New Mexico Supreme Court Wipes Out Bank of New York


There are a lot of things that could be analyzed in this case that was very recently decided (February 13, 2014). The main take away is that the New Mexico Supreme Court is demonstrating that the judicial system is turning a corner in approaching the credibility of the intermediaries who are pretending to be real parties in interest. I suggest that this case be studied carefully because their reasoning is extremely good and their wording is clear. Here are some of the salient quotes that I think it be used in motions and pleadings:

We hold that the Bank of New York did not establish its lawful standing in this case to file a home mortgage foreclosure action. We also hold that a borrower’s ability to repay a home mortgage loan is one of the “borrower’s circumstances” that lenders and courts must consider in determining compliance with the New Mexico Home Loan Protection Act, NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended through 2009) (the HLPA), which prohibits home mortgage refinancing that does not provide a reasonable, tangible net benefit to the borrower. Finally, we hold that the HLPA is not preempted by federal law. We reverse the Court of Appeals and district court and remand to the district court with instructions to vacate its foreclosure judgment and to dismiss the Bank of New York’s foreclosure action for lack of standing.

The Romeros soon became delinquent on their increased loan payments. On April 1, 2008, a third party—the Bank of New York, identifying itself as a trustee for Popular Financial Services Mortgage—filed a complaint in the First Judicial District Court seeking foreclosure on the Romeros’ home and claiming to be the holder of the Romeros’ note and mortgage with the right of enforcement.

The Romeros also raised several counterclaims, only one of which is relevant to this appeal: that the loan violated the antiflipping provisions of the New Mexico HLPA, Section 58-21A-4(B) (2003).[They were lured into refinancing into a loan with worse provisions than the one they had].

Litton Loan Servicing did not begin servicing the Romeros’ loan until November 1, 2008, seven months after the foreclosure complaint was filed in district court.

At a bench trial, Kevin Flannigan, a senior litigation processor for Litton Loan Servicing, testified on behalf of the Bank of New York. Flannigan asserted that the copies of the note and mortgage admitted as trial evidence by the Bank of New York were copies of the originals and also testified that the Bank of New York had physical possession of both the note and mortgage at the time it filed the foreclosure complaint.

{9} The Romeros objected to Flannigan’s testimony, arguing that he lacked personal knowledge to make these claims given that Litton Loan Servicing was not a servicer for the Bank of New York until after the foreclosure complaint was filed and the MERS assignment occurred. The district court allowed the testimony based on the business records exception because Flannigan was the present custodian of records.

{10} The Romeros also pointed out that the copy of the “original” note Flannigan purportedly authenticated was different from the “original” note attached to the Bank of New York’s foreclosure complaint. While the note attached to the complaint as a true copy was not indorsed, the “original” admitted at trial was indorsed twice: first, with a blank indorsement by Equity One and second, with a special indorsement made payable to JPMorgan Chase.

the Court of Appeals affirmed the district court’s rulings that the Bank of New York had standing to foreclose and that the HLPA had not been violated but determined as a result of the latter ruling that it was not necessary to address whether federal law preempted the HLPA. See Bank of N.Y. v. Romero, 2011-NMCA-110, ¶ 6, 150 N.M. 769, 266 P.3d 638 (“Because we conclude that substantial evidence exists for each of the district court’s findings and conclusions, and we affirm on those grounds, we do not addressthe Romeros’ preemption argument.”).

We have recognized that “the lack of [standing] is a potential jurisdictional defect which ‘may not be waived and may be raised at any stage of the proceedings, even sua sponte by the appellate court.’” Gunaji v. Macias, 2001-NMSC-028, ¶ 20, 130 N.M. 734, 31 P.3d 1008 (citation omitted). While we disagree that the Romeros waived their standing claim, because their challenge has been and remains largely based on the note’s indorsement to JPMorgan Chase, whether the Romeros failed to fully develop their standing argument before the Court of Appeals is immaterial. This Court may reach the issue of standing based on prudential concerns. See New Energy Economy, Inc. v. Shoobridge, 2010-NMSC-049, ¶ 16, 149 N.M. 42, 243 P.3d 746 (“Indeed, ‘prudential rules’ of judicial self-governance, like standing, ripeness, and mootness, are ‘founded in concern about the proper—and properly limited—role of courts in a democratic society’ and are always relevant concerns.” (citation omitted)). Accordingly, we address the merits of the standing challenge.[e.s.]

the Romeros argue that none of the Bank’s evidence demonstrates standing because (1) possession alone is insufficient, (2) the “original” note introduced by the Bank of New York at trial with the two undated indorsements includes a special indorsement to JPMorgan Chase, which cannot be ignored in favor of the blank indorsement, (3) the June 25, 2008, assignment letter from MERS occurred after the Bank of New York filed its complaint, and as a mere assignment

of the mortgage does not act as a lawful transfer of the note, and (4) the statements by Ann Kelley and Kevin Flannigan are inadmissible because both lack personal knowledge given that Litton Loan Servicing did not begin servicing loans for the Bank of New York until seven months after the foreclosure complaint was filed and after the purported transfer of the loan occurred. 

(“[S]tanding is to be determined as of the commencement of suit.”); accord 55 Am. Jur. 2d Mortgages § 584 (2009) (“A plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest.”). One reason for such a requirement is simple: “One who is not a party to a contract cannot maintain a suit upon it. If [the entity] was a successor in interest to a party on the [contract], it was incumbent upon it to prove this to the court.” L.R. Prop. Mgmt., Inc. v. Grebe, 1981-NMSC-035, ¶ 7, 96 N.M. 22, 627 P.2d 864 (citation omitted). The Bank of New York had the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action. See Gonzales v. Tama, 1988-NMSC- 016, ¶ 7, 106 N.M. 737, 749 P.2d 1116


(“One who holds a note secured by a mortgage has two separate and independent remedies, which he may pursue successively or concurrently; one is on the note against the person and property of the debtor, and the other is by foreclosure to enforce the mortgage lien upon his real estate.” (internal quotation marks and citation omitted)).

3. None of the Bank’s Evidence Demonstrates Standing to Foreclose

{19} The Bank of New York argues that in order to demonstrate standing, it was required to prove that before it filed suit, it either (1) had physical possession of the Romeros’ note indorsed to it or indorsed in blank or (2) received the note with the right to enforcement, as required by the UCC. See § 55-3-301 (defining “[p]erson entitled to enforce” a negotiable instrument). While we agree with the Bank that our state’s UCC governs how a party becomes legally entitled to enforce a negotiable instrument such as the note for a home loan, we disagree that the Bank put forth such evidence.

a. Possession of a Note Specially Indorsed to JPMorgan Chase Does Not Establish the Bank of New York as a Holder

{20} Section 55-3-301 of the UCC provides three ways in which a third party can enforce a negotiable instrument such as a note. Id. (“‘Person entitled to enforce’ an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the [lost, destroyed, stolen, or mistakenly transferred] instrument pursuant to [certain UCC enforcement provisions].”); see also § 55-3-104(a)(1), (b), (e) (defining “negotiable instrument” as including a “note” made “payable to bearer or to order”). Because the Bank’s arguments rest on the fact that it was in physical possession of the Romeros’ note, we need to consider only the first two categories of eligibility to enforce under Section 55-3-301.

{21} The UCC defines the first type of “person entitled to enforce” a note—the “holder” of the instrument—as “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” NMSA 1978, § 55-1-201(b)(21)(A) (2005); see also Frederick M. Hart & William F. Willier, Negotiable Instruments Under the Uniform Commercial Code, § 12.02(1) at 12-13 to 12-15 (2012) (“The first requirement of being a holder is possession of the instrument. However, possession is not necessarily sufficient to make one a holder. . . . The payee is always a holder if the payee has possession. Whether other persons qualify as a holder depends upon whether the instrument initially is payable to order or payable to bearer, and whether the instrument has been indorsed.” (footnotes omitted)). Accordingly, a third party must prove both physical possession and the right to enforcement through either a proper indorsement or a transfer by negotiation. See NMSA 1978, § 55-3-201(a) (1992) (“‘Negotiation’ means a transfer of possession . . . of an instrument by a person other than the issuer to a person who thereby becomes its holder.”). [E.S.] Because in this case the Romeros’ note was clearly made payable to the order of Equity One, we must determine whether the Bank provided sufficient evidence of how it became a “holder” by either an indorsement or transfer.

Without explanation, the note introduced at trial differed significantly from the original note attached to the foreclosure complaint, despite testimony at trial that the Bank of New York had physical possession of the Romeros’ note from the time the foreclosure complaint was filed on April 1, 2008. Neither the unindorsed note nor the twice-indorsed


note establishes the Bank as a holder.

{23} Possession of an unindorsed note made payable to a third party does not establish the right of enforcement, just as finding a lost check made payable to a particular party does not allow the finder to cash it. [E.S.]See NMSA 1978, § 55-3-109 cmt. 1 (1992) (“An instrument that is payable to an identified person cannot be negotiated without the indorsement of the identified person.”). The Bank’s possession of the Romeros’ unindorsed note made payable to Equity One does not establish the Bank’s entitlement to enforcement.

We are not persuaded. The Bank provides no authority and we know of none that exists to support its argument that the payment restrictions created by a special indorsement can be ignored contrary to our long-held rules on indorsements and the rights they create. See, e.g., id. (rejecting each of two entities as a holder because a note lacked the requisite indorsement following a special indorsement); accord NMSA 1978, § 55-3-204(c) (1992) (“For the purpose of determining whether the transferee of an instrument is a holder, an indorsement that transfers a security interest in the instrument is effective as an unqualified indorsement of the instrument.”).


the Bank of New York relies on the testimony of Kevin Flannigan, an employee of Litton Loan Servicing who maintained that his review of loan servicing records indicated that the Bank of New York was the transferee of the note. The Romeros objected to Flannigan’s testimony at trial, an objection that the district court overruled under the business records exception. We agree with the Romeros that Flannigan’s testimony was inadmissible and does not establish a proper transfer.

Litton Loan Servicing, did not begin working for the Bank of New York as its servicing agent until November 1, 2008—seven months after the April 1, 2008, foreclosure complaint was filed. Prior to this date, Popular Mortgage Servicing, Inc. serviced the Bank of New York’s loans. Flannigan had no personal knowledge to support his testimony that transfer of the Romeros’ note to the Bank of New York prior to the filing of the foreclosure complaint was proper because Flannigan did not yet work for the Bank of New York. See Rule 11-602 NMRA (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the


witness has personal knowledge of the matter. [E.S.] Evidence to prove personal knowledge may consist of the witness’s own testimony.”). We make a similar conclusion about the affidavit of Ann Kelley, who also testified about the status of the Romeros’ loan based on her work for Litton Loan Servicing. As with Flannigan’s testimony, such statements by Kelley were inadmissible because they lacked personal knowledge.


When pressed about Flannigan’s basis of knowledge on cross-examination, Flannigan merely stated that “our records do indicate” the Bank of New York as the holder of the note based on “a pooling and servicing agreement.” No such business record itself was offered or admitted as a business records hearsay exception. See Rule 11-803(F) NMRA (2007) (naming this category of hearsay exceptions as “records of regularly conducted activity”).

The district court erred in admitting the testimony of Flannigan as a custodian of records under the exception to the inadmissibility of hearsay for “business records” that are made in the regular course of business and are generally admissible at trial under certain conditions. See Rule 11-803(F) (2007) (citing the version of the rule in effect at the time of trial). The business records exception allows the records themselves to be admissible but not simply statements about the purported contents of the records. [E.S.] See State v. Cofer, 2011-NMCA-085, ¶ 17, 150 N.M. 483, 261 P.3d 1115 (holding that, based on the plain language of Rule 11-803(F) (2007), “it is clear that the business records exception requires some form of document that satisfies the rule’s foundational elements to be offered and admitted into evidence and that testimony alone does not qualify under this exception to the hearsay rule” and concluding that “‘testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay.’” (citation omitted)). Neither Flannigan’s testimony nor Kelley’s affidavit can substantiate the existence of documents evidencing a transfer if those documents are not entered into evidence. Accordingly, Flannigan’s trial testimony cannot establish that the Romeros’ note was transferred to the Bank of New York.[E.S.]


We also reject the Bank’s argument that it can enforce the Romeros’ note because it was assigned the mortgage by MERS. An assignment of a mortgage vests only those rights to the mortgage that were vested in the assigning entity and nothing more. See § 55-3-203(b) (“Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course.”); accord Hart & Willier, supra, § 12.03(2) at 12-27 (“Th[is] shelter rule puts the transferee in the shoes of the transferor.”).


As a nominee for Equity One on the mortgage contract, MERS could assign the mortgage but lacked any authority to assign the Romeros’ note. Although this Court has never explicitly ruled on the issue of whether the assignment of a mortgage could carry with it the transfer of a note, we have long recognized the separate functions that note and mortgage contracts perform in foreclosure actions. See First Nat’l Bank of Belen v. Luce, 1974-NMSC-098, ¶ 8, 87 N.M. 94, 529 P.2d 760 (holding that because the assignment of a mortgage to a bank did not convey an interest in the loan contract, the bank was not entitled to foreclose on the mortgage); Simson v. Bilderbeck, Inc., 1966-NMSC-170, ¶¶ 13-14, 76 N.M. 667, 417 P.2d 803 (explaining that “[t]he right of the assignee to enforce the mortgage is dependent upon his right to enforce the note” and noting that “[b]oth the note and mortgage were assigned to plaintiff.


(“A mortgage securing the repayment of a promissory note follows the note, and thus, only the rightful owner of the note has the right to enforce the mortgage.”); Dunaway, supra, § 24:18 (“The mortgage only secures the payment of the debt, has no life independent of the debt, and cannot be separately transferred. If the intent of the lender is to transfer only the security interest (the mortgage), this cannot legally be done and the transfer of the mortgage without the debt would be a nullity.”). These separate contractual functions—where the note is the loan and the mortgage is a pledged security for that loan—cannot be ignored simply by the advent of modern technology and the MERS electronic mortgage registry system.


Failure of Another Entity to Claim Ownership of the Romeros’ Note Does Not Make the Bank of New York a Holder

{37} Finally, the Bank of New York urges this Court to adopt the district court’s inference that if the Bank was not the proper holder of the Romeros’ note, then third-party-defendant Equity One would have claimed to be the rightful holder, and Equity One made no such claim.


{38} The simple fact that Equity One does not claim ownership of the Romeros’ note does not establish that the note was properly transferred to the Bank of New York. In fact, the evidence in the record indicates that JPMorgan Chase may be the lawful holder of the Romeros’ note, as reflected in the note’s special indorsement.


Because the transferee is not a holder, there is no presumption under Section [55-]3-308 [(1992) (entitling a holder in due course to payment by production and upon signature)] that the transferee, by producing the instrument, is entitled to payment. The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it.


B. A Lender Must Consider a Borrower’s Ability to Repay a Home Mortgage Loan in Determining Whether the Loan Provides a Reasonable, Tangible Net Benefit, as Required by the New Mexico HLPA

{39} For reasons that are not clear in the record, the Romeros did not appeal the district court’s judgment in favor of the original lender, Equity One, on the Romeros’ claims that Equity One violated the HLPA. The Court of Appeals addressed the HLPA violation issue in the context of the Romeros’ contentions that the alleged violation constituted a defense to the foreclosure complaint of the Bank of New York by affirming the district court’s favorable ruling on the Bank of New York’s complaint. As a result of our holding that the Bank of New York has not established standing to bring a foreclosure action, the issue of HLPA violation is now moot in this case. But because it is an issue that is likely to be addressed again in future attempts by whichever institution may be able to establish standing to foreclose on the Romero home and because it involves a statutory interpretation issue of substantial public importance in many other cases, we address the conclusion of both the


Court of Appeals and the district court that a homeowner’s inability to repay is not among “all of the circumstances” that the 2003 HLPA, applicable to the Romeros’ loan, requires a lender to consider under its “flipping” provisions:

No creditor shall knowingly and intentionally engage in the unfair act or practice of flipping a home loan. As used in this subsection, “flipping a home loan” means the making of a home loan to a borrower that refinances an existing home loan when the new loan does not have reasonable, tangible net benefit to the borrower considering all of the circumstances, including the terms of both the new and refinanced loans, the cost of the new loan and the borrower’s circumstances.

Section 58-21A-4(B) (2003); see also Bank of N.Y., 2011-NMCA-110, ¶ 17 (holding that “while the ability to repay a loan is an important consideration when otherwise assessing a borrower’s financial situation, we will not read such meaning into the statute’s ‘reasonable, tangible net benefit’ language”).


We have been presented with no conceivable reason why the Legislature in 2003 would consciously exclude consideration of a borrower’s ability to repay the loan as a factor of the borrower’s circumstances, and we can think of none. Without an express legislative direction to that effect, we will not conclude that the Legislature meant to approve mortgage loans that were doomed to end in failure and foreclosure. Apart from the plain language of the statute and its express statutory purpose, it is difficult to comprehend how an unrepayable home mortgage loan that will result in a foreclosure on one’s home and a deficiency judgment to pay after the borrower is rendered homeless could provide “a reasonable, tangible net benefit to the borrower.”

[LENDER’S OBLIGATION TO MAKE SURE IT IS A VIABLE TRANSACTION] a lender cannot avoid its own obligation to consider real facts and circumstances [E.S.] that might clarify the inaccuracy of a borrower’s income claim. Id. (“Lenders cannot, however, disregard known facts and circumstances that may place in question the accuracy of information contained in the application.”) A lender’s willful blindness to its responsibility to consider the true circumstances of its borrowers is unacceptable. A full and fair consideration of those circumstances might well show that a new mortgage loan would put a borrower into a materially worse situation with respect to the ability to make home loan payments and avoid foreclosure, consequences of a borrower’s circumstances that cannot be disregarded.

if the inclusion of such boilerplate language in the mass of documents a borrower must sign at closing would substitute for a lender’s conscientious compliance with the obligations imposed by the HLPA, its protections would be no more than empty words on paper that could be summarily swept aside by the addition of yet one more document for the borrower to sign at the closing.


Borrowers are certainly not blameless if they try to refinance their homes through loans they cannot afford. But they do not have a mortgage lender’s expertise, and the combination of the relative unsophistication of many borrowers and the potential motives of unscrupulous lenders seeking profits from making loans without regard for the consequences to homeowners led to the need for statutory reform. See § 58-21A-2 (discussing (A) “abusive mortgage lending” practices, including (B) “making . . . loans that are equity-based, rather than income based,” (C) “repeatedly refinanc[ing] home loans,” rewarding lenders with “immediate income” from “points and fees” and (D) victimizing homeowners with the unnecessary “costs and terms” of “overreaching creditors”).



While the Bank is correct in asserting that the OCC issued a blanket rule in January 2004, see 12 C.F.R. § 34.4(a) (2004) (preempting state laws that impact “a national bank’s ability to fully exercise its Federally authorized real estate lending powers”), and that the New Mexico Administrative Code recognizes this OCC rule, neither the Bank nor our administrative code addresses several actions taken by Congress and the courts since 2004 to disavow the OCC’s broad preemption statement.


Applying the Dodd-Frank standard to the HLPA, we conclude that federal law does not preempt the HLPA. First, our review of the NBA reveals no express preemption of state consumer protection laws such as the HLPA. Second, the Bank provides no evidence that conforming to the dictates of the HLPA prevents or significantly interferes with a national bank’s operations. Third, the HLPA does not create a discriminatory effect; rather, the HLPA applies to any “creditor,” which the 2003 statute defines as “a person who regularly [offers or] makes a home loan.” Section 58-21A-3(G) (2003). Any entity that makes home loans in New Mexico must follow the HLPA, regardless of whether the lender is a state or nationally chartered bank. See § 58-21A-2 (providing legislative findings on abusive mortgage lending practices that the HLPA is meant to discourage).

50 Responses

  1. Certified Documents: Question? When I put together a Qualified Written Request (QWR) and I request Certified Copies of a Deed of Trust and the Note, they are suppose to send me certified copies. How can I ensure that they are copies of the original documents since they are suppose to have the original documents? What prevents them from getting a notary in their office to falsify documents? How can I ensure that they have the original documents?

  2. @ Trespass Unwanted ,

    +100 for the Randian reference you snuck in … that’s my favorite because it’s so clear… but it is properly “A is A”… aka “the law of identity”.

  3. Breaking News for Charles Reed (and ALL)

    BY: Daniel Wiser
    February 18, 2014 5:55 pm

    A recently revealed memo from the Treasury Department indicates that owners of Fannie Mae and Freddie Mac common stock will not be able to access any future earnings from the mortgage giants, a previously undisclosed arrangement that experts say might violate securities laws and amount to a de facto nationalization of the companies.

    Fannie Mae and Freddie Mac, known as government-sponsored enterprises (GSEs), were sharply criticized by many for their role in the 2008 financial crisis as packagers of mortgage-backed securities that went underwater. Treasury bailed out the mortgage companies with a total of $189.5 billion in taxpayer funds.

    Some investors flocked to the companies’ troubled shares in hopes that a housing recovery would be imminent. That is exactly what happened—Fannie and Freddie began earning billions in mid-2012 and have repaid $185 billion to the Treasury.

    However, a 2010 Treasury memo addressed to then-Secretary Timothy Geithner mentioned “the administration’s commitment to ensure existing common equity holders will not have access to any positive earnings from the GSEs in the future.”

    The memo, produced in a lawsuit filed by Fannie and Freddie shareholders, was first discussed earlier this month at a Washington, D.C., forum hosted by a shareholder advocacy group.

  4. I find it rather ironic that Kevin Flannigan is the expert witness on this case as he just gave a deposition on my case against Ocwen/HSBC where he gives expert witness testimony as the person most knowledgeable of the facts surrounding the unlawful foreclosure by these two criminal banking entities. How can he be a witness for so many of these companies. Better question is how are judges letting his testimony stand?!!!!!
    In the depo he states there is no document that he knows of that can prove standing by HSBC and the only document that proves Ocwen had authority to service the loan was from the Pooling & Servicing Agreement. He also freely admits that he was hired by HSBC/Ocwen attorney AFTER litigation began and had spent approx. 2 hours looking over documents provided by attorney on a database. No original anything ever provided!! He knew nothing of Ocwen’s servicing procedures nor could he explain what happens to borrowers checks after Ocwen processes them. He did not know who, how, when or if anyone (supposedly HSBC for alleged trust) received any monies from servicer.
    He only kept referring to PSA and its content as proof of everything that transpired throughout the loan servicing.
    The attorney objected and answered almost all questions which may have incriminated Ocwen or HSBC when it came to standing or authority.

    If anyone is interested in his depo I will gladly post or email it to you if it helps in anyway. You can go to and it will all be posted there very soon.

  5. @The A Man, why I got to be Maher Soliman? I write because I want to lay a trail back to me when they first issuing out monies. When Wells Fargo is Google about this crap I am everywhere concerning it and Ginnie Mae MBS.

    I been writing here for 1 1/2yrs and have received not help from this spot but I know it is recorded. This is happening right before our eyes, but we sound as crazy as bed bug because there are only a few nuts in the world challenging the system, but the system is cracking around us and these “investors” that had the money for the best attorneys to fight there battle. You could not have these payout for whatever reason they were given and not deal with the homeowners, as I put that bug in Sen Warren ear before she was a Senator when I called her office in 2008 when she first got appoint to the Gov Oversight by Sen Reid in Nov 2008. And I kept calling and last talked with her team before she announced that she felt the banks owed the Fed Gov as much as $39 billion from 2008 until now.

    A few screws loose? Yes but I don’t stop!

  6. NPV,

    …”has set up a nice profit stream stacked on an exceptional delivery method.

    Why knock him for trying to help and making a couple shekels on the way?”

    If it’s only about money, be upfront and say so. No one will fault Garfield for it. If it’s about helping and making it happen for people, say so. That “The left hand doesn’t need to know what the right hand does” and playing both hands at the same time is exactly why we’re in the mess we’re in and you know it. “I serve the People on their dime… but I make money doing it and I’ll bend my principles for the mighty buck. The people can fend for themselves.” Politicians do it and we know it. Congress has an all-time-low 9% approval. Homeowners don’t go to Congress for help. They come here. Is there a moral duty somewhere? You bet!

    I don’t knock him for trying to help. I knock him for not being in court, for not fighting and for not being villipended, humiliated and berated like Stopa, Barnes, Gardner, Cox, Doucet and many more who, actually, give their clients real hope by appearing on their behalf and doing their job.

    I knock him for not having appeared in court and defended his theories while still peddling them to people who don’t know better, fully aware that they cannot articulate them because… he never himself did in court!!! How’s that for dishonesty?

    Remember, NPV, we learned from the same book: “The temptor is guiltier than the temptee.” The shiny stuff you bandy about as gold is still only your shiny stuff. At some point, you’ll have to test it.

    I knock him for making people dependent on what his untested opinions and theories are.

  7. So why haven’t we heard about this this checklist in all states, even as they post this list for Virginia.

    If there is something similar in all states, and it gets past a circuit court, then that explains why aren’t these thefts reversed. All that paperwork is NOT in order, and it’s stupid to allow a lost note affidavit from someone who doesn’t even know where it ever was, but they know they don’t have it now and they just want the property.

    What to Expect after a Foreclosure Sale in Virginia: The Commissoner of Accounts 2/18/2014 by Mark Fulks

    In many non-judicial foreclosure jurisdictions, a foreclosure is generally considered concluded when the foreclosure trustee conveys the property to the purchaser. Though this is true from the purchaser’s perspective, the trustee and the creditor’s attorneys still have work to do. Within six months of the sale, the trustee is required to file an accounting of the sale with the Commissioner of Accounts for the jurisdiction in which the sale took place.

    I’m glad to see more articles about fiduciary duties and am ready to see more articles about clawbacks and disgourgments and fines and penalties, and jail time, and oh yeah, suicides.

    Saw a comment on a blog, it stated something like.
    Looks like bankers are having a hard time living and suiciding their selves I just want to know if they need some help, like some bullets or a rope.

    My comment would be, at the end of all this humor, can we get our life back and never have to deal with the likes of these people in our lives ever again?

    All men created equal, where A=A; they sure made a mess of our equality.

    Trespass Unwanted

  8. @christine the angry women who write very well but does not has patience so your advise goes unheard. You like me in the fact I don’t have patience in writing and could do better in exampling my point if I did write better.

    As for void v. voidable in what I am fighting about is the fact the Ginnie Mae has $1 trillion in voidable Notes right now but there been no damage from those Notes as they are preforming and the homeowners are not damaged at this point, because one most have no ideal of this situation of a blank Note. However properties that have been foreclosed, the homeowners has been damaged and now its up to them to have that Note voided.

    JPMorgan just reached a $614 million deal with HUD for FHA & VA loans that the two agencies paid out insurance claims as the government realized the damages. The Justice Dept said that JPM was involved in this activity for decades. So do we think the Justice Dept & HUD reviewed every FHA & VA loan JPM had every FHA & VA loan it ever had insurance placed on it? No because the instrument are perhaps voidable but they are preforming and has the law been broken because of the underwriting or falsifying document to obtain insurance?

    The insurance is being paid every month along with the payment so is the damage realized while the loan performs? Every if the loan stop performing and the loan is not in a pool, as long as an insurance claim is not made there is no harm to the government.

    However now the government on both the State and Federal Gov because in order to foreclose on the loan there were forgeries created and delivered to the local court or the court was not informed that the loan was in a Ginnie Mae pool, but the title remained unchanged. This screw up the title history at the court and recording fee were not collected and in many counties there is a tax break for the foreclosed properties (at least in NE).

    Now there is a sale of stolen property by deception and a sale to the Fed Gov occurs, and a resale of the stolen property to a unsuspecting buyer of a property that does not have a clean title. After the sale the fake lender in JPM files a False Claim against the government insurances.

    This is what I have claimed to the government as to how it was damaged back in 2011 with my Whistle-blower claim. It about me to the fact that I was in the know because it was me just as Szymoniak claimed her knowledge with DocX investigating her own situation. But my claims not about the damage done to me but to the government just as her claim was.

    Notice her new claim is from a second hand source as she had no direct knowledge of the crime. I have knowledge of the Ginnie Mae pooling process and the crime because of Wells Fargo conduct to me, but I also know of the processing of the loan from a correspondent point with these loans in dealing directly with Washington Mutual Bank!

    So my point is that I have shown the Fed Gov who committed, and how and when every offense occurs. Ginnie Mae has had this fatal flaw from day one, but it was never address because there was no in anticipation of a wide spread foreclosure crisis.

  9. Most of the bloggers are bankster employees. Plus serious attorneys dont have time to comment on this blog.

    Why does Charles Reed remind me of Maher Soliman?


  10. Christine, I won my case against 4 different entities and i am not a bank shill. i used to help people and was told by a local litigator to stop – since even a disclaimer that you are not a lawyer does not suffice, and you can be prosecuted for practicing law without a license.

    We have had many discussions Chris, and you are one of the few that does not fall for the “intended distraction”. There are maybe three people on this site that have taken the time to learn about Special Draw Rights. As bad as the economy is in America, and yes it is far worse that one would imagine; the inflation we export to other countries to maintain our low-basis debt service is killing folks literally through starvation.

    Much like Fed induced “short term cycles”, the larger framed lens of history also shows that global dynasties are cyclical. Yet we focus within the rah rah United States Patriotic bullshit, because we are taught from an early age that America is the world, and that is it.

    The mortgage crimes have been committed – Uncle Sam will continue to bleed off their cut, and a few people will be helped while the masses are loaded onto the moving truck / front lawn.

    President Obama, the legislative and judicial branches will clean this rest of this mess up come 2015, and it won’t be pretty.

    The banks have already openly abandoned America and have long been moving away from dollar assets, i.e. physical possession of commodities and energy assets.

    I have one question Chris. What do you solve by ripping this guy Neil? I may not agree with him on many topics, simply because I know better, but he does offer some advice and has set up a nice profit stream stacked on an exceptional delivery method.

    Why knock him for trying to help and making a couple shekels on the way?


  11. This gets you closer to a true creditor possibly showing up which will take years if at all since they probably collected the default insurance or guaranty and could care less

  12. It’s about time hopefully this will happen in California

  13. Gene,

    They don’t want to learn and they don’t want to fight. They especially don’t want to learn how to fight intelligently: that would be admitting that they have weaknesses, don’t understand the system and need true, solid help. Takes humility, real work and trusting some attorney who, God forbid!!! might make a buck out of them. ‘Cuz you see… they have been WRONGED! Therefore somebody has to pay! In fact, everybody has to pay! Except… their kind. The Malinke/Mandingo people have a couple of wonderful says: “Ignorance is the deadliest disease” and “A common disease is no longer a disease”.

    Here, it’s about as deep as it gets. Me, myself and I. Commiserating in group therapy from which no one ever graduates, becomes a success story and moves on to teach others how to do it too. Better not win either: you become suspicious and are then openly accused of being a bank shill. That’s about as high as it flies.

    You’re addressing a crowd who doesn’t understand the difference between “void” and “voidable” but will elucubrate to no end on points that have been proven ad nauseam to be irrelevant in court.

    Can you count the wins on this site? Bloggers here are not about winning. Or helping others win, for that matter. Can’t help with what you don’t know, right? They’re about venting and making themselves feel good but pretending to be able to help. And calling people names. The best one was comparing Tnharry to Hitler. That one took the cake. I don’t remember feeling so sorry for this country in my entire life!

    There’s a reason NOT ONE serious attorney who actually helps clients blogs here… and not one of them even refers to Garfield as a major player.

  14. Nice, Gene

  15. Fannie Mae , as the investor, had the servicer by way of robo signed and post dated assignments of mortgage, foreclose as the plaintiff ….even though Fannie Mae name was no where on the foreclosure paperwork…

    We shall see , if the Law is going to be followed going forward…….if not, better watch out……because Moral Hazard of Law of Rule , will be the way

  16. Gene there a reason the they are not giving any of the profit to the shareholder of Fannie and Freddie even as the $189 billion been paid back right now.

    The best bet for these three in Fannie, Freddie & Ginnie is to settle with all the blank endorsed Notes they allowed to take place as the attorney should have a field day if this is allowed to continue. But these other loan out side of the big three, my get a little chaotic because a lot of these places have gone of business.

    It going down I guaranty it!

  17. Gene here is the deal and that is insurances whether PMI, MIP or with VA there is the one time up front fee. But the insurances cover the back 20% of the loan outstanding to 100%. A example for the loans foreclosed that went through the HAMPs the average payout was 10% of the balance of the loan.

    However we have reason to be happy because the case went all the way to the NM Supreme Court without any proof the bank owned the loan. Hard to see how you over come ownership if you don’t have a receipt of purchase.

    You cannot either have some blank Note or several different Notes with endorsements or MERS somehow is assigning title having no proof its have the ability that they are working for the “holder in due course”.

    I believe this is the start of the end and yes it does screw up these securities, but I believe the government already on to what coming and is why these securities are being repurchase to reset the Notes. But they got a problem with the foreclosed files. All loans placed into a securities with a blank endorsed Note, they got a problem, and if there is not that link on the Note from bank A-Z the bank got a problem.

    This is about who got a equity position! We know the homeowner does as long as they made one mortgage loan payment!

    As The A Man says…Show me the Note!

  18. gene
    It’s a Supreme Court decision
    Celebrate that

  19. Oh, and your comment about securitization never seeing the light of day shows a bias of your own:

    “The potential claims about securitization, etc that everyone writes about here will never be ruled on in favor of the homeowner because it would destroy the entire real estate system in the US and no court will ever do that. Sorry, but this is reality.”

    So in this reality you speak of, people just need to come to terms with the understanding that the rule of law simply can’t be upheld due to the unpleasant circumstances that will result.

    I call bullshit. I seem to remember how the law was enforced with a – some here, some there – not for them – attitude in the final days of the Soviet Union. And in Rome as well. And I’ve heard that Easter Island discovered credit default swaps a few years before the statues were the last men standing.

    Picking and choosing which laws to enforce is a sure-fire recipe for disaster, and revolt. It never ends well.

  20. All the roads lead back to Produce the Note the original note with endorsements. Anything else is corruption.


  21. Boy you set us straight. Are you a schoolmarm?

  22. The case has to be read with consideration for the particular state laws. You have to know those laws, and know that other states have different statutes that apply elsewhere.

    What I wanted to point out is that nowhere was the home awarded to the homeowner. The order was vacated, and nothing else. Now, it goes back to the lower court for further consideration. At that point, the lender can dismiss the case, and then correct deficiencies in the documents and proceed again.

    This case is jurisdictional only to New Mexico, and since most other states have case law one way or another, it means nothing beyond New Mexico.

    As to the comment about the free home, here is the reality of the situation.

    1. If a court overturns the verdict and returns the home to the borrower, the lender can refile and start over with the paperwork correct.

    2. The homeowner must now initiate a new action that will either stop the foreclosure again, or allege fatal mistakes that result in one of two different actions.

    a. The court finds that the entire loan was completely fraudulent, and voids the entire transaction. (The potential claims about securitization, etc that everyone writes about here will never be ruled on in favor of the homeowner because it would destroy the entire real estate system in the US and no court will ever do that. Sorry, but this is reality.)

    b. The homeowner receives damages that will allow them to pay off the loan, or to substantially reduce the amount owed to an affordable payment. Absent this, the homeowner will not be able to resume payments and will lose the home.

    Too many people here post things that are simply speculation or untrue. It is like last weeks post about MGIC paying off 2400 claims.

    Anyone who has ever originated loans would know that the insurance being written about was PMI, which only covers loan losses from either 75% or 80% ltv, up to 95% in most cases. Amounts under the contractual amount would not be paid. To suggest that the entire loan was paid off is simply laziness in not verifying how the program worked, which would have taken 5 minutes using Google.

    On this website, there is a “conformational bias” attitude present. People see things that support their position, and automatically accept it. When people who know what is really going on, they are driven off even though they are trying to present real information.

    TnHarry knows what is really going on, as well as a couple of others who post on occasion. Listen to them and take their words to heart. Don’t listen to the same people who post the same speculation here day in and day out. You are not doing yourself any good.

  23. E. Tolle here probably what the deal was and that was the fact that when a loan is in a Ginnie Mae pool it cannot be modified, and only loan that were not in the pools could get modified. Take for example in 2007 Countrywide could not get there originated FHA loan insured, so from 2007 until they were shut down all those FHA loan could be modified because Ginnie Mae was never suppose to have place them in a Ginnie Mae pool and would not have had relinquished to them a blank endorsed Note.

    What your getting ready to find out is that 800,000 government insured loan were never actually process for a HAMP, FHA HAMP or VA HAMP. If you look at the OCC matrix in 2012 right before the election it tell you what took place with the numbers, and in Nov 2012 the independent audit of the FHA showed the $70 billion loan losses they took.

    So said a key thing and that was that the interest was not lower and the term extended, and that because it against the law for Ginnie Mae to change a interest rate and term if they are in possession of the blank Notes!

  24. I just ran across this HUD directive from 2009….nice bankers…..thoughtful of them to “generally” raise mortgagor’s monthly payments in their loan modifications. They were getting big insurance payouts from our federal ass-hats for raising our monthly payments after finally achieving the long sought Mumbai-assisted modification. Rat-bastards.

    September 23, 2009


    SUBJECT: Loan Modifications: FHA Loss Mitigation Incentives – Update

    FHA reviewed its recent insured loan modifications and found that, generally, they resulted in higher payments to the borrower. The higher payment was the result of not lowering the interest rate to the current market rate and/or not extending the term to the maximum of thirty years authorized under 24 CFR 203.616. Generally, the loan modifications simply capitalized the past due amounts and allowable charges and did not extend the term of the loan.

  25. Here’s a case which explains “security first” and the “one-action” rule:

  26. Yes thank you Romero THANK YOU judges for doing the job you promised to do. Administer justice according to the law under your scope.

  27. Now is the time for people of this country to start ousting Judges of the courts like Alice Schlesinger who war against the Constitution and refuse to obey their oath to the Constitution . and are destroying
    our Judicial system. With honest judges we will all get our stolen properties back sooner than later.

  28. I read an article where Washington Mutual bank loss 100,000 loan files it was shipping to Mexico. The Question is also why were the shipping closed loan files to Mexico.

    I am telling you that WaMu will blow a hole in this entire mess, because they performed loan and had them performed by others in NM. The JPMorgan and FDIC tricked purchase provided cover as if JPM purchase WaMu loans, however that turned out to not be the case.

    Anybody not running down to the court in NM today that been foreclosed and had a WaMu originated or purchase loan should do so immediately!

  29. @Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.” Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

    When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason

    Judge Alice Schlesinger illegally and against the highest law of the land the Federal Court and the Constitution tried to enforce a void ab initio judgment and sweep it under the carpet.

  30. Read and read this case
    It’s very deep and it hoes right back to the beginning ( Freudian slip please excuse)

  31. If we are looking at this State conclusion as to this is the way it is then how can it not be the law of the land because is no Federal law that over rules it.

    How can it be one way in one State and not apply in every other State? At the very least every foreclosed Ginnie Mae pooled loan was done so without the financially interested party.

    So you got every single securities that is screwed because if it involves a NM loan in it the securities is flawed as there is no counter party to legally able make up that payment. Plus if the loan is foreclosed and the insurance claim is made there is the damage to the United States! Just as I told the SEC back in Aug 2011!

  32. Christine I’m guessing your harshness is actually a tough love approach, not a bad idea because being emotionally attached is not good, knowing when it’s appropriate to be emotional is key and it’s not appropriate in pleadings in arguments and in front of a judge, it’s the only time I know I must choose every word because every word matters. On here we debate and throw it about to have somewhere to go as emotionally damaged human beings from all the chit they put us through. Now I’ll shut up but it us a beautiful day . Smell the roses today.

  33. Gene
    And don’t think we post our whole story on here either. No one expects a fee home stop that

  34. It’s a beautiful day in Arizona

  35. Guys that’s why I said its crucial you keep your files in order and have a paper trail of your course of litigation my evidence shows the court in no uncertain terms the Modus operandi. I compare it to chess it’s May take years but once in check mate there’s no going back.

  36. I wish I never had to come here and expose what I hated and the is writing, because I known as a young man I did not have the ability to do well doing it.

    However after door after door closed when talking to attorney that had that deer in the headlight look. When real estate law was not this money making part of law before this mess, and now we got attorney who are going late to the party, not wanting to listen to the clients and this desire to have been Christopher Columbus, but there were already discoverers living in those lands.

    So as we victims are telling this legal help that who claiming our land does not have the “Standing” to call the loan due, and can we get this bank flag out out living room, as I have not been discovered but I already live here.

    With me because I was a mortgage loan officer in Omaha NE wanting at Great Western Bank most of the time with a break over to Wells Fargo, I did have some advantage but being a victim of this crisis did take a toll on creditability. However as in the NM case Wells Fargo with the help of MERS got assigned the DOT and they delivered to the OCC two years after the foreclosure a blank endorsed Note and latter a explanation that they indeed were not the the lender of my loan.

    My Point is that we got the lending regulator in the OCC who got not only a Note that remains blank to this date and a lender telling the OCC that they though Ginnie Mae was the lien holder and Ginnie Mae is saying they are not, but here we are and I am fighting to say both are right in the fact that neither Wells Fargo or Ginnie Mae was the lien holder.

    NE law is like NM law, and in NE in front of the Supreme Court unlike the 49 other States, MERS complained that they were not a “mortgage bank” and the Supreme Court agreed that they were not a “mortgage bank”. So MERS never register to do business in the State, and NE enacted the Foreclosure Protection Act in 2008, that said a national electronic registry could not assign ownership if it did not have a financial interest or working for the party that had a financial interest.

    I feel NE is key to beating MERS, as the case that they won because they did not want to pay the money to register with the State, will end up costing them greatly in the future!

  37. Why eminent domaine is one of the best solutions: the feds and the WH did everything that they knew or should have known would NOT work to help the situation.

    They have no credibility left among economists and they keep on selling that rosy “the economy is improving” crap. I strongly urge anyone to listen to what is really happening and how ignorant we are deliberately being kept about the true economic picture of this country.

  38. Thanx for the info Trespass unwanted. You have throughout this process have been one of the only true defender of freedom.
    May G-d give you health strength and courage.


  39. Barry Fagan is my hero.

  40. People, read the entire decision before going off the deep end and believing that the home was awarded to the Plaintiffs free and clear and that you will get your homes for free. That did not happen.

    What happened was that the foreclosure decision was vacated. It was held to be improperly done. There is nothing to prevent the lender/servicer from correcting the mistakes made and then refiling for foreclosure.

    The real issue is regarding the HLPA and how to argue that. Then, what are the damages if found that the HLPA was in fact violated. And understand that HLPA is for New Mexico only. It is not the standard in other states.

    Also, read UCC Law and the proper transfer of a Note. It may provide clearer insight into the whole argument.

    These are very complex issues that cannot be presented in “boilerplate” arguments. Many different statutes come into play, and the arguments get extremely involved. Each case must be evaluated on its own merits.

  41. Deb – I like you will not stop fighting till i get possession of my two condos back in spite of judge Alice Schlesinger commenting fraud. and trashing our Constitution.

  42. Deb,

    I wasn’t refering to you individually. Actually, the mere facts that:
    1) You got into the fight;
    2) You’ve stuck that long with it;
    3) You believe in yourself and don’t spend your time blaming attorneys, judges, bankers, government, the weather and what not speaks highly of your level-headed mind. Please do not think that you are “most pro se”. You’ve been quite exceptional so far and you ought to realize it.

    Don’t compare yourself to anyone else and don’t take what I say… personally. If I had something to tell you personally, I wouldn’t speak in general terms. You know that, don’t you?

    “We also hold that a borrower’s ability to repay a home mortgage loan is one of the “borrower’s circumstances” that lenders and courts must consider in determining compliance with the New Mexico Home Loan Protection Act, NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended through 2009) (the HLPA), which prohibits home mortgage refinancing that does not provide a reasonable, tangible net benefit to the borrower.”

    This is exactly the argument the proponents of eminent domaine advance and their ranks are growing nationwide. Given how effective and successful the past bandaid solutions proposed by the feds have been, I’d be tempted to think that it is the way to go: returning the power and the authority to communities to take action as they wish and in a manner benefiting the community rather than keeping on channeling all the money upwards so that it can simply disappear into the war machine the WH is agitating for.

  43. Found at jdsupra
    Court Order Declaring Bank of America’s Foreclosure Sale to be Void and Setting it Aside 2/11/2014 by Barry Fagan

    “It’s also a strike against the widespread practice of having companies that have an incentive to foreclose act as the “trustee” on the home—in this case it was ReconTrust, which itself is a subsidiary of Bank of America. They’re supposed to be neutral under state law.”

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino

  44. And- FWIW Christine
    Yes I’m emotional yes I’m angry yes I’m changed forever because I’m human. And I’ll stay that way. But I can think and I think critically and I may be pro se but this is so important to me because of my belief system and no one is going to tell me I can’t. Thank you. And that’s all I have to say about that . ( except your right on a lotta stuff Christine lass)

  45. I compare it to the doctor patient relationship regarding reliance options best interests and what a prudent man would do under the circumstances. You can not expect a patient to fully understand what 12 years if med schooling in some cases gives you the research behind the evidence based practice and so on. A borrower had a right to rely on the appraisal and prudent underwriting standards and that the market was stable ( when in fact never had it been more hostile in the history of man never mind real estate) unknown to the borrower. The borrower was not being sloppy not having knowledge of securitization mers (slander of title) and credit default swaps and so on instruments of Wall Street we did not know about the sale of certificates to investors before we even came into the picture why should it matter, we’ll it shouldn’t, should it. Contract law should be about reasonable risk fair dealings not about tricking the less knowledgable into financial devastation so the smarter one can enjoy the fruits of his labor, but to never recover to enjoy further fruits of his labor, his credibility ruined judgements held against him career prospects affected the ramifications are huge. What about all the family stress the divorces the suicides. and yet it’s still going on. Our government do not appear give a tiny fart because it’s not their world , their world is different their priorities are different and we are very screwed if we do not protect our laws and rights to have land and a home to call our own.

  46. thank you Romero’s…..New Mexico shame…

  47. I am going to get my house back

  48. Bottom line is that the Supreme Court said the the families get the house! The bank could not prove there were the rightful party is what I said here for the last 2yrs. However Neil wanting a modification or a couple thousand dollar to the homeowner to move on.

    These Notes are signed in blank and later cannot place a name in that endorsement. Every single Ginnie Mae pooled loan has this exact same problem, and the Federal Government got a problem because what Szymoniak is saying in her complaint is that from 2008 until now that these FHA & VA loan were foreclosed using forged assignment.

    I have long a submitted that claim to the SEC. The writing on the wall these issues will have to be dealt with as with foreclosure its the states that are the lead as the Federal Government does not have law governing the matter!

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