9th Circuit (Federal) Allows Quiet Title and Damages for Wrongful Filing of False Documents

Hat Tip to Beth Findsen who is a good friend and a great lawyer in Scottsdale, Az and who provided this case to me this morning. I always recommend her in Arizona because her writing is spectacular and her courtroom experience invaluable.

This case needs to be analyzed further. Robert Hager (CONGRATULATIONS TO HAGER IN RENO, NV) et al has succeeded in getting at least a partial and significant victory over the MERS system, and voiding robosigned documents as being forged per se. I disagree that a note and mortgage, once split, can be reunified by mere execution of an instrument. They are avoiding the issue just like the “lost note” issue. The rules of evidence and pleading have always required great factual specificity on the path of transactions leading up to the point where the note was lost or transferred. This Court dodged that bullet for now. Without evidence of the trail of ownership, the money trail and the document trail all the way through the system, such a finding leaves us in the dark. The case does show what I have been saying all along — the importance of pleading and admitting to NOTHING. By not specifically stating that there was no default, the court concluded that Plaintiffs had failed to establish the elements of wrongful foreclosure and left open the entire question about whether such a cause of action even exists.

But the more basic issue us whether the homeowner can sue for quiet title and damages for slander of his title by the use and filing of patently false documentation in Court, in the County records etc. The answer is a resounding YES and will be sustained should the banks try to move this up the ladder to the U.S. Supreme Court. This opinion changes again my earlier comments. First I said you could quiet title, then I said you first needed to nullify title (the mortgage) before you could even file a quiet title action. Now I revert to my prior position based upon the holding and sound reasoning behind this court decision. One caveat: you must plead facts for nullification, cancellation of the instrument on the grounds that it is void before you can get to your cause of action on quiet title and damages for slander of the homeowner’s title. My conclusion is that they may be and perhaps should be in the same lawsuit. This decision makes clear the damage wrought by use of the MERS system. It is strong persuasive authority in other jurisdictions and now the law for all courts within the 9th Circuit’s jurisdiction.

Here are some of the significant quotes.

Writing in 2011, the MDL Court dismissed Count I on four grounds. None of these grounds provides an appropriate basis for dismissal. We recognize that at the time of its decision, the MDL Court had plausible arguments under Arizona law in support of three of these grounds. But decisions by Arizona courts after 2011 have made clear that the MDL Court was incorrect in relying on them.
First, the MDL Court concluded that § 33-420 does not apply to the specific documents that the CAC alleges to be false. However, in Stauffer v. U.S. Bank National Ass’n, 308 P.3d 1173, 1175 (Ariz. Ct. App. 2013), the Arizona Court of Appeals held that a § 33-420(A) damages claim is available in a case in which plaintiffs alleged as false documents “a Notice of Trustee Sale, a Notice of Substitution of Trustee, and an Assignment of a Deed of Trust.” These are precisely the documents that the CAC alleges to be false.
[Statute of Limitations:] at least one case has suggested that a § 33-420(B) claim asserts a continuous wrong that is not subject to any statute of limitations as long as the cloud to title remains. State v. Mabery Ranch, Co., 165 P.3d 211, 227 (Ariz. Ct. App. 2007).
Third, the MDL Court held that appellants lacked standing to sue under § 33-420 on the ground that, even if the documents were false, appellants were still obligated to repay their loans. In the view of the MDL Court, because appellants were in default they suffered no concrete and particularized injury. However, on virtually identical allegations, the Arizona Court of Appeals held to the contrary in Stauffer. The plaintiffs in Stauffer were defaulting residential homeowners who brought suit for damages under § 33-420(A) and to clear title under § 33-420(B). One of the grounds on which the documents were alleged to be false was that “the same person executed the Notice of Trustee Sale and the Notice of Breach, but because the signatures did not look the same, the signature of the Notice of Trustee Sale was possibly forged.” Stauffer, 308 P.3d at 1175 n.2.
“Appellees argue that the Stauffers do not have standing because the Recorded Documents have not caused them any injury, they have not disputed their own default, and the Property has not been sold pursuant to the Recorded Documents. The purpose of A.R.S. § 33-420 is to “protect property owners from actions clouding title to their property.” We find that the recording of false or fraudulent documents that assert an interest in a property may cloud the property’s title; in this case, the Stauffers, as owners of the Property, have alleged that they have suffered a distinct and palpable injury as a result of those clouds on their Property’s title.” [Stauffer at 1179]
The Court of Appeals not only held that the Stauffers had standing based on their “distinct and palpable injury.” It also held that they had stated claims under §§ 33-420(A) and (B). The court held that because the “Recorded Documents assert[ed] an interest in the Property,” the trial court had improperly dismissed the Stauffers’ damages claim under § 33-420(A). Id. at 1178. It then held that because the Stauffers had properly brought an action for damages under § 33-420(A), they could join an action to clear title of the allegedly false documents under § 33-420(B). The court wrote:
“The third sentence in subsection B states that an owner “may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section.” A.R.S. § 33-420.B. Therefore, we find that an action to clear title of a false or fraudulent document that asserts an interest in real property may be joined with an action for damages under § 33-420.A.”
Fourth, the MDL Court held that appellants had not pleaded their robosigning claims with sufficient particularity to satisfy Federal Rule of Civil Procedure 8(a). We disagree. Section 33-420 characterizes as false, and therefore actionable, a document that is “forged, groundless, contains a material misstatement or false claim or is otherwise invalid.” Ariz. Rev. Stat. §§ 33-420(A), (B) (emphasis added). The CAC alleges that the documents at issue are invalid because they are “robosigned (forged).” The CAC specifically identifies numerous allegedly forged documents. For example, the CAC alleges that notice of the trustee’s sale of the property of Thomas and Laurie Bilyea was “notarized in blank prior to being signed on behalf of Michael A. Bosco, and the party that is represented to have signed the document, Michael A. Bosco, did not sign the document, and the party that did sign the document had no personal knowledge of any of the facts set forth in the notice.” Further, the CAC alleges that the document substituting a trustee under the deed of trust for the property of Nicholas DeBaggis “was notarized in blank prior to being signed on behalf of U.S. Bank National Association, and the party that is represented to have signed the document, Mark S. Bosco, did not sign the document.” Still further, the CAC also alleges that Jim Montes, who purportedly signed the substitution of trustee for the property of Milan Stejic had, on the same day, “signed and recorded, with differing signatures, numerous Substitutions of Trustee in the Maricopa County Recorder’s Office . . . . Many of the signatures appear visibly different than one another.” These and similar allegations in the CAC “plausibly suggest an entitlement to relief,” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009), and provide the defendants fair notice as to the nature of appellants’ claims against them, Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
We therefore reverse the MDL Court’s dismissal of Count I.
[Importance of Pleading NO DEFAULT:] The Nevada Supreme Court stated in Collins v. Union Federal Savings & Loan Ass’n, 662 P.2d 610 (Nev. 1983):
An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale. Therefore, the material issue of fact in a wrongful foreclosure claim is whether the trustor was in default when the power of sale was exercised…. Because none of the appellants has shown a lack of default, tender, or an excuse from the tender requirement, appellants’ wrongful foreclosure claims cannot succeed. We therefore affirm the MDL Court’s of Count II.
[Questionable conclusion on “reunification of note and mortgage”:] the Nevada Supreme Court decided Edelstein v. Bank of New York Mellon, 286 P.3d 249 (Nev. 2012). Edelstein makes clear that MERS does have the authority, for purposes of § 107.080, to make valid assignments of the deed of trust to a successor beneficiary in order to reunify the deed of trust and the note. The court wrote:
Designating MERS as the beneficiary does . . . effectively “split” the note and the deed of trust at inception because . . . an entity separate from the original note holder . . . is listed as the beneficiary (MERS). . . . However, this split at the inception of the loan is not irreparable or fatal. . . . [W]hile entitlement to enforce both the deed of trust and the promissory note is required to foreclose, nothing requires those documents to be unified from the point of inception of the loan. . . . MERS, as a valid beneficiary, may assign its beneficial interest in the deed of trust to the holder of the note, at which time the documents are reunified.
We therefore affirm the MDL Court’s dismissal of Count III.

Here is the full opinion:

Opinion on MDL

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60 Responses

  1. Does anyone knows what this means or there a grace period to file for
    rehearing or A writ of certiorari is an order a higher court issues in
    order to review the decision and proceedings in a low.. because the
    courts did not read the case etc.Does
    anyone knows what this means or there a grace period to file for
    rehearing or A writ of certiorari is an order a higher court issues in
    order to review the decision and proceedings in a low.. because the
    courts did not read the case etc.


  2. Ian … you posted >> “This would be A (originator) to B (sponsor) to C (depositor) who then deposits into the Trust (D).” …. So in my case the A (originator) was Commerce Bank … they stamped and endorsed our note “pay to the order of WaMu Bank” making it the “B sponsor” , so that fits the definition of the 1st true sale needed, correct? … and once WaMu had our Note, and it being a Fannie Mae controlled refinance, it was 99% most likely sold again to “C depositor” who remains unknown to us at this time because Fannie Mae does not share this information. All we have is a MERS MIN number and the Fannie Mae website that confirms that they are the “investor” of our loan. Why have we never been told what trust we were sold to? Is this common that the homeowner is not told? Does it raise a red flag and tell us that they don’t have all their ducks in order and this is the reason they refuse to divulge the trust we are in ??
    Thank you

  3. DwightNJ-
    A securitized loan, under IRC REMIC rules/regs/tax law has to have 2 “true sales” to become bankruptcy remote entity.
    This would be A (originator) to B (sponsor) to C (depositor) who then deposits into the Trust (D). NY Trust law also plays a part in this. My memory is starting to fail me! I think this is it.
    Any deviation from the strict NY Trust law renders a transaction void, not voidable, and triggers the 100% tax on prohibited transactions. Also any note allegedly transferred Into the Trust after the closing date is a prohibited transaction. A trust cannot accept either late-assigned notes, or defaulted assets. (The defaulted loan)
    Hope this helps

  4. The reason I’m harping on the phantom negotiation and delivery of the Note between WaMu and Wells Fargo is because I see it as one of my only credible chances at victory in my case.

    I believe that WaMu never sent the Note to Wells Fargo in 2007 when they suddenly and mysteriously had WF take over the servicing rights.
    Remember, this event took place just before WaMu became defunct and was seized. Could it be possible that Fannie Mae and WaMu saw the warning signs of the house of cards falling, and they began dumping the servicing rights over to other banks before the whole thing came tumbling down? But since they no longer had possession of the real Note because of securitization and by the note either being destroyed or in the hands of an unnamed Trust / Trustee … they just passed the servicing rights over to WF with computer file copies of the original note from the closing at origination. This would explain why WF would submit “that copy” as the exhibit proof of the true and accurate copy of the note they claimed was in their possession. If WaMu had truly and legitimately sent a stamped and signed note to WF at the time they gave them the servicing rights, then WF would have shown the stamped and endorsed copy in their certification right?

    This inconsistency , combined with what we know about securitization and the notes being in trusts or destroyed, warrants deeper discovery into how and when and by whom did this note supposedly change and become stamped and signed. In light of the Consent Orders and the settlements where the Dept of Justice and states found wrong-doing and criminal conduct , that too supports the borrowers being entitled to ask the Court for a complete and thorough authentication in this case.

    We have a bank (WaMu) that was no longer in business at the time the stamped note was produced for the court in 2011.

    We have the inconsistency of the note shown in their certification that was missing the stamp.

    if they cannot show proof through proper authentication of how and when and by whom the note became stamped , I would think this could be grounds for a determination of “Void” due to fraud .. with prejudice.

  5. Can anyone give me the definition of what they mean by “a perfected chain of title” ? I am assuming it means that all stamps and endorsements have been added to a Note each time it has been negotiated from bank to bank … but does a perfected chain also need proof of Assignments ? Probably not since MERS doesn’t record all assignments every time the Note changes hands. This is bad law when they allow a Note to be passed around without Assignments and recordings in public land records. In my opinion it should not be deemed as a perfected chain of title when there are gaps in the assignments. Since WaMu held my Note from the day after the pretender lender originated the table loan , and continued to have it for the majority of the years , how do they NOT have their name WaMu anywhere in the chain of title? No assignment when Commerce negotiated the Note over to WaMU … and No assignment when WaMu supposedly negotiated the Note over to Wells Fargo for foreclosure.
    Shouldn’t a complete chain of assignments be needed showing dates indicating when a Note was negotiated to the next bank? In my case back in 2010 Wells Fargo shows a “true and accurate” copy of the Note in their certification affidavit signed by the attorney. Later when I question why the Note looks exactly like the copy of the original Note from the day of closing and has no evidence of WaMu stamping it and endorsing it to Wells Fargo … then they said “oops, let us go get the note and bring it to Court” … 3 months later they show up in Court with what looks like a computer generated downloaded copy of the original which now has a stamp added from WaMu “Pay to the Order of” in blank .. signed.

    They have never shown proof of how and when that stamp was added, and why the Note is different from the Note shown in their certification as being the “true and accurate copy of the Note in our possession”.

    I feel they need to show proof and authenticate this Note , especially in light of the fact that it differs from the Note in their certification.

    In addition to the fact that WaMu was out of business at the time they produced this changed note with the stamp added in court in 2011.

    I need to attack this point hard and hope they don’t have evidence to prove when the Note was stamped and delivered by way of records with names and dates.

  6. Ian, I’ll look for it .. thank you

  7. DwightNJ- there is a procedure “authentication of out-of-state documents” . It’s always been around, but people tend to disregard the procedure. I had it saved on my computer when the hard drive went, so I can’t link you to it. Sorry

  8. John G,

    I hear what you’re saying about trying to identify the correct motion to use in regards to my last case where WF dismissed and vacated. I do wish I had the time to research more or the money to afford legal representation. I need to answer this complaint and have it filed with the court no later than the 27th. I had thought I had a great case until reading recent decisions around the country, now my head is spinning and I’m scrambling to formulate a last minute game-plan so all my eggs aren’t in the one basket that holds the faulty forged fraudulent AOM and the fraudulent fabricated note. Too many Judges are showing that they don’t care about these important issues, they offer excuses for the banks and brush it off as technicalities of paperwork, they still rule in the banks favor saying that they must be fair and equitable, explaining that money changed hands, your name is on the documents and nobody else has come forward saying that they are the party of interest.
    MERS, false representations about who their officers really are and by what authority they can create the documents in question with forged notaries .. are all legit arguments in the world we used to live in, but it seems that the Judges are still reluctant to allow the rule of law to guide them in their decisions. Consent Orders and settlements have been agreed to between the banks and the government, billions of dollars has changed hands amongst them … and the beat goes on. Nothing has really changed in the courtrooms and people continue to lose homes in spite of the fact that government and law enforcement have identified the crimes and are aware of the wrongs … still it continues to be left to a judicial system that is afraid to enforce the rule of law.

    I will still attempt to argue all of my points and win my case, but I have become very saddened and disheartened by what I’ve been reading in many cases. It’s a travesty and a disgrace. Settlement after settlement by the government and states and nothing gets done to stop the criminal scheme from thriving inside our courtrooms. In NJ where I live, we received many millions of dollars from the last big settlement of the states attorney generals , and I saw a chart showing how each state would utilize the monies received from their cut … many states had the decency to use some of it to help the victims/homeowners who were facing the foreclosures by funding help centers or legal aid reps who could help the borrowers defend against the criminals who caused the devastation and destruction … but in NJ ?? Nothing … no money from the settlement put towards helping the victims of the crime. Our legal aid tells citizens that they do not have the funding or man=power to help the citizens , they are overwhelmed with a tidal wave of people looking for help. So what does that tell us ?? That the state and the law enforcement don’t care so much about protecting the victims / citizens from the criminal acts of the thugs , as they care about getting their cut of the money and spending it on themselves or on projects that have no relationship to the Consent Orders and Settlements. We are living in very dark times, and the powers that be are obviously part of the problem.

    So I will … 1) deny the Counts in the Complaint … deny that any legal or valid financial transaction ever took place, and demand that they show proper evidence and proofs to support the allegations in their FC. The only way to prove their untrustworthy documents true, would be to compare it against actual verified authenticated money trail evidence that could support their alleged notion that a valid legal loan took place.

    2) point out everything else that’s wrong , starting with Predatory Lending violations at the alleged origination and demand to have them produce all of the paperwork and application related to it. Commerce refinanced my wife for 1400.00 month payments 30 yrs fixed on her retail job in a mattress bedding chain where she earned commission sales , possibly changing her income level on the application without her knowledge, over-inflating the appraisal of the townhouse and telling her to come back in several months so they could approve her for a 40,000 home equity loan with a 369.00 a month payment on top of the 1400.00 mo mortgage payment. Commerce could care less that they were setting her up for failure and its a violation of the law.

    3) point out that my wife was never served with the complaint, and she is the main defendant named since she was the only one who signed the note. (I had past credit card problems) I am named as one of the defendants because they had me sign the mortgage as her husband.

    4) point out that the notice of intent to foreclose was inadequate and a violation of the fair foreclosure act. They filed the complaint right after we received the NOI and never got our 30 days. they also failed to list the name and phone number of a person who we could contact in regards to the alleged default.

    5) Point out that they are in violation of the consent orders and are still submitting foreclosure complaints with faulty, forged documents as evidenced in my case.

    6) point out that they wasted a year of the courts time and resources the last time they filed a complaint. They refused to consent and submit to the Judges wishes to conduct a plenary hearing and have their witnesses put on the stand under oath regarding these documents. Now they switch to a different foreclosure mill and attempt to waste the time and resources of the court again with the same documents. This is a violation of the settlement with the state of NJ when Judge Mary Jacobson issued the Show Cause Order and was about to sanction Wells Fargo for wasting the courts time and resources by filing foreclosure complaints with faulty documents and robo-signed .
    My case has all of the things present that Wells Fargo promised would be fixed and not happen again when the state accepted their settlement

    7) the NJ Sandra Ford Appellate Division Decision supports the arguments in my case regarding the issues of the AOM, the status of being Holder or Holder in Due Course , the MERS officers, the dates of transfers and negotiations and endorsements. All vital and important.

    8) The AOM is forged by a person purporting to be the notary. It is an invalid assignment.

    And there’s more …. but my daughter is asking me to come play with her … good-night all. God Bless America

  9. dwight, anyone, I’m not real keen on alleging anything about funky loan-funding out of the box. What one has to do imo is anything possible to dodge a mtn for sj, something almost always filed by the banksters. YOU have no first hand knowledge about funding, isn’t that true? As far as I know, YOU may file a mtn for sj as your first response (as opposed to an answer). That’s not advice, just a lay person observation. It’s procedural and most of us here aren’t savvy enough to go that alone. But I do think if you start rattling off all that stuff about the money trail – beginning at the origination – you may well alienate the judge (she’s gonna figure you got money from someone. If she’s willing to question what happened next, I’d go with that (like a nobody issued the nod, but that may really be a counter-claim against the party who allowed or told the the nobody to issue a nod as well as the nobody). Imo, as I’ve said, your paper trail isn’t even hoyle. In other words, if so and so now has an assgt, i think your challenge is an attack on that. Because they were allowed to dismiss before, the only way to be vindicated that I know of for that slander and baseless claim (when made), etc. is either by reopening the old case or filing a counter claim now or new claim against the bad actors. lay opinions

  10. Moot. Moot. Moot. Moot. Settled, not gagged. Can’t say we will Miss doing business with you BOA. Many Blessings To All.

  11. @ John

    Here in NJ we are a judicial foreclosure state. I am presently attempting to answer the complaint. I denied everything in the two counts, denied every paragraph written in each count by plaintiffs which described the origination Commerce Bank loan .. “Defendant denies that any legal financial transaction took place in order for paragraph 2 to be valid” etc, etc. so on and so forth … Second Count … “We deny based on the fact that plaintiff has been unwilling or unable to prove that a legal financial transaction took place between defendants and Commerce Bank at origination of the alleged transaction with factual evidence of a documented money trail which would support their allegations. Undisclosed and unnamed third parties involved in the original alleged transaction would need to be revealed and disclosed by the “investor” Fannie Mae as to what part they played in the funding of the alleged transaction in order for a determination of the transactions legality, and to establish, if any, the true party of interest to the alleged debt in this complaint”.

    Instead of just “Denying” the paragraphs in each count, I started to argue my case while I was denying .. probably need to change that?

    Take a look at this Sandra Ford case from NJ Appellate Division … our courts will rely on this case to help steer them in what they do in the lower courts … notice how they beat up on Josh Baxley, he is on my AOM as an officer of MERS .. but in the case above he is used to certify the default by Wells Fargo … The Appellate Judges said that he didn’t have firsthand knowledge to certify anything … they also touch on the AOM problem, saying it needs to be “authenticated” by finding out if the people who created it and signed it had proper authority to do so (I think thats what they meant) .. they also touch on the fact that dates and people are critical to establishing a timeline to when and how the note was negotiated and transferred and how the AOM plays a critical part into it too .. because the Holder status will be subject to the defenses of Sandra Ford (Fraud , Predatory Lending, etc) ..so in their opinion it all does matter … but when I read other cases the Judges seem to downplay the importance of these issues raised by the NJ Appellate panel of Judges … I’m trying to figure if I can use this to help argue the issues in my case .. here is the link, take a look at it >>>

  12. MERS has standing, yes Sir. Provided via POA for some … Not so much for others.

  13. Scott
    Im stunned too. Each day i see the harm the far reaching harm these ” goons” as you sAy cause and im stunned by it all.

  14. from Dwight:
    “No assignments exist until the one fabricated by LPS robo-signors playing the part of MERS agents in 2007 after we defaulted”

    Actually, the robo-signors play the part of a mers’ officer. They’re no more mers’ officers than you are imo. Why no one takes this on, got me. What IS a corporate officer? Can they really convince anyone with a brain that the 10.00 an hour 18 year old working at LPS, etc. was a mers’ officer? If that weren’t a racket, I don’t know what is. This isn’t, here, about what the robo-signors did wrong. It’s about who they purported to be when they signed documents, documents conveying an interest in real property, someone’s home. The only court I know of which was compelled to determine this issue squarely said “not” and called the assgt a fraudulent doc. And I still maintain mers / merscorp is liable for every robo-signed document executed in its name.

  15. dwight, besides a a litigator for some advice, you might purchase an
    annotated state statute book (you’re in state court, not fed, right?). What you might really want is annotated state rules of procedure. If you get an older one, they don’t cost that much. But if you do, you have to make sure the statutes (changed, 86’d) and cases referenced are still “good”. In order to do that, you need a legal research engine, like lois law. Look for mtns to reopen a case and a mtn for relief from judgment / order. Try a search for “new jersey annotated statutes” / “new jersery annotated rules of procedure’. You might even get lucky and find them online (doubt it, tho).
    Anyone who’s in court without an attorney and doesn’t have these things in his arsenal probably isn’t going anywhere.

  16. It caught everybody off guard. Nobody could believe such a large segment of the market had been hijacked by what was/is obviously CLINICALLY RETARDED MEGA-SPECIAL-ED WTF.

    First time I went a round with Larry Litton Jr’s outfit in Texas, I was so furious I could not breathe.

    That was years ago and I was as alarmed to the bone/mortified as I could be to discover that was/is the typical modus operandi ACROSS THE BOARD -WITH ALL OF THEM.

    First house I ever bought was a distress deal from a bank. Took 7 seconds.

    Did not need a team of attorney’s and a private militia group/act of Congress to get it worked out.

    These servicers and their minions are the most spun-out group of mega goons the species has ever engineered and nobody will be surprised when they experience Stuck Altimeter Syndrome.

    Make it a Great Day.

  17. Gene, good call. Anyone knowledgeable in law knows Garfield is legally incompetent, and single-handily is the cause of more homeowners losing their homes than anyone else. Until people start filing bar complaints, he will continue hurting homeowners.

  18. yes, dwight – sorry it IS a bk rule, which is a version of a federal rule of civil procedure mol. I’ll have to try to find my notes tomorrow to see which one I meant. It’s too late tonight (for even me) to contemplate all you said. If NJ is a “security first” state (not to mention the terms of the dot), in my strictly lay opinion, a note secured by a dot without the dot is not a claim which can be made and therefore the court had no jurisdiction if the ‘lender’ were the plaintiff. In security first states, the lender must seek its first recourse against the collateral and sometimes only. Lenders have been known to actually lose their security interest by attempting to collect on the note alone. No kidding! Does NJ use mortgages v dot’s? Think I remember that now. Is NJ non-j f/c?
    From the hip, just because they were allowed to dismiss, doesn’t mean the court validated those docs imo. If they were bogus then, they’re bogus now and any subsequent docs relying on them are also bogus, right?

  19. @ Johngault

    John, I see your post regarding FRCP 9024, but I’m not clear on it’s use. It looks like a bankruptcy related rule, maybe you can shed a little more light on what you’re thinking.
    In my case the Judgment had been entered and sheriffs sale date set, when I submitted a motion to vacate and dismiss with prejudice due to fraud and lack of standing. The Judge was satisfied they were Holders of an endorsed Note in blank , although I objected to it being the true original wet ink note. I also argued that we needed to see dates that the note was supposedly negotiated and transferred because it had been negotiated to WaMu at it’s inception with an endorsement from the originator Commerce Bank. No assignments exist until the one fabricated by LPS robo-signors playing the part of MERS agents in 2007 after we defaulted. It was recorded a year later, a year after the Complaint was filed. My main argument at the time was the AOM being a fraudulent document with a forged notary. The Judge was more focused on having WF bring in witnesses who could testify under oath that they had firsthand knowledge of my default and debt amounts. He was probably reacting to all of the robo-signing hoopla that was in the news at the time and wanted to give the appearance that he was authenticating the debt. Wells Fargo wanted no part of it after bringing in Diane Bettino of Reed Smith, Wells Fargo’s lead law firm in NJ which handled all of the banks responses to the NJ Supreme Court and Attorney Generals office when they began threatening to shut-down all of the big banks foreclosures until the faulty document fiasco was cleaned up and fixed. Diane Bettino is still writing the legal briefs in the latest NJ Supreme Court show cause order about NOI problems. Well she got involved personally in my case once the foreclosure mill firm let WF know what this Judge was asking for (witnesses under oath), she ultimately wrote the Order for Dismissal that the Judge signed, a year after I filed my motion, we spent a year dealing with my motion. In the end this lady Diane Bettino must have advised WF to dismiss. She called me a couple times after and asked if I wanted to modify my loan. I told her I wanted a clear title and never heard back since, that was back in Nov. of 2011 … Now , May of 2014 they are coming again, with a new foreclosure mill firm, same old faulty documents. But after reading all of the b.s. going on inside the latest Court decisions, I’m wondering if maybe I should give Diane Bettino a call and see how she feels about another Foreclosure mill bringing the same bad documents back to court after she had them dismissed last time. She is constantly telling the state of NJ that WF has fixed their problems. I’m thinking if I don’t have a good shot at getting past this Judge again, maybe I should try and bluff her into thinking I’m coming with a major lawsuit if she doesn’t help squash this and help settle this problem before it makes her look like a fool with Wells Fargo attempting to foreclose with the same old robo-signed documents, forged notary and photo-shopped stamped fake note from WaMu .. “Do you need this headache Diane?” Maybe I should have compromised and tried to get a nice low affordable mortgage number with her help , like between 500 mo. All I know is that I don’t feel very confident after reading the cases taking place around the country , the Judges don’t seem to care about the assignments anymore , it’s all about “plaintiff is holder of the note” This time I’m going to have to plead that we were victims of predatory lending too, I just don’t see how we can win arguing a bad AOM.
    And how do you argue that the note is a copy and not the original? The Judge isn’t going to entertain that argument. I have to deny the default, deny every count in the complaint. Try and convince the Judge to make the plaintiff prove the debt with a money trail and paper trail by arguing that no transaction really took place, possibly between unknown third parties who I’m not aware of, will the Judge really go down that path? Try and demand our original docs and application papers to try and prove predatory lending violations. WF being holder status would be exposed to any of our defenses and claims of predatory lending as holders. And try and attack the AOM and the note arguing that its vital and critical to see dates and records of who signed and negotiated the note on what date , and when was it transferred and received on what date .. etc , etc .. arguing that the records should be able to explain the inconsistencies about the note in the complaint showing no endorsement from WaMu and then later ta-da showing up in court with the photoshopped stamp .. and the AOM being recorded a year after the complaint was filed? All of these things raise red flags that something was terribly wrong in the chain between WaMu and Wells Fargo needing to foreclose .. I don’t believe WaMu had my note to send to WF , so they fabricated and back engineered everthing they needed … and the courts are now accepting it as far as I see. This is why I may have to look for a way to settle , but I still have to play my cards from a position of strength. I can’t trust the Court to do the right thing … the Justice system has lost its integrity and credibility.

  20. It’s ” unlawful actions” as opposed to wrongful foreclosure. Talk about understatement. Just lay opinion.

  21. Someone here last week or so had filed a mtn to dismiss with prej. The bankster filed a vol dismissal (as I recall). Whomever you are (of course I forget), you might want to check out FRCP 9024.

  22. Isn’t it lovely when Ashcroft and Iqbal works against them. Oh lovely day.

  23. Personally I like the following except

    “Michael A. Bosco, did not sign the document, and the party that did sign the document had no personal knowledge of any of the facts set forth in the notice.” Further, the CAC alleges that the document substituting a trustee under the deed of trust for the property of Nicholas DeBaggis “was notarized in blank prior to being signed on behalf of U.S. Bank National Association, and the party that is represented to have signed the document, Mark S. Bosco, did not sign the document.” Still further, the CAC also alleges that Jim Montes, who purportedly signed the substitution of trustee for the property of Milan Stejic had, on the same day, “signed and recorded, with differing signatures, numerous Substitutions of Trustee in the Maricopa County Recorder’s Office . . . . Many of the signatures appear visibly different than one another.” These and similar allegations in the CAC “plausibly suggest an entitlement to relief,” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009), and provide “.

  24. The latter will not affim … Until being the oppertive word, UNTIL HELL Freezes Over! Just say No to Drugs and Crime! Many Blessings to All.

  25. @ johngault ,

    That is why the fedgov (SEC) dropped charges against Option One on 2007-FXD2 but prosecuted them on all the others ,, AIG paid out on FXD2 prior to receiving gov’t cash ,, the others crashed and burned afterwards… AIG attempted to sue BAC over FXD2’s underwriting but was pressured by the fedgov to drop the case.

    Since FXD2’s assets were sold off to WL Ross&co prior to the events MSvcr is talking about it is a straight up who owns it case without his complications. and everything beginning at (the very latest) May 2008 onwards is a completely false narrative. (although the false narrative really goes back to Option One not being able to repay the table funder , BAC , and BAC having ownership from day #1)…

  26. Gene, on June 14, 2014 at 3:51 pm said:

    Garfield blows it again on uniting the Note and Deed. UCC Article is clear on this. If the Deed is separated from the Note, the Deed cannot enforce the Note until united

    Yes outstanding observation – the operative word here UNTILL!

    Therefore the claim is for How does the security come into play as a subsequent event and how does the recognition under FAS 140 and FASB codified SFAS 140-3 survive barring any earlier re-conveyances

    According to I.R.C Regs 1.1091, 1.1031; 1.01 in conjunction with tax payer timing for RECOGNITION, in part and under Title 26 CFR; Code of Federal Regulations (annual edition) – April 1, 2007 Edition. 26 Part 1 (Sec. Sec. 1.1001 to 1.1400) / Revised as of April 1, 2007 and as Referenced: Internal Revenue Serv. in accordance with WASH SALE RULE. Exceptions to the general rule are made controversy for claims sections 351(a), 354 361(a) 371(a)(1), 371(b)(1), 721, 1031,1035 and 1036. Cited from the U.S. Government Printing Office][[Page i]] for Transactions in ESC and tax deferred exchanges under relayed party contracts.

    Recognition is , in simple terms the acknowledgment that something which has been done by one person as or for an entity , in the name of another, was done by authority of the latter.

    Gene, where this is the claim and discovery cannot isolate anything acknowledging such right to receive and later avoid restoring assets, the household equitable interest and legal title to the estate

    Claims assert further the title is lost to the earlier conversion into deed shares pledged for deposits and right of repurchase (REPO remember) is concealed at a unrealistic appreciable value.

    The valuation is at the Trustees basis in assets held as capital gains paid at term, in abstention by gratuitous filings for surrogate assignments and RELATED PARTY indorsement; (ROBO THE HOBO IS LEGAL AS IS MERS CORP for les than arms related party transactions for shared common interests)

    Mischievous makers, set forth herein is the effort to bind the household to a materially misleading contract whereby the Note is cancelled as the deed or mortgage is extinguished for the amount wired into settlement that is rerouted into a Cash Deposits -paid to the household in a 1099 A (for amount the household never saw)

    The DOT 2008 capital repurchase plan and process’s are a civil rights violation that fails to restore the Homeowners title status. Where debt is equity and equity is debt, the court will NEVER decipher fact from non fiction. Herein is a fiction of law which repudiates a conventional foreclosure scheme the instrument’s recorded locally and standing.

    The legal fiction is where homeowners grant and convey title at time of origination, to the beneficiary of the savings placed with capital management firms.

    Here are the illicit sources and uses of capital held as collateral deposit’s under a cash for securities collateralized investment platform is in effect remedied solely by a claim of abandonment under a 1099 A tax payer statement for the referenced CYE.

    Whereby the Grantor is made into a surety at time of the conveyance, the party siesed of his estate is left out of subrogation, at a loss to enforce the life estate made as a freehold his rights of reversion converts to a misappropriation for the obligation a surety was never allowed to cure.


  27. i think by now we’ve all heard that AIG waived subrogation when and if it had to pay out, but I missed this or forgot: AIG, when it accepted the government’s (our) multi, multi-billion dollar loan, apparently agreed to never sue any of the folks who tricked them or lied to get the swaps, etc from 2010 (but wait, your honors. What about the matter of AIG’s overcommitment on these suckers)? :

    “…..when AIG paid off its bank creditors in full, with the help of that monster government bailout, it also signed a waiver forfeiting its right to sue those banks, including Goldman….

    Each of AIG-FP and AIG Inc, for good and valuable consideration, the sufficiency of which it hereby acknowledges, forever releases the Counterparty from any and all Claims of any nature whatsoever that AIG-FP or AIG Inc ever had, now has or can, shall or may have, by reason of any matter, cause or thing occurring from the beginning for the world to the Termination Date that arises out of or in any way relates to the CDS Transactions.”


    When I see this stuff, I’m reminded how much money those bums had to have made betting against AIG (on top of their other bootie on the backs of everyone else in the world). “Puts”, right?

  28. elexquisitor – diff states rule differently on certain issues, sure you know. If ABC IS the assignee and recontrust files a nod before abc subs recontrust in, cal has ruled if the sub of trustee is rec’d shortly thereafter, it’s “substantial compliance” (bs bs), as I recall only. Now, if abc were not the assignee (or orig ben) when recontrust, who was later subd in by abc, filed its NOD, I would call that slander of title (among other things). A nod was filed by a company which had zero connection to the home, was not a duly apptd and authorized trustee, and imo, it IS slanderous, void, of no effect – other than slander and being a fraudulent recording. You know, these stinking trustees are to basically take the place of the judiciary in this dot mess. As such, it really is a solemn responsibility, despite the way it’s being played. Plus just about anyone with a pulse can get the job. generic lay opinion

  29. One state SC claims the “Restatement 3rd” of i forget says the note and dot may re re-unified.* Maybe. I have little doubt that deal (restatement) doesn’t address original split, such as imo is the case when the computer program, mers, is the original mtgee; that’s what the dot says: “MERS is the mortgagee” (which is itself errant in a dot because there is no mtgee – only a beneficiary). It doesn’t say mers is acting as anyone’s agent in that capacity and that type agency can’t be inferred (real property).

    *(I believe attorney Hager in the case in the post is familiar with the restatement I’m talking about)

  30. Min number I believe equals clouded title since only insiders can see what’s going on. Not for the public to know you see
    Would you trust them to keep your title clean and I slandered do you think they care

  31. When I say ” MERS loan” I mean it has a min number

  32. The truth of the matter is they got my house free and sold it to some new borrower who has a MERS loan. I checked

  33. And oops – not an attorney just having my 2 bits worth

  34. Right npv
    “It ain’t them” back it up … Breach of contract
    Then game on

  35. @ Gene

    According to this decision, the Court chose to leave the issue of splitting the mortgage from the note alone, and to not delve completely into it because the borrowers had not denied that they were in default.
    If they had challenged the default by denying they were in default in their pleadings, then the Court left the door open to the possibility that they could have attacked the splitting of mortgages and notes. They did cite the Carpenter case. What does the UCC say about reuniting the mortgage and note? Do they require anything specific that we should be looking for, which might be open to attack ? Thanks


    (From the case posted) ….
    “The principle that ownership of the note and the deed of
    trust must be unified has a long common-law pedigree. For
    example, the Supreme Court wrote in Carpenter v. Longan,
    83 U.S. 271 (1872), “The note and mortgage are inseparable;
    the former as essential, the latter as an incident.
    An assignment of the note carries the mortgage with it, while an
    assignment of the latter alone is a nullity.” Id. at 274.
    However, the degree to which this principle has been
    preserved in the laws of Arizona, California and Nevada, and
    the extent of its application in particular situations, is not
    entirely clear.

    We need not address appellants’ argument
    about “splitting” the note from the deed of trust in order to
    decide their claims of tortious wrongful foreclosure. The
    claims fail for another reason: None of the appellants has
    alleged lack of default, tender to cure the default, or an
    excuse from tendering.


  36. Castles in the Sky

    When the titles equivalent, converted to deed share’s, carry certificate prices that are extremely overvalued, and not justifiable by future increases.

    This is the case where the trustee sale is brought by attorneys as independent agents under the FDCPA who restore share holder value “subsequent to sale”.

    Chasing Returns:

    Related to a risk or the risk taken to gain a higher return. Banks buying more SIVs (risky debt) to gain higher returns had greatly contributed to the liquidity crisis of 2006-2007, as many of the SIV funds became insolvent.

    Example: When a group of stocks or the entire market has experienced a high return, and investors invest more into this group just for that reason. Often P/E Inflation occurs as a result, when such stocks go up in price while their earnings do not go up quite as much. [P/E = price divided by earnings.]

  37. Garfield blows it again on uniting the Note and Deed. UCC Article is clear on this. If the Deed is separated from the Note, the Deed cannot enforce the Note until united. And it clearly says that the Deed can be reunited, and at that time, the Deed can again enforce the Note.

    Why do people listen to the b.s. that Garfield continues to suggest is true?

  38. Johngault,

    2924 is saying that you are only required to pay arrearages, and that non due principal amounts cannot be demanded.

  39. This infinitesimal, mind numbing drivel .., and to begin with .. the foreclosure firm does NOT have the original note, the file, any verifiable proof of ownership or proof any transaction ever took place.

    Copy of a check because they bought it on a credit bid except .. well not exactly? And when were they retained and by whom?

    Really? Any proof of loss? Not on the deed, did not do the loan ..


    Is this one they stamped with FEDERAL NATIONAL MORTGAGE ASSOCIATION?

    Haven’t they effectively declared their bizarre incompetence enough?

    ANY seasoned mortgage broker would chuck their blatantly fake foreclosure file straight into the trash can and laugh at them.

    NOTHING in their files can be verified. The whole dam thing is fake and reeks of it from a MILE AWAY.

    Make it a Great Day.

  40. @jg – In CA the non-judicial statute, 2924, has been deemed ‘all inclusive’ by case law, and because it neither states nor denies a homeowners right to question the identity of the Party Entitled To Enforce (PETE), is used to toss cases pleading a ‘standing’ cause of action.

    What I found interesting is that 2924 neither states nor denies provisions for assignment after a notice of default, but it DOES state provisions for substitution of trustee after such notice. Separate statutes govern assignments and substitutions outside of 2924.

    So here’s a question from my case. If the substitution of trustee after the notice of default was made by the assignee of an assignment made after the notice, what is the status of the alleged trustee?

    And if that trustee files a notice of trustee sale, is that not slander of title?

  41. When a bank is on the wrong side of the law they divert it to MERS which is what Bank of America did when they issued an illegal mortgage to Frances Turner who never owned my property,since her fraudulent title came from being flipped by Fang li a straw buyer won at auction from Astoria Federal S and L who never owned my property since all they had was a void ab initio judgment a nullity.

    I was led in rhe back door to Title Resource Group to Patricia Byrnes a MERS workerWHO Bank of America used to flip Frances Turner;s B of A illegal mortage to

    Which leads us back to Nemo Dat you have to own something to give it away ,the principal our country is founded on.

  42. From nolo:
    ” Assume that in your state the lender must give you a notice of default that sets out the exact amount you must pay to reinstate your mortgage. To get a foreclosure order from the court, the lender must show that the amount stated in the notice of default is accurate. If the lender can’t prove this point— **or you convince the judge that the lender failed to accurately credit one or more payments to your account** —the judge might dismiss the foreclosure complaint, and the lender would have to start all over again.

    **If you have a loan which went thru fnma or fhlmc and you therefore had the privilege of paying the undisclosed ‘g fee’ so F & F could sell more MBS’s by guaranteeing the loans, it shouldn’t be that hard to convince a court that the figures don’t reflect those (at least 4) guarantee payments by using judicially noticeable material from fnma or fhlmc re: their guarantees. imo. Reminder: you can run your own amortization schedule online and imo you can submit it, too. You know what payments you made, so you might figure that out and then see if the balance due (principle) reflects any other reduction. They’ll probably move to amend or dismiss and refile if you get your way, but this will (finally) out the concealed guarantee payments (or that a party who’s a voluntary guarantor has not performed. We haven’t even cracked the surface of that guarantee.
    strictly lay opinions

  43. Pleading decided Inter Alia – where a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute.Inter alia decisions indicate that there were other rulings made by the court but only a particular holding of the case is cited.


    West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

  44. Now this hummer’s got me stumped (California):
    “Civil Code Section 2924c(a)(1), creates a statutory right to reinstate defaulted real property loans. After reinstatement, the loan is de-accelerated. In other words, after the note is de-accelerated, the borrower needs only to make the monthly payments…..(jg: yeah, okay)

    The lender may NOT demand that principle be paid, which would not have been due had the default not occurred. In other words, the amount needed to reinstate must be calculated (by -sic) only the defaulted amounts, plus costs. It may not include the full, accelerated amount of the loan.”

    jg: I don’t know the source of this article, but it’s either wrong or I must be reading it wrong (since I think it says the demand may only be for what’s in arrears)! That’s wrong, right? – after all, it’s an acceleration.


    The article also says that in CA, a slightly-off default amt will not queer a foreclosure with one caveat. It also states what is allowable for a lender to charge re: foreclosure, but like I said, don’t know the source.

  45. This is a link with helpful info re: homeowner insurance issues and laws


    If this won’t open, just try naic.org and muck around.

  46. Something else I learned: “AS LONG AS” the face amt of the policy is
    95% of the replacement cost of the home (not the loan amt), the homeowner retains the 25% ‘home protection cushion’ that can be drawn on. Anyone interested can call her insurance co. and keep calling until you get someone who can adequately explain this.

  47. Today I ran across a case where the bankster claimed to have gotten the infamous force placed insurance but continued to pay the premium on the original insurance (!) Gee, wonder who’s gonna end up paying both those premiums? Wonder if there are really two premiums or did they just make up the fp insurance? Wouldn’t surprise me. So I did some digging and learned that some states (don’t know which) prohibit a lender from requiring a borrower to over-insure his home. If the replacement cost* is 400k, they cannot force a homeowner to have a face amt of 500k, even if the loan is 500k.
    *insurance companies have a program which spits out the replacement cost of a home. As far as I know, anyone may ask for and get that number on his own home. And your insurance company should know if you live in a state with anti-over-insurance laws. IF a bankster alleges to have gotten FP insurance and you can demonstrate that your real policy is alive, it may mean, for another thing, that the alleged default figures (which would include the bs FP insurance premium) are inaccurate. I feel certain those figures have to be spot-on. The Notice of Default is to give notice not just to the homeowner, but to everyone, of the amt to cure.

  48. I cannot imagine why anyone would want any of us to not be able to learn all the informaion we can on how this fraud connects.

    acris notified me that two documents were filed by Bank of America for a mortgagee and an agreement transferring Frances Turners B of Am/ illegal mortgage from Frances Turner to a Patricia Buynes. and i was blocked from responding to ACRIS I went searching for PATRICIA BYrnes. i WAS LED IN THE BACK DOOR TO TITLE RESOURCE GROUP AND A VERY NICE AND ACCOMODATING WOMAN GAVE ME INFORMATION BUT WHEN SHE TOLD MRE SHE NEVER HEARD OF LPs Docx nor Lorraine Brown it was impassible anyone in the mortgage didnt know what i was talking snpiy

  49. why did you now take my moderated statement off where mers can be found in nj ???????

  50. why is my statement in moderation????????????
    whose side are you on?

  51. But what happens when * H.O. Paid much mulaa with reliece. On snarfers claim. Then finds out the snarfer Kept all the mulah and left H.O. With a load of legal issues?

  52. Can anyone cite a difference if I snarfed your home? (Seriously? Can anyone?) You can’t sue me after I foreclose because you were in default to someone else? That is exactly what’s being said here. There may be some other real considerations about post-foreclosure suits, but that sure as hell isn’t one of them.

  53. “Therefore, the material issue of fact in a wrongful foreclosure claim is whether the trustor was in default when the power of sale was exercised…. Because none of the appellants has shown a lack of default, tender, or an excuse from the tender requirement, appellants’ wrongful foreclosure claims cannot succeed. We therefore affirm the MDL Court’s of Count II.”

    You gotta be kidding me. Is this court saying a wrongful foreclosure
    action can’t survive when the party (and his cohorts) who snarfed the home wasn’t the proper party (i.e., a STRANGER) just because the homeowner was in default? If so, this definitely needs to move on up to a higher court, or no one is safe from any lawsuit filed by anyone, esp if that anyone is in the same business. I haven’t read the decision yet. Still looking around for some valium.

  54. “…..the MDL Court held that appellants lacked standing to sue under § 33-420 on the ground that, even if the documents were false, appellants were still obligated to repay their loans. In the view of the MDL Court, because appellants were in default they suffered no concrete and particularized injury. ”

    That’s another load from the MDL. First of all, someone ENTITLED to do so must demonstrate that a bona fide agreement for the borrower to make payments exists. In the absence of that entitled party, I don’t think the court even has any stinking jurisdiction to make such a (bs)
    determination / statement. That’s like GMAC taking me to court and the court finding I should be paying Car Loans, Inc. = no jurisdiction.
    Secondly, since the “entitled party” isn’t present, the court may NOT imo presume what course of action that party would chose for a breach. Maybe that party would pick up the phone, call you, and say ‘let’s work something out’. A court can’t just say otherwise as if that entitled party’s course of action would be a law suit and of the same ilk as the pretender’s. Having to go to court an defend a bs claim IS a “concrete and particularized injury”. I don’t personally believe a wrongful claim requires a showing of injury (you get a ticket for jaywalking even if no one’s hurt, right?), but if it does, there IS injury.

    If the claimant has no claim, the court has no jurisdiction (to say nuthin’ about nuthin’). Courts only have juris to hear issues of real controversy and this requires injury to the claimant. If ANY court is going to be going off about injury, it should be the court hearing the case where it’s (if) being alleged (withOUT reference to the opinion of a court which had no jurisdiction). imo.

  55. Kudos to attorney Hager. For those who might be interested, he and his former associate fought the good fight long and hard against Mers, starting in Nevada,and then it became part of the multi-district litigation (“mdl”) in Arizona re Mers, the ultimate decision being imo, succinctly, a load. Glad to see he’s still at it and making in-roads.
    MERS has to go.

  56. Apparently, you can sue for quite title, a ham sandwich and anything else you want. Establishing the basis of the suit without admitting someone other than the plaintiff is owed monies by the borrower is the reason you all fail. You can admit owing someone money by clarifying the truth. “It just ain’t them yer honnah!”

  57. The title of this post is a lie. The court held nothing of the sort, it just remanded back one count; while dismissing all of the others.

    This is how misinformation is spread. Nonetheless, the trial court will undoubtedly kick the case based on its prior rulings, and then boot the Hagers to the curb. Just another poor homeowner wasting their money on a clueless hack making the wrong arguments.

  58. I agree with Neil he can’t reunify the documents nonsense

    Sent from my iPhone


  59. About time

    Sent from my iPhone


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