Bank intentionally wrote
    a “bad check” and gave it to you –to circulate as “money”

    I certainly did not know this kind of fraud was going on when I signed my mortgage and note. Did you?

    The Mortgagor puts up a down payment, the Mortgagor pays a lot of fees and probably paid an attorney to represent them, all in order to get this “bad check”

    Would a Mortgagor have put in all that money, if one knew the truth of how the Banks ran their illegal business. I bet not.

    Did anyone notify you after that big day – the Bank’s check bounced – of course not. When the check that the Bank wrote came back to the Bank that wrote it, the bank didn’t say “we only have 5% , if that much and it was not stamped “insufficient funds” the bank stamped it “paid”

    So since the Bank did not have the money sitting in the bank’s account when they wrote the check, what the bank gave you is their credit.

    That is exactly what is prohibited by Art. 1 Para 10 Cl 1 of the US Constitution.

    What authority gives the Bank the right to make contracts with “bad checks”

    Nothing- Nada.

    “Lawful money” is needed to make a contract valid.

    Over and Over Mortgagors gave a Bank a mortgage on their castle , in return for a Bank giving you a credit entry on their books and charging you Interest on this credit. Also illegal.

    Did the Bank give you lawful money or is that what you got, credit?

    Banks are not allowed to lend their credit- Banks are in the business to lend
    “lawful money” There is not a Bank charter that allows a Bank to lend their credit.

    And as we continued to make monthly payments the Bank collected more money on their fraud.

    You try writing a check when you don’t have funds sitting in your account to cover it.
    You can be sure that check is coming back marked”insufficient funds” You are not allowed to do it and either is a Bank.

    This scam of Ultra Vire contracts caused injury to us, the true homeowners.

    In addition the banks are laundering “bad checks”.

    The Banks violate Truth in Lending Laws.

    The Banks are collecting Interest on money that doesn’t exist. (Lending you 5% and collecting Interest on 95% of thin air)

    And once the Bank gets their Ultra Vire contract going, they start flipping them to MERS, Securitizations , Wall Street, Title Companies etc. there is no shortage of people all wanting to get their piece of the illegal profits

  44. Okay, pretend the U.S. SC ruled “MERS” (read member straw officer) could no longer execute assignments of dot’s. Who do you suppose could / would? Sooner or later, courts are going to wake the heck up and follow Koontz. MERS’ members also known as banksters have to know this. What will their next strategy be? We shouldn’t wait. We should anticipate it and be ready.

  45. @MS- you know I love you, man, but that attack on Ms Findsen was crap. As far as i can tell, she lives eats breathes sleeps this stuff.
    If people are losing homes for wrong arguments and you’re really so damned concerned, knock yourself out and lay a freebie of your own gospel on one person, like Beth Findsen. Based on your take on things, we might all be out to lunch including her, but there’s more than one way to tell someone he or she is fat in AMERICA. .

  46. NICE TRY GAULT

    Beth –

    Your Clueless – Pack in Darling – You’re clueless!

    The FDIC is held as the Regulator “agency under the Department of the Treasury purchase and assumption agreement, whole bank all deposits Among Federal Deposit Insurance Corporation, receiver of the entire list of toxic infected member banks under the Federal Deposit Insurance Corporation and New York Community Bank

    The debt collector establishes basis in assets for uninsured lost deposits ; The depositor transferred its consideration into the same bank that has an obligation outstanding owed by it member bank affiliate, in most cases the lender held as a combination company.

    The deposited consideration was pledged with a foreign national bank for purposes of obtaining a commercial credit facility for liquidity purposes.

    With the market’s collapse came the revelation the certificates held on deposit and pledge for liquidity are worthless or at best worth five cents on the dollar.

    That valuation caused the Fed to charge to a write down these deposits for purposes of collateralize debt it’s not capable or willing to pay back.

    This is also seen as a means for offering preferred certificate holders something in return for their investments

    Now, in this national salvage effort, the investors are being dealt with in New York Courts and the foreign national banks have charged off the commercial lines and moved on.

    How can you call Ms Beth Super Lawyer a world renowned Rhodes Scholar? She has, like her cohorts, have NO CLUE of the facts or understanding of the subject matter.

    My God- People are losing homes over his new economy called litigate fabricate and defecate fiction over fact.

    Do you understand – People are losing homes here on pleadings that are completely disorganized and lost to the facts surrounding the real issues.

    (Republish this if you like – go ahead and take authorship claims – I don’t care. Just don’t charge people for it).

    M.Soliman
    Expert.Witness@live.com
    foreclosureinfosearch, on September 8, 2011 at 11:34 pm said:

    To Arizona Attorney Beth F;

  47. What does that mean Meds? Are you familiar with medication and are you a recovering addict ? Is the editor herein on Meds – Oh is that what you mean?

    Just kidding but, when he revelation of what I say becomes public knowledge will you be around to state you were wrong? Morons and lottery ticket players are not what a homeowner is looking to for advice. STOP Giving It or be held out as a target for someone practicing law.

    Under De-recongnition of liabilities and assets (FAS-140 SFAS 140-3 ) there is no servicing function moron . Only a lock box presumption for sending out statements. Read attestation cited instances of “material non compliance” and improper use of vendors under 1122AB violations fruit loop.

    Stop with the guessing and wasting our forests using paper to prepare a Qualified Worthless Receipt. Its not applicable to the matter. In fact – you want to CONFIRM the debt not deny it jerk.

    Please….Don’t take shots while professing ignorance excited from fear of not knowing the truth .

    MSoliman
    expert.witness@live.com

    Not an attorney – Always consult an attorney for knowing what your rights are and how to defend yourself in a claim brought in a court of law.

  48. Cervantes at first blush:

    “At the origination of the loan, MERS is designated in the deed of trust as a nominee for the lender and the lender’s
    “successors and assigns,” and as the deed’s “beneficiary” which holds legal title to the security interest conveyed.”

    JG: Mers is errantly designated as both the nominee and as the beneficiary itself in the dot.

    “At the origination of the loan, MERS is designated in the deed of trust as a nominee for the lender and the lender’s
    “successors and assigns,” and as the deed’s “beneficiary” which holds legal title to the security interest conveyed.”

    JG: This is impossible. The beneficiary in a dot is the lender. The lender is called the beneficiary in a deed of trust
    because it’s a trust and accordingly, that is the proper name therein. There is not and never will be a beneficiary as well as
    a lender. The words as used in a dot are synonymous. I think the word ‘lender’ should not even appear in a dot, actually.
    Remember, it was MERS who crafted the language in these bogus deeds of trust. The dots are in fact bogus because there is
    not a lender who is distinct from the beneficiary.
    Secondly, it is not the beneficiary who holds title to anything in a dot – it’s the trustee who does. MERS may only
    be the nominee of the beneficiary (who is the lender). If MERS is the beneficiary (which it isn’t), the note and dot are in fact bifurcated. Naming MERS as the beneficiary either bifurcates the note and deed of trust or naming MERS as the beneficiary is in fact fraudulent. This court says the borrowers knew of MERS existence in the dots when they signed them and so tough, but, dang your honors, you ethereal perchers obviously don’t understand deeds of trust yourself.

    “If the beneficial interest in the loan is sold to a non-MERS member, the transfer of the deed from MERS to the new lender
    is recorded in county records and the loan is no longer tracked in the MERS system.”

    JG: In every single loan which has been securitized, the beneficial interest in the loan, which is the debt, has been sold
    to non-MERS’ members (the investors) and every one of those loans should have been de-activated from the MERS’ database and
    the assignments recorded pursuant to even MERS’ own rules. (If the depositor were paid by the investors but the loan did
    not make it into the trust pursuant to the psa and NY trust law, the duped investors might have paid off the note.)

    “In the event of a default on the loan, the lender may initiate foreclosure in its own name…….”

    JG: No, the lender may not, despite any statute which says otherwise. The trustee is an integral party to a deed of trust.
    If a lender may foreclose on its own, there is no such thing as a deed of trust and the trustee would not be a necessary
    party. There would have been no “trust” created. Christopher Peterson needs to research the legislative history of the
    deed of trust and hop on this in his own inimicable manner. If a lender may foreclose instead of the trustee, the deed of
    trust has been turned into a non-trust document now replacing judicial foreclosure. In other words, the lenders will have
    done away with judicial foreclosure in favor of just demanding one’s home with no oversight whatsoever. This is an
    abomination never approved or contemplated by the legislation which approved non-judicial foreclosure by way of the deed of trust.
    Judges, for Pete’s sake, you’ve got the talent in your office and unlimited access. Get with it!

    “However, to have the legal power to foreclose, the trustee must have authority to act as the holder, or agent of the
    holder, of both the deed and the note together. See Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 167 (Kan.2009). The deed
    and note must be held together because the holder of the note is only entitled to repayment, and does not have the right
    under the deed to use the property as a means of satisfying repayment.”

    JG: Right on except for the part about the trustee being anyone’s agent. The trustee is a referee for the other two parties, not one of them’s agent.

    “MERS relies on its members to have someone on their own staff become a MERS officer with the authority to sign documents
    on behalf of MERS. See Dordan, 12 Loy. J. Pub. Int. L. at 182; Jackson, 770 N.W.2d at 491. As a result, most of the actions
    taken in MERS’s own name are carried out by staff at the companies that sell and buy the beneficial interest in the loans.”

    JG: Are you kidding? Live under a mushroom? Nope, your honors, not even. MERS appoints straw officers for a fee at its members who execute documents (assignments) to themselves with zero oversight or diligence by MERS. Further, these straw officers are employees of foreclosure mills with no personal knowledge or they are employees not of buyers of these loans – they are employees of
    servicers who assign the dots to themselves (or maybe to the trusts the loans are supposedly in) and these employees have
    no personal knowledge, either. And it isn’t “most” of the actions, it’s every single one because MERS executes NOthing – EVER.

    If MERS, et al only filed either a mtn to dismiss or a mtn for sj, the plaintiffs were wrongly denied right to amend at
    will. Neither a mtn to dismiss or a mtn for sj is an answer as a matter of law and as a matter of further law, amemdmemt
    of a complaint is at will prior to an answer being filed. Only after an answer is filed, does amendment require leave of
    court (which shall be given freely) or stipulation with the other party.

    The decision contradicts and trips over itself. The court acknowledges that to foreclose, one must hold both the note and
    deed of trust. Yet the court acknowledges that the borrower agreed MERS may foreclose when it also acknowledges that MERS holds no interest in the debt.
    MERS is not an agent for anyone, pursuant to the statute of frauds. It is a nominee placeholder in public records and that nominee placeholder status, even if legitimate, has outworn its usefulness when it comes to foreclosure actions.
    IN order to foreclose, the record must contain a complete chain of title for the deed of trust, which must have been done if theretofore unrecorded.
    I have to leave the argument that it needed to be recorded earlier to Mr. G and others.

    Every single entry in the MERS’ database was done on a strictly voluntary basis by MERS’ members with zero oversight by
    MERS. I think this is a fact the power brokers don’t want acknowledged. I mean, if I sold a loan 5 times, would I enter
    all of them into MERS’ database? Even if I hadn’t sold the same note 5 times, wouldn’t I just manipulate the entries to appear the way I want them? Who’s going to stop me? MERS ‘records’ are not reliable, they’re not credible, and may not be used to properly determine the interest in a loan.
    There can be no doubt the deed of trust crafted by MERS is a piece of legal junk. Normally, when a contract has unconscionable or otherwise whacked provisions, they are simply found to be unenforceable. But a deed of trust is a different animal than most contracts because it was actually legislated, and it was legislated as a three party instrument, not a four party instrument, which is why MERS may only be the nominee placeholder of the beneficiary who is the lender.
    The lender is the party to whom the debt is owed. MERS may not be a beneficiary separately and apart from the lender. No
    one may.
    There can be no doubt MERS’ either designed a fraudulent scheme or provided cover for many.
    This decision mostly stinks because these judges just can’t be this naive about how MERS really functions. Can they? Kudos to Treva and her partner who have half killed themselves on the bifurcation issue for years now.
    In this article today it references Beth Findsen’s writing and I’d like to read the materail ref’d. Where is it?

  49. Beth –

    Your Clueless – Pack in Darling – You’re clueless!

    The FDIC is held as the Regulator “agency under the Department of the Treasury purchase and assumption agreement, whole bank all deposits Among Federal Deposit Insurance Corporation, receiver of the entire list of toxic infected member banks under the Federal Deposit Insurance Corporation and New York Community Bank

    The debt collector establishes basis in assets for uninsured lost deposits ; The depositor transferred its consideration into the same bank that has an obligation outstanding owed by it member bank affiliate, in most cases the lender held as a combination company.

    The deposited consideration was pledged with a foreign national bank for purposes of obtaining a commercial credit facility for liquidity purposes.

    With the market’s collapse came the revelation the certificates held on deposit and pledge for liquidity are worthless or at best worth five cents on the dollar.

    That valuation caused the Fed to charge to a write down these deposits for purposes of collateralize debt it’s not capable or willing to pay back.

    This is also seen as a means for offering preferred certificate holders something in return for their investments

    Now, in this national salvage effort, the investors are being dealt with in New York Courts and the foreign national banks have charged off the commercial lines and moved on.

    How can you call Ms Beth Super Lawyer a world renowned Rhodes Scholar? She has, like her cohorts, have NO CLUE of the facts or understanding of the subject matter.

    My God- People are losing homes over his new economy called litigate fabricate and defecate fiction over fact.

    Do you understand – People are losing homes here on pleadings that are completely disorganized and lost to the facts surrounding the real issues.

    (Republish this if you like – go ahead and take authorship claims – I don’t care. Just don’t charge people for it).

    M.Soliman
    Expert.Witness@live.com

  50. To Arizona Attorney Beth F;

  51. But carie, seriously now, what were the responses to your letters? First off, as to your QWR….I’ll go ahead and bet the farm that #1, they didn’t respond or #2, they didn’t respond in a timely manner, or more than likely it’s behind door #3, in which they finally got around to responding late by calmly explaining, with nerves of steel as only those who have no fear of being caught can, that your request was overly broad and that you can kiss their butts, as they always do in response to these letters. Your servicer and John Walsh giggle like children in a church pew when they read these request “demands”.

    As to the debt validation, has anyone ever had a true eureka moment from one of these deals? A show of hands? Anyone? A return response with a photocopy of a years mortgage payment is more than likely the most you’ll get. Does anyone really think these thieving bastards are going to stop the plunder long enough to actually answer truthfully about where your money has been going and who actually owns the obligation? If you believe that for a minute, you probably still believe that Santa stuffs that fat ass of his down every single chimney across the planet….so why not just ask him to validate the debt for Christmas?

    As to the cease and desist letters, sure you’re right. They’ll gladly stop sending you correspondence along those lines. Saves the postage. They will, however, still be coiling up around your ankles awaiting the perfect moment to strike. They’re slimy bastards that know no mercy and have no redeeming values whatsoever. They’ve collapsed the entire planet with billions in bonuses and are attempting to set themselves up for more trough feedings as we speak. QE III and TARP II would suit them just fine, and they’ll get it if we don’t start assembling on street corners with nooses sooner than later.

    I guess my biggest issue has to do with statements like, “This is how you may win — they can not prove anything.” Of course they can’t prove anything, but they’re collectively doing a pretty damned good job of kicking homeowner’s butts from east to west for going on five years now. Unless what you’re offering up has been actually achieved by you, something that you can say won your house or your motion or even your point in a court of law, well, I consider it best to stick to stuff that’s at least etched in stone, or has been tried before a bench. Just ask Trespass Unwanted. From what I’ve read of her story, she did nothing wrong whatsoever, but still met the pavement outside her home all the same. That goes for many who have come and gone from this site over the years.

    Nothing personal, but keep in mind that there are a lot of folks here who are looking for real answers, and those are and have been in short supply for many a moon. And take no offense, from me or Soliman. He’s obviously off his meds and I don’t know any better.

    Namaste.

  52. @carie – you wrote: “Does your monthly statement say: “We are a debt collector attempting to collect a debt” ANYWHERE??­? ”

    No, my monthly statement has no such wording. I’m sure they will ignore any cease and desist letter I send. Then what, sue them under FCDPA? That does not seem promising.

  53. I have used a “cease and desist/dispute of debt” letter with the servicers of the unsecured FAKE mortgages…and fended them off…a servicer cannot legally threaten foreclosure on unsecured debt. Period.

  54. carie, on September 8, 2011 at 11:59 am said:

    Your so absolutely wrong and your emotional rampage is causing people to make a bad decision. After 20 wins and 25 yrs of servicing and trading bulk assets you think we might have an inside track here – Do Ya?

    What is your back round?

    Stay away from the QWR – Loser ! You have no idea nor does this site as to what it is used for . No idea

    M.Soliman

  55. from my trading days on the stock market, regards silver prices at kitco dot com.

    http://www.kitco.com/charts/techcharts_silver.html

    green line is support, it is the 200 day moving average. When it starts to turn down, get out if you are a long term investor or holder of silver.

    blue line is the short term moving day average. It is for traders, not longer term investors. If blue line above green line crosses to below green line, get out. Sell your stock.

    If you are a buyer of silver, you should buy when silver price is below blue line, and ideally when it starts to turn up from the red line, thus the short term bottom.

    Look at the charts, and it is all trend lines, draw lines in your mind.

    Anyways, it’s always trends. Just look at the charts. The news and noise via the media doesn’t matter. Just look at the trends.

    When the blue lines and green lines are at extremes, then you will see a reversal.

    Wall Street is about creating extremes one way or the other, that is how they make money, via the extremes and going long or going short. Problem for average investors is that they don’t know this and the rules are set-up so that they too “can not” take advantage of it, and “it” is all created by wall street. “it” = extremes, up or down in prices. General public can not go short, that is key. Game is set-up that way.

    The public is fooked always.

    gas prices go up, wall st wins big time. they created it. public pays big bucks. everybody screams robbery. investigations ensure.

    then prices go down, everybody says thank you, but wall st made big bucks as a toll booth, and then made it go down and made money on the downside as well, by now going short, but the public can not go short.

    Between that up and down, public gets robbed of some money, and it went to wall st. Up or down, doesn’t matter, they created both, and got the rewards of both up or down. Thus, middle class getting robbed everyday and they do not even know it.

    and on and on it goes, year after year. Market after market, they as in wall st just rotate the markets, whether gas, oil, silver, gold, houses, credit cards, pork bellies, dot coms, energy exploration, the next new thing.

    and that is your business cycle. up and down.

    unbeknown to your average citizen. Why it’s called inflation, a trend up, on money extracted from work by the average citizen.

  56. @carie,

    yes, I could a copy of your QWR

  57. Off-topic again, but pertains to FHFA suit and GSEs – Latest Mandelman – thought-provoking, as always:

    http://mandelman.ml-implode.com/2011/09/guest-post-prove-fannie-freddie-innocent-before-suing-the-banks-and-here-is-how/

  58. “…The Depositor owns the Trust — and while the Trust was performing – the Depositor, on behalf of the Trust would be the party to bring the action. However, these Trusts have now been brought back on parent corp. (to Depositor) balance sheets because the Trusts as “off-balan­ce sheet” SPVs — have been effectivel­y dissolved. The only tranche holders to remnants of the Trusts is the US Government or the Depositor (parent) itself. You should be preparing to demonstrat­e that the loan was not validly conveyed to any Trust (which they were not). Do this by requesting the Mortgage Schedule which should accompany the Mortgage Loan Purchase Agreement (MLPA) — and the MLPA cannot be an “intent” to sell — it must be validly executed and notarized (we know about those notaries). And, importantl­y, if MLPA and Mortgage Schedule can be proven, servicer must prove that all default payments have been paid to the trust on borrower’s behalf. If not, loan has been removed from the Trust with collection rights sold/swapp­ed to a Third Party. This is how you may win — they can not prove anything.”

  59. “We know that the money came from an undisclosed creditor, we know that the creditor was not named or even described, and we know that the creditor was given a bond with many more terms than the note itself.”

    “Thus the placeholder at the closing of the loan was merely that and no more. It can’t claim agency and it wasn’t the lender.”

    Is this widely known and available or is it only known to a few? How do you prove this in a quiet title or other case and prove the lien was not perfected? Where do you get the proof – what do you need to ask for in discovery? Is there any case precedent for this yet? Anything that can be an exhibit or brought to the judges attention why this should be disclosed or proven? Are investors suing over this?

    Where did the payments go for years – to the “undisclosed creditor”? (certificate investors as in sold forward or other than certificate investors as in table funded or not even funded as in refi wrap mod fraud?) – to the pretender who is a strawman or broker now sevicer only? – to the trust the pretender supposedly sold it to? – or sold or swapped out of trust or dissolved out of trust – where did payments go then? Who should payments be going to especially if the original contract Deed of Trust and Note is null and void? Then again if the lien is null or now non existent or paid in full why does the homeowner have to keep paying just “somebody” or “anybody” forever?

  60. All I wanted was whoever stepped up to the plate, to be willing to give me title to my home when I finished paying for it.

    That was not going to happen, because no matter who I paid, the Trustee would only give title to whoever had both docs.

    Talk about catch-22.

    He didn’t have enough power to foreclose, and he would not have given title to the one who pretended to have a right to foreclose.

    The title got transferred ‘among attorneys’, because the pretender or rather the law firm hired for it, decided to appoint themself trustee over the Grantor, and the original Trustee was also a client of that same lender, so they gave the title to the self appointed new trustee and allow it to happen, violating their fudiciary duty as trustee, unless a higher trustee (ahem…county attorney) already allowed all of this to take place and for who’s benefit, I have no idea.

    Goodbye all that money I spent toward home ownership. It was evident there was never an intent to allow anyone to own their home free and clear by payment by the way CEO’s and CFO’s of the banks handled the mortgage business.

    The wizard makes a lot of noise, but it’s a just a dog and poney show.

    I am pulling back the curtain and placing the blame on the ‘real’ flesh and blood man or woman behind the curtain playing with all the levers and orchestrating the theft of America’s landscape one property lot at a time.

    Trespass Unwanted, corporeal, life, free, in jure proprio, jure divino

  61. “In the event of a default on the loan, the lender may initiate foreclosure in its own name, or may appoint a trustee to initiate foreclosure on the lender’s behalf. However, to have the legal power to foreclose, the trustee must have authority to act as the holder, or agent of the holder, of both the deed and the note together. See Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 167 (Kan. 2009).” 16985

    The trustee of the Deed of Trust on file, I had contacted him. I told him a company was demanding payment of the mortgage and did not have an assignment and ‘begged’ him not to give the title to my home to that company.
    His response was basically, ‘I don’t have to talk to you, I represent the beneficiary who has both the note and an interest secured in your home’. Or something similar.

    Point?
    Well by his statement he was not the holder. The Lender went away without assigning the Deed of Trust, so it would make it very difficult for him to be the agent of the holder.

    But the forest of this picture is this.
    Most trustees only had copies.

    They had copies of the note, because in the process of securitizing the note, the original note was destroyed.

    They had copies of the Deed of Trust because as companies came and went, it seemed these companies were willing to sell their client database information; but not likely to transfer physical documents.

    So the original Trustee only held title and would have needed a single holder to have both docs and we all know the Pretenders don’t have both docs so how could they pass both to a Trustee to do the foreclosing for them?

    That’s the forest.

    Thou shalt not steal.

    Trespass Unwanted, corporeal, life, free, in jure proprio, jure divino

  62. Carie, can you please provide your QWR? I have seen so many QWR variations , some of which go on for pages and include the kitchen sink. I imagine lenders see those and ignore them. But you obviously got a response from yours. Thanks.

  63. I have several questions I’m hoping someone can answer.

    I read the post about the FHA bringing a $196 billion lawsuit against 17 banks. My house is listed in 1 of the securitizations listed as a defendant in the lawsuit against ALLY f/k/a GMAC.

    1. Can/Should I write my Trustee notifying them of this? If I reference the case in my letter?

    I’m hoping to stop a foreclousre. The trustee is supposed to be a “neutral” party. Can they foreclose with a current lawsuit underway?

    I live in AZ. Would this violate any laws, statutes, etc…if I put them on notice?

    If these loans were misrepresented to the “investors” does that have any effect on me as a “borrower”?

  64. […] Read More: 9th CIRCUIT AFFIRMS MERS WITH INSTRUCTIONS ON HOW TO DEFEAT FORECLOSURE […]

  65. Speaking of B of A…

    “It was only a matter of time. A few weeks after every money losing firm in the US and the kitchen sink disclosed it would sue Bank of America in an accelerating attempt to salvage something through litigation, the worst case scenario for Brian Moynhian just got real. As of minutes ago, Norway’s Government Pension Fund, which is another name for its Sovereign Wealth Fund, has just announced it is suing Bank of America for mortgage fraud. Not only that but it is also going after Countrywide, obviously, but far more importantly, is also suing KPGM, the auditor on the Countrywide transaction, and, drumroll, ole’ Agent Orange himself.”

    http://www.zerohedge.com/news/bank-americas-legal-woes-go-global-after-norways-sovereign-wealth-fund-sues-mortgage-fraud

  66. BREAKING NEWS:

    Bank of America closing 600 branches and “laying off” 3,500 people…

    Wonder how those “former employees” will pay their FAKE mortgage…or even find another job in the sadly desperate economy that their former bosses helped to create…with fraud…

  67. attn. people going through “loan mod hell”:

    1. Look up FDCPA—-Fai­r Debt Collection­s Practices Act.

    2. Does your monthly statement say: “We are a debt collector attempting to collect a debt” ANYWHERE??­? And is it being “collected­” by a SERVICER??­? If so, then it is MOST LIKELY unsecured debt because of the fake mortgage FRAUD.

    3. The laws of the FDCPA allows you to send CEASE AND DESIST letters and DISPUTE OF DEBT—-forc­ing them to identify the true lender/cre­ditor that your monthly payments are going to—-not just a servicer/d­ebt collector—­-YOU MUST DEMAND THEY CEASE AND DESIST ALL ATTEMPTS TO COLLECT ON THE DEBT—-then say “I intend to settle this account with the ORIGINAL CREDITOR.

    4. Because of the FRAUD AT ORIGINATIO­N of your “fake loan” (if it was subprime refinance or purchase), they cannot come up with a MORTGAGE LOAN SCHEDULE OR A MORTGAGE LOAN PURCHASE AGREEMENT…­or even a ledger and balance sheet proving your payments are going to an actual, verifiable LENDER?CRE­DITOR.

    5. I asked for these things in a QWR—Qualif­ied Written Request—-l­etter, and they have stopped billing me for my FAKE mortgage…w­hich is actually like credit card debt—-coll­ection rights sold over and over…

    6. So, I am NOT an attorney, but you can challenge them and FIGHT BACK—-QWR and CEASE AND DESIST?DIS­PUTE OF DEBT—-it’s your choice…I choose not to pay for fraud on an unpreceden­ted scale…

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