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Hogan v. Washington  Petitions for Review (both cases – now consolidated) which were granted by the AZ Supreme Court attached.  Links below.  The case is now scheduled for oral argument before the Court on 1-24-2012 at 0930 in Phoenix.  Get the word out to our foreclosure friends to get over to the Supreme Court and fill the courtroom for this important argument.

Here is a link to the oral argument docket at the Court:

The Court often stream argument via live video.  If they stream this case here is a link that MAY contain the live argument:  (you may have to check from time to time to see if the upcoming argument is posted)

Take a moment to read the homeowners briefs and you will understand why this case is so important.  The AZ Supreme Court sat on the petitions for almost 6 months before finally granting the petition for review.  My personal opinion is the Court was looking for the RIGHT case from which new AZ law could be made and I think they now have the case to make this happen.

25 Responses

  1. You know, I said that wrong (and would like to correct in case anyone read it!). The ‘wild card deed’ from me to my buyer is not a wild card deed which would ‘merely’ create a cloud on title. It may appropriately be called a ‘wild card deed’ for all I know, but imo it’s actually a nullity and / or would and should be treated that way because without the deed to me from the Greens, I have nothing to convey because conveyances of real property interests must be in writing as a matter of law. So it is without a (recorded) chain of title for the DEED of trust. Maybe an entity, like MERS, could in fact act as the public-record nominee/placeholder for its members for a season (IF their relationship as public-record nominee were properly noted in the governing document(s) which imo it is not), but ulitmately, to act on those assignments which must have been done if unrecorded, they must be recorded – all of them – with the proper fees paid to the recorder.
    I’d like to try to explain what “matter of law” means because we necessarily care. Feel free to correct my version. Statutes are laws. A law says you may do this or not. The right-ness or wrong-ness of ‘this’ has been legislated. And some laws say you MUST do a thing in trying to accomplish a goal and if you have not done a thing which you MUST do, then you have not done the thing you set out to do. For instance, and as relevant to my ‘delivery of a deed makes conveyance of real property interests effective’, the law say it is (only) delivery of a deed (as in deed of trust) which makes it effective. When a thing is mandated by law, we don’t get to make our own rules or jury-rig something.
    Some laws calls for strict compliance, like for instance the NV SC just made clear about Nevada’s mediation statutes in the Levya and Pasillas cases. There is NO wiggle room. The “Delivery Requirement” has always, always been strictly upheld in my experience. There are times when something else which is not law, called “equity”, which will demand that a thing which should have been done be done, but not usually when there is a law regulating the thing, and never that I know of when a law about the thing requires strict compliance.
    Trust laws require strict compliance. If assignments weren’t done and DELIVERED, there has been no assignment, and if for no other reason than trust law, a ‘late’ assignment to a trust is impossible, is it not? Is it truly impossible or are there just nasty consequences for the trust which attempts to accept delivery of a late assignment? I don’t know that much about these trusts. Who knows this answer? We need it to make proper arguments imo, arguments which make it clear to a court that the court may not possibly grant those guys what they want in the absence of certain vital information.
    Obviously an assignment must be executed in the first place. Assuming an assignment of a dot is an instrument which requires delivery, as I say it is, there is no assignment without that delivery.

    The same would hold true for the deed of trust. WHO took delivery of your deed of trust after closing? Was it delivered to the beneficiary? No, it wasn’t, certainly not if MERS is the beneficiary.
    MERS (read by member attorney) says off and on again that it is the beneficiary, right? MERS never took delivery of one document, not one. Change out “MERS is beneficiary” for “MERS is agent ” of beneficiary. (It’s neither, but let’s just go along with them) Did MERS as agent for anyone take delivery of the deed of trust? Same answer. No. Not a one. If MERS is the beneficiary or the agent even, WHO took delivery of the deed of trust on behalf of MERS and importantly, where is this authority written?

    Here’s how it goes: the title company, depending on your state and the m.o., performs the closing and has the live deed of trust after closing. They send it for recordation. Then where does it go? To whom is it delivered? If title is not legally the agent of the beneficiary authorized to take delivery on behalf of the beneficiary, there has been no delivery on that score. If the party to whom it goes after recording is not the agent of the beneficiary expressly authorized to take delivery, there has been NO delivery to the beneficiary of the dot in the first place. So you banksters, stick that in your pipes and smoke it. Or alternatively, we’re not drinking one drop of your kool-aid anymore. This is war.

  2. g bryl, come back. Or at least continuing developing and supporting your argument that MERS is a shell / sham corporation, a front for bankster illicit activities and a cover for their fatal “oversights” in failing to endorse, assign, and deliver documents, etc., etc., etc.
    Sooner or later some court is going to be asked head-on to consider the very legally skewed and tweaked relationship of MERS and its members. Then right after that, a judge with a brain, like his holy highness Schack, will give it the real consideration due the matter. If MERS is the agent of its members, what really is MERS ‘appointing’ a member-employee as an officer of its (member/principal) own agent, (MERS), so that the member, the principal, may act in the name of its own alleged agent? Since when may a principal be an agent (er, excuse me, vice president) of its agent? (I’ve actually seen Aurora Liar oops Loan Services, an alleged Mers’ member, for instance, claim to be the agent of MERS and I am not kidding – ALS did – literally)
    That’s what this would really be (principal acting as agent of its agent), except that we’re talking about real property. The statute of frauds’ requires that any agency agreement related to real property be expressed and may not be (even) merely implied. It just cracks me up when courts assume or at least posit MERS is anyone’s agent If it is, the court is privy to an expressed agreement the rest of us haven’t seen.

    So, no, Mr. Bryl, please don’t abandon your new thesis. It’s coming, it’s around the corner, and we need to be ready.

  3. part iv
    My assertions regarding recording of assignments ‘along the way’ to MERS-members (only) assumes a certain fact: MERS is not the beneficiary, not even for a MERS’ member note-owner, and it certainly isn’t the beneficiary for non-members. I’ve gotten to that before, as have many, so I’ll leave that alone for the moment. Additionally
    there is a reason MERS entered the Consent Order and no longer
    “allows” foreclosures in its name.
    What makes a deed effective? Delivery. Period. If I execute a deed to you on my house, but do not deliver it to you, it does NOthing.
    Remember, a deed of trust is a deed, albeit one held in trust for the benefit of the party appropriately called the beneficiary (and nothing else) in the trust agreement, the dot.
    Have you ever seen a notarized assignment to a trust, pre-dating litigation or home-snarfing? Neither have I because there aren’t any. Apparently, a few assignments were done “in blank”. The only courts I know of which have been confronted with this issue have said “no thanks”, an assignment of a deed of trust in blank is a nullity.

    But looking at those assignments in blank, (or the lack of assignment, really) I’d say they were done that way for one of two main reasons: 1) there was meant to be no true assignment of the deeds of trust to the trust and or 2) they wanted them that way for illicit reasons like allowing them to put any name in there they chose. (If the blank assignments were valid, however, that would spell the end of MERS because the trusts themselves are not MERS’ members). They tried to treat the deed of trust as a negotiable instrument allowing endorsements in blank. All this gives rise to a pretty important and judicially unavoidable question: Are the trusts Mers’ members? No, they’re not. Why they didn’t execute assignments of the dot’s to the trustee (if allowed in the psa’s) or the trust, either way with an expressed agency* agreement for the trustee or someone else could be the result of God knows what, but they didn’t. A sec’n trustee could likely legitimately be the nominee for a trust in regard to dot’s. In the case of securitization, the trustee’s cans and can’ts are spelled out in the psa (yes?) and as long as what is recited is lawful, no problema.
    But just as a deed of trust trustee’s duties and obligations are spelled out in the deed of trust (and of course that’s another story), any authority for the sec’n trustee must be evidenced somewhere and may not be assumed by you, your honor.
    *when it comes to real property, any agency must be expressed in
    writing and may not be found impliedly as a matter of law, which means the word “agent” must be contained in the writing

    At any rate, there was no delivery of assignments to the trust, nor to the document custodian. Hard to deliver something that wasn’t done. They weren’t done for a number of reasons, one being they decided they didnt’ need to do them. If they had been done, surely it would be an easy matter to produce them. In my earlier example with the Greens and Browns, a deed not executed and delivered may be yet gotten (and will be effctive on the date of delivery imo). As we know, not so for trusts, pursuant to trust law. I’m no authority on trusts, but maybe the assignments may yet be done if all involved are willing to give up their tax status (I would think from the hip), but I still doubt it. So even if the note made it into a trust and even if the trust owns the notes (which I don’t think they do), the trusts have unsecured debt, not mbs’s by any stretch. And the note and dot have in that case been bifurcated if they weren’t by MERS involvement. We need to remind the judiciary time and time again that it was not WE who formulated this business plan. If the courts want to turn some ire on someone for the amt of paperwork etc. involved in supporting claims, well, they are looking at the wrong guy just now.

  4. Carrie thanks for the info on Deutsche. Anybody aware of any cases that Deutsche went to probate for any of the RALI (GMAC) trusts?

  5. […] (According to a poster in the link below, MA supreme court is examining the same question.)…t's also encouraging that MA AG Coakley is bringing charges against the five Big Cockroach Banks…. […]

  6. wow, carie, my hat’s off to you. That’s quite a lot of info. You’ve really done some homework. I’m going to follow your link in hopes I can even try to catch up.

  7. ian—here is what tony posted a while ago:

    “People on here must understand what a “Qualified Financial Contract vs a Non Qualified Financial Contract” is. If and when you understand this you will see that as in B Davies case, this trust only had Non QFC’s in it.
    Read it well…Non QFC’s are ONLY receivables of collection rights.
    Also Brian you are doing a good job, but start attacking the meaning of QFC’s vs NON QFC’s. You are in the same court where DBNTC vs FDIC is being ruled on and the judge talks about the QFC matter. Case number is #09-3852 in the California
    Federal District Court Central District Western Division.
    People you need to read this case, and if you have a so called an Indymac Loan you really need to read this case. DBNTC admitts that all 246 trust under the Indymac was striped of all assets. They even went to probate so the judge would not make DBNTC liable for anymore claims. If anyone knows trust law you know that you can only go to probate when a trust is dead. DBNTC even put in a claim with the FDIC and was DENIED and was stated they are NOT a SECURED CREDITOR just a GENERAL CREDITOR (unsecured) and there will be no money for general creditors.
    Onewest is not servicing the former Indymac papers for DBNTC, but instead for Indymac Ventures LLC. If you google and pull this name, it’s on the FDIC’s own website—it says: THEY WILL NEVER BE GIVEN THE ORIGINAL NOTE, AND IF THEY TRY TO JOIN FORMER PARTIES IT WILL BE VOID.
    So when banks lawyers (debt collectors) pull up and say here is the original note they are committing open fraud and there is proof. They were only given a collateral file with the debtors information as any debt collector receives, when they buy debt.
    FDIC gave Onewest the collection rights without taking on any liabilities. As many have seen in their court cases Onewest says we bought the assets of Indymac without any liabilities. Then how could they try to use the PSA’s in court cases? They can’t—they are not a party to the document.
    Indymac was 2 people in the trust transaction:
    1. Sellers (QFC)
    2. Servicer (Non QFC)
    Indymac sold their collection rights aka Non QFC’s to the Trust Series. (You must understand a series has one main name and feeds the rest—that’s why it is called a series.) Then Indymac promised that as of the time of selling that everything was in good order and if it wasnt they would buy it back. (QFC) Once the trust took it Indymac’s job as seller was done.
    Indymac then took on its other job… 2. Servicer of the trust. (Non QFC)
    When Indymac went under the FDIC took Indymac into receivership. FDIC then made Indymac Federal FSB. This is a big part, because when Onewest bank says they bought the assets of Indymac Bank, Onewest did not buy the assets of the Failed thrift, but of Indymac Federal FSB—the FDIC version of Indymac which is big difference. Onewest just tries to muddy the waters—and be deceitful—by not trying to say which one they really bought.
    FDIC as in conservator split the QFC from the Non QFC and gave IMB Hold Co the deposits and the Collection rights of all 246 Indymac trust series without any liabilities. IMB Hold Co then made Indymac Ventures LLC (the only sole member of the LLC is Onewest Bank) who Onewest is servicing for.
    FDIC did this without repudiate contracts under 12 U.S.C. 1821(e), r. Even if they did it would have made the trust series whole and still DBNTC would not have any claim even in non QFC form. As FAS 140 explains in detail.
    In short if your loan was securitized its not about your Mortgage or Note, it is about: Is it a Qualified Financial Contract or not. Use this and you will not have to worry about “where’s the assignment” or anything else.
    Its now about accounting and security laws. Then you can show why there were not any assignments, because they only had non QFC rights. Judges wont like this matter, but there is nothing they can do about it, now you are connecting the dots. All these securitizations are UNSECURED period and banks know this. The Trust never had any QFC’s only Non QFC’s.”

  8. carie- you mention the “Deutsche Trust”. It must have at least a date, which quarter, or something after it, such as DeutscheBank Mortgage Receivables Trust 2004-3. How do you know it is dead? Saying so doesn’t make it so in the eyes of the court. If you can PROVE it has been wound down, that’s a different story. Can you post what you have on it? Nancy Drewe can help you get to the bottom of it also.

  9. @eule – took a gander at your link. B of A is alleged to take h.o. payments to make tax and insurance payments which are actually being made by homeowners – no escrow account was set up. This, in turn, put the h.o. in default on their payments by b of a’s accounting. Mentioning this in case B of A or someone else did that to anyone else.

  10. jg—no docs yet…

  11. Just for giggles, let’s look at the assumptions a title company must make (or else not give a hoot about) when insuring a home which was foreclosed with MERS in the act anywhere:

    1) the original beneficiary was a MERS’ member
    2) all assignments were TIMELY done from a to b to c to d etc. even if unrecorded at the time of execution
    3) all the assignees were MERS’ members (since no assignments were heretofore recorded in land records to non-members)
    4) the borrower – and the public as applicable – have notice of those interests from a to b to c to d etc. , generally by way of recordation (constructive notice) or by actual notice of the assignment
    4) the party executing the assignment to be relied on is the last and proper party in the A to D to Z (whatever) chain to do so
    5) the person executing the assignment of the deed of trust for No. 4 has proper authority to do so
    6) the current beneficiary is also the party entitled to enforce the note, the debt, without which no right to act in regard to the dot is created. (I can’t come after the collateral with no interest in the debt.)
    7) the note and deed of trust have never been bifurcated. (If they have been, it’s my understanding but not stated as fact they may not be re-joined and why someone would bifurcate them is another story.)
    8) the assignment of the deed of trust created a true beneficial interest in the assignee $$ and was not done purely for litigation or for collection or to create jurisdication (which is jurisdiction tampering)
    read this if you can stand it!
    9) Any agency or poa relied on (not trustee – dot trustee is NOT to act as anyone’s agent) is evidenced by a (noticed) writing as required by the statute of frauds
    10) if loan alleged to be owned by a ‘trust’, evidence it made it into the trust and that so and so is the trustee and that the trustee is empowered to do whatever he is claiming.

    What else? Actions met psa and trust law requirements?

    Okay, that’s the title company and they may of their own accord and at their own peril decide to insure or not. But a court has no such luxury. If we do not know these things, if the record before us does not produce evidence of all the above, than the court is not relying on facts and is not making an informed decision. In the absence of these things, a court is making errant and wrongful assumptions regarding facts not in evidence. Plain and simple imo. Importantly, WE did not formulate a business plan which would ultimately require production of all this evidence. THEY did. So fork it over.

  12. @carie – I know next to nothing about ‘dead trusts’. There is just so much to keep up with. The only thing I can think of is to file a motion
    or something stating that their response is non-responsive. When they are blowing you off, is it from stuff you state in your complaint or stuff you state in a motion? I ask because I think it’s rule 8 which says any allegations in a complaint not denied in an answer are admitted.
    Are any of your docs posted anywhere?

  13. Part III

    They want to use MERS for any number of reasons to avoid the assignments of interests in real properties which must factually be done, even if unrecorded at the time, pursuant to the statute of frauds. Call a title company and say ‘I want to sell my house to the Browns. I bought it from the Greens, but we did not reduce our agreement to writing. I have no deed.’
    They will NOT insure your wild card deed to the Browns because you did not get it in writing with the Greens. Now, you want to sell your house to the Browns, darn it. So the title company may allow you to go back to the Greens and get a deed to yourself. Short of that, they are NOT going to issue a title policy. The public record would show your wild card deed. It’s a wild card deed because your deed from the Greens is missing. The record would show the Greens in title, but then a deed from YOU to the Browns. Not going to get insured and would always, eternally be a monster cloud on title. The Browns would further play heck selling it later.
    So MERS held the place of its alleged members in public record as public-record nominee. Now, what if one or more of those parties from A to D – Z were not MERS’ members? By MERS’ own rules, when the beneficial interest is transferred to a non-MERS member, the member is allowed to execute an assignment in MERS’ name (grrrr…), record it in land records, and remove the loan from MERS’ computer database. The truth is, not only must these interests-in-real-property assignments be executed and recorded, the bankster should be submitting evidence everyone in the chain is a MERS’ member because if not, MERS had no authority, including to authorize a member to execute an assignment to ANYone, if it ever had any, which it didn’t’ (another story).
    The assignments need to have been done, even if they were not concurrently recorded (and this does not consider mandates in psa’s or trust law). But, they have to be recorded, all of them,
    in order for anyone but A to come after our homes.

    MERS’ members like to argue that some state statutes say assignments don’t have to be recorded. Okay, true enough. An unrecorded assignment IS binding on the parties THERETO.
    BUT, that is not the end of the story. An unrecorded assignment does not impart notice and is not enforeceable against third parties, as I said, including the homeowner. I’ve posted this before, but here’s Nevada’s, for instance, again:

    “NRS 111.315 Recording of conveyances and instruments: Notice to third persons. Every conveyance of real property, and every instrument of writing setting forth an agreement to convey any real property, or whereby any real property may be affected, proved, acknowledged and certified in the manner prescribed in this chapter, to operate as notice to third persons, shall be recorded in the office of the recorder of the county in which the real property is situated or to the extent permitted by NRS 105.010 to 105.080, inclusive, in the Office of the Secretary of State, but shall be valid and binding between the parties thereto without such record.”

    Even in this absence of such a statute, the statute of frauds dictates that the assignments must be in writing. And you are not bound to these instruments about which you have no notice.
    I know of no reason (doesn’t mean there isn’t one of course – I just can’t rattle it off) why a nominee of the beneficiary may not show as a nominee in public record. However, no one but the proper and current beneficiary of a dot has any authority regarding the dot, including and especially telling the dot trustee to act. This means that the assignments must have been done in the first place (even tho unrecorded at the time) and they certainly must all be recorded in order for them to be enforced.

    Promissory notes are not recorded and they are by themselves not interests in real property. Only the collateral instrument, the dot, is recorded. The recordation of an assignment of the interest in a dot is the only thing which imparts notice to third parties, including the homeowner of who’s on first, who has an interest in our homes. Endorsements to notes are not dated and as we have seen as a result, are subject to any manner of deceitful acts.

    If for no other reason than notice, we do not want the deed of trust to follow the note, nor do or may they since they are not controlled by the UCC. They are controlled by the statute of frauds.

  14. Just a new trick : B of A

  15. Part II dot v mortgage and why we care

    All transfers of interests in real property, which is a definition fitting a deed of trust, must be in writing pursuant to the STATUTE OF FRAUDS. The statute of frauds was designed to preclude some very real dangers of fraud.
    When the beneficiary, the party with the beneficial interest in a deed of trust, changes, this change constitutes a change to an interest in real property and this change must be in writing. The writing used is an assignment of a deed of trust. Generally, an assignment of a deed of trust which is not recorded is still binding on the parties thereto – the assignor and assignee. (and this is sort of the part that Judge Young got right in a MA case recently in his interpretation of a statute – actually what he got right was that if an assgt were executed for abc by one in such and such position with abc, ABC could not refute the assignment) However, an unrecorded assignment does not impart statutory notice to non-parties.* The homeowner is a non-party, not being the assignor or assignee, tho he has an interest. Banksters are now claiming he has no standing to raise issues with bs self-assignments because he is not a ‘direct party’ to the assignment. That’s another story this minute. Unrecorded assignments are valid but are only binding on the parties thereto. I’ll tell you how important recordation is: In a chapter 11 bankruptcy, on info and belief, a debtor may AVOID a dot where he has no notice of its alleged transfer from the original beneficiary or anyone for that matter to another. In other words, if ABC shows as the beneficiary in the dot and has transferred its interest to XYZ but xyz has not recorded that assignment, Joe Debtor may avoid the dot. I don’t recall if he avoids the debt, (yeah, I know, a biggie) but he can avoid any alleged interest in his real estate of which he had no notice when he filed bk. Something about bonafide purchaser without notice and him having powers of the trustee) I forget exactly. This is a very powerful tool.
    And for those who feel left out not qualifying for 11, you can at least strip the unsecured 2nd (unsecured for lack of equity) on your home in a 13. Slam dunker usually.
    Okay. So WS wanted to hurry up and write any junk for anyone with a pulse and hurry up and sell it to some poor schlep investors. Now for whatever reasons, there were parties between A, the originator, and D, say, regardless for this discussion who D to Z are or aren’t. They didnt’ want to be bothered with the time recordation takes to record the assgts along the way, right? Okay again. Except that they ripped off county recorders at the time. So they had MERS act as nominee to hold the place of members in the dot to avoid recordation of the pesky assgts. That’s all MERS was really supposed to do til they all got crazy. (well, that’s debateable because I see intent of other ‘stuff’ in their jazz, meaning it appears there was a plan in place to avoid paperwork, shall we say, if not tell monster lies and if not also fraud
    of unprecedented purportion) That doesn’t mean the assignments need not have been done. If they didn’t care about imparting notice, that was up to them, but they had to be done. They had to be done because they were transfers of interests in real property. They had to be recorded to impart notice and be binding on anyone outside the two parties thereto – the assignor and assignee. As a matter of what I see as fact, if there are no bonafide assignments recorded on your home, if you qualify for C 11, you could avoid the lien right now. Please do! Jerkies.
    Okay, so where are we? Assignments must be in writing and they must be recorded to impart statutory notice. Why must they be done, just so we can agree or not on this: because the statute of frauds says so. A recorded assignment from a to anyone but b is a wild-card (no bueno) deed if the deed of trust “went thru” b to who knows to get to D to Z. If A assigned its interest to b and b to c, A no longer, for one thing, has any interest to assign to D, right?

  16. All right. We have to step it up here and look at some stuff. Where we need to start is: Is a deed of trust a mortgage? Let’s answer this first and then we can look at why we care.
    NO, it isn’t: the term “mortgagee’ is used to describe a party in a two-party instrument who owns a note and a lien on real property securing the note. The word ‘mortgagee’ should not be in and has no application to a deed of trust. Beneficiary and mortgagee are NOT synonymous. One has a lien on real property by way of a ‘mortgage’ instrument and the other has title to real estate held in trust for its benefit. The deed of trust as a collateral instrument replaced a ‘mortgage’ in evidencing a lender’s interest in a borrower’s home. A mortgage is a lien, and it may be ala Carpenter v L that a MORTGAGE follows a note. Haven’t given it much thought because I and we are not dealing with mortgages – we are dealing with deeds of trust. A deed of trust is something else. It is not a mortgage . It is 1) a DEED of trust 2) a deed of TRUST.
    It is not a lien, like a mortgage is. In tittle theory states, the borrower is actually granting ‘bare naked’ aka legal title of his home to
    the trustee to be held in trust for the benefit of the BENEFICIARY named in the deed of trust. This is where we get the
    “DEED” in deed of trust. It is a deed, not a lien. It functions as a lien, but it isn’t a lien. The TRUST in deed of trust means the dot trustee will hold the deed in TRUST for the benefit of the beneficiary until the borrower has paid off his indebtness to the lender, who is ONLY appropriately called the beneficiary in the dot. You don’t get a ‘lien release’ when you pay off a dot – you get a (document called a ) “RECONVEYANCE” of the title to your home. The TITLE which you granted to the trustee to be held in trust is now being re-conveyed to you. See? A deed of trust is a transfer of title to real property, unlike a ‘mortgage’. So, I think this answers the first question. As to the second, why we care, that takes some discussion.

    All transfers of interests in real property, which is a definition fitting a deed of trust, must be in writing pursuant to the statute of frauds.

  17. @carie – i sent you an email on the TILA stuff. been out of pocket for the last week

  18. johngault and ian,

    This is exactly where I am at…and I’m in non-judicial CA…not fun…
    The servicer just keeps saying they service for the Deutsche Trust…and when I tell them that’s impossible because the trust has been dead for years…their response is either a non-response, or they pretend like i asked a different question and respond to that!!!

    I would SO love to bring these people up on CRIMINAL as well as civil charges—for making a claim of ownership with fraudulent and forged documents…not to mention the documents recorded in the recorders office are TOTALLY fraudulent because the Deutsche trust is DEAD—right???

  19. johngault- as to my previous post, i must add the following: The note EVIDENCES the obligation, the note itself is not the obligation. Due of course to the securitization chicanery, we can’t figure out who is obligated to pay what to whom, whether they’ve already paid, and how much it is/was. These offsetting payments must, as Neil continuously points out, be taken into account when figuring out what, if anything remains to be paid by the “borrower”,
    Bear in mind that the total of outstanding mortgages in the US was 14 trillion dollars in 2007, and that the govt. to date has paid 29 trillion in TARP, TALF, ;loan backstops and guarantees, 0 interest loans, discount window borrowings using MBS as collateral at 95%, etc, then we can all see that not only were our humble mortgages not the problem, our mortgages, whether paid or unpaid, had nothing to do with any of this.

  20. Service of Process – Make The Banks Do It Right
    by Mark Stopa
    One of the most basic elements of any lawsuit, including a foreclosure lawsuit, is a plaintiff’s obligation to effectuate service of process on a defendant. Service of process is a fundamental tenant of a defendant’s right to due process, as it ensures a defendant knows about a lawsuit and is given an opportunity to defend.

    Florida Statutes govern the manner in which service of process must be effectuated. There are many different statutes, and many of them are quite technical, but the most common method of service is set forth in Florida Statute 48.031(1). If you don’t remember anything else about service of process, remember this:

    Service of process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

    This one sentence sets forth at least three ways in which a defendant can challenge the manner in which service of process is effectuated (in a typical situation). Specifically:

    •The process server cannot merely hand-deliver the Summons/Complaint – he/she must also inform the defendant of their contents. (See below for how I utilized this requirement in a pending foreclosure case.)
    •The process server cannot give the Summons/Complaint to a child – the person to whom the paperwork is given must be 15 or older.
    •If the process server does not serve the defendant personally, then the paperwork must be given to someone who resides at the home where that defendant resides. Service on an overnight guest of the defendant is insufficient. Likewise, if a husband and wife are not living together, then service on one spouse does not constitute service on the other. If the lawsuit is a foreclosure lawsuit, and the property is a rental property, service on the tenants at the property does not constitute valid service against the homeowner.
    These requirements sound quite basic, but process servers screw them up all of the time. To illustrate, I had a hearing scheduled for tomorrow in a foreclosure lawsuit on a Motion to Quash Service. My argument was that service should be quashed because the process server did not inform the defendant of the content of the documents when he effectuated service. I wasn’t denying my client received the Summons/Complaint, but that’s not enough – the process server was required to inform my client of the contents.

    I can only presume the plaintiff’s lawyer realized my motion was well-taken, because he just cancelled the hearing. Bear in mind – it doesn’t matter that this homeowner was behind on mortgage payments or had been personally served – the fact that the process server failed to inform him of the contents of the documents invalidates the service.

    There are many cases regarding these propositions of law. For a flavor, check out Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981) (service quashed where defendant was not informed of contents), and Johnston v. Halliday, 516 So. 2d 84 (Fla. 3d DCA 1987) (service quashed where the defendant’s son did not reside with her and was under 15 years of age).

    I raise this issue, of course, because this is yet another argument that homeowners can raise when defending a foreclosure case.

    The banks have done many things wrong in recent years. Let’s at least make them effectuate service of process the right way.

    Mark Stopa


  21. johngault- excellent post and point. “if someone takes the collateral (property) via the mortgage/deed of trust, then after the foreclosure, the note (obligation) is still outstanding”. Everyone should write that down to give it to the judge.

  22. Eaton V FNMA in Ma.

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    PRISONERS OF DEBT – 2011-12-07 23:18:07-05

    A fresh start with bankruptcy? Big lenders keep squeezing money out of consumers whose debts were canceled by the courts BUSINESS WEEK- In a financial version of Night of the Living Dead, debts forgiven by bankruptcy courts are springing back to life to haunt consumers. Fueling these miniature horror stories is an unlikely market in […]

    How to deal with Debt Collector

  24. Requiring Homeowners to “Show Cause” to Deny Foreclosure
    Posted on December 6, 2011 by Mark Stopa

    Florida Statute 702.10 was created in 1993 to accelerate foreclosure lawsuits, requiring that property owners ”show cause” why a Final Judgment of Foreclosure shouldn’t be entered. The statute is rarely used, despite the foreclosure crisis, mainly because it applies only to foreclosures on commercial properties. As most foreclosure cases involve residential properties, the statute simply doesn’t apply.

    According to the this article in the Palm Beach Post,
    Florida’s Senate judiciary committee met earlier today to discuss amending the statute in two main respects: (1) to allow it to apply to residential foreclosures; and (2) to allow deficiency judgments to be entered in cases where the statute is used.

    Personally, I find this proposed legislation terribly misguided. First off, particularly in today’s climate, forcing homeowners to “show cause” why a Final Judgment of Foreclosure shouldn’t be entered is offensive. The burden of proof in foreclosure cases is on the bank, i.e. the plaintiff, and rightfully so. Shifting the burden to homeowners on a widespread basis belies basic due process concerns.

    Also, as a practical matter, what difference would this really make? Banks aren’t prosecuting foreclosure cases quickly even when they can. I’ve seen many cases where banks have defaults against homeowners but don’t push for final judgments. I’ve seen many other cases where banks obtained final judgments but don’t push for sale dates. If banks aren’t in a rush, why change the law to help them rush?

    Perhaps the best way to illustrate this point is to ask this question – if all of the homes presently in the foreclosure process were all put onto the market, all at once, who’s going to buy them? The answer, of course, is nobody. There can’t possibly be a demand for all of those houses, certainly not all at once. This is why the banks aren’t pushing the cases faster than they already are, even when they can – they know they can’t flood the market.

    So why, exactly, would anyone make drastic changes to Florida law, creating significant due process concerns at a time when due process is already under fire?

    Mark Stopa
    This entry was posted in Main. Bookmark the permalink

  25. Haven’t read this yet, but I will. Read the question tho and I can’t even believe it’s being asked. It’s the same question being asked in MA right now in I forget the name but it was posted here at LL along with a link to the oral arguments: Can a party foreclose using a deed of trust when it has no interest in the note? It’s just a stupid question. A deed of trust is a collateral instrument for a debt obligation. What in the sam hell is a collateral instrument without a right to payment on the debt it secures? It’s not one damn thing but the worthless piece of paper it has appropriately been called. What is just about as aggrevating, but not quite, is what’s going on here. The banksters have been more successful than not to date in getting courts to accept the illegitimate “MERS” assignments (mostly, no offense, on inadequate arguments imo , and that’s the banksters ultimate goal. They want to shine the debates over who owns the note (because it’s all a huge fraud, all of it and they’d just as soon skip it all and put it right on the back-burner, if even that) and just stand on their bogus self-assignments of the deeds of trust. In other words, “Your honor, we’ve got the assignment of the deed of trust, so this court needn’t be bothered with the note’s ownership.” Kind of like MERS. Now what problems does that get rid of for them? Every expletive lots of expletives thing. They also may be trying to force another argument which is more complicated and would take me a while to formulate.
    Also, as someone pointed out here or elsewhere, if some Joe takes the collateral, the real estate, with no interest in the note, the stinking note is still outstanding. Cripes. How can this question even be entertained?

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