When an assignment of a mortgage is invalid, does it require a foreclosure case to be dismissed?

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There seems to be confusion about what is necessary to file a foreclosure. To start with the basics, the debt is created when the borrower receives the funds or when the funds are disbursed for the benefit of the borrower. This requires no documentation. The receipt of funds presumptively implies a loan that is a demand loan. The source of funding is the creditor and the borrower is the debtor. The promissory note is EVIDENCE of the debt and contains the terms of repayment. In residential loan transactions it changes the terms from a demand loan to a term loan with periodic payments.

But without the debt, the note is worthless — unless the note gets into the hands of a party who claims status as a holder in due course. In that case the debt doesn’t exist but the liability to pay under the terms of the note can be enforced anyway. In foreclosure litigation based upon paper where there are claims or evidence of securitization, there are virtually all cases in which the “holder” of the note seeks enforcement, it does NOT allege the status of holder in due course. To the contrary, many cases contain an admission that the note doesn’t exist because it was lost or destroyed.

The lender is the party who loans the money to the borrower.  The lender can bring suit against the borrower for failure to pay and receive a money judgment that can be enforced against income or non-exempt property of the borrower by writ of garnishment or attachment. There is no limit to the borrower’s defenses and counterclaims against the lender, assuming they are based on facts that show improper conduct by the lender. The contest does NOT require anything in writing. If the party seeking to enforce the debt wishes to rely on a note as evidence of the debt, their claim about the validity of the note as evidence or as information containing the terms of repayment may be contested by the borrower.

If the note is transferred by endorsement and delivery, the transferee can enforce the note under most circumstances. But the transferee of the note takes the note subject to all defenses of the borrower. So if the borrower says that the loan never happened or denies it in his answer the lender and its successors must prove the loan actually took place. This is true in all cases EXCEPT situations where the transferee purchases the note for value, gets delivery and endorsement, and is acting in good faith without knowledge of the borrower’s defenses (UCC refers to this as a holder in due course). The borrower who signs a note without receiving the consideration of the loan is taking the risk that he or she has created a debt or liability if the eventual transferee claims to be a holder in due course. Further information on the creation and transfer of notes as negotiable paper is contained in Article 3 of the Uniform Commercial Code (UCC).

Thus the questions about enforceability of the note or recovery on the debt are fairly well settled. The question is what happens in the case where collateral for the loan secures the performance required under the note. This is done with a security instrument which in real property transactions is a mortgage or deed of trust. This is a separate contract between the lender and the borrower. It says that if the borrower does not pay or fails to pay taxes, maintain the property, insure the property etc., the lender may foreclose and the borrower will forfeit the collateral. This suit is an action to enforce the security instrument (mortgage, deed of trust etc.) seeking to foreclose all claims inferior to the rights of the lender established when the mortgage or deed of trust was recorded.

The mortgage is a contract that does not qualify as a negotiable instrument and so is not covered by Article 3 of the UCC. It is covered by Article 9 of the UCC (Secured Transactions). The general rule is that a party who purchases the mortgage instrument for value in good faith and without knowledge of the  borrower’s defenses may enforce the mortgage if the contract is breached by the borrower. This coincides with the requirement that the holder of the mortgage must also be a holder in due course of the note — if the breach consists of failure to pay under the terms of the note. Any party may assign their rights under a contract unless the contract itself says that it is not assignable or assignment is barred by statute or administrative rules.

The “assignment” of the mortgage or deed of trust is generally taken to be an instrument of conveyance. But forfeiture of collateral, particularly one’s home, is considered to be a much more severe remedy against the borrower than a money judgment for economic loss caused by breach of the borrower in making payments on a legitimate debt. So the statute (Article 9, UCC)  requires that the assignment be the result of an actual transaction in which the mortgage is purchased for value. The confusion that erupts here is that no reasonable person would merely purchase a mortgage which is not really an asset deriving its value from a borrower’s promise to pay. That asset is the note.

So if the note is purchased for value, and assuming the purchaser receives delivery and endorsement of the note, as a holder in due course there is no question that the mortgage assignment is valid and enforceable by the assignee. The problems that have emerged is when, if ever, any value was paid to anyone in the “chain” on either the note or the mortgage. If no value was paid then the note might be enforceable subject to borrower’s defenses but the mortgage cannot be enforced. Additional issues emerge where the “proof” (often fabricated robo-signed documents) imply through hearsay that the note was the subject of a transaction at a different time than the date on the assignment. Denial and/or discovery would reveal the fraud upon the Court here — assuming you can persuasively argue that the production of evidence is required.

Another interesting question comes up when you seen the language of endorsement on the mortgage. This might be seen as splitting hairs, but I think it is more than that. To assign a mortgage in form that would ordinarily be accepted in general commerce — and in particular by banks — the assignment would be in the form that recites the ownership of the mortgage and the intention to convey it and on what terms. Instead, many cases show that there is an additional page stapled to the mortgage which contains only the endorsement to a particular party or blank endorsement. The endorsement is not recordable whereas a facially valid assignment is recordable.

The attachment of the last page could mean nothing was conveyed or that it was accidentally done in addition to a proper assignment. But I have seen several cases where the only evidence of assignment was a stamped endorsement, undated, in which there was no assignment. This appears to be designed to confuse the Judge who might be encouraged to apply the rules of transfer of the note to the circumstances of transfer of the mortgage. This smoke and mirrors approach often results in a foreclosure judgment in favor of a party who has paid nothing for the debt, note or mortgage. It leaves the actual lender out in the cold without a note or mortgage which they should have received.

It is these and other factors which have resulted in trial and appellate decisions that appear to be in conflict with each other. Currently in Florida the Supreme Court is deciding whether to issue an opinion on whether the assignment after the lawsuit has begun cures jurisdictional standing. The standing rule in Florida is that if you don’t own the mortgage at the time you declare a default, acceleration and sue, then those actions are essentially void.


Valid assignment is necessary for the plaintiff to have standing in a foreclosure case. (David E. Peterson, Cracking the Mortgage Assignment Shell Game, The Florida Bar Journal, Volume 85, No. 9, November, 2011, page 18).

In BAC Funding Consortium v. Jean-Jeans and US Bank National Association, the Second District of Florida reversed summary judgment for a foreclosure for bank because there was no evidence that the bank validly held the note and mortgage. BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques 28 So.2d, 936.

BAC has been negatively distinguished by two cases:

  • Riggs v. Aurora Loan Services, LLC, 36 So.3d 932, (Fla.App. 4 Dist.,2010) was distinguished from BAC, because in BAC the bank did not file an affidavits that the mortgage was properly assigned; in Riggs they did. The 4th District held that the “company’s possession of original note, indorsed in blank, established company’s status as lawful holder of note, entitled to enforce its terms.” [Editor’s note: The appellate court might have erred here. The enforcement of the note and the enforcement of the mortgage are two different things as described above].
  • Dage v. Deutsche Bank Nat. Trust Co., 95 So.3d 1021, (Fla.App. 2 Dist.,2012) was distinguished from BAC, because in Dage, the homeowners waited two years to challenge the foreclosure judgment on the grounds that the bank lacked standing due to invalid assignment of mortgage. The court held that a lack of standing is merely voidable, not void, and the homeowners had to challenge the ruling in a timely manner. [Editor’s note: Jurisdiction is normally construed as something that cannot be invoked at a later time. It can even be invoked for the first time on appeal.]

In his article, “Cracking the Mortgage Assignment Shell Game,” Peterson in on the side of the banks and plaintiffs in foreclosure cases, but his section “Who Has Standing to Foreclosure the Mortgage?” is full of valuable insights about when a case can be dismissed based on invalid assignment. Instead of reinventing the wheel, I’ve copied and pasted the section below:

It should come as no surprise that the holder of the promissory note has standing to maintain a foreclosure action.34 Further, an agent for the holder can sue to foreclose.35 The holder of a collateral assignment has sufficient standing to foreclose.36 [Editor’s note: Here again we see the leap of faith that just because someone might have standing to sue on the note, they automatically have standing to sue on the mortgage, even if no value was paid for either the note or the mortgage].

Failure to file the original promissory note or offer evidence of standing might preclude summary judgment.37 Even when the plaintiff files the original, it might be necessary to offer additional evidence to show that the plaintiff is the holder or has rights as a nonholder. In BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), for example, the court reversed a summary judgment of foreclosure, saying the plaintiff had not proven it held the note. The written assignment was incomplete and unsigned. The plaintiff filed the original note, which showed an indorsement to another person, but no indorsement to the plaintiff. The court found that was insufficient. Clearly, a party in possession of a note indorsed to another is not a “holder,” but recall that Johns v. Gillian holds that a written assignment is not needed to show standing when the transferee receives delivery of the note. The court’s ruling in BAC Funding Consortium was based on the heavy burden required for summary judgment. The court said the plaintiff did not offer an affidavit or deposition proving it held the note and suggested that “proof of purchase of the debt, or evidence of an effective transfer” might substitute for an assignment.38 [e.s.]

In Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990), the court held that an assignment executed after the filing of the foreclosure case was not sufficient to show the plaintiff had standing at the time the complaint was filed. In WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004), however, the court distinguished Jeff-Ray Corp., stating that the execution date of the written assignment was less significant when the plaintiff could show that it acquired the mortgage before filing the foreclosure without a written assignment, as permitted by Johns v. Gilliam.39

When the note is lost, a document trail showing ownership is important. The burden in BAC Funding Consortium might be discharged by an affidavit confirming that the note was sold to the plaintiff prior to foreclosure. Corroboratory evidence of sale documents or payment of consideration is icing on the cake, but probably not needed absent doubt over the plaintiff’s rights. If doubt remains, indemnity can be required if needed to protect the mortgagor.40 [e.s.] 34  Philogene v. ABN AMRO Mortgage Group, Inc., 948 So. 2d 45 (Fla. 4th D.C.A. 2006); Fla. Stat. §673.3011(1) (2010).

35                  Juega v. Davidson, 8 So. 3d 488 (Fla. 3d D.C.A. 2009); Mortgage Electronic Registration Systems, Inc. v. Revoredo, 955 So. 2d 33, 34, fn. 2 (Fla. 3d D.C.A. 2007) (stating that MERS was holder, but not owner and “We simply don’t think that this makes any difference. See Fla. R.Civ. P. 1.210(a) (action may be prosecuted in name of authorized person without joining party for whose benefit action is brought)”). [Editor’s note: This is an example of judicial ignorance of what is really happening. MERS is a conduit, a naked nominee, whose existence is meaningless, as is its records of transfer or ownership of the the debt, the note or the mortgage]

36                  Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 5th D.C.A. 1966) (collateral assignee was a holder); Cullison v. Dees, 90 So. 2d 620 (Fla. 1956) (same, except involving validity of payments rather than standing to foreclose).

37                  See Fla. Stat. §673.3091(2) (2010); Servedio v. US Bank Nat. Ass’n, 46 So. 3d 1105 (Fla. 4th D.C.A. 2010).

38                  BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d at 938-939 (Fla. 2d D.C.A. 2010). See also Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d D.C.A. 2010) (Bank filed original note, but indorsement was to a different bank). But see Lizio v. McCullom, 36 So. 3d 927 (Fla. 4th D.C.A. 2010) (possession of note is prima facie evidence of ownership). [Editor’s note: this is the nub of the problems in foreclosure litigation. The law requires purchase for value for ownership, along with other criteria described above. This court’s conclusion places an unfair burden of proof on the borrower. The party with the sole care, custody and control of the actual evidence and information about the transfer or sale of the ndebt, note or mortgage is the Plaintiff. The plaintiff should therefore be required to show the details of the transaction in which the debt, note or mortgage was acquired. To me, that means showing a cancelled check or wire transfer receipt in which the reference was to the loan in dispute. Anything less than that raises questions about whether the loan implied by the note and mortgage ever existed. See my previous articles regarding securitization where the actual loan was actually applied from third party funds. hence the originator, who did not loan any money, was never paid for note or mortgage because consideration from a third party had already passed.]

39                  See also Glynn v. First Union Nat. Bank, 912 So. 2d 357 (Fla. 4th D.C.A. 2005), rev. den., 933 So. 2d 521 (Fla. 2006) (note transferred before lawsuit, even though assignment was after). [Editor’s note: if the note and mortgage were in fact transfered for actual value (with proof of payment) then a “late” assignment might properly be categorized as a clerical issue rather than a legal one — because the substance of the transaction actually took place long before the assignment was executed and recorded. But the cautionary remark here is that in all probability, nobody who relies upon the “Chain” ever paid anything but fees to their predecessor. Why would they? If the consideration already passed from third party — i.e., pension fund money — why would the originator or any successor be entitled to demand the value of the note and mortgage? The originator in that scenario is neither the lender nor the owner of the debt and therefore should be given no rights under the note and mortgage, where title was diverted from the third party who DID the the loan to the originator who did NOT fund the loan. 40 Fla. Stat. §673.3091(2) (2010); Fla. Stat. §69.061 (2010).-David E. Peterson, “Cracking the Mortgage Assignment Shell Game”, The Florida Bar Journal, Volume 85, No. 9, November, 2011.

I also came across a blog post from another attorney on how to argue Florida assignments of judges. I don’t know how reliable this is, but it does cite several cases, and may be a useful resource to you: http://discoverytactics.wordpress.com/tactics-strategies/how-to-argue-florida-assignments-to-judges/. Someone also posted the content of the above link verbatim in a comment on my blog at http://livinglies.me/foreclosure-defense-forms/people-players-and-resources/state-laws/florida-laws/.


48 Responses

  1. Hello,
    Been reading your blog for years. quick question, re:the mortgage cannot be enforced.

    “The problems that have emerged is when, if ever, any value was paid to anyone in the “chain” on either the note or the mortgage. If no value was paid then the note might be enforceable subject to borrower’s defenses but the mortgage cannot be enforced. Additional issues emerge where the “proof” (often fabricated robo-signed documents) imply through hearsay that the note was the subject of a transaction at a different time than the date on the assignment. Denial and/or discovery would reveal the fraud upon the Court here ”

    Would that be a UCC rule, since no money transferred to transfer the contract/mortgage?


  2. […] When an assignment of a mortgage is … – When an assignment of a mortgage is … – 23.09.2014 · … before filing the foreclosure without a written assignment, … assignment of a mortgage is … […]

  3. […] When an assignment of a mortgage is … – 23.09.2014  · … before filing the foreclosure without a written assignment, … assignment of a mortgage is invalid, does it … Livinglies’s Weblog … […]

  4. […] When an assignment of a mortgage is invalid, does it … – Sep 23, 2014  · From Today’s LA TImes (online edition) 9/25/14. The jury in a mortgage case finally strikes back at fraudulent bankers. LOS ANGELES TIMES michael.hiltzik […]

  5. Great info here! Is a deed of trust legal in the state af Florida? I thought it was not but have come across it in my document review. Thank you

  6. The “bait and hook” Bank of America only bought serving rights to Countrywides’ “supposed” loans at approximately $450.00 a piece.

    A shell game. There was no valid lien, per SEC files and no valid REMIC trust….I have the same paperwork and was told not to make payments for 2-4 months to qualify for a modification…have every piece of paper and communication. The only way they can get a judge to rule in their favor is the “illusion” of injury and a trust. That’s the biggest lie of all, non-lawyer.

  7. UKG, Smart Attorney!

  8. From Today’s LA TImes (online edition) 9/25/14

    The jury in a mortgage case finally strikes back at fraudulent bankers


    Who were the real fraudsters in the mortgage crash? A Sacramento jury says: the bankers

    Finally, a jury convicts mortgage bankers of fraud–in absentia
    Given the government’s failure to bring criminal cases against bankers and other Wall Street figures for collapsing the U.S. economy in 2008, it’s been left to the little guy to strike back.

    To be precise, one federal jury in Sacramento, which acquitted four allegedly fraudulent mortgage borrowers of criminal charges after hearing testimony that the executives at their banks pulled out all the stops to make fraudulent loans for their personal profit.

    Only fraudulent lenders would ever do stated income (mortgages). Period. Full stop.
    – William K. Black, former banking regulator
    We’re a bit late to this story–the verdict was handed up at the end of August, Salon’s Thomas Frank had a good analysis of the case a few weeks ago. But because of its potential significance for mortgage fraud prosecutions going forward, and because it happened in the federal district known for its aggressiveness in pursuing borrowers for mortgage fraud, the case is worth a closer look.

    “The jury understood that these defendants were mice,” says William K. Black, a former litigation director at the Federal Home Loan Bank Board who oversaw the prosecutions of numerous savings-and-loan executives after that industry’s meltdown.

    Black, who is associate professor of law and economics at the University of Missouri-Kansas City, was an expert witness for the defense in the Sacramento case. He may have delivered the key testimony blowing up the government’s contention that the defendants were the main fraudsters. His testimony was that executives at the lending institutions deliberately created a system to make fraudulent loans as a recipe for personal enrichment.

    The government had charged Yevgeniy Charikov, 42, a Sacramento real estate agent, and three others with buying properties, flipping them at inflated prices, and submitting fraudulent documentation to lenders Aegis Wholesale Corp. (which filed for bankruptcy in 2007) and GreenPoint Mortgage Funding (now part of Capital One) to obtain loans on the properties.

    Black testified that the very business model of Aegis and GreenPoint depended on their making fraudulent loans–their executives were determined to make the companies grow fast, to collect lavish compensation, and sell off the problem loans in the secondary market so they would be someone else’s problem when they blew up. Companies like like GreenPoint and Aegis couldn’t grow fast and book huge profits by serving the market of good borrowers with mortgages commensurate with their ability to pay–that market was too small and too competitive. So they chose to make loans that didn’t require verifying the borrowers’ incomes.

    In the Sacramento case, the jury essentially found that the truth or falsity of the documentation the borrowers provided was immaterial–the lenders would have made the loans anyway.

    During the mortgage boom, the incidence of fraud in “stated income” loans, in which the borrowers were taken at their word, was 90%, Black testified. It was well known in the banking industry, he added, that stated income loans were “an open invitation to fraudsters.”

    Black explained to the jury that making such loans requires gutting the underwriting and appraisal departments, an honest bank’s bulwark against bad mortgages. Asked about the “quality” of the underwriting at GreenPoint, he replied: “Using the word ‘quality’ is an injustice to the word. This was an utter sham in which underwriters were instructed not to underwrite.” He pointed out that former underwriters at GreenPoint testified that “even if they called the (borrower’s) employer, had them on the phone, they were not permitted to ask about the (borrower’s) income.

    “That’s insane,” Black said. “No honest banker would ever do that. No real underwriter would ever go along with it either….Only fraudulent lenders would ever do stated income. Period. Full stop.”

    Where would the directives to underwriters come from? From the executive suite, of course. “The fraudster,” Black testified, “is the CEO or whoever controls the institution and decides, ‘We’re going to do loans that will be 90% fraudulent, and then we’re going to sell them to Bear Stearns through fraudulent representations and warranties.’…Nobody gets to do anything unless the CEO says, ‘Hey, let’s create a system that produces almost unanimous fraud.'”

    That’s a key point, because the pattern of government enforcement post-recession has been to pursue corporations while leaving their actual managers alone. In the Department of Justice’s “historic” (DOJ’s word) $16.5-billion settlement with Bank of America this summer or its “historic” (again, prosecutors’ word) $13-billion settlement with JPMorgan last fall, how many executives were made to lose their jobs or face criminal prosecution or even civil lawsuits as a condition of the deal? Not a one.

    The notion that bank managements are the victims of mortgage fraud is deeply ingrained in the prosecutor mentality. In 2010, Benjamin Wagner, Sacramento’s U.S. attorney, told the Huffington Post, “It doesn’t make any sense to me that they (bank executives) would be deliberately defrauding themselves.”

    Wagner plainly doesn’t recognize that a corporation and its top executives are not the same thing, or that a CEO might defraud not himself, but his bank. “Despite what the Supreme Court says,” Black told the jury in Sacramento, “corporations aren’t really people. The reality is corporations have no soul, they have no mind…they have no ability to protect themselves from their senior officers.”

    Wagner’s office prosecuted and lost the Sacramento case. In its aftermath he told the Sacramento Bee, “We respect the criminal trial process, and accept the jury’s verdict in this case. It will not dissuade us from pressing forward in the many other mortgage fraud cases currently pending in this courthouse.”

    For the most part, they’re are cases against those Black defines as “mice.” The approach leaves the King Rats untouched. At least this once, a jury called foul. Wagner might be wise to recalibrate his guns.

    As Black told us, “I certainly didn’t go out to ‘dissuade’ the prosecution of mortgage fraud, but to encourage it.”

    Keep up to date with The Economy Hub by following @hiltzikm.

  9. From today’s Seattle Times….

    The Touchables: Holder and the rackets

    Posted by Jon Talton

    Wall Street must be relieved by the resignation of Attorney General Eric Holder, its fierce and unstoppable nemesis.

    From their prison cells, Kerry Killinger of Washington Mutual, Lloyd Blankfein of Goldman Sachs, Sandy Weill of Citigroup, Stan O’Neal of Merrill Lynch, Hank Greenberg of AIG, Angelo Mozilo of Countrywide, Dick Fuld of Lehman Brothers, credit default swap-meister Joe Cassano, Ian McCarthy whose Beazer Homes violated mortgage regulations with its aggressive tactics, Frank Raines of Fannie Mae, Kathleen Corbet of Standard & Poor’s…and many more.

    As they swab floors, serve slop in the penitentiary cafeteria and learn skills for the minimum-wage jobs that await them on the outside, they must be cursing Holder still. Even more so because the “clawbacks” he insisted upon ensured that these executives had to repay the hundreds of millions in compensation they received while setting the table for disaster. Mansions, yachts and expensive cars and jewelry — all sold at auctions.

    “If a poor kid had robbed a liquor store of $10, he’d be serving time,” Holder said. “These people robbed the American people and economy of billions. They robbed the American people of hope.”

    Holder insisted on applying the rule of law to the financial elite that brought down the economy, impoverishing millions of Americans and costing a trillion or more in lost output. This despite the “banksters,” as he called them, reviving a phrase from the Great Depression, owning the U.S. Congress and putting relentless pressure on President Obama to stop this new Untouchable.

    Importantly, Holder and his U.S. Attorneys not only brought successful criminal prosecutions, he also explained to the American people how the hustles had been carried out and how the time bomb had been set that would bring the world economy to the brink of a second great depression. As a result, figures such as Alan Greenspan, Bill Clinton, Phil Gramm, Robert Rubin and former SEC Chairman Chris Cox are disgraced. Congress passed a new Glass-Steagall Act to prevent the criminal rackets that grew out of deregulation.

    “Never again will profits be privatized while losses are socialized,” the Attorney General said. “Never again will the public good be held hostage by a gang of oligarchs.”

    When Holder brought suit against JPMorgan Chase and Bank of America under the Sherman Antitrust Act, all the Too Big To Fail Banks entered consent decrees to voluntarily break themselves up. TBTF was over, as was the financialization that cost so many American jobs. After Holder, banking became a boring business again, lending money to help create and expand job-creating enterprises, and serving individual customers with integrity.

    …Oh, wait.

    None of that happened.

    They got away with it. Holder’s Justice Department at best extracted wrist-slap fines that are the corporate equivalent of a rich person flashing a wad of cash when being stopped for speeding…and the officer takes the money and lets the perp go.

    Next up: Revolving Door Watch. Where will General Holder end up on Wall Street, in a highly paid sinecure? Eric Cantor and a host of others will be waiting for him. Or maybe it will be K Street.

    The saddest lesson of Holder’s tenure was that there is indeed a different set of laws for the wealthy and well-connected. The buck stops with President Obama. A “liberal leftist socialist”? No, another neo-liberal status quo leader, enabler of the “quiet coup,” with an even worse record than his predecessor, who oversaw criminal prosecutions of the heads of Enron, HealthSouth, Tyco, etc.

  10. mycookiejar did you see someone got $30 million from the SEC, from a 2011 whistleblower tip?

  11. Report Away. If you only knew how relavent it is. Its Deadly Clear. ” GRINS”.

  12. mycookiejarts: You are back to posting krap again and wasting people’s time. Post something relevant or I will report you AGAIN!

  13. The Early Bird Gets the Worm. Sorry Charlie!

  14. Ditto UKG. Its Been a Pleasure.

  15. This Land is Your Land. This Land is My Land. From California to the New York Islands, from the Redwood Forrest to the Gulfstream Waters, this Land was Made for You and Me. As I was walking, I saw below me. . . The Green Greedieeees. I saw above me, the Golden Highway, this Land was made for You and Me. KC and the Sunshine Band. Let’s Ride!

  16. I should have stated they stop all Fannie Mae non-judicial foreclosures in the states and DC!

  17. Posted back on Jul 30, 2014 there was a message that all foreclosures in DC and Pennsylvania must be judicial and all non-judicial that have not been to foreclosure sale must be dismiss, and also Hawaii determine that judicial foreclosures be performed.

    I believe that the lack of the law has cause first all these illegal foreclosures, and now millions of foreclosures later, the Federal Government is in cover up mod because it would cause such a mess to the housing market, not only because of the past homeowners and the new homeowners of these properties.

    JPMorgan and Wells Fargo foreclosing Ginnie Mae with Washington Mutual Bank loans as the “holder in due course” when it so easy to prove they had no financial interest in these loans!

  18. http://www.courts.ca.gov/opinions/documents/G050049.PDF

    The judgment is reversed. The order sustaining the demurrer to the cause of action for fraud is reversed as to BofA and respondents Williams, Smith, and Garnham and affirmed as to respondents Recon Trust, Moynihan, and Desoer. The order sustaining the demurrer to the breach of contract cause of action is reversed as to BofA
    and affirmed as to the other respondents. The order sustaining the demurrer to the cause of action for promissory estoppel is reversed as to BofA and is affirmed as to the other .

  19. Foreclosure/Standing: plaintiff failed to demonstrate it had standing at lawsuit’s commencement and, further, assigned note after lawsuit but never received assignment of note back – Pennington v. Ocwen Loan Servicing, LLC, No. 1D13-3072 (Fla. 1st DCA Sept. 16, 2014) (reversed and remanded for further proceedings).
    Foreclosure/Contractor’s Lien: reversing final judgment of foreclosure in favor of entity that purchased loans because fact issue remained regarding whether entity created investors that controlled developers for improper purpose of extinguishing contractor’s liens – CDC Builders, Inc. v. Biltmore-Sevilla Debt Investors, LLC, No. 3D13-603 (Fla. 3d DCA Sept. 17, 2014) (reversing summary judgment and remanding for further proceedings).
    Foreclosure/Striking Pleadings: affirming striking of pro se defendant’s pleadings for willful and deliberate failure to comply with multiple orders – Ledo v. Seavie Resources, LLC, No. 3D14-21 (Fla. 3d DCA Sept. 17, 2014).
    Quiet Title/Amendment of Pleadings: property owners should have been permitted leave to amend before dismissal of their quiet title claim with prejudice – Ledo Unrue v. Wells Fargo Bank, N.A., No. 5D13-3443 (Fla. 5th DCA Sept. 19, 2014).

  20. http://www.cfjblaw.com/files/uploads/realprop/9-19-14/muhammad-v-bac-home-loans-servicing-lp.pdf

    foreclosure reversed
    Foreclosure: trial court erred by entering judgment of foreclosure without taking testimony or considering evidence –
    Go Florida!

  21. I forget who was recently talking about the far reaching consequences of “rocket docket” with court staff stamping stuff without reading anything more than the foreclosure mill law firm name in top corner requesting default judgement. Of course it’s a default judgement no one gets to show up to defend.

  22. Charles Reed
    That is the issue – being unless you can evidence fraud in the inducement of the contract and appraisal negligence/fraud( which is in my appeal -( note we had a right to rely on the appraisal being honest and true reflection of a stable market value) it’s a case of ” you took out a loan bought a house and did not pay so you broke the contract” getting a judge to listen after that is the challenge we all face. So I lost my home to an entity that failed to disclose to the court the real material facts – then the “plausible deniability” game comes in and the switcheroo of transfers of the deed and authorized capacities in question of who is who as trustee and sub trustee atty for and atty in fact for, and the court goes along with it – so where’s the harm – for example I was deprived of my home under these maneuvers because power of sale in the contract was abused, in their haste they made mistakes that by their own hands show a fraud the documents they submitted I am using and as I said it shows I was forced out of my primary residence and had a judgement against me which never could happen under the law and rights to POSSESSION- they were plaintiff I was not served plus other unbelievable mis steps of law and I was harmed and I am harmed I have moved sticks 3 times since renting, they sold my home to a new borrower, it’s been 4 years and I found out a few moths ago about the judgement and the other problems thereto- that judgement is so void as a matter of law. Back to attitudes shall we say, the end result would not be the same because I prevailed on appeal and that is yet to be decided. What a predicament. Oh and the 1099a issue too. All adds up to a big ass mess legally. 5 years plus and counting that’s the harm.

  23. Elexquuisitor I think that it is only normal that the judge would expect one to show what harm has been caused. If your going to court before you foreclosed what is the damage? There is none, but if you got documentation that the party issuing the loan due does not have a financial interest, and its all about an equity possession, is what needs to be presented.

    Simply saying they don’t have a Standing should not get it, but providing a reluctant judge evident and he judges against you, if challenged in an appeal should bring the right result. I see a changing in thinking across the country, but these wild theories are not helping. But everybody not going to win because everybody was not harmed!

  24. @ETolle – speaking of judges, this just in from a CA superior court tentative ruling … “[plaintiff must allege facts showing that they suffered prejudice as a result of any lack of authority of the parties participating in the foreclosure process.]”

    In other words, if you were walking in a known criminal area of town and were robbed at gunpoint, this judge would likely say you were going to get robbed by somebody anyway, so you really weren’t a victim before letting the perps walk (again). And unfortunately, this judge is just reading from the judge’s playbook on non-judicial foreclosures in CA.

  25. E.Tolle, the fleecing of America continues. I saw a post that said America was heading to be the new Gaza where we will be killed with impunity and all that we have is taken away from us. However, the only thing I can say of a positive nature about this is that if you kill off the golden goose, eventually there is nothing more to fleece. Self-limiting business plan.

  26. ET
    This is why I say our only hope is the few good men ( judges) that we have left. I think we do have cause to believe that it’s not over until fat lady sings. You are a lot more educated than I, being my whole working life I have taken care of sick people, that’s all I know, but I’ve seen plenty of miracles and although I understand what you are saying , for me personally they will have to shut every door and every window of my right to be in court
    Until then the fat lady does not have the right to sing.

  27. E.Tolle: you are absolutely right. Our due process rights under the Constitution have been completely wiped out. This, BTW, is what happened in Germany after the Weimar Republic’s currency bit the dust and the citizens voted in Hitler and the Nazi party. Look out, we are already looking like fascism as the corporations run our country including the munitions manufacturing companies with perpetual war. What is wrong with the people of this country who want more war in Iraq of all places because of the lies they hear on the boob tube–just like the last time.

  28. D. Wynn, while the date on that PDF might lead one to believe that that thesis is timely, as in from yesterday, it’s actually some 21 months old. The Cliff notes version would read, When the United States Government Forecloses On U.S. Citizens Is Due Process Really Necessary? The author argues adamantly in the affirmative, but what’s the outcome been in that time frame? A cacophony of crickets? Do any of our elected representatives give a shit? Hello Congress…is anyone home?

    Oh I forgot, they’re all too busy out in the halls collecting their installment payments from their FIRE employers. Graft becomes them.

    Am I the only one that can’t believe what is written when a scholarly paper asks the question of whether or not U.S. citizens should be afforded due process protections and adherence to constitutional law when legal actions are initiated by our very own federal government against us? Is this the fucking Twilight Zone?

    It’s been that way on every front. Dual tracking? Still happening! But no one cares. As a matter of fact, I read where the courts in MN and AZ have even said that mortgagors have no standing to argue dual tracking infractions. Imagine that! Shut up bitches, do what you’re told. Pay your rent to your private equity landlord and give thanks.

    In Wall Street We Trust

  29. Deborah winn read that piece yesterday and felt such a great feeling of correctness. Not having really spoke on Fannie & Freddie, but taking what they put in this report on a quasi government owned agencies and saying what I been saying about a Ginnie Mae that 100% Government owned is icing on the cake.

    A couple of year ago I started writing the Justice Dept about they illegal seizure of our properties with WaMu ex-loan being in the possession of Wells Fargo. If this does not make Justice move faster in resolving this injustice, I don’t know what will.

    There is not government taking over the agency (Ginnie) in 2008 as with the other two (Fannie, Freddie) but they always been government owned so there is no gray area of publicly owned.

    DwightNJ problem was an education for me because it exposed to a Fannie WaMu loan that had the same problems as the Ginnie loan I had, were Wells came to the court calling the loan due as the owner of the debt, but when challenged they admitted that they were only the holder of the Note. Now I though all the Fannie, Freddie WaMu loans were being handled by JPMorgan in the alleged sell of loan on Sept 25, 2008. But now everything is unfolding as with JPM how now admitted it did not purchase those loan and in fact is suing the FDIC as a result of the deal.

    On Mar 6, 2012 I received a letter from Wells Fargo saying they were only working for Ginnie Mae in this matter, and I wrote the Justice Department’s Civil Right Division as to my Constitutional Right being violated with an illegally seizure of my property by the Federal Government in Ginnie Mae.

    I look at it like that that Ginnie looked the other way as Wells & MERS carried out the act, while Ginnie played like they had no ideal what happen after this alleged “Repurchase” of loan out of the securities. Now Ginnie Mae is trying to say that Wells placed the loan in the securities instead of WaMu a full 3yrs before Wells said it have even knew the loan existed and provided a Welcome letter for the first payment they were to received as the servicer, plus writing that they have no knowledge of my loan before they took over serving on Dec 1, 2006. Wells says because they were not associated with the loan before Dec 1. 2006, they had no knowledge prior too!

  30. Deadly Clear! Its that Simple!

  31. @DeborahW – your point on ‘for value received’ is illuminating. But even a stipulation of value needs a document to confirm the stipulation took place. CA judiciary adamantly denies homeowners discovery of that stipulation in order to hide behind its lack of jurisdiction to consider the consideration. Would a court consider a ‘credit default (swap)’ adequate consideration under UCC3? Or does the consideration have to be measured in the same units (dollars) as the original loan transaction?

  32. I agree, you are so clever, E. I have found “word play” is also the game. Things are very much, not what they appear! David Copperfield would be envious.

    Serfdom…..is correct!

  33. From Neil’s post:

    “But I have seen several cases where the only evidence of assignment was a stamped endorsement, undated, in which there was no assignment. This appears to be designed to confuse the Judge…..”

    Bullshit. It allows the judge to proceed with seemingly clean hands and rule for the banksters. If this scenario happened only once in a while….on occasion, here and there, by happenstance, willy-nilly, a one-off, one might be confused by this sleight of hand. But it’s in everyone’s face by the millions. It’s a BUSINESS PLAN….a feature, NOT a bug!

    It allows the judiciary to continue to rule in favor of their pensions and the rest of their brethren in the law community. It stretches out the “housing debacle”, allowing the banks to slowly recoup monies and right themselves, one by one. What are a few million mortgagors worth, against the stability of the (their) entire system? Cannon fodder. Chattel. TPTB have weighed heavily all the possible outcomes and feel that sacrificing the middle class, in order to maintain their system of ownership and rents is the only viable outcome.

    Serf’s up!

  34. Reblogged this on Deadly Clear and commented:
    Excellent post. A “traditional” mortgage loan never took place. These were NTMs (non-traditional mortgages) wherein there are no statute that governs quasi-securities transactions – are there?

  35. You know if nothing else, this forum is good for brain storming and deciding what you want to pursue research wise according to our individual case (s) and arguments.

  36. I’m finding that poppy.

  37. I just got a nice link for clarification for that ” for value received” and the ” consideration “. A must read

  38. Debt collectors are not necessarily servicers. I have found a “servicer” should identify whom they are a “servicer” for and a real party of interest, where a debt collector can be servicing an account, be it written-off, charged-off, sold or a consignment (for a %), not collecting for the original lender or its assigns. Non-lawyer opinion only. Vastly different things and rules.

  39. The suit is to enforce the Security Instrument. YEP! NeIl Got It Right! I will Enforce It Right Upside somebodys Head!

  40. Debt collectors and servicers have a statement on your mortgage statement and in their correspondence which must say that they are debt collectors. They operate outside the law, and their business model operates outside the law. Look at Fair Debt Collections Practices Act lawsuits.

  41. So many time I talked about “holder in due course” but as Neil does not get around to reading the posts, here we are two years later. But there is another main issue is that in owner to make or own a home mortgage loan one must be able to act as a home mortgage lender.

    If your not regulated to lens like a loan shark who made the loan, but cannot come to court to have the loan enforce because the act was handled outside the law.

    Who should not best about being license is an Attorney who has passed the bar and is authorized to practice law, while a lawyer with the same education but has not passed the bar, cannot practice law.

    You cannot practice as a Pharmacy if your not license, you cannot act as a auto dealer as you sell to many auto under your tree. So if your an Retirement Fund, or Securities investor that have invested in securities or bond, who are not purchasing the debt but the performance of the pooling of the loan payments.

    You must be practicing under the Fair Housing Act, and you must be able to service the loans, which cannot happen if your not the lenders. I believe the language in the Note says lenders or successors only applies for future lender successor who are qualified to lend.

    Part of the scheme is to not let the homeowner know who is allegedly holding the Note as owner.

    Here were I believe Neil goes down the wrong road is trying to prove that the funding is false, and it actually that party that makes the loan, when in fact a non lender cannot make the loans. But you need some documentation to proof that other than the wire can in the name of a bank instead of a mortgage lender who not going to have bank operation to wire the monies in. Now if it were a Wells Fargo, BOA, Citi or Chase with other banks providing a wire from a source other than them, then one would have to question that, but for a mortgage company to have funds delivered by a bank does not raise a question because this must occur as through the Fed the mortgage company is not a BANK!

  42. Cookie you are way ahead of me. Stay parked sadly I was bullied out of my home with a note on my from door after a 12 hr day Friday said pack your stuff and leave your home was foreclosed. Attorney- whoosh no where to be found.

  43. I am T.I.E. With R.O.S. Any Turkey that says otherwise is F.O.S.

  44. I print the reports frequently, I mean really how much harm could it cause? Compared to a debt that I was not aparty to being on my report. I followed directions n played by the rules. I paid the taxes n ins. I kept my butt parked n the property maintained. I paid an Attorney. Soon what was stolen from me shall be returned clear of all forgeries and smudges. Many Blessings to All!

  45. All this ” assigns and successors” don’t forget the predecessor(s) if a party is purportedly a successor in interest there needs to be a predecessor so if they are NOT the successor then who is the predecessor yet the non successor foreclosed as beneficiary and at the material time was under conservatorship, 1099a issued same day as trustee sale for amount of first lien loan ( loan 85/15 first money conventional loan) trustees deed upon sale has 90,000usd more added on claimed as debt owed. Explain that away if you will, anyone.

    It was not the guy on the county land records! So assigns need to be shown to have legal force to collect the debt one would think.
    Also we have assignment by a well known Robo signer ( I have that deposition of this amazing person who is on so many payrolls I lost count) to a trust years after trust closed and during the servicers receivership/ conservatorship where these certain “assets” were sold but the new owner was not the successor in interest . As the natives say ” speak with forked tongue”.

  46. Just looking at my credit reports.so look laterally against what the servicer did to you and look for controversies against the stuff reported to the credit reporting agencies you might find interesting stuff.nite dates amounts and account numbers etc.you might see ” transfers to another lender” like who

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