Watch Those “Trustee” Representations from U.S. Bank

US Bank plays games with the wording of its “trustee” authority. They did it again here. They did not say they were appearing on behalf of the trust or the beneficiaries. In fact they failed to state that there were any beneficiaries. NO beneficiaries, no trust. In this case, their wording is corroborated by the evidence of lack thereof. They are appearing for the holders of certificates as a GROUP, not the trust, because there is no trust.

That being the case, the holders must be identified or else there will be nobody who could properly submit a credit bid at auction. US Bank is clearly not saying that it is the creditor as U.S. bank, it has merely stuck in the word “trustee” and ran it up the flagpole hoping that would cover the situation which it ordinarily does because Judges are uninformed. But the absence of even a mention of the beneficiaries is blatant.

129 Responses

  1. See for example; Bank of New York v. Raftogianis, a case dealing with the very parties and trust here alleged to own the promissory note in this case:
    “Separate questions are presented, however, as to whether the note was in fact physically transferred to plaintiff, when that would have occurred and whether the note had been endorsed prior to that time. Those are issues that would have to be addressed before one could determine whether the plaintiff was a person entitled to enforce the note pursuant to the UCC at any particular time….Plaintiff filed its motion for summary judgment in January 2010. The motion was based upon a certification from plaintiff’s counsel providing copies of the note, the mortgage and the February 2009 assignment. While the copy of the note provided with the motion did contain the blank indorsement noted above, there was no information provided as to when the note was indorsed, when the note was physically transferred, or where the note was being held…Defendant filed written opposition, challenging the validity of the MERS assignment. Plaintiff responded with a certification executed by a supervisor for American Home Mortgage Servicing, Inc., the servicer for the loans. While that additional certification recited that the note and mortgage had previously been sold to plaintiff, it did that in conclusory terms.. The additional documents were provided, with an affidavit executed by another representative of the servicer. Those documents included the Amended and Restated Trust Agreement, the Mortgage Loan Purchase Agreement, the Indenture and the Servicing Agreement. While the copies provided were signed, schedules referenced in the documents as listing the mortgage loans being securitized were not attached. For that reason, there was no way to confirm that defendant’s loan was among those which had been securitized. The court again directed plaintiff to supplement its earlier submissions with copies of the applicable schedules….The day before the argument, plaintiff’s counsel submitted yet another certification, which appeared to contradict his prior submission. That certification was executed by Glenn E. Mitchell, who described himself as Vice President of The Bank of New York, as Indenture Trustee. (Notably, that was the first certification executed by an officer or employee of the plaintiff, as opposed to the servicer.) That certification reviewed the underlying circumstances in some detail. Attached to the certification was a redacted loan schedule, referred to in the certification as a “loan schedule for the Trust.” The one entry appearing on the redacted schedule appears to list the loan at issue here. It was unclear whether the schedule in question was in fact attached to one or more of the underlying documents….Plaintiff’s counsel did present the original note at the time of argument and argued that the presentation of the original note alone, at that time, was sufficient to establish plaintiff’s right to proceed. That argument was rejected….Plaintiff filed its complaint for foreclosure in February 2009, alleging that it had become the owner of the note and mortgage “before the complaint was filed.” It then filed an amended complaint in May 2009, referring to the MERS assignment to plaintiff executed in February 2009, suggesting it somehow obtained the right to proceed based on that assignment. By the time motions for summary judgment were argued in April 2010, plaintiff was asserting a right to proceed based on its actual possession of the note at the time the motions were argued, without presenting any meaningful proofs as to the transfer or negotiation of the note, or just when any transfer or negotiation occurred. The ultimate question is clear-is this action now being prosecuted by one who does have the authority to enforce the underlying obligation?… The expression “assignment of mortgage” is almost universally used, not only by the general public, but also by the Legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee’s rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends, not an effective transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term “mortgage”, but is also in direct contravention of the well recognized rule that an instrument shall if possible be construed so as to give it a legal operation See 29 New Jersey Practice, Law of Mortgages 11.2 at 754(Myron C. Weinstein)(2d ed.2001) (citing 5 Tiffany on Real Property 428-29).….It was entirely appropriate to require plaintiff to establish it did have the right to enforce the note and mortgage….In re Foreclosure Cases, 521 F.Supp.2d 650 (U.S.Dist.2007) involved a dispute over standing and subject matter jurisdiction. The United States District Court concluded that to satisfy Article III’s standing requirements the plaintiff in a foreclosure action must establish that it was the holder of the note and the mortgage at the time the complaint was filed. That issue was not clearly resolved on the record presented at the time. The plaintiffs were given 30 days to submit proofs that they did have standing. See In re Foreclosure Cases, 521 F.Supp.2d at 654…As a routine matter, any complaint for foreclosure should be filed in the name of the individual or entity with the authority to enforce the underlying debt. In actions involving a negotiable note, plaintiff should generally be in a position to establish that it did have possession of the note as of the date the complaint was filed as required by the UCC. Where that cannot be established, the complaint may be subject to dismissal, without prejudice to the filing of a new action. There is simply no reason for this court to disregard the substantive provisions of the UCC. Equity follows the law. See Dunkin’ Donuts of America Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-185 (1985).

    Trial was conducted to address the standing issue in June 2010. Plaintiff presented the testimony of Mr. Mitchell, a Vice President of The Bank of New York, whose certification had been submitted in support of the prior motion. No other witnesses were presented by either party. Mr. Mitchell had been employed by The Bank of New York since sometime in 2002. He had been involved in the securitization of the American Home Acceptance mortgage loans at issue. He confirmed that he did attend the closing on the loans at issue, that the closing did occur December 21, 2004, and that he was the individual who signed the documents at issue for The Bank of New York at that closing. He was also able to identify a Mortgage Loan Schedule maintained by The Bank of New York with respect to the particular securitization at issue, which did refer to the specific loan at issue here. He was unable, however, to confirm that the Mortgage Loan Schedule he produced would have been the same as any of the various Schedules referred to in either the Mortgage Loan Purchase Agreement, the Indenture or a separate Custodial Agreement referred to in other documentation. [NOTE VALIDITY OF ARTICLE 9 BASIC ASSIGNMENT TO TRUST IS CALLED INTO QUESTION] Indeed, the form of the Schedule did not appear to provide the information that was to be referenced in the Schedule which was to accompany the Indenture, which presumably would have been the Schedule available to The Bank of New York. Mr. Mitchell did confirm that The Bank of New York considered the loan at issue here to be an asset of the Trust from the time of the original securitization in 2004. He also confirmed it was an industry practice to have the documents involved reviewed over a period of months prior to any actual closing. Notably, Mr. Mitchell’s testimony indicated that approximately 11,000 loans had been securitized as a part of this process.

    Mr. Mitchell was unable to offer any direct proof as to the physical transfer of the note at issue in this matter. The securitization documents did indicate that American Home Securities, as Seller, was to deliver a variety of documents related to individual mortgage loans to Deutsche Bank, as Custodian, which were then to be reviewed by the Custodian as a part of the securitization process. The documents to be reviewed were to include the original mortgage notes, with appropriate endorsements. See Section 2.03 of the Indenture providing for a review to be completed no later than 180 days after the closing, and Section 2.01(b)(i) to (vi) of the Mortgage Loan Purchase Agreement, identifying the documents which were to be deposited and reviewed. It was apparently intended that the notes would be delivered to Deutsche Bank in appropriate form, and that Deutsche Bank would confirm that had been done…. Mr. Mitchell, however, was not in a position to testify as to what had actually occurred. Deutsche Bank’s operations were apparently handled in a separate facility, far from Mr. Mitchell’s office. Mr. Mitchell would not have been present when any documents were received or reviewed. He simply was not in a position to confirm, based on his own observations, what was done with the original note. No competent proofs were offered as to when the note was endorsed, when the note was delivered to Deutsche Bank, and whether it had been endorsed prior to that time. Indeed, there were no meaningful proofs offered as to just what had been done with the note prior to the time it was delivered to plaintiff’s counsel around the time the motion for summary judgment was argued.
    It is well settled, as a general rule, that the possession of such note by the plaintiff producing it on the trial, is prima facie evidence of his title, or his right to sue upon it, and that the plaintiff need not be the real or beneficial owner to entitle him to recover. And liberal as the law is to the person in whose name the suit may be brought, and in presuming ownership from possession, we think it has not gone, and ought not to go, so far as to allow a party to bring an action before his right of action has accrued: and whatever may be the state of facts which authorizes the suit to be brought in the name of any particular person, must, as a general rule, exist at the time the suit is instituted in his name. This, it is true would, in ordinary cases, be presumed from the production of the note by the plaintiff on the trial but the defendant, we think, may rebut this presumption, and defeat the action by showing that the state of facts existing at the time of the institution of the suit not authorize the plaintiff to sue. The plaintiff can only recover upon the cause of action he had at the institution of his suit, and he is not allowed to sue first and obtain his cause of action afterwards. … The inapplicability of the presumption sought by plaintiff does not resolve the factual issue presented at trial-considering all the proofs, was plaintiff able to establish that it did have possession of the note at the time the complaint was filed? As noted, plaintiff was not able to offer any direct proofs on that issue. Each party, however, argued that the issue should be resolved in its or his favor based on a number of conflicting inferences suggested by the specific proofs and the general circumstances presented. Plaintiff’s arguments focused on the documents created as a part of the securitization process. Those documents were admitted into evidence at trial, based on Mr. Mitchell’s testimony. While plaintiff was never able to present the Mortgage Loan Schedule that should have been attached to the Mortgage Loan Purchase Agreement, it was able to present a separate schedule maintained by The Bank of New York, which did refer to defendant’s loan. From all the proofs presented, the court was satisfied that defendant’s loan was among the loans which were securitized in 2004. The securitization documents did provide that the Custodian was to review the files for each mortgage loan, to confirm that each file contained the documents required, including the original note for each loan. From those circumstances, plaintiff argued the court could infer that the review occurred sometime in or around 2004 or 2005, that the file for defendant’s loan was included in that review, and that the Custodian must then have located the original note in the file, appropriately endorsed. That inference is not illogical. It was considered.

    Defendant offered other arguments, suggesting the proofs presented by plaintiff were suspect, and that other contradictory inferences would be appropriate. Given all the circumstances presented, it was entirely appropriate to question the reliability of the materials submitted by plaintiff. The provisions of plaintiff’s original complaint referring to the plaintiff as having become the owner of the note and mortgage “before the complaint was filed” did not comply with the provision of R. 4:64-1(b)(10) and was arguably evasive. The MERS assignment was potentially misleading. Plaintiff was never able to explain, in any meaningful way, why it was unable to locate the Mortgage Loan Schedule that should have been attached to the Mortgage Loan Purchase Agreement, or why it had taken so long to respond the court’s prior requests for the production of documents. Plaintiff was clearly on notice that the court intended to address the question of whether it had possession of the note as of the date the complaint was filed at trial, but was unable to produce any meaningful proof on the issue. Plaintiff failed to present a witness from the Custodian, or even an appropriate business record that might have been maintained by the Custodian to confirm just what had occurred when the mortgage loan files were to be reviewed. There was also no explanation of just how plaintiff’s counsel had come into possession of the original note. In the absence of such proofs, defendant argued, the court could infer that the review contemplated by the securitization process had not occurred, or that plaintiff was simply unable to establish that it had. Those potential inferences were also logical, and were considered.

    This was a factual dispute. Plaintiff was required to establish one basic fact-that as of the time the complaint was filed, it or its agent did have possession of the note on which the action was based. This court was satisfied the burden of proof on that issue rested with plaintiff, and the plaintiff was required to carry that burden by a preponderance of the evidence. Having considered all of the evidence presented, as well as the inferences argued, the court was satisfied that the proofs on that issue were in equipoise. Plaintiff failed to convince the court, even by the preponderance of the evidence standard, that it did have possession of the note as of the date the complaint was filed. Accordingly, the complaint has been dismissed without prejudice to plaintiff’s right to institute a new action, provided that any new complaint must be accompanied by a certification confirming that plaintiff is then in possession of the original note.

    New Jersey has a Court Rule which addresses certifications of fact as a condition to seeking foreclosure: Rule 4:64-l(b)(10) re listing assignments to provide transparency;
    In those cases where the loan was securitized, additional disclosure should be provided as a matter of course. Plaintiff should be prepared to provide the underlying documentation reflecting the securitization process, with a meaningful analysis of just how the debt was transferred to the plaintiff. Copies of any loan purchase agreements, pooling and servicing agreements or any other agreements which provide for the transfer of the debt are to be provided, with copies of the applicable schedules identifying the particular loan at issue. Depending on the circumstances, it may be possible to redact portions of the documents or schedules being provided, particularly when the underlying documents were previously provided in discovery. The information and documentation noted should be provided with a competent certification executed by an officer or employee of the plaintiff. Certifications from plaintiffs’ counsel will generally not be adequate. (It is possible that in a given case, the original note may have been delivered to plaintiff’s counsel, either before or during the litigation. Where that has occurred, a certification from someone associated with the law firm may be appropriate. Counsel should be sensitive, however, to problems presented where lawyers become potential witnesses.

    Dolin, 115 N.J.L. at 514-515 (emphasis added).

  2. Judges don’t see double jeopardy as a real risk generally, and that misperception colors and clouds their decisions – so keep plugging

    there was a time that wallpaper assignments of mortgage were not questioned–but many instances out there now where they filed and refiled–obviously the 1st ones were deficient for some reason

    the presumption that the document note signatures are valid should be uppended for the entire industry due to systematic negligent practices per consents

    its the presumption that the collectors rely on to dodge actual presentment

    but yes i now understand the convergence–it took a long time but the double exposure was compelling–see everhome quotes

  3. the trustee in whose name the actions are taken must have employees–usually trust divisuons

  4. Ron Meharg at DOCX-LPS used to push that on roadshows—i thought it might be a good idea until i saw that–now i wonder what might have been intended there—–but a natl registry for notes that is incontrovertible seems advisable–and im not talking about that MERS stuff–i dont know if mers is actually able to prevent doubled notes—registries of same property

  5. @dcb – maybe you will humor me and look at “control of electronic chattel paper”. You may find solid answers.
    Little did I know, there’s a wealth of info on it, including in the UCC (duh on me for that part).

  6. From what I’ve gotten lately and I posit it’s beyond speculation, the notes were entered on MERS e-registry and traded electronically (though not necessarily on the registry) and that would not be pursuant to art 3. They were, as you say, traded pursuant to bulk transfers (9, I guess, tho someone else here swears it’s 8). I haven’t studied the UCC as you have; still, trades in bulk per 9 or w/e (just not 3), to me undermine reliance now on article 3 if for no other reason then there would be no endorsements (except maybe an orig) on the notes. This is mostly greek to me, but who am I? Business attorneys know these answers, probably like the backs of their hands. Maybe I can drum one up.

  7. @dcb – rule 17’s real party in interest tenets were the bomb in fed jurisdictions used by homeowners -until the MERS’ consent order and the banksters’ move to the infamous bearer note. (Wilhelm, Hwang, Vargas, to name a few and I think all bk cases) . I’m glad you understand the integration of the rules in play; that makes one of us! I agree the UCC is antiquated. LaSalle Bank v Lamy (non-bk , think) comes to mind and maybe should be in that group, but I forget. It was noteworthy for some reason.
    Judges don’t see double jeopardy as a real risk generally, and that misperception colors and clouds their decisions – so keep plugging!

  8. dcb@ 8:43 : 1) “settlement held binding because notice of assignment not given, but obligor subjected to litigation as result”.
    I should be able to rest my case: enforcement requires Notice. I’ve cited certain states’ laws which support this, but even in the absence of statute, equity (and common sense) should demand Notice. I say that in regard to non-j f/c because I am not well-versed in judicial

    2) “The debt collector must provide an affidavit by the trust company employees–not servicer employees or mers.”
    Good luck on that one, because as far as I know, a B of A or US Bank as Trustee does not exist as a legal entity (so no employees). So just exactly whom would sign on behalf of the secn “Trustee”, I do so wonder. Some clerk of USB or BoA now designated assgt vp?

  9. Courts have also dismissed numerous collection and foreclosure lawsuits
    filed in the names of entities that did not own the purported debts . There is a carefully written case that involves the very same parties as this case—with a different maker-obligor. The case focuses upon the UCC.
    “The expression “assignment of mortgage” is almost universally used, not only by the general public, but also by the Legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee’s rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends, not an effective transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term “mortgage”, but is also in direct contravention of the well-recognized rule that an instrument shall if possible be construed so as to give it a legal operation.”
    In so stating, the Court was implicitly giving recognition to the UCC Art. 9 “assignments” of notes by reference in a schedule coupled with transfer of physical possession. The latter becomes attenuated as a test by the actual practices in the industry of retaining physical mortgage loan files in the hands of servicers.
    The implication is the alleged claim “Trust XYZ is the holder” refers to the status of the note under Art 9. That status must be verified by compliance with Art 3 provisions regarding presentation and payment—most specifically as under 3-309. The whole of these measures is the prevention of injury to the maker that occurs if the note is not recovered marked with a payment designation—receipt. For the note marked paid is in legal effect a “receipt” for the amount received by the collection agency. Standing, real party in interest under CR 17, 14th Amendment Due Process and UCC 3-301, 309 etc all converge on a single conclusion—in light of negligent industry practices, the Note must be proved by the industry before the claim can be given full authority. That note must be proved by the claimant such that the proof will be adequate to stand off a subsequent claimant with a good copy.

    Thus all of the following caselaw under standing CR 17, implicitly speaks to assignment of Note whenever it refers to assignment of mortgage, but upon motion for summary judgment the creditor must present the note in order for it to be dishonored [ie and maker does not pay it], before that note can be enforced.

    Bank of N.Y. v. Raftogianis, DOCKET NO: F-7356-09, SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, ATLANTIC COUNTY, 417 N.J. Super. 467; 10 A.3d 236; 2010 N.J. Super. LEXIS 221, June 29, 2010, Decided, Approved for Publication November 16, 2010.

  10. The expression “assignment of mortgage” is almost universally used, not only by the general public, but also by the Legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee’s rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends,not an effective transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term “mortgage”, but is also in direct contravention of the well recognized rule that an instrument shall if possible be construed so as to give it a legal operation.

    i think this can be interpreted to mean that at the beginning of the case a mass assignment under ucc art 9 may be sufficient to bring the case—but by the end—before a motion for summary judgment can succeed the collection agency must meet art 3–or restated that the up front assertion of holder status under art 9 is not actually perfected by ucc compliance 3-301 309 etc without delivery of the original by the end of day

    they beat around the bush–like its a secret –the implications for industry and debtors [not as homeowners] is great—people do not give serious consideration to double claim risk—the procedure will be used against you –it is a right–use it

  11. “The expression “assignment of mortgage” is almost universally used, not only by the general public, but also by the Legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee’s rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends,not an effective transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term “mortgage”, but is also in direct contravention of the well recognized rule that an instrument shall if possible be construed so as to give it a legal operation.”

    per raftogianis——but although the case was dismissed and presumably settled—the judge here overstates the mortgage discussion–trying to stay within the caselaw w/o completely deferring to UCC

    only under Art 9 do in bulk assignments of mortgage and note occur——at the end of the day the art 3 controls what happens
    to the borrower-homeowner. Only things which affect the homeowner liability on the note give rise to dualling claims against that person as described in everhome—-standing derives from the ability of the claimants to use judicial processes against the hapless homeowner—the constitution guarantees that no person shall be subject to the same claim twice—state judicial action that permits this will result in a federal right in a federal court —-it is your constitutional right to get your note back–or a guarantee/bond

  12. @JG
    The McClenand case was simply a recent vintage case that mucked around the NOTE issue in trying to explain what standing was about.

    They do not expressly state that the UCC absolutely allows–even requires–double recovery on a NOTE if it was lost, the account settled any way—and the note not surrendered.

    I think the courts have avoided too often reminding everybody –they need to get their notes back. No judge wants to get credit for causing a panic–especially by people who have paid off a house—they thought anyway. Bank simply says: hey Rube, You say that you gave away your house to somebody without getting a proper receipt? Well you have allowed some competitor of ours to take OUR house. ToTheir debt collection atty now says to you–“it says very clearly in UCC: GET THE NOTE—thats was your receipt—”

    The real humerous thing is that the very same atty that represented a club of these collection agencies—having background on your case–can make this argument after seizing your house and giving it to another of his clients. Its a set-up for double recovery.

    I know of an instance of one originator that specified at title that you had to use their pens with their ink and the known width of the pen point——it can be reproduced with greater certainty. Why?–except to reproduce notes that look like originals to defraud multiple trusts and the obligor.

    You respond—but how unfair—you took my house last year and supposedly gave it to trust 123-ABC. Today, you come to me and attempt to double collect on the NOTE for trust 234-BCD. The debt collector’s atty then states: you did not pay the deficiency–so it will be fair for us to take at least that much from your retirement assets. You freeze in the snow for all we care–this is about money–yours–you should not have any if you did not buy back that NOTE.

    It is the mere risk of double collection that you must fear. Conservative acctg principles require that you state your contingent liability–disclose it. Its real. even a contingent liability impairs your credit paying status. Maybe this is why it takes 7 years to clear your credit bureau records.???? think about it—-seems like being rid of debt would be good for your credit–its the uncertainty that makes them nervous.

    I now clearly see the convergence of the following in conection with

    1) mortgage foreclosure–and notes actually–
    2) CR 17 —-rel party in interest–[see quoted material below]
    3) Due Process 14th amendment–substantive due process
    4) UCC Art 3-see example 309 –protection against a NOTE HDC, by recovering note 3-301—or by aff and bonding —no double collection can be imposed by the legal system without a way out

    So next thing to put it in placeis to ask yourself the question: If I pay off the mortgage note by short sale–DIL–whatever—AND the unexpected happens and another claimant comes along with an affidavit and a really nice looking copy—what do you raise as a defense? You introduce the copy they gave you–with no affidavit???
    Who wins??

    Every action shall be prosecuted in the name of the real party in interest.”
    Civ.R. 17(A). A real party in interest is one who is directly benefited or injured by the
    outcome of the case. Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. The purpose
    behind the real-party-in-interest requirement is ” ‘to enable the defendant to avail himself
    of evidence and defenses that the defendant has against the real party in interest, and to
    assure him finality of the judgment, and that he will be protected against another suit
    brought by the real party at interest on the same matter.’ ” Id. at 24-25, quoting In re
    Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 240.” Everhome Mtge. Co. v. Rowland, 2008-Ohio-1282, 10th Circuit.

  13. I really dislike the decisions that chase the assignment of mortgage. The mortgage is nothing except a creditor priority issue–but for bankruptcies—-a mortgage would be irrelevant to con-law. There is no risk to a person that the house is seized twice—no conlaw dimension to it–thus iv struggled to find the basis to deny based on the mortgage—-until i belatedly relearned the complex UCC —–the strong dependance on physical transfer under art 3—-and seemingly 9 by proxy in warehouses????

    the courts and lawyers chase the assignment of mortgage because that is what the servicers set up—–the mers mess—but it is irrelevant

    forget the assignment of mortgage—as the very good analysis in raftogianis said —“the assignment of mortgage is a mere distraction”

    yes—there will be an ohio S Ct case out shortly following Boyco issue

    the UCC guys got the Art 3 poertion in line–i am told

  14. @jg see raftogianis for a good discussion of ucc —-

  15. @JG
    Iv been reading those inexact loose discussions of “standing” requirements as well as the CR—and iv not had much success in understanding a common thread.

    I believe that the integration of the express several UCC rules regarding presentment, payment and surrender —or in lieu of that set of physical events, the posting of a surety under 3-309 lost not affidavit plus protection of maker—establish the consitutional dimension of the NOTE—not the mortgage.

    If a maker does not assure herself that the note has been recovered, she is subject to a [real] risk that there will be a 2nd claimant come down the road and have to pay again–because UCC is antiquated. it is based on surrender of physical possession–a shaky premise. People cannot determine a good fake anymore given the wonders of reproduction technology.

    the exposure to double claims should be cured on the front end —it appears to me that it must be by a motion for summary jusdgment against the collection agency. The debt collector must provide an affidavit by the trust company employees–not servicer employees or mers. Thus the relevance of Mcclellan–albeit not a very persuasive precedent —

    “There are multiple reported cases in which debtors have been subjected to
    litigation because they “settled” with A and then B claimed to own the debt. Smith v. Mallick,
    514 F.3d 48 (D.C.Cir. 2008) (commercial debt purchased and resold by debt buyer, debt buyer
    [possibly fraudulently] settles debt it no longer owns, settlement held binding because notice of
    assignment not given, but obligor subjected to litigation as result). See also, Miller v. Wolpoff &
    Abramson, LLP, 1:06-CV-207-TS, 2008 U.S. Dist. LEXIS 12283 (N.D.Ind., Feb. 19, 2008), where a debtor complained he had been sued twice on the same debt; Dornhecker v. Ameritech
    Corp., 99 F. Supp. 2d 918, 923 (N.D.Ill. 2000), where the debtor claimed he settled with one
    agency and was then dunned by a second for the same debt, and Northwest Diversified, Inc. v.
    Desai, 353 Ill.App.3d 378, 818 N.E.2d 753 (1st Dist. 2004), where a commercial debtor paid the
    creditor only to be subjected to a levy by a purported debt buyer.

    In Wood v. M&J Recovery LLC,. CV 05-5564, 2007 U.S. Dist. LEXIS
    24157 (E.D.N.Y., April 2, 2007), a debtor complained of multiple collection efforts by various
    debt buyers and collectors on the same debt, and the defendants asserted claims against one
    another disputing the ownership of the portfolio involved. Shekinah alleged that it sold a
    portfolio to NLRS, that NLRS was unable to pay, that the sale agreement was modified so that
    NLRS would only obtain 1/5 of the portfolio, and that the 1/5 did not include the plaintiff’s debt.
    Portfolio claimed that it and not Shekinah is the rightful owner of the portfolio.

    In Associates Financial Services Co. v. Bowman, Heintz, Boscia & Vician,
    P.C., IP 99-1725-C-M/S, 2001 U.S. Dist. LEXIS 7874, *9-12 (S.D.Ind., April 25, 2001), later
    opinion, 2004 U.S. Dist. LEXIS 6520 (S.D. Ind., Mar. 31, 2004), allegations were made that a
    creditor had continued to collect accounts allegedly sold to a debt buyer.”

    “Every action shall be prosecuted in the name of the real party in interest.”
    Civ.R. 17(A). A real party in interest is one who is directly benefited or injured by the
    outcome of the case. Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. The purpose
    behind the real-party-in-interest requirement is ” ‘to enable the defendant to avail himself
    of evidence and defenses that the defendant has against the real party in interest, and to
    assure him finality of the judgment, and that he will be protected against another suit
    brought by the real party at interest on the same matter.’ ” Id. at 24-25, quoting In re
    Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 240.” Everhome Mtge. Co. v. Rowland, 2008-Ohio-1282, 10th Circuit.

    To me the risk of double claims is a basic con-law issue–substantive due process—this is the common thread that drives standing–conlaw–not Civil rule–except to extent civil rule is to protect conlaw rights.

  16. @dcb – so where did you get the unpublished stuff? that’s the more interesting stuff to me. But, I have this to say about that (McC case):

    The bottom line in that case, imo, is not good news. The bankster will just come back with new “junk” to overcome its problems. In the meantime, the homeowner had a lot of grief and prob had to pay an attorney to shut down the bankster.
    After reading the 9/06 ruling at dinsfla’s site, I got really irked about NY court saying transfer of note and mtg by possession was possible:

    ” It is without question that the assignment of a mortgage and the accompanying note may be done by physical transfer.2 But in this case the purported physical transfer was accomplished by MERS as nominee, who by contractual definition had no interest in the note. (HERE – sic:) This court recognizes the authority of Quicken Loans to physically transfer the mortgage and note to the plaintiff….” and HERE: “It is without question that the assignment of a mortgage and the accompanying note may be done by physical transfer.”

    (As to Mers anything, another day from me, but the McC court said “nah” in regard to MERS.)
    McClelland cites to a LaSalle case which cites to a l954 case, Flyer v Sullivan, for this ridiculous proposition. So, I went and looked at Flyer, which I found might support the proposition – if Flyer weren’t fatally flawed. Flyer, like Carpenter, deals with a mortgage – a two party instrument with no trustee.
    McC holds that Central could obtain its interest by a (mere) transfer to it of possession of the note and mortgage, and this in turn relies on the interest in a mtg being personal property, and thus found that no written assignment is necessary: a transfer of poss of the note and mtg would cut it. The court did not state nor address a mtg following a note, but it did find a transfer of the mtg without the note a nullity.
    A mortgage does constitute an interest, an interest in real property, which transfer of requires a writing. If the mortgagee had no interest, the mortgagor would be free to sell the property unencumbered. Relying on Tax law for a proposition that a mortgage is chattel (only) is apples and oranges. The mortgagee in a mortgage has agreed-upon rights in regard to the real estate. Those rights constitute an interest, even if that interest is treated as a lien v title. If the original mortgagee has an interest sufficient to warrant a writing, then so does any assignment of that interest.
    By the way, the NY MERS mortgage does contain a granting clause (to MERS much to my surprise – didn’t know they ever had the nerve). I looked up Agard’s NY Note and Mortgage (It was handy). From my notes, it looks like there is a granting clause to MERS of the property
    in the NM dot and the NJ mortgage, as well, and Lord knows where else.
    I think the Flyer decision, the apparent basis of the conclusion regarding transfer by possession in McClelland, trips all over itself. It’s here in its (short) entirety:

  17. York State Supreme Court dealing with routine proof of note issues common to this case;
    “This court recognizes the authority of Quicken Loans to physically transfer the mortgage and note to the plaintiff…”

    But MERS, not Central, employees made unsubstantiated statements about the disposition of the note which was presumed to exist;

    “Furthermore, Ms. Swayze’s affidavit makes no reference as to how MERS obtained the physical note, nor does she reference when, if ever, Quicken Loans granted MERS any authority of the note it held in connection with the mortgage on 230 Natick Street, Staten Island, New York in order to effectuate the purported physical transfer of the mortgage and note.

    only quoted stuff is from that case which is unpublished—but the quoted material was of significance to me

  18. @dcb – I’m trying to run down info in McClelland but I have only the Spetember 6th ruling which is void of most of the material you cite. ??

  19. @liz – two things of note re: Mclean: 1) the appeal court reversed its decision based on McLean’s motion for clarification and this must have been because the court saw (when asked to clarify) that the info before it didn’t in fact support sj in JPMC’s favor. Imo, fiing that mtn was the right way to go and it is not often used. 2) the court found that the aff (imo of a stranger) didn’t support the relief JPMC sought and that the proper vehicle might be an evidentiary hearing. I’m not so sure about that. I think the approp vehicle might be a big fat objection or mtn to strike the affidavit along with a motion to dismiss or for sj, but you can’t generally appeal an issue not raised in the lower court. That affidavit will never survive proper application of the rules of evidence and if it weren’t objected to or stricken, it should have been. But then, so what? JPMC will simply regroup and come back with
    other bull. They’ll file a new affidavit about the endorsement date
    and now they’ve got a “MERS” assignment of the dot. The only way I know to shut this down is an attack on the new affidavit they’re going to come up with. No one, besides me, wants the fight about the “MERS” assignment, apparently. But still, the motion for clarification was a good one.

  20. if they follow most of the contracts that make up the securitization—-but not enough to meet the dotted i’s—formalities—they dont get trust treatment but the contracts should be binding—but the trustee is the operator general partner

  21. at least exceeds the parameters of these trusts.

    that may be as a matter of limiting to certain passive acts—but still passive —the mod is just a variant on the note—seems like the principal is delayed but not released

  22. But, dcb, with my very limited info on the passivity, I posit acquiring an interest such as full ownership including rights to recourse which one didn’t previously have is not passive or at least exceeds the parameters of these trusts. The banksters are pretending the investors had that all along with one goal in mind: the credit bid for foreclosure. The banksters avoid repurchasing the payment rights they sold investors by having the investors thru US Bk as trustee, etc.
    pose as the parties with recourse. OR – the investors are actually given the recourse to avoid the repurchase (at the note balance)
    in what is surely an unallowable scheme. I mean, without evidence, anyone can claim a right to enforce a bearer note under 3. Use a handy “MERS” assignment and voila! No repurchase plus bonus! Use a credit bid. How this works out money wise, bottom line, for the investors, if there were a guarantee, don’t know yet. BUT, if these yeahoos can actually file bk and 86 the investors’ rights (and any guarantees), well, the investors probably have to take it in the shorts, bluntly, or look that act straight in the ugly face. Could GSE’s pull this stunt? I sure hope not.

  23. Alternatively to all investors appointing a rep or all investors
    seeking to enforce their own rights themselves, it might be that only
    the rights and interests of those participating would be, could be,
    adjudicated. This does seem unlikely since in the absence of abandonment of any rights and interests by the non-participants, those rights and interests remain and wouldn’t be subject to a court’s jurisdiction. I think. Over my head. Businesses have ways of dealing with this stuff, like buy-sell agreements, by vote of majority of shareholders thru proxies, etc. but we don’t have any of that stuff here. But I don’t even know why we’re really talking about this, why people think there’s no trust for this issue to apply. The thing on my radar this minute, in addition to the rules of evidence and procedure,
    is the matter of recourse against the homeowner. I believe FNMA’s judicially noticeable material demonstrates the investors have none, and one business being able to buy another’s assets, like BH is going for in RC’s bk without the liabilities, is further evidence to me. If the loans weren’t RC’s because they were the investors’, they wouldn’t be impacted by its bk. And RC’s bk would not mean a BH or NS could
    pick up the loans at any cost, let alone for a song and a dance.
    When the FDIC takes over a place and before or when it subsequently sells its assets, somewhere in that deal, is is also possible to ditch the investors rights to payments?

  24. “non-passive, right” —no mods etc even passive possession of REO and paying yard fees does not make active income—–active would be them leasing the units—–and acting as lease manager

    its also not holding the money and making active bets etc—-vs passive just receoiving cash flows—-the new REIT structures as rentals must be pushing the envelope—-perhaps the servicer is sandwiched to create passive role

    the idea is that the govt does not want single tier taxed entities competing with 2 tiers–ie corporations

  25. Central Mtge. Co. v McClelland
    2012 NY Slip Op 32338(U)
    September 6, 2012
    Supreme Court, Richmond County
    Docket Number: 131062/10
    Judge: Joseph J. Maltese
    Republished from New York State Unified Court
    System’s E-Courts Service.
    Search E-Courts ( for
    any additional information on this case.

  26. @JG…. I hope that gets appealed. Dirty Birdies .. All of Them! They need Caged! I knew they were busy refi as many as possible before this decision … but this is Crazy!

  27. @enraged – re Warren Buffet – “Pappa’s got a brand new bag”. Apparently Berkshire Hathaway and Nationstar are snarfing up Residential Cap’s (GMAC, Homecomings) assets our of RC’s bankruptcy estate “FREE of all claims and liens and other interests”. Bigger fish to fry than some puny stocks. Good Lord, don’t we want some of that? This is to the detriment imo of RC’s creditors. What happened to those interests being protected? Too much like work? Why don’t creditors scream about this stuff? This is a good opportunity if anyone’s interested to discuss what happens to loans which are purchased out of bk like this. If the loans are taken free of all other interests, that would include, would it not, the investors’ rights to payments? So what was all that business about bankruptcy remoteness? It seems to me the purpose was to preclude a bk which would or could 86 the investors’ rights (to payments).
    If one has filed anything like a claim, a lawsuit, or a poc against
    RC, one should be notified of the bk. But, if one is an investor in
    some derivatives and is allegedly protected by some secn trustee,
    what are the chances of notification that one’s rights are being 86’d and must a majority sqwauk? Concede your insolvency, file bk,
    86 investor rights, bk purchaser gets jackpot. But before the screen door hits you in the heiny, make sure you got that big fat bonus and stuffed it in the Caymans. Hook up with R.K. Arnold, have a few
    mojitos, and live happily ever after while those whose lives are destroyed contend with the fall out? (e. tolle – you could say that so much better) The new American business model. If I’m right, and investors only have rights to payments made, re-think conceded insolvency of the tbtf’s. I say that acknowledging I don’t get that bk remoteness thing, but it seems to be undermined by BH and NS taking RC’s assets sans the liabilities (including investors rights to payments) as well as similar events.

    Dang – spelled Nationstar wrong. Yawn.

  28. I didn’t mean the investors bought the well, not the derrick. They bought the oil, not the derrick or well.

  29. @cb – I didn’t follow your numbers totally, but I did key in or try to on the passive part. If a loan is modified or actually restated in the name of a party who theretofore held only rights to payments made, that is
    non-passive, right? Let’s see…I own a loan, but have sold the payment rights to a passive entity and any gains made by the entity are passed thru to its investors on a friendly tax basis. The borrower wants a mod. The mod is used to restate (change) the investors’ rights to recourse and I lose mine, if I had any because I sold the rights to payments made. This mod / restatement is a non-passive event and would find the investor with taxable income if it got any. That’s about all I could get out of it and some of it is supposition and or I missed.
    But it is imo a monster mistake to overlook the fact that these trust investors have no right of recourse against the homeowner. They bought the well, not the derrick. I linked the FNMA material which gives rise to my assertion (which I had suspected, anyway), something until shown otherwise, I’m positing as fact. Any attempt to vest the trusts with rights of recourse at this date, or any, (allege enf of bearer note and assign dot) for the purposes of collection might be permissible, but it might not be, if not definitely is not, and as you note, I think, this is now not non-passive (?) and there would be tax ramifications. But maybe not if they pretend the trusts had the recourse all along.
    If they weren’t trusts governed by trust law, if it were just groups of investors, it would probably be possible to vest the investors with new rights and interests. But even groups of individuals or entities would still have the issues of enforcement by another on their behalfs.

    It’s reasonable to wonder why banksters would do this. Other than the obvious acknowledgement that the trusts didn’t buy anything but rights to payments made and maybe a guarantee subject to repurchase, one reason is that in order to get those payment rights the banksters sold, they’d have to buy those rights back. Unlike the bs credit bids used for f/c, that takes cash.

  30. Title abstract is not as difficult as you may think. For every loan that was paid off .. there must be a satisfaction of debt filed and the lien released. How many liens do you have on title and how many have been satisfied? Did Pary A release its lien before party B filed its lien? Lets say pary B (who had no lien on title filed LP/FC) and you reenstated with B and paid B for years, never knowing that B was never the Note Holder or Lien Holder. Then party A says they are the lien/note holder 5 yrs down the road and that you paid the wrong paryt and still owe them. (I chuckle when Mers trys that) …. A was recorded in the favor of the Investor …. MERS as benificiary to hold the title in favor of investor.. NEVER THE NOTE! MERS NEVER OWNED THE NOTE AND THE INVESTORS NEVER GOT THEM EITHER AS PER PSAs. Mers has NO authority to assign/sell or transfer the Note! Mers only authority is to exacute the Mortgage Lien on title for a transfer as the REQUEST of the Investor. The investor abanded the claims on title .. the security is of no value without the Note upon to collect.

  31. Hello,

    Shadowcat, thanks for the reply. I’m certain somebody has the funding instructions. My original lender has disappeared and title company claims it’s been purged. I don’t believe them for a second.

    I am fighting in court with an attorney, who is actually very good. My belief is that you may have to change strategies and incorporate different things from time to time. I used to think that a quiet title based strickly on recordings could be enough but with the # of cases going in MERS favor in AZ I don’t think it’s enough.

    You need added ammo in your complaints to survive dismissal and hopefully get to discovery. This is why I ask about funding instructions. If I could show bank a is on the dot and bank b wired the $ I’d be in a much stronger postition. AZ is a very hard state to fight in. Supreme court stated Assignments aren’t required to be recorded prior to commencing a “trustee” sale and trustee sales are sales pursant to a trust deed, not a note.

    UCC presentment arguments are not successful either, because inspection of the note is not required to intiate a sale based on the trust deed. It seems ridiculous but this is what I’m up against.

    O and don’t forget u agreed to MERS being the bene when you signed you’re DOT. Does it matter that they are no longer registered in AZ to conduct business? or the original lender is defunct? IDK but I might be able to answer that when I have my day in court.

    If I could have an expert witness, opinion of title, accounting, something more concrete it would be a much better case. No attorney has been willing to do an opinion/abstract of title and forget about asking a title company for this, they’ve all refused.

  32. @JG
    This is really important line of thinking JG. I know nothing about the specific practices of FNMA etc. I do know that such quasi agency operations have authority to adopt their own rules so they may vary general law–always a risk for non-specialists—good to get a consult from a specialist on peculiar agency rules.

    The tax law is what I know best—-IRC 7701—-describes the tiers of entities–and of course would apply since most of these creatures were trying to get the tax prefered status of a trust.

    The alternative–if the formalities of trust reation were ignored–is that there is an investment pool aka “joint venture”—–under IRC joint venture is typically treated as a tax partnership.

    There is a big difference in the manner in which gains on transactions are treated.

    A trust is treated as a non-taxable thing as long as it stays passive–it just flows through income to the beneficiaries-investors. Similarly if an investor pays $100 for a unit—–say a big discount to FMV of 1000–because of 2008 distress selling by pension funds—–he recognizes gain as it is received and distributed by trustee.–ratable inclusion of stated trust income dostribution—trust pays no tax but in effect deducts distributed income received

    If he resells unit at 200–he has a 100 gain–simple

    a partnership is more complex–having so called inside basis and outside basis calculations—-because every gain or loss on every transaction the trust makes is automaticallt to be passed through to the investor-partners

    this is really important for mods etc—from investor perspective.
    if same thing as above 100/unit price vs 1000 fmv of underlying assets

    lets say that all trust assets were simultaneously modified from the original 1200 owed by the borrowers down to the discounted FMV of 1000–cumulatively

    well vulture investor has received a new share of a pile of notes worth now 1000—–the partnership has an inside loss of 200—-which paases through—but partner has received via partnership a new asset worth 1000 for which he paid 100—-so hes got a gain of 900 offset by loss of 200 his share

    maybe why no mods

    if anybody has a cite to a provision saying largest joint venture owner represents jv please post????

  33. The other day, I responded to ivent’s allegation that lack of assignments from the warehouse lender to the lender proves something (it doesn’t). The contractual agreement between a warehouse lender and a home loan lender provides for subrogation if necessary for the w/h lender and prohibits movement of the loan until the warehouse line is paid off. Unless things have changed, the warehouse lender (itself or its agent or custodian) takes physical custody of the original note until the warehouse loan is paid off. “In God we Trust – All Others Give Us Your Notes”. And that’s pretty much the same reason the psa’s call for the note and dots to be endorsed and assigned to the trusts – to “dead end” them (and provide clear evidence of payment rights for which loans). Unlike a warehouse lender, however, a derivative purchaser is not entitled to subrogation; he is not entitled to recourse against the homeowner because all he has bought is the rights to payments made and if he’s lucky, he got a guarantee (but which included FNMA’s right to end the guarantee by the repurchase of the payment rights) from FNMA or another GSE. Did private entities provide for guarantees and buy backs so they, too, could repurchase payment rights and end their guarantees? Got me, but either way, the secn investors have no rights of recourse against the homeowner. And THAT’S why their lawsuits concentrate on the lack of quality of the loans. And both NG (post a couple days ago I was trying to get around to arguing with) and shadowcat (is it?) are on the right trail there about MERS, which makes it worse than even I, the biggest or close proponent of MERS MUST GO, thought, which is pretty dang bad. It IS a cover for the true owner of the loans because it isn’t the trusts. But take a note – what is a note without the right to payment because that right has been sold to deriv buyers? The note’s actually been “bifurcated”. Does FNMA, or anyone, repurchasing the rights to payments which were sold
    to deriv holders make the note ‘whole’ again?
    The Consent Order messed up MERS’ deal – big time. Plan B: bearer notes and assgts of the dots to the trusts. The trusts heretofore
    had NO recourse against the homeowner based on their derivative
    interests. They get what they got: rights to payments made and maybe a guarantee with a buy-back provision. The cut-off dates
    apply, at best, to payment rights evidenced by the assgts & endorsements. Let’s just say for a moment that the things to be done were done (which really only gave deriv investors payment rights and maybe some guarantees). How do we successfully allege that the “trusts” cannot now be given the rights of recourse using any machinations, like under bearer note provisions and assgts of the dots (if they were legit, which they’re not re: MERS m.o. using member employees)? That’s what they’re trying to and have been pulling off since the Consent Order.

  34. @dcb @ 4:15 – let’s say that’s true – a group of investors with no
    trust shell I only know to liken to a corporate status has bought some paper. First of all, I would really appreciate your take (actually everyone’s) on my comments at “Dalio Raises Concerns” post, 9 – 23, 11:31 & 11:53 p.m. re: FNMA guarantees and repurchases.
    But, assuming arguendo that the trust would have had rights of recourse against the homeowner’s property (I express it this way these days in rec of probable non-recourse as to notes sec’d by real property / dots), which I don’t believe the trusts would have or do, so, again, arguendo, those are good questions, and unavoidable imo.
    Okay, the trusts would have had rights of recourse, say, but turns out there’s no trust. What there is as you said is a group of individuals
    or even entities which bought derivatives. If an entity calling itself a corporation were not in fact a corporation and wanted to enforce
    the rights obtained in the name of the corp, how would those people proceed to enforce the rights? 1) If interests are on someone’s somewhere books as held by the non-existant ‘corporation’, assuming assignments of dots and assgts (9) or ends (3) of notes were done to the ‘corporation’, has there been transfer?
    1A) Disregarding that it is illegal to hold oneself out as a corp when not a corp, under the UCC and the statute of frauds, HAS transfer occurred? 2) And just as it is illegal to hold oneself out as a corporation when not a corporation,wouldn’t it be illegal to hold oneself out as a trust when not a trust whether you do it yourself or thru another? 3) Assuming some equity would yet find in favor of the
    individuals (v a corporation or trust), since if there is no trust, there are no documents on which an alleged trustee could rely for his
    alleged representation of the individuals. I don’t know trust law, but I don’t think I have to to know that any alleged trustee, or any party,
    would have to have a written representation agreement which passes muster for agency or poa. They can’t have an ‘equitable’ trust
    is my understanding, albeit limited, of applicable Trust law; therefore,
    a majority would not do it. I think any representation would require the expressed agreement of every single investor who clams an interest in those loans or they’d have to do it themselves – all of them.

    But I still don’t believe the secn investors have rights of recourse against the homeowner. FNMA prospectuses make it clear that 1) FNMA has guaranteed payment to the deriv buyers* and that 2) FNMA has the right to repurchase whatever the deriv buyers bought when the borrower has not paid for 4 months. During those 4 months, it appears to me, there is no recourse available to ANYone for the borrower’s non-payment. After 4 mos of h.o. delinquency, FNMA as I said may repurchase and THEN FNMA would have the right of recourse against the homeowner. If FNMA opts not to do so, FNMA is stuck maybe the payments under its guarantee.
    *Why would FNMA guarantee payments? The guarantee is to stand in for the lack of investor recourse, that’s why. For ANYone to have recourse against the borrower, the loans or rights to payments must be repurchased FIRST. The payment rights are sold as mortgage backed and they are conceptually, but they are literally only guarantee backed (and for all I know they’re only guaranteed when they went thru FNMA or other GSE’s). These are huge ramifications if true and I don’t know, given FNMA’s own literature (prospectuses) how it can not be true. Wonder what we could do with those 4 mos before repurchase of payment rights where NO one has a right of recourse (or longer if the repurchase doesn’t occur) against the homeowner.

  35. I know Debrah… I’m not judging you. Without failure we can never achieve success. We have all had failures, we learn from them and take the knowledge forward to succeed. Failure is nothing to be ashamed of ..(unless you did something illegal) haha …. Every homeowner felt the same … like they were being targeted by the bank for slaughter althou … they had done everything asked of them. Most felt shame for falling for their scams and just moved on and didnt talk about what had happened (like a rape victim) …. There is NO Shame in being a victim … Did you hear me …THERE IS NO SHAME IN BEING A VICTIM! A failure is a lesson that prepares you for success… there is no shame there! But I hate to see families lose their homes because you can NOT fight this beast alone … its nest is in the courtrooms and its venium is Procedure. You can not take a crash course in Law and pass the Bar overnight… it takes years of education and thousands of books on law. (dc may be an exception to that rule.. we shall see) If you have already lost your house … you can be a thorn in their side, even without an attorney. Just dont risk your home … Get an Attorney!

  36. @sc
    Yep get me xs jacket. But I’ll take a good bordeux over the pills. Gotta work next day
    Thing is you gotta hold on to yourself keep In touch with the people you love that respect but dint judge you for what you chose to do and I tell myself this is not who I am it’s something I must do. I wish I didn’t but it’s started so I’ll finish.
    Peace out

  37. And Deborah,

    Don’t compare your prose with what we read here from people in serious difficulty and yet incapable of lining up two personal thoughts without getting into an obvious brain cramp the size of Manhattan.

    Note that you do admit knowing your limitations. You know what you’re up against and your probably did a hell of a homework preparing your case. Again, review certain posts and how written and formulated: those people don’t have a prayer. And don’t even think of trying to help them see the need for them to get an attorney: they snap and bite right away. And when they lose, it isn’t their fault.

    Do you know what this country’s biggest problem is? Lack of personal responsibility for their situation and blame as an art form.

  38. @ enraged Ok then… I thought I might have to kick ur ass.
    Seriously though the opposition are big hitters and slick as sick, I recognize my limitations god does the rest I swear I wake up a say 2 am and write a page , mind. Never sleeps.
    By the way I went thru about 70k on atty fees n audits n legal expenses and that’s being conservative. My first council said this is gonna cost you $150k you can’t afford it. She was right and honest about that. The work is too hard for them on contingency and now I’m generalizing but I’m living proof there’s some truth there. Onward.

  39. If you choose to fight it alone you should know this …..The Happy Pills are on the Left and the Straight Jacket is on the Right.

  40. Deborah,

    Reread my post and you’ll see that it is far from a generalization.

    “I have come to the realization that many people will not hire an attorney…” Many doesn’t mean everyone. Just many.

    “All I have to do is read the prose written by certain bloggers here…” Likewise, certain bloggers doesn’t mean every blogger.

    I usually stay away from generalization. By principle.

  41. Don’t generalize enraged
    Pro se. Is not by choice. Suing and my lawsuit is not by choice. Dead In The wAter.., we shall see. Not over yet.

  42. SC,

    Ongoing battle of mine (and of tnharry’s).

    Attorneys don’t go school to learn the law. The law can be found in any public library, any courthouse, pretty much anywhere. Attorneys go to school to learn how to present a case and expose the facts thereof in the light most favorable to their client. Takes years of schooling and pretty hefty student loans…

    All I have to do is read the prose written by certain bloggers here to know that they are dead in the water right off the bat! And interestingly enough, those are the ones with the suckiest attitude. The ones who know it all, refuse advice and bitch and moan that judges are all sold out and paid for.

    Well, if they lose, tough shit!

  43. You took the words right out of my mouth Enraged. Asking the right questions, knowing what they did and how they did it … with the proof to back it up is not enough. They will beat you alive with Procedure ……

  44. SC,

    “The Knucklehead needs an Attorney.” It has been a recurrent theme here. People are under the misguided impression that knowing (some of) what has been transpiring in the mortgage industry since 2000 is enough to march into a courtroom and score a win without having to spend the money for an attorney. What they seem to ignore is that:

    1) The same way that each of us here comes with a certain knowledge, judges have some idea about certain things and are completely oblivious to many others. Securitization and PSAs are still quite foreign to them (especially as long as they haven’t been in the foreclosed homeowner’s shoes).
    2) Judges are people who have seen and heard everything. They are blase and rather than listen to some incoherent and poorly articulated soliloquy, they would prefer dealing with an attorney who understands not only the laws and the issues of the case but, more importantly, procedures.
    3) Judges belong to political parties. They follow (most of the time) their party lines.
    4) Judges are basically like everyone else among the 99%: they work for a living. Judgeship is not who they are but what they do. They have so many cases on their docket that they need to close one way or the other. That’s their priority. It’s the nature of the beast.

    I have come to the realization that many people will not hire an attorney… because they do not like attorneys as a species, do not trust them and have the mindset that “attorneys are a useless nuisance and all they are after is my money!” God forbid that an attorney would make his living helping people keep their house! They want a Mark Stopa or a Jeff Barnes (who have results but… don’t come cheap: experience has a value) but they don’t want to pay what the guy’s worth. Last but not least, people don’t understand that they retained the attorney. The guy works for them. It is up to the client to ask the hard questions and make sure that the guy is really up to speed. Going to an injury attorney for a foreclosure defense makes no sense. Going to a BK attorney when all you want is keep the house without having to file BK is insane. Do your homework. know your file. No attorney will ever know your case as well as you do. Suggest to your attorney what you would want him to do and don’t let go until you know why it is not a good idea. Attend depositions. You are the client. You absolutely have the right to be present when the bank employee is being deposed: it is your dime after all…

    Can’t have it both ways.

  45. @hman, …It is called “Table Funding”. Took me awhile to figure out why … The only way to get it after the 5yr storage term is via discovery … Dont let them fool you, they micro filmed or stored them to disc before shredding. If they (the originater lender on your note) cant prove they funded the loan well then …Their answer. Fight the Homeowner til they cave with Mounds of Legal Fluff to avoid discovery. Basically … what they are doing to Ivent now. The Knucklehead needs an Attorney They are pushing her?him? over the Edge with legal tricks. Them Turkeys!! The only Good Turkey is a Cooked one!

  46. very kind of you carie thanks

  47. the old people with oxygen tanks on the scooters –a cigarette in left hand and slot in other—-legal

  48. hman
    have you requested to examine your note?


    Yes — possession arguments out the window — but, for other reasons than many believe. The Notes are not mortgage notes — they are not UCC instruments — possession does not apply…

    As to citing —–
    Federal Reserve’s Rule, 74 Fed. Reg. 60143 (November 20, 2009) – Final Rule at 75 Fed Reg. 58489 (September 24, 2010), definition as to creditor under the TILA, 15 U.S.C. sec. 1641, et seq.,

    ALSO quote —

    The Squires v. BAC Home Loans Servicing, LP, 2011 U.S. Dist. LEXIS 137581 (U.S.D.C. Ala, SD, decided November 29, 2011), which addresses the Federal Reserve’s Rule.

  50. Don’t get me started on casinos…

    Let’s kick people out their houses and take away their job. Let’s put them on welfare and food stamps if they have kids Then, let’s get them hooked on gambling.

    Kasich is justifying it by boasting about the number of employs that disgrace is creating.

  51. Shadowcat,

    Thank you so much for the info. It is helpful. The wire doesn’t specify who the “depositor” was. Also, I called my former bank and also sent a request in writing. They advised that the payoff was done by the title company also.

    I think I’ve went as far as I can go with this. Any thoughts on anything else I can do? I don’t know how to find out who the depositor is without having the funding instructions.

    However…I do have a underwriting paper accidentally given to me 1 day before my loan was closed from the underwriting dept from GMAC/Assestwise (different than my lender). However, not sure if I can prove GMAC was the depositor without further info.

    I have another underwriting paper from my original lender about 1 week prior to GMAC. SO…original “lender” submits paper work to “undisclosed” depositor for funding. Is this correct? I don’t think this is concrete proof?

    My lender/loan officer advised me that GMAC “bought” the loan from them. They advised me this a couple years ago.

  52. There were wide swaths of homes in repair issues —-in all city neighborhoods–Garfield hts etc—–the demographic was that these were homes occupied by middle class single worker 1950s working in factories that produced all sorts of things now made in china—jobs gone—-there were vacant houses in some nice older neighborhoods 10 years ago

    cleveland like other northern cities in rust belt is in death spiral–cant have casinos everywhere

  53. We’re not talking improvements anymore. We’re talking abandoned houses without any upkeep whatsoever. If i recall, there was a 60 minutes piece on Cleveland last years about that exact same subject.

    Still. It’s a shame, especially considering what went on with those foreclosures.

  54. Housing is always sensitive to upkeep—–there are large improvements needed in many older homes—it does not always make sense to try to upgrade an old house

  55. The Title Companys Escrow Officer/Agent sends all out going wires to pay off any party owed any funds including current mortgage. What you are looking for is the “Depositor” …. you hired Title Co and requested Escrow for closing. The title co by transfer of wire (or other) MUST recieve a deposit into the escrow account Before Closing to fund the loan. You are looking for the “Depositor” of those funds into the escrow account. You are also looking for “Who was Paid Off for the previous mortgage” if a refinance. This applies to purchase loans if the seller had a mortgage to be satisfied as a condition of closing …always paid when loan funded.

  56. Shadow cat,

    I have a title question for you. I requested wiring instructions from the title company that did my closing. The title company stated they only maintain “those” type of files for 5 years. In AZ the statute only requires 5 year retention.

    I also requested the info from the “lender” but they are gone and unresponsive. I do have the wire I received at closing, cash/out/refi.

    I called the bank the wire was on and they confirmed the “originator” on the wire was the title company, not the lender on my DOT. I don’t know if this is relevant.

    Do you have any other ideas where to get the instructions or how to decipher the wire info? I’ve heard this can be the kiss of death and I think accounting is 1 of the strongest arguments one can make but you have to have the goods to make the claim.

  57. I said it a while back: to start up the economy, they were going to start demolishing and rebuild, since the health of the economy is calculated based on the construction sector. It was a joke on my part, or so i thought…

    Apparently not! How much do you want to bet that Cleveland and other cities will receive billions and start demolishing in the very short future?

    Cleveland’s glut of vacant housing
    could take BILLIONS to eliminate at current pace
    Question: Would Cleveland be in this situation if mortgage fraud and illegal foreclosures never came to town?
    The U.S. Treasury and high-ranking policy makers in the Department of Housing and Urban Development among others will discuss using demolition to improve surrounding property values and stabilize neighborhoods. (Billions of dollars would “improve” any neighborhood.)

    CLEVELAND, Ohio — At the current pace and without new funding sources, it would take more than 22 years and $4.5 billion to clear the vacant and blighted houses that must be razed in Cleveland, according to a City Council report released this week.

    And just keeping a vacant property boarded, locked, mowed and free from vandalism and trash will cost the city $540,000 over two decades, the report stated.

    City Councilman Tony Brancatelli this week presented the new calculations — defining the long-term consequences of delaying demolition –- at the Interagency Meeting on Residential Property Vacancy, Abandonment and Demolition in Washington D.C.

    The meeting drew together representatives of Midwestern cities, the U.S. Treasury and high-ranking policy makers in the Department of Housing and Urban Development among others to discuss using demolition to improve surrounding property values and stabilize neighborhoods, Brancatelli said.

    Although a $1.1 million initiative is underway in Cleveland to inspect, condemn and set thousands of vacant houses on the legal path toward demolition, those properties will remain in the demo queue in perpetuity if the federal government does not help fund demolition, Brancatelli said.

    Since May, Mayor Frank Jackson’s Emergency Vacant Property Inspection Initiative has tackled 4,680 vacant Cleveland homes –- 78 percent of its target for the year, the city’s Assistant Director of Building and Housing Ronald O’Leary told council members Tuesday.

    Of those, 2,675 received condemnation notices so far, he reported. That’s nearly twice as many condemnations as were issued during the same time period last year.

    But even Cleveland’s recent $12 million slice of a nationwide settlement with mortgage lenders, earmarked for demolition in the aftermath of the foreclosure epidemic, falls far short of meeting the city’s needs for the task ahead, Brancatelli said.

  58. @CARIE
    The saddest feature I think is that defense on a mortgage issue is deemed to be personal to the mortgagor—and adverse to the public interest. Whenever a note can be collected without actual presentment, surrender and release of the maker–so also can the true owner lose assets to a thief–a servicer. Certainly not every servicing operation is equally negligent—but massive negligent processes can hide aggressively fraudulent schemes.

    Civil recourse is only a deterrant to fraud if it is permitted to test the claims of a servicer –a small sampling and audit review is in the ublic interest and adverse to the indivdual’s self interest. Consuming litigation is good for a lawfirm but bad for the typical individual. The bar should provide pro-bono more often to keep the system balanced.

  59. SC,

    Ivent is a she… Couldn’t you tell? That’s why I avoid women like the plague.

  60. It’s already destroyed…how do you “repair” fraud? “Layer upon layer of fraud”…Bill Black’s words, among others.

  61. Our mistake was when Dan got elected sheriff, we thought we had enough experience buying and selling and didnt need a real estate attorney. Boy …. were we Wrong! It only took 2 years before it blew up in our faces. The System is Broken and we need to Repair It … not destroy it as some might suggest.

  62. I meant so say …. doing business as dba Them. (not as aka) sorry….

  63. Remember the origionator/lender/broker still in business having other companies doing business as aka THEM. Well their co-hort title company who was supposed to clear title and file a copy of the Trust giving the signer/subtrustee authorization to sign for trustee at closing and the agreement between the trustee and the signer for trustee(sub-trustee) to sign. Well it turns out the LawFirm representing the deceased and the Trust was listed on the warrenty deed with my husband (not me). The law firm was whited out (my name never added). The LawFirm signed as sub-trustee with POA to sign for trustee… but never produced the neccasary docs need to clear out title from the trust. Title CompanyDID NOT CATCH THIS and title co is out of business..byebye..POOF! When his attorney tried to get the lawfirm to provide the docs to clear title ….. she got stone walled over and over.. years now. Apparently the Law Firm being a grantee on the warrenty deed, representing the deceased, representing the trust, signing as sub trustee for a non proven trustee claiming authority… is a conflict of intrest. ..Do ya Think?

  64. Did I mention that if you told fraudster #2 and its successors that their predassor was a fraud …. and they file fraudulent, fake and forged papers with the court after the A.G. settlement ….. They are going to be wearing Orange walking with a limp and Picking Up trash along the Interstate and working in the Homeless Shelters. See …. there is Justice. 🙂 And like Neil says..dont put yourself in a position to prove up anything … They (any pretender in line) have to do that! Just set back … and Enjoy the Ride. Will they Shoot off their own Foot? Or will they just lick their wounds (where their balls used to be) *snorts*………… and Move On? The Movie is almost over ….. Happy New Year! Oh .. and if an unknown party to the transactions sends out debt forgiveness letters and you get taxed. Tell the Unknown Party to Prove Up and Fix Your Title! If they cant do that …..pffft! Dont pay nuttin!

  65. Why do you suppose they want to change the laws making it so where the defendant cant challenge them in Judicial Forclosure States.. Any Guesses why FNMA is charging higher fees for FHA ins loans in Judicial States. HMMM

  66. 1. Motion for summery Judgement in Favor of the defendant is Granted. Plaintiffs Motion for summery Judgement Denied.

    2. Motion for summery Judgement in Favor of the defendant is Granted. Plaintiffs Motion for summery Judgement Denied.

    3. Motion for summery Judgement in Favor of the defendant is Granted. Plaintiffs Motion for summery Judgement Denied.


  67. It takes two reasonable parties to set down and come to an agreement. When one of those parties is being deceptive and unreasonable after a lengthy period of time …. Then you have an “American StandOff”! …… No More.. No More.. No More… Hit the Road “Jack” and dont come Back!

  68. I taught preK for 18yrs and sub for 5yrs(K-5). I dont have a legal background . I leave the details on case law up to the experts. I’m sure all the cases were cited to me … but I have short term memory loss because of a previous stroke. I count on my friends who have the expertise in this area to guide me.

  69. DC, .. Its a consumer protection law to prevent abuse against the defendant. If they did not limit the attemps, the debt collectors would sell hundreds of times and keep us tied up in litigation and legal fees for years to come …. without ever having to prove anything. Just years of Harassment on Allegations. Can you imagine being tied up n court for years with numerous debt collectors trying to collect the same debt? I wish I could site it for you … thats what attorneys are for.

  70. @SC
    Im working on a treatise that pulls together standing under art 9 bulk transfers by assignment and constructive possession —at the initiation of suit in foreclosure —–with the follow up UCC art 3 provisions as to what to do when the motion for summary judgment comes along

    and this all has constitutional due process implications–that can void any action —-so it appears a two step issue—–does the servicer have standing under the PSA [assuming Art 9 was met] with a loan schedule to specify the loan—–

    bottom line is im curious about your statute as a conlaw matter–can you cite it? please?

  71. Dc… I think rather the middle working class backbone of the economy tax paying soldiers are friggin fed up, holding up every lazy bum with an ” entitlement” complex and hypercondriac tendencies.

  72. @dc, its an Illinois Debt Collection Statute. They are differant in every state. You have to check the one for Ohio. I’m not sure of the statute # …. but a lil research will take you there.

  73. do you have a cite on that 3 times out rule?

  74. I am not an Attorney, I can not give you legal advise. But I can give you Sarcasim” … if you understand the Language that is. …….Live, Love, Laugh and Learn. BOA strickter can not squeeze me and can not get a Gag order on Me! I’m not on Title or Note. Ut Oh …… No Duct Tape for That? Its White Out vs Duct Tape …… *SPLAT*!

  75. The question may well be whether the society is too complicated to sustain with people that make it up——its not just law—

    40 years ago i could change a tire w/o taking the car to the dealer to reset the flat light—i could adjust the carbureetor w/o a computer

    what happens if an ipad ceases working? grab your screwdriver and fix it–or throw it away-i know depends on warranty

    on and on——we all pretty much know how to grow plants and kill and eat animals–if we have to—much past there and its a society of specializations

    my son has a couple degrees in biochemistry—–i had one—but hes so much more immersed in details of energy transfer etc that i do not undestand him half the time

  76. @ER… I know! Its just that if Ivent comes back with Whine and not Wine …… he/she has no one to blame but themself.

  77. In Illinois … if you can not prove standing after 3 attempts by differant parties …. ya cant come back no more…. how many plaintiffs is that for you trying to fly before they stand? hmmmm

  78. SC,

    Wasting your time. Take it from an unpatriotic foreigner who came to this country to eat the bread of the American people and has been bought and paid for by the banks… 🙂

  79. DCB,

    Makes sense but you need to keep in mind that there aren’t too many more people who can really understand what all that means. I went to a probate class a few weeks ago and the guy making the presentation (seasoned attorney) finally admitted that the system is so complicated for the average Joe that 90% of Americans would fit the description of “incompetent to stand trial”.

    And that’s true. The system has been made complicated by design, as though to weed out the majority of the population. That’s how you keep slaves working for peanuts: take away the ability to think for themselves, brain wash them with religion, instill guilt, shame and fear and…Voila! And when they start making waves, threaten to take away everything they ever worked for. If that doesn’t cool them off, do it.

    That’s where we are right now.

  80. Patton v. Diemer, 35 Ohio St. 3d 68; 518 N.E.2d 941; 1988). A judgment rendered by a court lacking subject matter jurisdiction is void ab initio. Consequently, the authority to vacate a void judgment is not derived from Ohio R. Civ. P. 60(B), but rather constitutes an inherent power possessed by Ohio courts. I see no evidence to the contrary that this would apply to ALL courts.

  81. My Daughter and her Husband closed with another Attorney. As our Attorney got himself elected Sheriff 8yrs ago. We got new attorney (now federal prosecutor)and they Recinded their Loan 5yrs ago. They are on strike 3 and if you dont prove up — you can never come back to court to collect on the Debt. Did You Hear that Ivent?…… Strike 3 and they are out! Prove Up and Enforce or Move On and ya cant come Back! Get A Lawyer knucklehead!

  82. @ALL
    There s undisputed convergence between UCC Art 3 provisions designed to prevent risk of double liability on a note—that was not recovered surrendered to the maker borrower—and basic Due Process as reflected by the “standing” doctrine re real party in interest under civil rule 17.
    “Every action shall be prosecuted in the name of the real party in interest.”
    Civ.R. 17(A). A real party in interest is one who is directly benefited or injured by the
    outcome of the case. Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. The purpose
    behind the real-party-in-interest requirement is ” ‘to enable the defendant to avail himself
    of evidence and defenses that the defendant has against the real party in interest, and to
    assure him finality of the judgment, and that he will be protected against another suit
    brought by the real party at interest on the same matter.’ ” Id. at 24-25, quoting In re
    Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 240.” Everhome Mtge. Co. v. Rowland, 2008-Ohio-1282, 10th Circuit.

    The borrower must be protected against double recovery —or the judgment is void ab initio–on appeal or arising upon application under 60B but not actually brought on that rule–but by motion to vacate prior judgment for lack of jurisdiction?

  83. Oh yeah …. Ocwen Bank was the seller that sold to my daughter. They also set up the financing for her and her husband. “WIPE-OUT” !!!

  84. hehehehe … US bank was the bank who got fc Judgement on the previous owners of my daughters home. What a Mess …. the property was underconstruction when the previous owner went to Jail … 4 banks filed fc and several contracter liens were filed in the process.

  85. Its Already Bitten .. Chewed Up and Spit Out!

  86. SC,

    Is it biting yet?

  87. I went back to school in 2007 and got my title abstract certification. Thats when all Hell Broke Loose …… I choose my daughters title for my final exam. It was bought on short sale after previous owner was fc on. ……………………………………………. It went from hers to ours and so on ……………… Thats when I decided to join my friends and Take a Bite Out of Crime!

  88. After 8yrs of BS from the banks … I made a career change, … I went from teaching Pre-K to closing mortgages and protecting the Innocent Hard working consumers who were victimized and unwittingly still being victimized. If the loan is a “Dirty Birdie” … well.. needless to say they dont get signatures til the consumer has gotton legal advise from their attorney and not some 3rd party broker being used to cover up the Fraud!

  89. We now pay our taxes on our own. But I get a Good Chuckle while looking a BOAs statement that our Escrow is negitive $13,000 plus. Are they paying the taxes to themselves….? They must be because I know my friends at the County sent their payments back to them. hahahaha … they are making it look like they paid the taxes. Do you think they are going for another property tax lien? …… hahahaha. PS …. our P&I payments are going straigt to our Retirement Account … after all they ripped that off to … I’m sure the retirement funds will be replenished by the time the mortgage was paid off anyway. I’m 100% positive our payments are going to the right party ….THE ORIGIONAL FUNDER/ INVESTOR.

  90. When we discovered the title issues from previous “faked CW default” … as ER said…. payments went right to Suspense the second you requested that mod. We requested the Title defects be cured … needless to say BAC was running around like chickens with their heads cut off trying to get a mod or refi from my husband. NOPE! They do not understand the word NO! So their answer was to default the taxes (althou escrowed and current). After that failed they tried to cure the Title Defects like this ….. P&A chicago Law Firm released old Lis Pendens with a robo-doc from P&A. There was no attorneys name to be found anywhere and the signature was unreadable. But what they did at the same time filing that release they filed this …( their Fatal Mistake! )…… Mers transfers the Note and Mortgage together to CW and then to BOA. …… Totally Trashed the Title ….. CW never had title but asserted to the courts years back they held the title and the note. BOA claimed ownership via merger with BACfkaCW. Well BOA does not get what CW never had! The origional lender/broker is still alive and kicking ……… but does not remember who it sold the loan to and does not keep its records past 5 yrs. Its Limbo without Litigation … just riding it out like Enraged. In 30yrs we have had two real estate attorneys … One is now Sheriff and the other is now a Federal Prosecuter. Since there is not litigation … no need for an attorney. Dont Worry …Be Happy!

  91. i have got to hand it to some of you warriors, i know how hard the fighting is, we are all the kind of people that believe in paying our way but i must share what i know to be truth, from a piece by author rose wilder lane and reflecting on evolution into a society in which more and more people demand security- without paying for it through their own risk and effort – she said that human beings are fighters by nature, living is a tough job like it or lump it this planet is no safe place for any living creature, living is fighting for life and when anyone doesnt know this fact, someone else is doing their fighting for him. anyone that says economic security is a human right, has been too much babied. while he babbles, other men are risking their lives to protect him, they are fighting the sea, the land, fighting disease and insects and weather and space and time, for that man whilst whilst he chatters that all men have a right to security and that some pagan god- society, the state, the government, the commune- must give it to them. let the fighting men stop fighting this inhuman earth for one hour, and he will learn how much security there is.
    and that is truth for those who dare to accept it.
    i opened this book at random befor breakfast today.

    taken from an excerpt “restoring the American Dream,
    Robert J. Ringer

  92. @DCB,

    And now, you can understand why I have had absolutely no dilemma filing an appeal on my real estate taxes and why i don’t have a moral problem getting 3 years back of real estate taxes I never paid… (Like everyone, I have MERS and Corelogic all over my file.)


    That thing I sent DCB is a complete presentation by the AG’s office to non-profit foreclosure defense firms. It is not badly done and can help grasp all the issues at hand. Plus it quotes a few, solid cases and you get a better idea of what arguments are making a difference.

    Again, here is the site.,%20Origination%20and%20Foreclosure%20Issues%20%28Jeff%20Loeser%20presentation%29.PDF

  93. DCB,

    I know I have won and they know I have won. But it is in limbo as we4 speak. I want a lot. I want my money back, everything I paid to them for 3 years, I want all the statutory damages, my attorney’s fees and the compensation for the hell they put me through for 4 years plus each year this case stays in suit. By now, we’re talking a couple of millions (and I am NOT kidding!).

    It help to have Cordray in my file. It kind of looks good… Not something they can easily ignore…

  94. Enraged good for you. Keep us posted. In AZ the lenders aren’t required to produce the note. Presentment under the UCC does not apply because the “trustee” sale (not foreclosure) is an action to sell the home pursuant to the DOT, not the note. Even though we know the Deed is supposed to secure the note AZ has determined that the note is not required to sell your home

    Also, AZ has also stated that an assignment of mortgage is not required prior to initiating a trustee sale. So no note required and no assignment required. I don’t make this stuff up. I’m fighting in court but it’s an uphill battle when the burden of proof is on you. Homeowners have to sue to stop the sale and have to hope to get past dismal just to be heard.

    Our due process rights are being violated.

  95. Very interesting info here. I referenced this tila ammendment in a qwr and the response I received stated that it only applied to loans written after the 2009 date. I need to reread the ammend because it looks like it applies retro.

  96. i like that phrase “ran it up the flag pole” here because its flagged , on record and much harm resulted.

  97. , I do not understand why the member appts by Hultman (assuming he is auth’d do make them and that’s a big assumption based on a depo or two of him) as MERS’ straw officers, are not routinely challenged as the illegitimacies they are

    i think a direct assault on the authority of mers employees robosigners to execute unsworn documents could be foiled by them coming up with a POA. The Cuyahoga case or the New York case—–turn on validity of info in affidavits——the people were speaking to records that they were not familiar with–not custodians —-he wanted the deep pocket to make the statements or there is no responsibility no matter who says what–and its now about who is responsible for fraudulent activity–servicer or trustee or both?

  98. there is a clear formula emerging–its the UCC note presentment–the achilles heal if there is any uncertainty about who owns what—without the affidavits how can you defend against a 2nd claimant later–after house gone for example

    Especially you—-they are tossing that in the federal reserve pot of crappy assets right next to mine

  99. @JG
    Re MERS case Cuyahoga cnty ohio—–I think that it is basically a business record exception to heasay thats really going on here—which is helpful to clear up which party’s employees should be asserting—

    very simply MERS must have been fronting for some undisclosed servicer that used mers like a legal puppet—-the mers employees were trying to atest to conclusions not their own business records

    it basically lays out that trustee bank employees must attest to the custody trail of the original note–or do affidavit which is worse as far as demanding factual content. Servicer employees should not be attesting records of the trustee——-

    you want this rom your bank trustee

  100. They lifted my signature and my initials and put them on documents that were not the ones i had in my own folder.

    upon presentment they would have to make affidavits and you would then impeach—with your evidence just described and poof that note is dead—with it the MORT gage which has no meaning without an enforceable note

    you have won

  101. why do you not demand to examine and receive trail of authority

  102. @dcb – very interesting and informative case you cite, including:
    “But MERS, not Central, employees made unsubstantiated statements about the disposition of the note which was presumed to exist;”

    I can’t get to it tonight, but I can’t help thinking on what’s there that it may work out better, could happen, for the homeowner to play along as if “MERS” or a “MERS employee” , as in this quote, actually made statements (and apparently the court wanted them made by Central) and not make what to me is the obvious argument: a “MERS
    employee” didn’t make any statement, or I’ll eat my hat. From the tenor of this material, I believe this judge knows this.
    Surely there can’t be any or at least many courts left in this country which don’t understand how the MERS Club works. And honestly, I do not understand why the member appts by Hultman (assuming he is auth’d do make them and that’s a big assumption based on a depo or two of him) as MERS’ straw officers, are not routinely challenged as the illegitimacies they are. These member straw officers are the only ones stating or executing anything in MERS’ name; they are NOT MERS’ employees. This potentially and more likely probable lethal argument is not being implemented as a matter of rote in foreclosure defense cases and I’m at a loss to understand it. What, if anything, is your take on this? If you have the decision, I’d like to read the whole thing, so please link it if you can so I don’t have to pay for it. thanks

  103. Signing off. Work tomorrow.

  104. And, I forget…

    Originator’s copy (that i requested before filing suit) wasn’t the same as mine, you know the double set homeowner gets upon closing…

    They lifted my signature and my initials and put them on documents that were not the ones i had in my own folder.

    Really sloppy. I guess at the time, they were very careless. plus… They could tell i was a woman and a foreigner. They probably figured i was dumb or something. you know… a woman!

  105. Copy, of course. No, let me rephrase: fax of a shaky copy with the loan number crossed out by hand and replaced by Bank B’s loan number. Sloppy, sloppy, sloppy! You’d think that they would play a little better when dealing with federal court…

  106. have they presented the note? or just a copy

  107. Nope. Originator was the payee and originator immediately assigned/transferred to a servicer (let’s call it Bank A) upon closing. I paid Bank A for one year, until Bank A informed me by letter that Bank B was taking over.

    Bank B is the one i went after, after Bank B lost my payments twice, refused to modify me because I wasn’t in default (after having placed me in default for missed payments I had made. I had to get Cordray involved at the time and Bank B miraculously “found” my payments after having gorged itself with late fees and such that it never wrote off, even though i had never missed one payment. So, even after Cordray’s intervention, I was still over $1500 in arrears). I tried for a mod 3 times and each time, I got the same run around: you need to be 60 days behind to be considered.

    And then, there was the little matter of “suspense account” where my payments would go and they wouldn’t get credited to my account.

    Finally, after trying a few things that didn’t work, I ended up throwing the towel on any kind of negotiations. I sued and then, I quit paying. That was 3 years ago. It’s one of those Fannie things. Best decision i ever made.

  108. is servicer the payee on the note? what establishes servicer authority?

  109. OK

    meantime heres something next door—-i wonder how one can sell multiple votes —

    Salyers says vote buying has been so blatant that, “you used to be able to go behind the voting machine with voters, to make sure that if you bought their vote, that they would vote the way you wanted to.” But the laws were strengthened, and now vote buyers have to trust that the people they pay to cast their ballots vote as they say they will.

    Read more:

  110. DCB,

    Doesn’t matter. The key is that no one can file for foreclosure unless he can prove to be the mortgagee (origination, transfer, assignment, makes no difference) at the time of the filing!

    That, my friend, explains why my servicer hasn’t countered in foreclosure and why my case has been in limbo for almost a year: there is no recordation but, better, yet, there is no assignment and no transfer. in fact, all servicer has been able to provide is the old note, not transferred, not assigned but on which servicer simply crossed by hand the previous loan number and replaced it with his. Servicer is in no position to counter.

    And that would also explain why fighting in court in Ohio is so important: they better have their paperwork in order!

    Steal away: it is no mine and i didn’t write it. I think it’s pretty well documented. That should tie you over for a little bit.

  111. @ER

    Thanks —im stealing from it —but there is something funny stated here–this guy must be from Capital not OSU

    “1st District: Wells Fargo v. Byrd, 2008-Ohio- 4603; Holding: “We hold that, in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage.” No indication of how ownership of the note is viewed.”

    This is the head of the state consumer protection? And he does not equate ownership of note to entitlement to mortgage–in ohio the mortgage follows the note–as most places–implicitly the note must have moved and be susceptible of an offer of proof by affidavit

  112. Was there one re largest jt venture owner to apply for something–or represent the notes held by a failed trust pool? something like the largest ?????? if i had the source i lost it–it would be very helpful to explain the need for sworn staements where such issues are in doubt

    i guess the purported trustee could get a POA from largest investor–how can the employee of trust bank provide any conclusion re existence of trust per se—-ie do we have to go directly for POA from largest interest owner in pool?

  113. DCB,

    You owe me. You owe me BIG! It’s gonna cost you a lunch (as soon as I’ve won my case. Can’t take a chance until then).

    Take a look at this!,%20Origination%20and%20Foreclosure%20Issues%20%28Jeff%20Loeser%20presentation%29.PDF

  114. Any comments anyone?
    Compliance Steps Requested to Prove Elements of Note per UCC:
    On authority of cases such as: CENTRAL MORTGAGE COMPANY v MCCLELLAND, New York State Supreme Court dealing with routine proof of note issues common to this case;
    “This court recognizes the authority of Quicken Loans to physically transfer the mortgage and note to the plaintiff…”

    But MERS, not Central, employees made unsubstantiated statements about the disposition of the note which was presumed to exist;

    “Furthermore, Ms. Swayze’s affidavit makes no reference as to how MERS obtained the physical note, nor does she reference when, if ever, Quicken Loans granted MERS any authority of the note it held in connection with the mortgage on 230 Natick Street, Staten Island, New York in order to effectuate the purported physical transfer of the mortgage and note. [bracketed items added]

    The foreclosing party must prove not only proper possession and ownership of the Note and the rights under it, but also intent of delivery, manner of delivery, and actual delivery of the mortgage instrument under Article 9 of the UCC. See In Re Veal case from the 9th Circuit Bankruptcy Appellate Panel, see also Dec 7, 2011 … In the Cuyahoga County, Ohio case (Huntington National Bank v. Brown, Case No. CV-09-702894

    Compliance with affidavit disclosure of chain of title to notes should prove to be no challenge to servicer-trustee if the allegations in foreclosure are subject to verification by sworn statement of authenticity generally and in the indorsement.
    The transfers asserted by PSA involve delivery of mortgage loan files including original “notes” with originator-indorsed claimed negotiation in bearer form to depositor-affiliate thence at a later date to the trustee by bearer-inserted special indorsement to trust. Delivery to trustee should have occurred in 2005, and remained with the trust. It should not be difficult for trustee employees to verify with transactional specificity, by affidavit, the very short trail from receipt into the trust through and to include proof of the current delegation of authority to enforce the note by presenting it to maker attesting dishonor thereof. It should be simple to research and state the account, and the custody trail of the mortgage file and note.

    It is today common practice as evidenced by TILA disclosure rules adopted in 2009. 12 CFR Part 226[Regulation Z; Docket No. R–1378] effective November 20, 2009.TILA regulation “…The purchaser or assignee that acquires the loan must provide the required disclosures in writing no later than 30days after the date on which the loan is sold or otherwise transferred or assigned…” It should not be unduly burdensome to apply the rule retroactively where the facts place the note presumptions in question.

    The formulaic proof of note in Central also offers a guide as to acceptable compliance and requires affidavits stating authority and validity of the chains of ownership and physical custody. These affidavits must be of the named trustee bank employees—of BNY GLOBAL TRUST Division. These employees who have previously spoken and posted emails to Breidenbach’s agent on the subject matter of the note balance and status. A sworn statement is in order to give weight to the verbal assertions to assure veracity and proper account investigation.

  115. Billionaires Dumping Stocks, Economist Knows Why

    Sunday, 23 Sep 2012 10:53 PM

    By Newsmax Wires

    Despite the 6.5% stock market rally over the last three months, a handful of billionaires are quietly dumping their American stocks . . . and fast.

    Warren Buffett, who has been a cheerleader for U.S. stocks for quite some time, is dumping shares at an alarming rate. He recently complained of “disappointing performance” in dyed-in-the-wool American companies like Johnson & Johnson, Procter & Gamble, and Kraft Foods.

    In the latest filing for Buffett’s holding company Berkshire Hathaway, Buffett has been drastically reducing his exposure to stocks that depend on consumer purchasing habits. Berkshire sold roughly 19 million shares of Johnson & Johnson, and reduced his overall stake in “consumer product stocks” by 21%. Berkshire Hathaway also sold its entire stake in California-based computer parts supplier Intel.

    With 70% of the U.S. economy dependent on consumer spending, Buffett’s apparent lack of faith in these companies’ future prospects is worrisome.

    Unfortunately Buffett isn’t alone.

    Fellow billionaire John Paulson, who made a fortune betting on the subprime mortgage meltdown, is clearing out of U.S. stocks too. During the second quarter of the year, Paulson’s hedge fund, Paulson & Co., dumped 14 million shares of JPMorgan Chase. The fund also dumped its entire position in discount retailer Family Dollar and consumer-goods maker Sara Lee.

    Finally, billionaire George Soros recently sold nearly all of his bank stocks, including shares of JPMorgan Chase, Citigroup, and Goldman Sachs. Between the three banks, Soros sold more than a million shares.

    So why are these billionaires dumping their shares of U.S. companies?

    Read the article if you want to know. I’ve been posting different things about it for a few weeks. The kind of news I consider relevant and meaningful. You might want to think about taking your money out.

  116. @CARIE
    All possession arguments must be tossed out the window

    Why possession as in art 3—they have to prove possession if you demand presentent–thats why you do it

  117. Need to cite exactly– let me know if you need.

    yes ill set up as a request for judicial notice to force evidentiary argument —–please if you have it i intend to use it heavily



    “First of all, servicer is concealing/protecting debt buyer “investor.” It is the Federal Reserve Opinion to the TILA Amendment (now Rule), which addresses multiple creditors and more (this is FINAL even though it reverts back to the date it was sent to Fed Res. Need to cite exactly– let me know if you need. Never accept the term “Lender” from Courts. We are interested in the CURRENT CREDITOR, not the former Lender (and former LENDER is deeply flawed as there was no lending on transfer of collection rights — which is what subprime lending was about.) Problem is that concealed debt buyer investor comes into courts under the guise of the REMIC (phony) trusts. Thus, we need to go that Trust, and the Federal Reserve Opinion, to attack the CURRENT CREDITOR standing.

    There is NO valid Mortgage/Note in these subprime refinances. The original mortgagee remains the same (until they dispose of collection rights — which they do not disclose to the borrower). No valid Mortgage/Note BECAUSE the prior NOTE is NOT paid off, and the prior MORTGAGE is not validly discharged. All possession arguments must be tossed out the window. But, you must be able to have some evidence to show this in court. Courts rely on the attorneys presenting their case for foreclosure. This is false reliance, and they rarely give an opportunity for discovery. Courts want PROOF. It is there, need to trace it, get it, and show the court.

    It is the concealed debt buyer investors that we are battling. This is why I am so angry at Neil. He too, has betrayed. He is well aware of this.”


    “Here is what we are discovering. Those “refinances” can be traced back to Freddie/Fannie charge-offs — where collection rights were sold, and purchased by stated Mortgagee and/or Servicer — with insurance funds. Those refinances are NOT secured loans. They are only reaffirmation of the debt collection rights. I am even finding this in PURCHASE of home — whereby the new purchaser took on the default debt (false or otherwise) of the prior owner (without knowing that this was the case!). We are finding that this is HUGE. No one is discussing because no one is aware. Freddie/Fannie have all records, but REFUSE to divulge. This is why we are all dealing with debt buyers. With each refinance, only servicing to the collection rights changed. However, refinances were PRESENTED as a valid mortgage refinance, which it was NOT. The actual debt buyer, for whom the servicer services — is undisclosed.

    Why BK is important, is to show that the debt is unsecured. Nothing more than credit card charge-offs, which can be discharged in BK.
    What you are challenging in BK is the status of the “debt” — secured v unsecured. In addition, there are actions for fraud in the origination of the false refinance. This is not discovered until the COMPLETE money trail is traced — including all charge-offs, insurance collected, and that pay of all REFINANCES, were fraudulent. No money in any refinance ever reached the prior party. This is what happens in debt collection. Only servicing of collection rights changes. Once people get this, the consequence is BIG.”

  119. U.S. BANK appeared as the trust for some Remic 2010-2012 series…after the foreclosure was filed and way after the 2006 closing.

  120. “Thousands of mortgages… on homes that have more than one “first” mortgage are now going to the Fed to disappear. ”

    Anybody who thinks they will not pursue if they can is very confidant in a benevolent banking system—–Ben Bailey Bernanke—-I think not.

    If there is anything there to be taken from an obligor on a note they can actually prove—it will be seized or the obligor sent to bankruptcy

    The fed $$ are going to trigger a feeding frenzy–I guess thats what the article comes down to—–

  121. Tadaaaaaaaaaaaaaah! Indeed, it’s called mort (death) gage (pledge).

    QE3 – Pay Attention If You Are in the Real Estate Market

    Leave a Comment
    Thursday, September 20, 2012 – by Catherine Austin Fitts

    Via The Daily Bell

    Catherine Austin Fitts

    I used to have a deputy who said that the FHA mortgage insurance funds were where mortgages went to die. That was, however, before the creation of MERS, derivatives and the explosion of mortgage fraud during the 1990′s which in combination with the “strong dollar policy” engineered what I have referred to as a financial coup d’etat.

    The challenge for Ben Bernanke and the Fed governors since the 2008 bailouts has been how to deal with the backlog of fraud – not just fraudulent mortgages and fraudulent mortgage securities but the derivatives piled on top and the politics of who owns them, such as sovereign nations with nuclear arsenals, and how they feel about taking massive losses on AAA paper purchased in good faith.

    On one hand, you could let them all default. The problem is the criminal liabilities would drive the global and national leadership into factionalism that could turn violent, not to mention what such defaults would do to liquidity in the financial system. Then there is the fact that a great deal of the fraudulent paper has been purchased by pension funds. So the mark down would hit the retirement savings of the people who have now also lost their homes or equity in their homes. The politics of this in an election year are terrifying for the Administration to contemplate.

    Various court squabbles over the MERS system for registering mortgages are also nipping at the Fed and Treasury heels. It is hard to win a presidential election in 3100 counties when multiple federal agencies are in the local courts trying to foreclose on half the county while supporting arguments that a national registration system is free to violate local property laws with impunity.

    Why should the sheriff respect your rights if you take the position that the county has no rights and local property laws are meaningless? In fact, the Sheriff does not have sufficient staff time to process foreclosures and protect the local citizenry from the growing crime that results from hard times. The Sheriff is also running for election and the people who vote for him or her comprise a much larger group than the handful of local professionals on the big banks payroll, including those processing foreclosures for FHA, VA, Farmers Home and Fannie and Freddie.

    So, it looks like the Fed decision last week to buy $40 billion a month in mortgage paper is the ultimate plan to clear the market once and for all of fraudulent mortgages, mortgage backed securities and related derivatives. This means Fannie and Freddie will be bailed out and winding down through the back door. This means the big banks may be paid in full for your mortgage. It also means your pension fund assets will not be marked to market – at the price of debasing the purchasing power of your assets and benefits.

    The Fed is now where mortgages go to die. Thousands of mortgages on homes that do not exist or on homes that have more than one “first” mortgage are now going to the Fed to disappear. Thousands of multifamily and commercial mortgages will be bought up as well. As this happens, trillions of dollars that have been amassed offshore will be free to come back into the US to buy up and reposition land, farmland, residential and commercial real estate and other tangibles.

    With documents shredded, criminal liabilities extinguished and financial institutions made whole, funds can return without fear of seizure.

    QE3 proves beyond any shadow of a doubt that the extent of the fraud was as bad as I said it was. You can count up the bailouts and QE1, QE2, QE3 the numbers speak for themselves. The fraud was indeed in the many trillions of dollars. It was intentional. It was a plan.

    Now, the $64,000 question for those whose house is underwater or whose mortgage is in default is whether or not you still owe on your mortgage. Certainly, you still do as a legal matter. If the bank has been paid off, arguably in some cases several times, why not you? Let’s see if Fannie, Freddie and the big banks are under orders to quietly pass through a portion of their largesse to troubled homeowners in amounts sufficient to unfreeze the market. If you are in a workout situation, you need to take notice. If enough mortgage write-offs flow through, the Democrats will quickly amass a lock on the elections in November.

    If you are in the market to buy a home or other real estate, you also need to pay attention – a major turn is now underway. Watch to see how much the banks pass through to homeowners and property owners to see how fast and big the turn may be. Watch to see the inflow of funds from offshore. This is not only funds returning but investors around the world looking to exchange their dollars for tangible assets to protect themselves from debasement of the dollar denominated deposits and securities they hold. Watch to see what the renegotiation of federal tax policy and the reengineering of the federal budget in response to the “fiscal cliff” do to reposition housing and real estate prices and cost of financing for an inflow looking for large accumulations.

    Finally, the way the Fed has engineered the Slow Burn to date is to continually offset monetary inflation with labor deflation. It is worth contemplating how much labor deflation will be required to offset QE3 and how sufficient additional labor deflation might be engineered. Ben Bernanke was quite clever to tie QE3 to unemployment. The problem has become the solution, which is the basis for QE-Infinity.

  122. They are appearing for the holders of certificates as a GROUP, not the trust, because there is no trust.

    So collecting as a servicer? as agent for a joint venture–do they show agency status POA for the largest holder in the JV ?

  123. US Bank NA acquired ENDORSEMENT (Lender Policy) approving as a DE LENDER and/or DE HCEM & took unfair seizure of Katherine’s property for she is co-beneficiary and you allowed Aurora Loan Services LLC INVESTOR ….
    You say you don’t understand … business information … but you understand private real estate attorney investor business –

  124. Trust accounts are the credit and debit accounts of the depository institutions. The ISSUER label has nothing to do with a trust. Will you sell to consumer’s General Debt Buyer Chain of Title Reports? Will you reveal US Bank NA is a DE Lender and a DE HCEM and what that means? to private real estate investors like yourself?

  125. Yes Neil … I’ve noticed that here locally. Very Clever..

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