Best Form: Request For Production


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SEE 9.06.2011 Chase RICO-Request-for-Production

EDITOR’S NOTE: Jeff Barnes has put together what I would call the gold standard in a request for production in a mortgage case. It will no doubt lead to an early settlement. But if it went all the way, it would reveal the facts necessary to question the perfection of the lien, the transfer of the obligation, the owner of the obligation, the owner of the lien, the right to foreclose and the wrongful, intentional misconduct by intermediaries who inserted themselves into the foreclosure process simply by barring the investors from ever knowing there was anything going on.

Here are some notable excerpts:

Documents to be produced:

1. All Assignments, Allonges, and the like which purport to assign any interest in any mortgage instrument or note of any of the Plaintiffs to any person or party.
2. All documents setting forth any servicing agreement between the Defendants and any entity with reference to the mortgage loans of the Plaintiffs.
3. All Pooling and Service Agreements, Custodial Agreements, Deposit Agreements, Master Purchasing Agreements, Issuer Agreements, Commitment to Guarantee Agreements, Release of Document Agreements, Master Agreements for Servicer’s Principal and Interest Custodial Account, Servicer’s Escrow Custodial Account Agreements, Release of Interest Agreements, or Trustee Agreements relating to the mortgages loan of the Plaintiffs.
4. All documents setting forth the entire chain of title to the mortgage instruments and notes of the Plaintiffs from the original lender to the present.

8. All policies of insurance, including but not limited to private mortgage insurance, insurance in favor of any trustee or loan trust, LPMI policies, NIM policies, UCC Eagle 9 mezzanine policies, ISDA swap policies, master and bulk supplemental policies, mortgagee title policies, or any other insurance which provides benefits to either of the Defendants or any party in privity with either of the Defendants or the original lender or successor thereto or securitized trust upon default by the borrower in connection with the Plaintiffs’ mortgage loans.
9. All documents setting forth any claims made against any policy of insurance the subject of request number “8.” above.
10. All documents setting forth any payments made or received in connection with any claim the subject of request number “9.” above.
11. All documents setting forth any denial or reservation of rights as to any claim made in connection with any policy of insurance the subject of request number “8.” above.
12. All documents demonstrating any funding of any of the Plaintiffs’ mortgage loan the subject of this action by any certificated or uncertificated security.
13. All documents concerning any consideration exchanged between any persons or parties in connection with the assignment or sale of any part of, or right under, or right incident to any of the Plaintiffs’ mortgage loans (e.g. assignment or sale of mortgage, assignment or sale of note, assignment or sale of servicing rights, assignment or sale of right to income stream from borrower payments, assignment to a mortgage pool, assignment to any SIV, CMO, CDO, MBS, or CDS, [as defined herein infra], and the like).

16. All documents identifying any descriptions or legends of all codes utilized within any mortgage servicing or accounting system identified within your response to request number “15.” above.
17. All documents evidencing all payments made by the Plaintiffs or any third party on or toward their loan obligations at any time.
18. All documents setting forth any credits applied against any balance due on the Plaintiffs’ mortgage loans at any time, including amount of credit, date credit applied, source of credit, and obligation to which credit was applied (e.g. principal, interest, late fees, etc.)
19. All documents setting forth the disposition of all payments made by the Plaintiffs or any third party in connection with the Plaintiffs’ mortgage loans, including but not limited to documentation setting forth amounts assigned to or credited against principal, interest, insurance escrows or payments, tax escrows or payments, late fees, or any other charges.

36. All documents setting forth the present physical location of the original mortgage instrument and the original note for any of the Plaintiffs’ mortgage loans claimed to be owned by any of the Defendants.
37. All documents setting forth the name, address, and telephone number of the physical custodian of the original note and original mortgage instrument for any of the Plaintiffs’ mortgage loans claimed to be owned by any of the Defendants.
38. All documents setting forth the assignment of either the mortgage instrument or note for any of the Plaintiffs’ mortgage loans, which are claimed to be owned by any of the Defendants, to any particular Specialized Investment Vehicle (SIV), Collateralized Mortgage Obligation (CMO), Collateralized Debt Obligation (CDO), series of mortgage-backed securities or certificates (MBS), or collateral default swap (CDS).
39. All documents setting forth the full name, current address, and telephone number of each holder of or investor in any SIV, CMO, CDO, MBS, or CDS which is collateralized in whole or in part by any of the Plaintiffs’ mortgage loans or any right incident thereto or thereunder.
40. All documents which identify the full name, current address, and telephone number of all persons who authorized the filing of any foreclosure action or threat of any foreclosure against any of the Plaintiffs.

49. IRS Form 1099-OID for each of the Plaintiffs’ mortgage loans.
50. IRS Form 1066 with accompanying Schedule Q for each of the Plaintiffs’ mortgage loans.
51. All servicing contracts between any insurance tracker and any loan servicer as to the Plaintiffs’ mortgage loans and/or any securitized mortgage loan trust into which any of the Plaintiffs’ mortgage loans were assigned or placed, including all addenda and schedules thereto or identified therein including but not limited to Service Level Agreements (SLA), Return To Lender (RTL) documents, and any listing of Unable To Locate (UTL) Documents.
52. All documents identifying the Operations Account Manager (OAM) for the specific account(s) related to the Plaintiffs’ mortgage loans.
53. All documents concerning or relating to any reports of transactions between financial and foreclosure-related systems as to the Plaintiffs’ mortgage loans including but not limited to reports provided by Fidelity systems and/or tracked in web-based filing cabinets (including but not limited to Balboa_IT_CCS) and in any system including but not limited to AXSPoint, COOL, or otherwise.
54. All reports of any experts, accountants, and the like upon which any of the Defendants intend to rely in the trial of this cause or at any hearing, and all documents upon which Defendants intend to rely or which Defendants intend to introduce into evidence in support of any Motion or at the trial of this cause.

31 Responses

  1. Diane Jenkins,
    I know how you feel. Same problem, lookie here >,10&case=4618419152447303465&scilh=0
    9th Circus reverses dismissal without leave to amend on rescission and other claims.

    I guess you have to have a lender/servicer that the Judges’ pensions aren’t invested in. Sucks for the rest of us.


  2. I’d add asking for copies of any agreements made between the Judges’ Pension/Retirement Plan and any and all of Defendants/Plaintiffs as well as counsel representing those parties.

  3. Summary in Latin:

    quid est quod substantia quae dicunt, et quo waranto ubi est argumentum ex auctoritate facis eas constituens

  4. Sarasota, Fl.–Bank attorneys do not provide any documentation asked for in Production of Documents. They just answer –too broad,etc. I’ve heard (good) foreclosure defense attorneys argue for production in court–bank attorneys always win the argument–apparently, they do not have to provide production because the court stands behind the banks–Bank attorneys also try to get Protective Orders so they don’t have to provide documentation.

  5. They don’t care about the QWR. They always have the standard excuse of “Your request is beyond the scope of a QWR”…
    Send a CERTIFIED/RETURN RECEIPT REQUESTED Cease and Desist/Dispute of (alleged) Debt letter—since it’s most likely UNSECURED DEBT attempting to be collected by a debt collector. Tell them they are violating the FDCPA and TILA Amendment and cannot LEGALLY foreclose because they are not—and have no proof of original creditor. (They have been forging millions of documents). Tell them to show you PROOF (full accounting), that your payments are/have been—going to an “actual mortgage” from the actual original creditor—not just a third party debt collector.

    I am not a lawyer—this is not legal advice.

  6. @mark d – no they don’t. this is discovery used in a lawsuit and a lot of it is outside the bounds of a QWR under RESPA.

  7. @Anonymous – i know how much you will rage after reading this, but your characterization of how a BK works is just not true. where is this affirmative duty of the creditor to come forward that you find in the BK code? the code actually says a creditor MAY file a claim, not MUST file a claim.

  8. MARK D.

    I’M NOT GIVING Legal advice and I’m not an attorney. I will however share my expierence. I sent my QWR requesting a lot of items to produce. My lender responded that under Respa they only had to address “servicing” issues and that many of my requests pertained to production of documents that they are not required to produced under the statute.

    I sent a Debt Validation Letter as a follow up to my QWR after my lender stated they are a debt collector but have a right to service the loan by producing a “copy” of the note and security instument.

    My lender sent me a disk with copies of my original loan closing document as well as a copy of my note endorsed in blank. Also, one of the documents they sent me says the collataral file is missing assignments!

    Anyway, good luck. I think every situation is different.

  9. If I applied this as a qwr does the bank have to answer this?

  10. tnharry

    BK — creditor must be divulged — if covered-up — then you have other claims — just the beginning — not just TILA.

  11. Priceless! That should have the ‘DemonBank’ (aka Chase) running in circles for a while.

    Slowly, slowly but the muck is floating to the surface.

    Thanks Neil and Jeff for posting this – people like you are giving homeowners like me hope that justice will eventually be served.

  12. both of your posts would make up your objection to proof of claim.

    when i’ve been referring to “claim” that also means cause of action. the not disclosed or proven creditor isn’t a claim in itself, except to the extent you can make something from TILA stick to it.

  13. Like—my servicer in writing said my “loan” was pooled into a securitized trust—of which PSA does not have Mortgage Loan Purchase Agreement or Mortgage Schedule—and the trust is empty anyway…so—basically they are lying…

  14. Can someone bring a claim in bk court re. the fact that true creditor is not disclosed/proven?

  15. @carie – Diane’s post would not apply to BK court. no tender required for an objection to claim. as to how many claims for relief, there’s no real limit, although too many can get hard to prove and spread you too thin in keeping the judge or jury’s attention…also keep in mind that you may not be obligated to bring all your claims in BK court. in fact, there are some claims that the bk court may not entertain if they are not “core” issues

  16. tn—how many “claims for relief” can you have in one case?

  17. sorry—meant “were” you…

  18. @Diane Jenkins
    Where you approaching in BK?

  19. Clarify “purported secured creditor” – not so if never transferred to trust right….? I want to see the assignments on the Deed of Trust from sponsor seller to depositor to the trust and the endorsements from the same on the Note. PSA and state laws and CCC require those don’t they? Heck I want to see the sales receipts, the money that changed hands when anyone “bought” my secured mortgage or bought me in a bonded for life debtor’s prison.

  20. I’m in Ca…I used these to compel and the attorney replied general objection for all requests.

  21. Thanks for this list – will take this – newbie no choice sorry truly more than broke but going to fight anyway even if no chance – pro se some time to understand each item and how it relates to specific case.

    In the meantime for a start just a simple wish (covered in above I think) for…

    Servicer Payments to the trust throughout history of loan (for these reasons – just trying them out on those who post here – and bankers try to say all of the above is proprietory and private – not relevant to borrowers and judges buy it- already asked in qwr and got that answer along with one line “investor in this loan is” with name of trustee bank not trust identity – but already know this even though they don’t know I know) (Another qwr said it is our understanding “sevicer” owns your loan”):

    Servicer payments show whether still in the trust or not and when transferred out of trust. Goes to who is the lawful creditor today and who can lawfully enforce the point of sale according to title and recording laws of state and state and federal commercial code and investor’s psa ect.

    Goes to did lawful secured creditor get the payments or someone else?

    Also shows borrower is not in default to the secured party with beneficial interest if servicer is advancing payments (as per psa and investor agreements) to the trust on borrower’s behalf even after delinquent. It doesn’t matter if judges don’t like this argument (“you agreed to pay didn’t you and you have now missed payments haven’t you?”) – What is the law regarding delinquent and default to secured creditor – humbly asking your honor? – reason this is important might be re tro, injunctive releif, tender to “secured” creditor. Other debt to unsecured is a seperate issue – can’t seize a home because of it. Not sure but if lien not perfected if you can properly allege this also wipes out bond and tender issues doesn’t it?

    Also wonder if servicer payments link directly to borrower payments or if they have been made from some other source or were made for less than the borrower payments. If so who got the borrower’s payments? Don’t know yet if that is in Jeff Barnes list.

    Thanks again. Hopeless and hopefull at the same time.

  22. @A-man – legal definition : “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

    The point I was making is that what you seek must be tied to your claims for relief. If you claim is misapplication of payments such as “I paid 8 payments but only 6 appear on my transaction history”, then documents evidencing pooling and servicing agreements and credit default swaps aren’t relevant.

  23. The funny thing is the list is missing number 20-35, what happened to those requests. Are we only posting part of the information he requested? Hm

  24. I have all of those documents. If you live in California they mean nothing. The Judge wants you to “Tender” or you cannot fight the banks. End of story. Diane in Laguna Niguel

  25. Pretty extensive and very much appreciated, thanks Neil and Jeff. Does anyone know which offices in Souther Cal Jeff has affiliates?


  27. Tnharry what are relevant arguements. I think the misapplication of the payments is the main issue.

    If my payments are not going to the real creditor(s). Than my loan is not being paid off. What is more relevant than that?

  28. @Pat – depends on your local courts and rules. no reason why most of this stuff shouldn’t be compelled to be produced. and potentially all of it if you can convince the judge that it’s all relevant. and that depends on the claims you allege. for instance, if your claim is misapplication of payments, then most of this stuff wouldn’t be relevant.

  29. 1. The question is what happens when the Banks / Servicers refuse to respond and provide the information.

    2. Do the courts and judges really care to compel the banks to respond and what penalties are they willing to impose.

    3. Are these questions valid for commercial mortgages as well?

    Pat Balan

  30. Thank you Niel and Jeff.

  31. Superb … and, overwhelming detail for the Plaintiff/Defendant (depending on who brought the action). It should push them over the edge, back into the realm of “reason” where law began and should remain.

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