Assignment must exist in writing, even if the court says it doesn’t need recording

Dan Hanacek, who will be at the conference in Emeryville tomorrow, and Charles Cox can be reached through our customer service number 520-405-1688. Dan is a lawyer with whom I am engaged in mentoring and resourcing in Northern California cases and Charles helps people all over the country. The tide is turning. The basic principles of title in place for hundreds of years, TILA in place for dozens of years and RESPA in place for dozens of years will yet win the day. Title analysis and attorney advice is crucial to making the write choices and communication with a party purporting to be either a lender or servicer. Don’t assume you know what they are saying is correct. Not even the original note can be admitted because of the thousands of instances in which the “original” is a Photoshopped version that is not the original note and therefore does not contain the original signature of the borrower.

Editor’s Note:

With Banks and servicers playing fast and loose with the rules of procedure, the rules of evidence and black letter law it well to remember BASIC BLACK LETTER LAW. An assignment without delivery is probably a nullity. An assignment that isn’t even in writing is (a) not proper under most existing laws and (b) requires the allegation of an oral “assignment” to be explained as to why it wasn’t in writing before, just like a lost or destroyed note.

The assignment can only be valid and used if the assignee is capable of accepting it, paying for it and either acceptance is for the assignee or as an authorized agent. The Notice Default does not give the Trustee or even the original mortgagee where there has been an assignment, the right to declare default. Then it becomes the representation of the trustee, who is supposed to be objective and disinterested in the result.

For the Trustee to issue a notice of sale and notice of default on behalf of the supposed beneficiary, means that the trustee is no longer accepting the responsibilities of the trustee to act with due diligence and good faith toward both the trustor and the beneficiary.

Hence the substitution of trustee is an offer which has not and cannot be accepted. Any actions taken by the trustee in a notice of default or any other notice or collection letter is out of bounds. The only reason the banks do this is to hide behind yet another layer of people and entities so when the arrest warrants are issued, they can claim plausible deniability that the wrong procedure was being followed. This is poppycock. The beneficiary supposedly knows whether or not he is the creditor entitled to submit a credit bid at auction based upon the the existence of a properly kept loan receivable account reflected on the CREDITOR’s books.

This is just another example where the banks and servicers have borrowed the identity of the creditor, claimed that said identity is private and privileged, and then used it for their own advantage to the detriment of both the lender-investor and the borrower.

Witness this exchange between two of our golden boys — Dan Hanacak and Charles Cox:

Dan wrote:

1624.  (a) The following contracts are invalid, unless they, or some
note or memorandum thereof, are in writing and subscribed by the
party to be charged or by the party's agent:
   (2) A special promise to answer for the debt, default, or
miscarriage of another, except in the cases provided for in Section
2794.
   (3) An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of an interest therein;
such an agreement, if made by an agent of the party sought to be
charged, is invalid, unless the authority of the agent is in writing,
subscribed by the party sought to be charged.
 
Would this section not require the following:
  1. Assignments must be in writing as they are “…for the sale of real property, or of an interest therein.”
  2. Immediately contradict the Gomes holding as it assumes that the authority of the agent has already been subscribed by the party to be charged and pre-empts any challenge by the injured party to the alleged contract.

And Charles Cox wrote back:

I’ve just been drafting argument against TDSC (in opposition to their demurrer)  for the proposition of their authority (as an agent for the beneficiary) in which (as is common) they attempt to use an agent they have assigned, to record a NOD (usually prior to an assignment being recorded) which I refute as follows:

In P&A p.10:26-p.11:27: TDS wrongfully states a “title company representative as agent for T.D.” could validate a Notice of Default which by the terms of the purported Deed of Trust (“NOD”.)  By the terms of the purported Deed of Trust, a NOD is required to be executed or caused to be executed by the “Lender” not the trustee nor the Trustee’s sub-agent as was done here (see Compl. Exh. 1 p.13 ¶ 22 second paragraph.) TDS’s citations are inapposite relating to “authorized agents” (meaning, authorized by the principal, not by another agent.)  Pursuant to CCC § 2304, an agent cannot act for an agent without the express authority of the principal.  CCC § 2322(b) does not allow an agent to define the scope of the agency (which TDS is attempting to do here).  CCC § 2349(4) requires authorization by the principal.  CCC § 2350 states an agent’s sub-agent is the agent of the agent, not of the principal and has NO connection to the principal.

TDS misstates CCC § 2349(1) as it relates to allowing an agent to delegate acts which are purely mechanical.  The statute actually states:

“An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the following cases, and in no others:
1. When the act to be done is purely mechanical (emphasis added)”
   Note the statute states “another person” not another agent or sub-agent.  The alleged “notice of default” TDS refers to (Plaintiffs are not sure which one, having not been identified in TDS’s P&A but assume as follows:) was signed by “LSI TITLE COMPANY AS AGENT FOR T.D. SERVICE COMPANY,” NOT merely by “a title company representative”  or “person” as statutorily authorized.  This, notwithstanding that authorizing recording a Notice of Default is hardly “purely mechanical.”  This is yet another attempt by TDS to mislead the Court.  
   TDS’s citation of Wilson v. Hyneck cannot be relied on because it is an unpublished opinion and is inapposite anyway. 
    TDS’s further arguments (P&A p.11:5-27) fail for the reasons detailed above.

Plaintiffs Complaint contains sufficient facts constituting Plaintiffs’ cause of action specifically against TDS.  Nothing stated in this section of TDS’s Demurrer provides available grounds sufficient to sustain Defendants’ Demurrer (see p.2:19-25 above.)

Defendant fails to meet the legal standards to sustain its Demurrer.  See Plaintiffs’ Section III below.

Defendant’s Demurrer is without merit and must be overruled.

Amazing how these guys fail to accept responsibility for anything they do!

Charles
Charles Wayne Cox
Email: mailto:Charles@BayLiving.com or Charles@LDApro.com

 

64 Responses

  1. MERS is not a bank, MERS is an electronic data base thats tracks servicers. Therefore, MERS has no legal recourse whatsoever.

  2. It doesn’t matter that Mers wasn’t on the note or that Mers had no interest. What matters is that Mers was the registry for digital notes
    traded electronically and the disposition of the paper note.

  3. Even if MERS has an electronic copy they are not on the note, just the deed. They are not entitled to anything other than storage of filings, which by the way legally is the responsibility of the local deed office and supposed to be paid for. That is part of the ruse, non-payment of local taxes.

    If you check your MIN number it will give the record of who the servicer is? Maybe correct, who really knows. The paper game is just that, hide and seek so no one can trace the money and where the documents really are.

    I have to say, I keep coming back over and over to the same spot. The notes are paid in full…hiding in some obscure deed office, where the debt is sold and the bank is not the one foreclosing. The banks who have bought entities are servicing the notes, they never lent anything. That is where all the billions are being made from. The forgeries are generated from not getting proper assignments and have no monetary loss, ’cause they never lent anything! That’s how BOA bought over 1.4 trillion in debt (serving rights) for the $450.00 per note from Countrywide!

    The securitization is only relative to the lien perfection and not a great defense in court. The other thing I keep saying here: almost all of the loans were generated from lines of credit…that is huge in court, because they cannot produce documentation of authority to be in court foreclosing and many of these guys “stole” from the lines of credit and filed bankruptcy to NOT pay the money back. It puts homeowners in a good position, because they have not specified what money is used to fund your loan. If you stay away from your defualt and go after their’s…..Hmmmmm, it gets very interesting.

    No legal advice, not a lawyer, just personal experience!

  4. poppy, you said:

    “MERS does not, I repeat NOT hold the note, they, the originators make………”
    Up until a couple days ago I would have agreed with you. Well, I still do, sort of. I do believe the note became a part of e-commerce and or electronic storage with the Mers system as the point of registration for the notes shortly after closing of the loan. If that makes MERs a bailee of an electronic document, it does yet not make MERS the “holder” of the note. “Holder” has a distinct definition and a bailee is not a “holder” under that distinct definition. What we want in f/c
    cases is all “bailee letters” relevant to our loans. *
    I once posited that when MERS was allowing f/c’s in its name, before the Consent Order, that Mers required the servicer to have possession of the note at the time the servicer, by use of its mers straw officer, instigated foreclosure in Mers’ name (though MERS would never know if the servicer did or not – have poss of the note, I mean). In considering the e-commerce implications, I may have had that part wrong. It might well have been that it WAS Mers which had poss of the note, as an electronic document in e-commerce. Now, that still wouldn’t make MERS a holder; it would still be a bailee (or, again,
    another word specific to e-commerce or electronic storage if ‘bailee’ isn’t the right word).
    *Not long ago, I came accross some changes (least I thought it was a change) to the UCC (in what state’s adaptation I don’t recall – wish I did) which said that a bailee was a party entitled to enforce a note, which I must have found at about my ‘closing time’ for the day and didn’t want to take on further research that minute. I was, understandably I’d say, very agitated by what I considered a bankster-inspired amendment to the UCC in that I believed at the time that any alleged poss of the (hard-copy) notes by the banksters was in fact no more than a bailment for party un stinking known, if not just a good
    replica.
    But as to what I once opined in regard to Mers, rather than the servicer (remember, when f/c’s were done in mers’ name, it was the servicer doing it) having to tacitly allege poss of a hard-copy note, it was actually MERS alleging to have possession if not an enforceable right in an electronic note as bailee or something – closest I can get this minute – related to its status as the registry for these electronic notes. I am not capable of pin-pointing all the details, but I’ve discovered I’m not alone after all. The notes were registered and stored as e-notes on the MERs registery. Mers apparently advertized that this would allow the notes to move quickly by e-commerce, think that would be the right word. And maybe it did. But something went wrong, or they would be relying openly on transfers pursuant to that
    registration and electronic movement. It might be as ‘simple’ as that the electronic transfers did not jive with trust law or the terms of the psa’s. This sort of activity is relatively new, so it would be no surprise given the volume that it literally got out of control. Or maybe there was a glitch (or 5) in the system. I believe at the heart of the Consent Order was a recognition of what went wrong, or that it was tweaked to start. Or the bailee letter did not in fact accord to Mers the requisite status or mean what Mers and its members tried to prescribe to the e-registration, especially in regard to securitization . This isn’t the end of the story. It’s only the beginning.

  5. @ Hman

    I too was told that, not correct, as mine was in 2005? There is a paper trial. The only thought I have is they “intentionally” destroyed the file, so as not to be incriminated or they are outright lying to you. As for the $450 per loan by BOA, I never said it was enough…but they only bought servicing rights, not the actual authority to do anything! Then they are trying to foreclose for the entire loan. Some of you just need to trust what I am saying and understand it. If most of these debts are paid in full, how can they send them out to debt collectors for the full amount? Then if they paid $450.00 how can they get judgments for the entire loan? Those are the questions that lead to some interesting possibilities and answers. Then there is also the “statute” of limitations on debt collection, even a promissary note.

    As I said, I have thousands of hours on this and even though are situations are all different, they emenate from the same behavior and move through the same players and fraud. My loan was seized “illegally”…you need to be a pack rat. Almost all of these loans were generated from lines of credit…lines of credit are unsecured, if your player is in bankruptcy. I have been to court houses, deed offices, different court actions, used QWR’s (just to gather tidbits, as they all come back different), looked at payment histories, called all the phone and fax numbers on paperwork, done background checks on the lawyers…pretty interesting stuff has come forward. All I am saying this problem started from the time the ink dried and it was INTENTIONAL. The money made them sloppy. Just because the judge isn’t listening does not make it true and illegal.

  6. @JG Seriously, wish I was an attorney but thanks for the compliment. If I was I wouldn’t ask so many questions.

    @ Poppy I obtained a copy of the wire I received from the refi. I requested funding instructions from the title company (trustee) and they advised they don’t maintain files after 5 years and they had no info.

    With the “lender/Broker” out of business that was a dead end too. I also went to the bank the wire came out of and submitted a request but again it was a dead end.

    Any thoughts where to go from here? I’m not really sure what direction to go. I’d love to get info showing the loan/broker was paid off. Especially, prior to the assignment.

  7. “The borrower, in my not an expert on the ucc lay opinion, would have to try to argue inadequacy of consideration, but that’s even problematic, I think, because the borrower was not a party to
    the sale to b of a.”

    No you would use the FDIC has the power to take the contract and do 2 things:

    1. repudiate
    2. take the contract and split the assets from the liabilities. So that the assets of the former thrift is valuable so that the FDIC can recoup for paying money out of the insurance fund.

    Read the powers of the FDIC from FASB 140

    What the FDIC did to with B of A was sold them the assets and the FDIC held the liabilities. It is B of A who is not a party to the contract. This is the reason why they can state in court we have nothing to do with the former bank like countrywide or wamu.

    Understand B of A was sold worthless paper this is reason why it was sold for so cheap. There is no security with this paper except you believing that its real and the court believing that the paper has security.

    People must understand the powers of the FDIC to be able to beat the bank at its own game.

  8. poppy if that’s the ony argument against b of a – that it only paid
    450 a loan, it’s not good enough. So you must not mean that as a stand alone reason b o a is no one on those loans. If b of a only agreed to pay 450.00, pretty sure pursuant to the UCC, that’s not a problem. The borrower, in my not an expert on the ucc lay opinion, would have to try to argue inadequacy of consideration, but that’s even problematic, I think, because the borrower was not a party to
    the sale to b of a.

  9. And here’s one tidbit…BOA bought the loans from Countrywide for approximately, $450.00 a piece. And does not, I repeat does not have authority to foreclose.

  10. @poppy – amazing – thumbs up – truly!

  11. @hman – I don’t have time right now to disect everything you said, but I think I can say that statute is generally default law. Courts have to look to a writing, a contract, before they may turn to statute. (And you’re either an attorney imo or you have been doing a lot of studying. Either way, I’m happy to see these things brought up.)
    So I would look at what the court said in Hogan in that context because maybe the court didn’t, and see if the court could have reached its conclusions if it had. But, it’s also true that the dot is a special animal. I guess have to keep that in mind, but not over the rams of statute being default law. If you do, I hope you’ll let us know what you come up with. What I readily recall from Hogan is that we think the court said no interest in the note is necessary to enforce a dot, which imo, ignored something salient which I forget this minute. I need to read it again, for one, to see if the court said what we have all thought it said.

  12. @ Hman

    Yes, I am! I have the proof. I have the foreclosure attorney, substitute trustee-debt collector, a COPY of a forged note (won’t put it into evidence), multiple forged assignments (sending 50% of the document to the court), a zero balance showing on the ledger from the servicer and the attorney trustee asking for legal fees from me…double payment….NC is 15% of the debt. Altered Master repurchase agreement from 2005 (the 2007 is not at the SEC, which is where it needs to be). We have thousands of ours of research and it keeps coming back to the same persons. The lenders have been paid! Don’t be tricked by the ruse…go back to the original wiring instructions, it is there. They are yours, not the attorneys or the lenders. Check every nuance, dates, times, signatures, fax numbers (call and goggle them), speaking of that: we called the fax number for Credit Suisse on a document and it was a doctors office in NJ and the fax was sent on Sunday @ 6:00 P.M….Credit Suisse needs to use someone else’s fax? And ask for QWR’s from everyone…these clerks are in so many departments and no one reconciles the information, it comes back all different….heaps of information. Please try this, you won’t believe what you find.

  13. poppy – As to whom would be responsible on a note signed for another, the law recently changed on that, I believe. for the record. fwiw. A nominal borrower was and now isn’t, or the other way around.
    I came accross it and didn’t pay much attention. Like I said, fwiw.

    your argument presupposes a nominal payee is not allowed in a promissory note. Not sure that’s a fact in evidence (and I don’t know any ramifications of having a nominal payee) nor if the contracts being ignored between the named payee and the party providing funds for the loan, which might be dispositive, would find that the named payee is a nominee or would find something else.
    I have no doubt that they messed everything up royally, including
    who’s on first and selling one note more than once and that they
    have benefitted by some form or two of insurance and that the
    borrower is entitled to dollar for dollar reduction of monies paid on a note. But is money paid out pursuant to some default payment on the note? Even if not, some principle I can’t rattle off this minute surely precludes double recovery for the same loss. Without seizure of MERS database, I don’t know how we would have a shot of proving a loan has been sold more than once, and that might not even get it. If I sold a loan twice, I wouldn’t enter it on the database.
    I want to know what Genpact is doing with Mers’ database. Why did it have to be done off-shore?

    I am recently unconvinced that it isn’t mers, if anyone, who holds the note – by way of e-commerce. I don’t know jack, oops, about e-commerce. For all I know, an e-commerce note requires an electronic signature to start with, in lieu of blue ink (and nope, don’t know how that would be done). But if not, (blue ink sign is okay) and e-commerce is what this is all about with those notes, mers, according to its literature, is the party who holds the note, probably in alleged bailment for its members. If it’s e-commerce, I am going to hazard that the original, wet-ink note had to be destroyed, replaced by the e-commerce note kept by mers as the respository for the e-commerce notes. So, so much for the document custodian referred to in the psa, except that if one were to actually study the language in the psa, one might find that mers meets that definition of a document custodian. The hard – copy notes were destroyed, in which case we’re seeing nothing but good copies, or the banksters held onto the hard copies just in case (which seems to me would be inherently forbidden with e-commerce). But in the latter if not the first, they skipped the endorsements. I can’t say about the first because endorsement on the note may not be an actual part of e-commerce. Wish I knew, but I don’t. But I have to admit to being irked myself. One, that I haven’t pursued this myself and two, that it’s being overlooked in general. So I’m going to bring this up again. This is on info and belief from mers’ literature: It’s probably been 86’d online anywhere by now:

    “It (MERS – sic) will reduce risk and generate more profit for lenders because the notes registered on it will be in electronic format. It shortens the time frame between the closing and the securitization of the loan, enabling the note to move instantly, creating faster funding.”

    The note is moved instantly. This is E-COMMERCE, there can be no doubt and made mers the bailee or whatever word/status e-commerce uses for the proprietor of a system where these notes are registered. Which is really torking me. Not so much that they attempted e-commerce, but that it has failed for reason or reasons unknown to us (this minute, mers, just this minute – probably for lack of diligence in a couple words) and they pretend it never happened and trot out these alleged original hard – copy notes with rather tardy endorsements. The Mers’ Consent Order may have flowed, in addn to other areas of bs-ness, from a recognition of invalidity or unreliabiltiy of the e-commerce. I can think of a few or 10 reasons. So the banksters just pretend e-commerce never happened and they show up with the alleged hard-copy orig notes (which fly in the face of the e-commerce) and there go our homes! It seems inescapable to me that the government is on to and endorses presentment of a computer generated copy or even the dusted-off original hard-copies wrongfully kept, esp if I’m right and the messed up e-commerce lead to the Consent Order. (Even if not, this statement from Mers screams e-commerce.) The gov’t knows. Sure it does and so with hands in the air in the proverbial ‘what are we gonna do now’ stance, threw us a bone with HAMP, etc. I hope we are able to give this the attention it deserves.
    This is serious stuff.

  14. @ Poppy,

    Wait? Are you saying the trustee, the neutral 3rd party, is the party attempting to close and not the servicer? Seriously WTF!

    I’ve seen many times when the substitute trustee is a subsidary of the bank but I was unaware that some purchase the debt and act as debt collectors. Crazy.

  15. @JG, My appointment is very, very soon and I’m sure he will be on board, since he already knew/knows of my case.

  16. @ Hman

    Most of the time the trustee has bought the debt…it is “unsecured”…and no one is challenging this. It has been bought or assigned for pennies on the dollar, nothing is correct, but it requires a lot of digging. At the end of the day, there is zero authority and I question the legal aspect of this behavior, since millions of these notes are paid-in-full.

  17. I have a theory I’d like to bounce around. In non judicial states a “trustee sale” is a foreclosure on the property based on the trust deed not the note. I’ve been reading 2 recent cases for Guidance Vasquez v Saxon and Hogan v Washington Mutual.

    Hogan argues that a deed of trust, like a mortgage, ‘may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation the mortgage secures.’ Restatement (Third) of Prop.: Mortgages § 5.4(c) (1997); see Hill v. Favour, 52 Ariz. 561, 568–69, 84 P.2d 575, 578 (1938). We agree. But Hogan has not alleged that WaMu and Deutsche Bank are not entitled to enforce the underlying note; rather, he alleges that they have the burden of demonstrating their rights before a non-judicial foreclosure may proceed. Nothing in the non-judicial foreclosure statutes, however, imposes such an obligation….Hogan’s complaints do not affirmatively allege that WaMu and Deutsche Bank are not the holders of the notes in question or that they otherwise lack authority to enforce the notes.”
    Distinguishing between the enforceability of the note and the deed of trust as “distinct instruments,” the court found that “[t]he only proof of authority the trustee’s sales statutes require is a statement indicating the basis for the trustee’s authority ” (citing A.R.S. § 33–808(C)(5)). The court also determined that the foreclosing party need not have authority pursuant to the Uniform Commercial Code (UCC) to enforce the note because the foreclosure statutes, and not the UCC, confer the authority required. The legislature’s intent that foreclosures take place quickly and efficiently were also noted.

    Here is Vasquez Case

    Decision
    Under Arizona state law, documentation of any transfer of real estate must be recorded within 60 days of the transfer. The purpose of the recording law is to maintain a clear chain of ownership and to resolve disputes among parties with competing claims to the same property. The Court held, however, that Arizona law imposes no requirement to record an assignment of a deed of trust prior to filing notice of a trustee’s sale.
    In its opinion, the Court (through Vice Chief Justice Andrew D. Hurwitz) referenced those going through foreclosures: “We are mindful of the human costs attendant to home foreclosures. Our task today, however, is simply to answer two purely legal questions.” Justice Hurwitz stated further, “It may well be, as the Attorney General argues, that an obligor would benefit from the additional assurance, provided through the recording of an assignment, that the lender who is contacting the obligor to explore options under § 33-807.01 is the current beneficiary of the deed of trust. The wisdom of such an additional statutory requirement, however, is for the legislature, not the courts, to consider.”

    The party ,Nationstar, that is trying to foreclose on me is a non party to my deed of trust. My DOT was transfered to Aurora. Therefore my thoughts are that nationstar should only be able to foreclose judicially and must show the note. It seems as if AZ has determined the the DOT doesn’t have to be transfered when an assignment is done but one would think that this situation would open the door for questioning to their authority. Also, at some point wouldn’t it have to be transfered on public record?

    I also think that being as Nationstar is a non party to the DOT I could ask for proof of the note in discovery. If anyone has any thoughts please share. Thank you!

  18. Let me ask you this:

    An alleged loan was forward sold to Investment bank for securization. An the alleged note was endorsed in blank but assignment made in blank. Then the originator (who did not disclose the true source of funds and is listed as lender, when they weren’t the lender of their own funds) goes bankrupt. The lien (assignment of mortgage not recorded) Meanwhile the Investment bank, servicer/affiliate is servicing the alleged loan, has advantageous knowledge regarding information, and places the borrower in a modification, which was made with the intent to deceive and defraud, among other issues. The mod only discloses the servicer as servicer and holder and points to the alleged original mortgage and note within this modification. This mod was entered into by the alleged borrowers while under duress and lack of knowledge about non-discloures, fraud, etc. etc.

    After mod they then transfer to another servicer, another affiliate owned by the alleged securitization bank. This servicer also starts to place alleged borrowers into situations. The alleged borrower still unaware of the actual circumstances of the application frauds, origination frauds, collection frauds, etc., and learns about things thereafter.

    Complaint filed for foreclosure, but county records reflect originating lender as the lender of record and no assignment recorded until two months after the foreclosure action, which I’m sure was backdated to try and accommodate standing. The copy note attached to the complaint does not have and indorsement. This Plaintiff filed a two count complaint: Owner and holder and re-establishment of lost note. The alleged owner and holder is a Trustee for a trust. No affidavits filed regarding ownership, etc. The week before they record and assignment of mortgage, they drop the lost note count. Still not filed an alleged original note. This assignment made by the servicer, acting as mers officer and made to this Bank as Trust. But no named trust.

    A year and half goes by and low and behold the name of the trust is placed into the record due to scrivenor’s error. Granted.

    Then files and alleged original note. That shows a rubber stamped signature of a party for the originator. Contested and objected to. The Originator ordered cease and desist in 2007 and Bk in 2007.

    So what do you think about this so far, comments anyone…

  19. It all steams from the original contract…

  20. @ johngault

    MERS does not, I repeat NOT hold the note, they, the originators make copies and sell it forward (takes 30-90 days), they hold the deed only. Check your deed of trust. With MERS there cannot be a securitization, as they say. The securitization is really not important to prove your case, it gets very complicated.

    The fact is: contract law has been broken in the loan contract. Many of the “originators” (Countrywide, New Century, American Home Mortgage, Chase, etc…) acted as the lender and acquired Lines of credit supposedly to fund loans and many DID NOT. The sloppy book keeping led to not designating who’s loan was whose, for recording and lien purposes. Then you have the TARP bailout, FDIC bailout, MBIA, AIG insurance proceeds from defaults, in-house insurance for 80% of the loans (required)…after being paid multiple times (lenders and originators acting as lenders) the notes are paid and satisfied. We found thousands of them in various recording cities, one minute after the other with loan numbers changed. AZ, NC, FL, ID, MT, etc…then the debt is being sold…DAH? What debt? Paper only…the trustees, attorneys, collection agencies are using the “original note” (copies) to enforce the deed of trust lien to foreclose. This is where your forgeries come into play.

    As for the original contract (Contracts 101)…ask yourself: If you borrowed money for someone else and did not disclose in the paperwork, whom you where loaning the money to and mutually agreed to that arrangement, who would be “legally” responsible to pay? YOU!

    This is where the securitization plays. The trustee is supposed to make sure the loans go into the trust and the trustee ensures the monthly payments are distributed to the “proper” lender and or investors.

    When originators stole the lines of credit and lied about the lenders…we have a problem. You have no contract with the lender. In court this is where I have stayed. Now, I don’t know the final outcome, but it keeps you out of the line of fire for your default.

    No legal advice, just personal information shared through experience.

  21. Awesome. That is a helpful addition to google scholar.

    Thanks JG

  22. Mary – you said you may have found an attorney. Until your appt, get a loislaw account and put in
    “discovery near200 protective order”, just like that or the other way around: “protective order near200 discovery”. Try to limit your search to cases adjudicated in / apply to your venue, since those are likely the ones your attorney will be most interested in.

  23. I tried to link it, but they won’t let me…It was posted on another fraudclosure fighting website.

  24. @JG State of Florida 17th Judicial Circuit, In and For Broward County

  25. Mary, what is the venue of the Julme case please?

  26. Yo – smarty pants! Can an instrument, a note, say, which is subject to rescission as a matter of law (tila), be used for these trusts or to sell a share or a derivative,or whatever the hey? Can a note which is subject to rescission be used as the basis for whatever has been allegedly sold to investors? Please skip the lecture. You will not die, oh great one. This is a valid question and since you’z so smart, I expect you know the answer, so what is it, pray tell?

    I don’t know that obama is ‘marshalling in’ real estae from foreign investors, but even if he is, I’m not inclined to believe that he’d use
    whatever premise he is allegedly using to do that to U.S. citizens. Maybe he’s just ousting foreign interests. If he did that against U.S.
    citizens, there would be anarchy, UNless he then formed a new something or even made use of an existing something (an institution) to see that the homes went to their owners, which would actually be pretty clever, wouldn’t it?

    Now how about my question about rescission, oh, ma sahib?

  27. I haven’t said this before for fear of getting anyone in deeper and because of the significant risk of trying to play lawyer. But having said that and that is a caveat, not an endorsement: people can buy “annotated ” used if not new books on the rules of procedure.
    There are the Federal rules of Procedure and there are state-specific rules of procedure for state courts, like “Georgia Rules of Procedure”. The books lay out the rules and gives highlights from cases where those rules have been applied and mol ruled on in favor of one party or the other. Those cases are not necessarily the bomb and that’s another danger: a new case may have set a new precedent, for instance. They are indicative and at least give one a clue. All these rules of procedure are online, also, but they are not annotated. These books can be found at amazon and ebay.
    I hope no one wants my head for mentioning this. So, I’ll repeat:
    There’s no substitute for good legal advice from a qualified attorney.

  28. Yes, it is a real pi$$ing match, with an opponent who hasn’t even proven themselves worthy of obtaining my private information. SJ was denied, due to multiple issues of material fact and not to mention Pl has not proven its standing or rights other than claims with no proof.

    I have an appointment to obtain counsel, not an easy task. But I thought it would be best to file such in the meantime and request a hearing on it.

    I have searched the engine’s and have found such regarding same.

    I appreciate your dialogue and your information, it is helpful and yes keep on doing what your doing. You do help with points you bring to this blog.

  29. @mary – don’t know who you directed that question at, but it’s answer is fairly complicated. It would take even a good attorney whose never dealt with it much a fair amt of time to come up with an answer and frame it so it might get sustained. Trying to “discover the opponent to death” is an old trick employed by many a litigant. When there is a parity of the parties, which generally there isn’t here, that gets very expensive and is generally seen as a bloody nuisance. You need a lawyer (sorry, probably not the response you wanted) and or you could get a handle on the issue first using a research engine..”discovery protective order”.
    Maybe googlelaw has something on it but a lawyer, unfortunately if you dont have one, is best. A party, lay opinion here, has a right to discovery of things bearing on the issue or which could bear on the issue, think that’s how it’s framed, and it’s a real pi$$ing match about what that means.

  30. Here is a question I am sure you could answer.

    If Plaintiff has not even proven its standing, let alone any rights in the case, and through discovery, request an enormous amount of information, A Motion for protection order would be needed, ?? Right to privacy, since they have not proven their right to ask or obtain such private information at this stage???

    Anyone????

  31. A Trust cannot sue outside the parameters of its own contract that give it life and powers. Outside the PSA the Trust has no existence and no powers.

    JPMorgan v. Julme, case number below.

    And so my next question is, If the alleged loan did not make it into the alleged trust, by the closing/cut off date, how can the trustee make such claims for foreclosure…

  32. Furthermore, Bank of America is a trustee in the case, and does not and cannot own the mortgage, , as they are acting on behalf of the investment trust. Bank of America has claimed they are the owner and holder of the note, which is a fraudulent statement.

    JPMorgan vs. Julme CACE09-21933-05

    I have this same situation in my case. Can someone elaborate.

    Thanks

  33. So, is that why after they file a fabricated/fraud assignment they back off and claim they own and hold a bearer note??

    But that bearer note is objected to for its authenticity, validity and authority of the indorser…which is not dated as well as other issues relating to the claiming of this bearer paper…

  34. And what’s any of that got to do with enforcement of bearer notes?

    GOD BLESS THE IGNORANT FOR THEY POPULATE THE WORLD WITH THIER IGNORANCE.

    a COMMON STOCK MUST HAVE VALUE. The value is the basis in the asset . The basis in the asset is the amount wire into settlement . The amount wired into settlement is the FDIC taxpayer insured warehouselines . The warehouselines are the obligation of the lender. Thelender is a tax payer corpration formed as a REIT. The Sponsor of the common stock registration is the taxable REIT Subsidiary of the FDIC member Bank.

    Making a loan to the Directors of a Bank for billions is a fraud against the US Taxpayer. The controversy is escalted by the fact the FDIC wh line is paid off by the common stock…which our internet researchers call a bearer note. STOP Please!

    The common stock must own a blank endorsement to be negotiable.DO NOT LET AN ATTORNEY FOR THE OPPOSITION BRING IN A BLANK ENDORSEMENT WITH A COPY OF THE NOTE FOR VALIDITY TO THE LENDERS POSSESSION OF COLLATERAL. IT IS PRIMA FASCIA EVIDENCE OF THE CONVERSION OF ONE ASSET, THE LOAN , IN EXCHANGE FOR ANOTHER – THE COMMON STOCK USED TO CREATE THE COLLATERAL FOR THE INVESTORS NON INTEREST BEARING NOTE, A FIVE YEAR BOND SOLD TO AN OFF SHORE BANK….Please listen and save your home while the others (JGault) armed with securitization audits profit and as you perrish ….please.

    Thank you

    foreclosurealternative.wordpress.com

  35. poppy and anyone who gives a hoot- as to one party’s ability to allege the originator, the guy whose name is on the note, is its nominee is a question of law and fact, I would think. An agency can’t be implied when it comes to real property (which is the problem MERS has when it alleges it is an agent), but I don’t know if that’s true with a nominee. But a note doesn’t involve real property except to the extent it references a collateral instrument involving real property. If that ref in the note doesn’t rise to a matter involving real proprty (probably not, don’t know, should know, but don’t all the same) and if a nominee statuts (unlike an agency) is not subject to an expressed agreement as opposed to one which implies a nomination, they might be home free on an assertion the payee is their nominee. There are contracts between the payee and the guy who funded the loan, and imo those contracts would be dispositive of this issue: is a nomination either
    expressed or implied therein? Or is it something else?
    Lot of funky parties here, maybe The secret lender has or might have one nominee for the note and another for the dot and that’s true even if one of the big guys loaned its own money. If they do have two nominees, it’s probably not corrupt….yet.

  36. I want to introduce an idea that could be used in the argument against MERS and the transaction in general. What many do not realize in the abandonment issue that is present in all foreclosures.

    Pursuant to 26 USC 6050(J)(f) the securing of rights to real property to a party OTHER THAN THE LENDER is deemed an abandonment of property.

    Title has at all times been held “Marketable” which means abandoned when compared to land patents and real deeds.

    If the Deed of Trust or mortgage is secured to a pretender lender or to MERS who is not the lender then they are all abandoned and thus the claim for fraud in the factum comes into play.

    This is firmly shown by the filing of the 1099A which is for “abandoned and acquired property” shown as income.

    What we are seeing is the deeds after sale are vested in the trustee of the securitization but the 1099A is reported by the servicer. One does not equate to the other regardless of how someone would want to argue it.

    The Trustee has a separate FIN number and the Trust has its own and then the reporting is done to yet another.

    If you were induced to sign over the rights to the property to a party other than the true source of funds that document is void. period.

  37. I need to point out that it wasn’t MERS who introduced those comments of theirs in the case I read. It was the homeowner.

  38. poppy – are you saying you think MERS takes possession of documents, like the dot, except they do so in an electronic form only?
    Cd’s don’t hold much. Doubt they’d use them, but maybe. A cd has a physical presence and has to be moved from one location to another, something they sought to avoid. More likely transmitted electronically if at all. Is the suggestion that Mers takes possession of the dots, even if only in an electronic format? I’d really like to know if that is what you’re sayin because I think you are describing e-commerce. MERS did say this, according to a 2009 case (in addn to what else I listed here at this post):

    “It (MERS – sic) will reduce risk and generate more profit for lenders because the notes registered on it will be in electronic format. It shortens the time frame between the closing and the securitization of the loan, enabling the note to move instantly, creating faster funding.”

    “Enabling the note to move instantly”. Well, that’s nice. So Mers is saying it has created a(n) (electronic) registry of e-commerce regarding the notes. If the e-commerce is legitimate, than Mers took possession of the notes, which it has sworn it doesn’t do. They would call that electronic, and apparently exclusive possession of the notes, a bailment for its members? or I don’t know what because I don’t know e-commerce and Lord help us if I’m the one to have to figure it out.
    It seems critical to me, and I probably won’t take it on. But funny banksters don’t rely on this e-commerce in courts. Yes, that is the odd – read suspicious – part, at least to me. Instead they have scrambled to get or fabricate/forge endorsements on likely fabricated notes from scanned copies of the alleged e-commerce. Someone way ahead of me on e-commerce would do us all a service by delving into this. I can spell it. That’s about it. But I think I can recognize that when they are coming after a homeowner, they are leaving out this e-commerce part as if it has no relevance and even as if it didn’t happen. I think this is a bulls-eye for anyone who understands e-commerce and a few other things. If there is any merit here and I think there is, it would be reasonable to question why no one is on this. But then again,
    it was news in 2012 that assgts had to be done if unrecorded and many still sit for wholley unwarranted presumptions about relationships among the bankster and their minions, shining the
    laws of agency in their entirety. I think this e-commerce was bandied about some years ago, so why it’s been abandoned as a salient
    issue, got me.

  39. Amen to that Poppy.

  40. What I mean is the documents are either scanned or copied to a CD…I know this for sure. That is not evidence of a debt, ownership, liens, etc….they are a members only association, with no State or Federal Statutes adhered to and there are no legitimate entities that exist in MERS to authenticate anything in the CD’s they hold. Hence, you have no authority to do anything, under the law. And the note and deed are in fact, under the law supposed to be held in a safe “together”, not separated, like the deed of trust at MERS is…The laws are not being followed by the judges. It is really that simple. The courts are twisting the law and my personal view is: they are heavily invested in MBS’ in their retirement pensions, which the banks, hedge funds, securities, etc…have control of.

  41. @poppy “a cd is not a beneficiary”? Lost me. What do you mean?

  42. Poppy – that argument imo might have merit if one could show that when the borrower signed the note, or maybe more appropriately the debt, the obligation, the right to payment had already been sold or just plain belonged to another party and the named payee was not expecting (re)payment, no longer had a right to payment, if fact, never held one, and so on and so it was legally messed. I don’t think I can frame that argument. Like to see it, though. One would have to make a case that those things don’t jive with the UCC or are otherwise material, I would think. You can’t just say ABC wasn’t the lender, tho you might say there was no meeting of the minds for this or that reason and that it’s material. If the payee named didn’t fund the loan, maybe failure of consideration by the named payee would be an avenue. But can one party name a nominee in a note? Could they argue that? They probably can. Not my thing – but, sure, like to see it framed by someone. I have learned the hard way, but it’s been an education, that an idea sometimes doesn’t work when you try to put it on paper.

  43. Hmmm…this is interesting and something a judge might get his head around. I was just re-reading a case which is one of those cases that attempted to attack the whole schmiel and noted something that has escaped at least me. These loans are subject to TILA and they can be rescinded. Does that negate them as candidates for securitization?

  44. The banks already have “immunity”….payoffs to everyone, except the real victims. Obama has sanctioned this with Holder. I have ABSOLUTE proof and even the judges are not listening. Per the last posting here: contacts 101. None of us have a contract….it is that simple. People are missing the point and so are the courts. Don’t make it so difficult. Go back to the beginning…the proof is right there! A 1st year law student should get this…you did not make a contract with a lender, just a broker or an originator…VOID! Nada…come on people!

  45. Or this reportedly from Mers?
    “Mers has assembled a Foreclosure Manual to provide a state-by-state guideline for our members to follow when foreclosing a mortgage loan in the name of Mers.”
    Guess they needed this since mers hands over its alleged right to foreclose to the parties who allegedly granted mers the right to foreclose. Or mers has delegated all its members as its agent to
    exercise the rights they were alleged given by the principals, who are now turned agents of their agent.

  46. @ johngault

    A CD is not a beneficiary, nor is it an entity…members only, like the credit bureaus. Fleecing the states and counties for millions of dollars and hiding the lenders.

  47. What the h does this mean? Anyone? From mers:

    “There is no dependency on the corporate name you use on closing documents and the corresponding corporate name on the Mers system because the Mers System is not the legal system of record of ownership of mortgage loans.”

    Pulled this from a case. Anyone?

  48. And what’s any of that got to do with enforcement of bearer notes?
    You think a court gives a hoot where an alleged bearer note has been or not? The courts see a bearer note and it’s allegedly presented by someone involved in the home loan business or a secn trustee and that’s apparently enough for them. It isn’t, but they aren’t getting a macro degree in your stuff. They MAY be prevailed upon to
    enforce some law they actually get. Either that or we need some
    judges with the appropriate macro degree.
    The only other legitimate argument lately has come from dcb, who opines that a thief can’t legitimately mark a note paid or cancelled.

  49. Oh, for pete’s sake, nomods with a couple names. No one in his right mind is going to approach a judge with that stuff, true or not. Not out of the cage, anyway.
    If you personally want to advance your beliefs and the ramifications of same, put them in a legible format and start sending and keep sending it to the judiciary in this country. If you don’t, when I go see them, it’s gonna be greek.

  50. These deals are held to securites law and jurisdiction of the SEC for inventory and collateral assignment of peoples homes and their equity. An assignement of collateral stock must be made in blank to be tendered. They are tendered into offshore Cayman and Swiss bank accounts with US Banks as the depositors. The Blank requirment is for tender purposes. NG YOU KNOW THIS AND SO DOES THE AMERICAN BAR ASSOCIATION. (if you don’t REFUND peoples money NOW!) foreclosurealternative.wordpress.com

    Caresful watch the NG defenders come out …. Rally people…come on carrie and John Gault . Rally here …

  51. Solimans Testimony – read it ….

    52. A mortgage is calculated as its par value or note amount. It is also calculated at the amount it was transferred by the seller to a purchaser as the successor. The law holds the elements for a lawful transfer are due consideration and lawful intent.
    53. Therefore the question before the court is can MersCorp represents the transfer and sale of the capital stock held as the common share certificates tendered as trust assets. The trust asset held as the paid in capital account “depositors” account whereby it is transferring a blank endorsed certificate with no formal assignment at the economic basis
    54. The Trust asset would first have been transferred to the Seller, on the related Closing Date, and does thereby sold and transferred by the securities registrations sponsor.
    55. The sponsor must complete a formal assignment in order to set over and convey the assets to a bonefide third party Purchaser under these SEC private placements. ,
    56. According to my audited records the requirements under the regulatory guidance of the SEC follows as set forth in all registrants material statements:
    57. Agreements 5.02 Books and Records. From and after the sale of the Mortgage Loans to the Purchaser, all rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with a Mortgage Loan shall be held by Seller in trust for the benefit of Purchaser as the owner of the Mortgage Loans and the Seller shall retain record title to the related Mortgages for the sole purpose of facilitating the servicing and the supervision of the servicing of the Mortgage Loans.
    58. The sale of each Mortgage Loan shall be reflected on Seller’s balance sheet and other financial statements as a sale of assets by Seller. Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for each Mortgage Loan which shall be clearly marked to reflect the ownership of each Mortgage Loan by Purchaser in Seller’s computer system. In particular, the Seller shall maintain in its possession, available for inspection by the Purchaser, or its designee and shall deliver to the Purchaser upon demand, evidence of compliance with all federal, state and local laws, rules and regulations

    foreclosurealternative@wordpress.com

  52. 10 minutes of your time. Watch this. Neil Barofsky has said it over and over. Bill Black did too. Krugman didn’t mince his words. It is out in the open.

    http://www.democraticunderground.com/101750856

    What more do people need to face the truth of the Obama administration? Securitization was outrageous. What happened afterwards is criminal. With Obama’s blessing.

  53. When a court holds that mers IS the beneficiary, it might be worth
    considering that MERS takes delivery of nothing. If the rule of delivery applies to a dot, there seems to be a glaring issue here.

  54. That assignments must be in writing if not recorded is news?! I’ve been hollering about this for years now and periodically post the laws in various states which say so. Still, I’m glad to see someone else finally get it. Of course they have to be done. I’ve been tentative on the necessity of delivery of the assgt, though I have likened the necessity to that of any other deed. Deeds evidencing purchase of real property are effective and binding on delivery. No delivery = no transfer. But one still has to get around “MERS” as the benefiicary. If a court does not believe that 1) mers is not the ben or 2) that mers has no authority and or may not convey beneficial interest as a matter of fact, the assertion of the fact that assgts must be done if not recorded will yet fall on deaf ears. And as I posited yesterday by ref to mers advertizing material, mers said the issuer need not assign to the trusts if mers is listed as the ben – in direct conflict with the requirements in the psa and actually also with the membership agreement if it is ever stinking found that the investors are not mers’ members and that the secn trustee’s alleged membership means
    nada because the sec trustee does not hold the ben interest.

    And while there may be a reason that a court could sustain the
    failure to have an assgt executed and perhaps yet allow and recognize one, there is and never will be anything called an “oral” assignment. That sort of nonsense is exactly what the statue of frauds is designed to preclude. If one goes sideways here with the wrong arguments, one will not be happy. A noteowner may have a right to an assgt of the coll instrument in equity or law, but as I’ve said, it doesn’t have it til it has it. The noteowner who was entitled to an
    assgt of the collateral instrument but didn’t bother or insist on it could appropriately find himself the victim of laches, which is mol an
    “inexcuseable delay in asserting one’s rights”. It’s an affirmative defense to a claim, just one more which is not being asserted generally.

  55. Fannie and Freddie are owned by the banks.

  56. We should have spanked Fannie and Freddies fannies along time ago and suspended them permnatly. Now they are breeding, we have Ginnie and Sallie now to. Who’s next? Joe Bob and Ole Yeller? I truly believe these companies need sterilized before they bury us all 6ft under in debt they created and we had no benifit from. Only pain and loss.

  57. LMBO! Thanks Enraged! We all know who still runs Fannie and it is not “We the People” ….

  58. Looks like a new mortgage securitization case is progressing in Virginia against Wells Fargo. The attorney’s name is Brill, I believe…

  59. This has to be the biggest laugh of the week!

    http://realestate.aol.com/blog/2012/08/23/fannie-mae-ranks-banks-in-robo-signing-settlement-as-top-servi/

    Fannie Mae Ranks Banks in ‘Robo-Signing’ Settlement as Top Servicers
    By Teke Wiggin

    Some of the most publicly reviled banks are currently industry leaders when it comes to good service, according to a report by Fannie Mae released Thursday.

    Fannie Mae gave three-star ratings to CitiMortgage, JPMorgan Chase, Ally Bank and Wells Fargo — four of the five largest U.S. mortgage servicers, which were involved in the $25 billion “robo-signing” settlement — for their service performance in the first half of 2012.

    The evaluation, part of Fannie Mae’s Servicer Total Achievement and Rewards Program, assigns anywhere from a one- to five-star rating to banks based on “overall performance, customer service and foreclosure prevention efforts.”

    A three-star rating was the highest earned of all banks assessed by Fannie Mae which, along with Freddie Mac, guarantees more than half of U.S. mortgages.

    When asked about the discrepancy between the banks’ public image and their positive Fannie Mae evaluation, David Berenbaum, chief program officer of the National Community Reinvestment Coalition, pointed out that top-ranked service performance in the mortgage industry does not necessarily mean good performance.

    Read this again: “top-ranked service performance in the mortgage industry does not necessarily mean good performance.” So, WTF does that mean? And is this why Jamie boy got himself his $23 million-bonus? His reward for a top-ranked performance that’s “not necessarily good”?

  60. Ahhh.. yes Neil! Those Silly Lil Servicers recorded those annoying lil lis pendens on the title without recording the transfer of ownership to them. (lack of standing). So ALL those homowners who were induced into applying for a loan mod (i.e…. defaulting to qualify, holding payments etc..), actually got a lis pendens filed against title from the wrong party. Now the unsuspecting homeowners who either declined the loan mod offer or was denied the loan mod offer, or whose payments were temperarily lost purposefully etc.. go and PAY CURRENT(including fees), PAY OFF or SELL only to GET get the Biggest Surprise of their Lifetime! BOOM! Corrupted Title, who are you going to pay? Party A, B, or C? To establish legal ownership and pass on good title (title ins) you must 1st prove party A was paid in Full, prove party B was paid in Full and show that party C is or will be paid off with the sale of the property. How are we going to do that if they do not turn over their records? Open our own LPS…Legal Paper Services’ Office? .. just kidding….. How many Titles Total were Crashed by the loan mods alone? How many Homeowners even suspect there is a problem til they go to sell years later? How many lawsuits are yet to come?

  61. In that same “Tide turning” vein, everyone involved has hired criminal attorneys on both sides of the pond. Closing in… I hope they’ll start squealing soon. This “save-the-bankers-at-all-cost” is really getting old.

    http://www.reuters.com/article/2012/08/23/us-jpmorgan-loss-whale-idUSBRE87M0WG20120823?feedType=RSS&feedName=businessNews&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+reuters%2FbusinessNews+%28Business+News%29&utm_content=Google+Reader

    (Reuters) – The trader at the center of the criminal investigation surrounding JPMorgan’s $5.8 billion trading loss has hired a lawyer in Paris, two sources familiar with the investigation said on Thursday.

  62. “The tide is turning. The basic principles of title in place for hundreds of years, TILA in place for dozens of years and RESPA in place for dozens of years will yet win the day.”

    Yep. The tide has been turning for a while. Slow but real. And banks are running scared.

    http://www.nakedcapitalism.com/2012/08/quelle-surprise-former-jp-morgan-chairman-offers-dubious-defenses-of-big-banks.html

    They even go as far as enlisting their former chairmen to misspeak on their behalf. Amazing!

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