For further information please call 954-495-9867 or 520-405-1688
==============================
http://nypost.com/2015/01/31/ny-federal-judge-slams-wells-fargo-for-forged-mortgage-docs/
COURT FINDS PRESUMPTIONS CAN BE REBUTTED BY A SHOWING OF SOME EVIDENCE THAT THE INSTRUMENT AND/OR SIGNATURE IS NOT AUTHENTIC
What I like about the Federal Judge decisions is that they express the reasons for their orders and judgments with much greater specificity than State Court judges tend to do — probably because they have a lighter case load and when they get promoted it can go pretty high (like the US Supreme Court). So it should come as no surprise that a New York Federal Bankruptcy Judge issued a 30 page opinion that essentially said what people have been saying since 2007 — the entire foreclosure process is an exercise in illegal patterns of conduct to the detriment of the homeowners. Since he also made clear that the debt remains, we have yet to get a definitive opinion from a Judge that questions whether the original closing was valid and enforceable. for that we still need to wait.
But by ruling on the specifics of how to rebut presumptions that are used in cases involving negotiable instruments, this Court has definitely opened the door to requiring the banks to do something that he suspects and I know the banks cannot do — prove the loan transaction, and the loan transfers with actual transactions in which a purchase and sale occurred and money exchanged hands after which there was delivery of the paper. Once THAT cat is out of the bag, the banks are doomed. People are going to start asking the question they have been asking for years — except this time it won’t be a rhetorical question: “If the originator didn’t loan the money then who did? And if there was no consideration for the transfer of the loan documents then whose money was used to originate or acquire the loan?” The answers will surprise even veterans of this war.
see franklin-opinion
Excerpts—
The debtor herein (the “Debtor”) has objected to a claim filed in this case by Wells Fargo Bank,
NA (“Wells Fargo”), Claim No. 1‐2, dated September 29, 2010 (amending Claim No. 1‐1), on the basis that Wells Fargo is not the holder or owner of the note and beneficiary of the deed of trust upon which the claim is based and therefore lacks standing to assert the claim.1 This Memorandum of Decision states the Court’s reasons, based on the record of the trial held on December 3, 2013 and the parties’ pre‐ and post‐trial submissions, for granting the Claim Objection….
(i) how could Wells Fargo or Freddie Mac assert a claim under the Note when the Note was neither specifically indorsed to either of them nor indorsed in blank (and was specifically indorsed to ABN Amro, although ABN Amro had subsequently assigned its interest therein to MERS as nominee for Washington Mutual Bank, FA), and (ii) how could Wells Fargo properly assert any rights under the July 12, 2010 Assignment of Mortgage when the person who signed the Assignment of Mortgage from MERS in its capacity “as nominee for Washington Mutual Bank, FA” to Wells Fargo was an employee of Wells Fargo (as well as of MERS),3 and there was no evidence that Washington Mutual Bank, FA authorized MERS to assign…….
if Freddie Mac was the owner of the loan, as both Wells Fargo and Freddie Mac contended, why was Claim No. 1‐1 filed by Wells Fargo not as Freddie Mac’s agent or servicer, but, rather, in its own name? (The ownership/agency issue had practical as well as possible legal consequences because counsel for Wells Fargo contended that Freddie Mac guidelines precluded Wells Fargo from considering loan modification proposals for the Debtor.)….
the parties engaged in discovery disputes that resulted in an order compelling the deposition of John Kennerty, who by then no longer worked for Wells Fargo, see Kennerty v. Carrsow‐Franklin (In re Carrsow‐Franklin), 456 B.R. 753 (Bankr. D. S.C. 2011), and Wells Fargo’s production of a woefully unqualified initial Rule 30(b)(6) witness…..
Wells Fargo responded that it did not need to be the owner of the loan in order to enforce the Note and a secured claim for amounts owing under it. Instead, Wells Fargo relied, under Texas’ version of Article 3 of the Uniform Commercial Code (the “U.C.C.”), solely on being the “holder” of the Note indorsed in blank by ABN Amro that appeared for the first time as an attachment to Claim No. 1‐2.7…
In a bench ruling on March 1, 2012, memorialized by an order dated May 21, 2012, the Court agreed with Wells Fargo, concluding that, under Texas law, if Wells Fargo were indeed the holder of the Note properly indorsed in blank by ABN Amro, Wells Fargo could enforce the Note and the Deed of Trust even if it was not the owner or investor on the Note or properly assigned of Deed of Trust,8 citing SMS Fin., Ltd. Liab. Co. v. ABCO Homes, Inc., 167 F.3d 235, 238 (5th Cir. 1999) (under Texas law, “[t]o recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note”) (emphasis added), and In re Pastran, 2010 Bankr. LEXIS 2237, ….
Perhaps wary of relying on an assignment by the assignee to itself without authorization by the purported assignor, Wells Fargo has waived reliance on the July 12, 2010 Assignment of Mortgage to establish its right to assert Claim No. 1‐2, looking only to its status as a holder of the Note. It indeed appears that Mr. Kennerty’s signature on the Assignment of Mortgage was improper in either of his capacities, as an officer of Wells Fargo or as an officer of MERS, without further authorization from Washington Mutual Bank, FA, because ABN Amro assigned MERS the Deed of Trust solely in MERS’ capacity as nominee for Washington Mutual Bank, FA, without the power of foreclosure and sale in its own right and not for its own successors and assigns as well as Washington Mutual Bank, FA’s; and MERS (through Mr. Kennerty) executed the Assignment of Mortgage solely as nominee for Washington Mutual Bank, FA. Compare Kramer v. Fannie Mae, 540 Fed. Appx. 319, 320 (5th Cir. 2013), cert. denied, 134 S. Ct. 1310, 188 L. Ed. 2d 305 (2014) (MERS could assign deed of trust made out to it that specifically granted MERS the power to foreclose and assign its rights); Silver Gryphon, L.L.C. v. Bank of Am. NA, 2013 U.S. Dist. LEXIS 168950, at *11‐12 (S.D. Tex. Nov. 7, 2013) (same); Richardson v. CitiMortgage, Inc., 2010 U.S. Dist. LEXIS 123445, at *3, *13‐14 (E.D. Tex. Nov. 22, 2010) (same), and Nueces County v. MERSCORP Holdings, Inc., 2013 U.S. Dist. LEXIS 93424, at *20 (S.D. Tex. July 3, 2013); In re Fontes, 2011 Bankr. LEXIS 1792, at *11‐13 (B.A.P. 9th Cir. Apr. 22, 2011); and In re Weisband, 427 B.R. 13, 20 (Bankr. D. Az. 2010) (MERS as mere “nominee” of mortgage holder lacks power to transfer enforceable mortgage)…..
Because it is undisputed that (a) the Debtor signed the Note (and received the loan proceeds)11 and (b) a properly recorded lien on the Property secures the Debtor’s obligation under the Note (albeit that Wells Fargo does not rely independently on the Deed of Trust assigned to ABN AMRO and then
10 See Supplement to Emergency Motion to Reopen and for Leave to Propound Additional Discovery to Defendant for Additional Evidence Withheld Prior to Trial, dated March 11, 2014.
11 See Trial Tr. at 95‐6 (testimony of the Debtor).
9
10-20010-rdd Doc 109 Filed 01/29/15 Entered 01/29/15 11:01:42 Main Document Pg 10 of 30
assigned to MERS as nominee for Washington Mutual Bank, FA (none of which has filed a proof of claim) or the Assignment of Mortgage to sustain its claim), the only issue addressed by the parties is whether Wells Fargo has standing to enforce the Note, and, thus, assert Claim No. 1‐2.12 This is because, as stated above, Texas follows the majority rule that “[w]hen a mortgage note is transferred, the mortgage or deed of trust is also automatically transferred to the note holder by virtue of the common‐law rule that ‘the mortgage follows the note.’” Campbell v. Mortg. Elec. Registration Sys., Inc., 2012 Tex. App. LEXIS 4030, at *11‐12 (Tex. App. Austin May 18, 2012), quoting J.W.D., Inc. v. Fed. Ins. Co., 806 S.W.2d 327, 329‐30 (Tex. App. Austin 1991). See also Kiggundu v. Mortg. Elec. Registration Sys., Inc., 469 Fed. Appx. 330, 332; Richardson v. Ocwen Loan Servicing, LLC, 2014 U.S. Dist. LEXIS 177471, at *13 n.4 (N.D. Tex. Nov. 21, 2014); Nguyen v. Fannie Mae., 958 F. Supp. 2d 781, 790 n.11 (S.D. Tex. 2013); Trimm v. U.S. Bank., N.A., 2014 Tex. App. LEXIS 7880, at *14 (Tex. App. Fort Worth July 17, 2014)…..
Wells Fargo’s right to enforce the Note, and thus its standing to assert Claim No. 1‐2, derives from the Note’s status as a negotiable instrument under Texas’ version of the U.C.C. See Tex. Bus. & Com. Code § 3.104(a). The Debtor has not disputed that the Note is negotiable, and the Note in any event satisfies the requirements of a negotiable instrument under Texas law, as it is “an unconditional promise . . . to pay a fixed amount of money . . . payable to . . . order at the time it [was] issued; . . . payable . . . at a definite time; and does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money” except as permitted by the statute. Id. See also Farkas v. JP Morgan Chase Bank, 2012 U.S. Dist. LEXIS 190194, at *6‐7 (W.D. Tex. June 22, 2012), aff’d, 544 Fed. Appx. 324 (5th Cir. 2013), cert. denied, 134 S. Ct. 628, 187 L. Ed. 411
12 One might argue, although Wells Fargo has not, that the parties’ pre‐bankruptcy course of dealing, including the Loan Modification Agreement signed by the Debtor on February 12, 2008 and attached to Claim No 1‐2 (See also Trial Tr. at 96‐104), would independently support Wells Fargo’s right to assert Claim No. 1‐2; however, if the blank ABN Amro indorsement were forged, the Loan Modification Agreement and course of dealing would ultimately improperly derive from Wells Fargo’s fraudulent assertion of the right to enforce the Note and Deed of Trust.
10
10-20010-rdd Doc 109 Filed 01/29/15 Entered 01/29/15 11:01:42 Main Document Pg 11 of 30
(2013); Steinberg v. Bank. of Am., N.A., 2013 Bankr. LEXIS 2230, at *12‐14 (B.A.P. 10th Cir. May 30, 2013)…..
“The presumption rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon, and normally any evidence is within the control of, or more accessible to, the defendant.”15 Official Comment to Tex. Bus. & Com. Code § 3.308 (“Off. Cmt.”). The presumption is effectively incorporated into Fed. R. Evid. 902(9), which provides that no extrinsic evidence of authenticity is required to admit “[c]ommercial paper, a signature on it, and related documents, to the extent allowed by general commercial law,” and it is loosely analogous to the rebuttable presumption of the prima facie validity of a properly filed proof of claim under Fed. R. Bankr. P. 3001(f).
While Tex. Bus. & Com. Code §§ 3.308(a) and 1.206(a) provide that the presumption of an authentic signature applies “unless and until evidence is introduced that supports a finding of nonexistence,” they do not state the quantum of evidence to overcome the presumption. The Official Comment to § 3.308, however, refers to “some evidence” and to “some sufficient showing of the grounds for the denial before the plaintiff is required to introduce evidence,” and then states, “[t]he defendant’s evidence need not be sufficient to require a directed verdict, but it must be enough to support the denial by permitting a finding in the defendant’s favor.” Off. Cmt. 1 to § 3.308.16 This suggests that the required evidentiary showing to overcome the presumption is similar to that needed to defeat a summary judgment motion: the introduction of sufficient evidence so that a reasonable trier of fact in the context of the dispute could find in the defendant’s favor. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587‐88 (1986); 11 Moore’s Fed. Prac. 3d § 56.22[2] (2014). Because of the general factual context described in the Official Comment, which recognizes that “in ordinary experience forged or unauthorized signatures are very uncommon,” Off. Cmt. 1 to § 3.308, courts have nevertheless required a significant amount of evidence to overcome the presumption. See In re Phillips, 491 B.R. 255, 273 n. 37 (Bankr. D. Nev. 2013) (“This evidence was inconclusive at best. Against this background, the court is prepared to believe that it is more likely that [the claimant] negligently failed to copy the Note and First Allonge when it filed its [first] Proof of Claim rather than it forged the First Allonge later on. In short, when both are equally likely, the court picks sloth over venality.”); see also Congress v. U.S. Bank. N.A., 98 So. 3d 1165, 1169 (Civ. App. Ala. 2012) (referring to requirement of substantial, though not clear and convincing, evidence to rebut the presumption under U.C.C. §§ 3‐308(a) and 1‐206(a), although directing trial court on remand to apply preponderance‐of‐ the‐evidence standard to whether the presumption was overcome)….
See People v. Richetti, 302 N.Y. 290, 298 (1951) (“A presumption of regularity exists only until contrary substantial evidence appears. . . . It forces the opposing party (defendant here) to go forward with proof but, once he does go forward, the presumption is out of the case.”). Thus, in In re Phillips, 491 B.R. at 273 n. 37, quoted above, if the presumption had been overcome by a preponderance of the evidence and the burden shifted and forgery and negligence were found to be equally likely, the holder of the note should lose.
Because Wells Fargo does not rely on the Assignment of Mortgage to prove its claim, the foregoing evidence is helpful to the Debtor only indirectly, insofar as it goes to show that the blank indorsement, upon which Wells Fargo is relying, was forged. Nevertheless it does show a general willingness and practice on Wells Fargo’s part to create documentary evidence, after‐the‐fact, when enforcing its claims, WHICH IS EXTRAORDINARY…..
Wells Fargo has not carried that burden. To do so, it offered only Mr. Campbell’s testimony and, through him, certain exhibits copied from Wells Fargo’s loan file. That testimony was not helpful to it. Mr. Campbell was not involved in the administration of the Debtor’s loan until he became a potential witness in 2013. Trial Tr. at 37. He was not involved in the preparation of Claim No 1‐2. Id. at 37. He had nothing to say about the circumstances under which the blank ABN Amro indorsement appeared on the Note attached to Claim No. 1‐2, with the exception that he located the earliest entry in the electronic loan file where that version of the Note was recorded, pulled up its image and compared it to the original shown him by Wells Fargo’s counsel. Id. at 33, 36, 49‐50. He was offered, therefore, only to qualify Wells Fargo’s proposed exhibits, copied from Wells Fargo’s loan file, as falling within Fed. R. Evid. 803(6)’s business records exception to a hearsay objection under Fed. R. Evid. 802 and to testify that a copy of the Note with the blank ABN Amro indorsement appears in Wells Fargo’s electronic records before the preparation of Wells Fargo’s initial proof of claim in this case….
In large measure, Mr. Campbell was not up to that task (and Wells Fargo offered no other evidence to meet that standard, were the Court to impose it). Mr. Campbell did not know whether there was any person overseeing the accuracy of how the records in the system were stored and maintained. Id. at 32, 40, 42‐3. He did not know who controlled access to the system or the procedure for limiting access, except to say “[A]ccess is granted as needed.” Id. at 40‐1. He did not know of any procedures for backing up or auditing the system. Id. at 42. He stated, “I am not a technology person” and was not able to answer what technology ensures the accuracy of the date and time stamping of the entry of documents into the imaging system. Trial Tr. at 22. In his deposition, he testified that he did not know whether the dates and times of the entry of documents in the system could be changed, but at trial he stated that, after his deposition, “I attempted to look into this, and, to my knowledge, I am not aware of any way to change or remove attachments into the imaging system,” id. at 43, which, given his general lack of knowledge about how the system works and failure to explain the basis for his assertion, did not inspire confidence….
Moreover, in addition to the fact that the specially indorsed version of the Note appears on its own in the file on March 27, 2007, and not as part of an “origination file,” Wells Fargo has offered no explanation, let alone evidence, of who else, if not Wells Fargo, held the original of the Note with the blank ABN Amro indorsement before December 28, 2009, if, in fact, such a version then existed. The file provided by the transferor should have included it, if it did exist during that period, because Washington Mutual Bank, FA would not have been able to enforce the Note, either, without the blank indorsement, and the Assignment of Deed of Trust attached to the proofs of claim states that both the Note and Deed of Trust were transferred to MERS as nominee for Washington Mutual Bank, FA on June 20, 2002, effective November 16, 2001. In other words, why would only an outdated and unenforceable version of the Note have been logged in by Wells Fargo when it took over the file in February 2007 if the only enforceable version of the Note had in fact existed at that time (and should have existed since 2002)? The far more likely inference, instead, is that when the loan was transferred to Wells Fargo, the Note with the blank ABN Amro indorsement did not exist.
Why would the Note with the blank ABN Amro indorsement have appeared in Wells Fargo’s file only on December 28, 2009, twenty‐two months later? Wells Fargo has not provided an explanation, supported by evidence, replying only that the question is irrelevant. All that matters, Wells Fargo contends, is that the enforceable document was imaged into its records before the Debtor’s counsel started raising questions about Claim No 1‐1.
Filed under: foreclosure | Tagged: ABN AMRO, bankruptcy, FRanklin, Freddie Mac, MERS, New York, Order sustaining objection to proof of claim, Robert Crain, Texas, Washington Mutual, Wells Fargo Forgery |
“Perhaps wary of relying on an assignment BY THE ASSIGNEE TO ITSELF without authorization by the purported assignor, Wells Fargo has WAIVED RELIANCE on the July 12, 2010 Assignment of Mortgage to establish its right to assert Claim No. 1‐2, looking only to its status as a holder of the Note.
It indeed appears that Mr. Kennerty’s signature on the Assignment of Mortgage was improper in either of his capacities, as an officer of Wells Fargo or as an officer of MERS, without further authorization from Washington Mutual Bank, FA, because ABN Amro assigned MERS the Deed of Trust solely in MERS’ capacity as nominee for Washington Mutual Bank, FA, without the power of foreclosure and sale IN ITS OWN RIGHT and NOT for its OWN successors and assigns as well as Washington Mutual Bank, FA’s; and MERS (through Mr. Kennerty) executed the Assignment of Mortgage solely as nominee for Washington Mutual Bank, FA.
Compare Kramer v. Fannie Mae, 540 Fed.”
Biggest take out from this case imo.
No contempt of court charges?
Achtung Lieber
NEVER AGAIN
I am not an attorney but this is what I found on Misprision of a felony
http://en.wikipedia.org/wiki/Misprision_of_felony
NEVER AGAIN
Charles Reed,
Initially, the original note was scanned after it was securitized and destroyed.
The Debt can sit for all eternity, because no one will ever hold that wet ink signature document unless they use an autopen or something to recreate it, and then it could get securitized because it would be like an original document that would get scanned and destroyed.
No one will come. The signature on the note paid for the property, and the mortgage and or deed encumbered it so that you’d pay the ‘middle man’ for the property you already paid for.
When you buy groceries, do you pick the groceries, sign the credit transaction receipt, and then sign other documents agreeing to pay for the groceries over time in order to have groceries?
When you sign the credit receipt, the groceries are paid for and the credit card company comes to collect, but no one else can claim to be owed for the groceries.
If you or anyone can remember sitting across that table, they gave you a rescission contract and they offered other papers maybe even the plot plan and other stuff, but then you signed the promissory note, and they should have given you the keys, but you gave the promissory note to them, and someone in the room walk out with it, probably saying they are going to make copies of the documents you signed, but you kept signing and encumbered the home to owe others who wanted in on that transaction.
Until people learn it was paid for, and you think you have to slave labor to pay for it, but we have a right to property, we were enslaved by contract to pay someone that was not owed.
That promissory note was securitized, probably went through the Federal Reserve or US Treasury window and was paid, and then traded in bonds for even more money, and they promised those who purchased rights to that securitized document some return cause you were making payments on what was paid.
We’ve been gyped. I have no proof, no evidence, only what I’ve gathered over time from sight, and listening, and remembering what I overheard.
During the housing boom, the national debt rose through the roof, and no one paid attention to all the home purchases, refi’s, more refi’s, and more refi’s that was putting all that money into the system and raising the debt ceiling, (what they owe us)
Judges were taking our homes, and the people taking it should have given us back what we put into it, including interest.
My opinion, I know nothing, if I think I know something I know nothing, and I do not give legal advice because I do not know legal things.
BTW, I think I got hit with a ban hammer for posting some links to a show that was giving info on mortgages, way back then, cause after that I’d post and it would disappear, not even be up for mod ur ate shun.
Trespass Unwanted.
@The A Man that been my same question is I thought it was the duty of the court if a crime been discover in the process of a trial it turn over to the correct authority to investigate and prosecute if a crime been committed! I did not think it was a if they want but a duty too refer!
If there is forgery and Fraud did the Judge do his duty and report this felony to the appropriate authorties? If not is he obstructing justice or aiding in a felony? Misprision of a felony.
Just asking?
NEVER AGAIN
@usedkarguy I think this allege sale of non-performing loan may have something to do with not having the proper documentation to foreclose, and there being a way to reunite the Notes and debt is by having a modification due, where you get a new Note sign by the homeowner and a new title recorded. It the same with this situation where the non-lender in the FHA has this Distress Asset program were they are buying and selling these FHA non-performing loan and purchase entity cannot foreclosure on the loan for 6 months after allegedly working with the homeowner.
As FHA does not originate any single family home mortgage loan every and is not a lender, seem as if we got this smoke and mirror deal to put together Notes and debts with a new party and nobody is the wiser!
david b. sounds like a resecuritization or a RE-REMIC. They are selling non-performing loans, and when they get a payment stream going, they re=securitize.
@Trespass this is not what just happen as the judge did not allow a foreclosure but he did not remove the debt because Wells Fargo did not prove ownership. So the allege debt stay out there until one of the party prove there is not debt or the debtor come forward with proof of ownership.
Yes in Texas it is presumed that the Title follows the Note but now there this question of who is the Note holder. I understand if for some reason the assignment not there but the lender actually has the debt, then it not that there is no debt but just that the assignment was recorded, but if you don’t have legal possession of debt than a title does not legally follow because your not the legal holder of!
If you can prove why there is not other debt holder out there I don’t see the judge rule for you, because you not made a case that a debt does not exist, but in this case in Texas it was provide that at least Wells Fargo was not the legal holder of the debt and neither was Freddie Mac.
So these folks have a stay until the next attack unless they can prove that a debt does not exist!
N, I think Gene is somewhat of a not fully understanding shill. I think he actually believes some of what he spouts. There are some other shills that are not so–ahem–benign
I for one would like to have Gene visit one last time and comment on this….
Surprised!
“The Debtor has not disputed that the Note is negotiable, and the Note in any event satisfies the requirements of a negotiable instrument under Texas law, as it is “an unconditional promise . . . to pay a fixed amount of money . . . payable to . . . order at the time it [was] issued; . . . payable . . . at a definite time; and does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money” except as permitted by the statute. Id. See also Farkas v. JP Morgan Chase Bank, 2012 U.S. Dist. LEXIS 190194, at *6‐7 (W.D. Tex. June 22, 2012), aff’d, 544 Fed. Appx. 324 (5th Cir. 2013), cert. denied, 134 S. Ct. 628, 187 L. Ed. 411”
of interest
“an unconditional promise”
“payable to …. order at the time”
“does not state any other undertaking or instruction”
Thank you for that info.
I will never sign another “Pay to the order of” check or instrument.
My checks now have “Pay to the order of” which is negotiable to other parties, you write the check to A, they sign it over to B and B cashes it, that’s those third party checks.
Post office does money orders that only have “Pay to” and that’s the only one that can be paid.
So when we sign these instruments when purchasing a home, we could have ‘stated other undertakings and instructions’ and not just let them sit with the purported lender’s writings that makes is seem anyone including a law firm can show up with it and say they are owed money and are suing in the name of some bank.
We could have made it a payable to instrument so there were no successors and assigns, it’s negotiable only between the parties at the table. We could have stated that if any time the balance is late, they can continue to assess the payment but we have the entire time to pay before they come and take the property, whether that is 30 years or whatever, cause life gets in the way and the banks supposedly issuing the money are the same banks that will cut back on the money supply to cause some people to fail to pay in a timely manner.
Given 30 years to pay, anyone can catch up on a debt owed and if they can’t by the, well let them take the home.
Texas is nonjudicial. They rob you of the home with their fake filings of claim of accelerating the note that doesn’t belong to them, never have to show the note to anyone, don’t have assignment (for sure in my case), then go to court to disposses you, by telling the court they represent Fannie Mae, bought the property at a foreclosure sale and you won’t leave.
I’m still figuring out the info, because it mentions Texas a lot.
Wondering if they got a restraining order and forced a court to rule on the real property. From what I gather, a restraining order in Texas can be heard by a superior court because it deals with real property (wonder why people don’t use it when CPS try to take their kids- your children are your creation, your property – restrain those people from showing up and walking off with your property without a right to do so) I digressed, apologies.
My comments don’t post here anymore, so if this one does, I’ll be surprised.
Basically, we have forge-o-rama. If you need to prove something to the homeowner, to the court or to the judge, just forge it My case has two notes, one in one attys file and one in another law firm’s file. There are no endorsements except the initial one on the Note. All assignments (3) are after the 3 month period required by the Trust. In fact, the assignments’ dates are up to 5 years after the trust closed. All assignments are also forged with fraudulent signatures wherein some look like the same person signed for all parties on the assignment.
Yesterday, the judge in my state case shot down opp. counsel’s motion (offer of judgment) which is to go after me for costs. It was amazing.
@david your in luck with the recent Massaschusetts settlement with Citi, JPMorgan, BOA and Wells Fargo to fix the foreclosures and title, because you should be able to go to the register office and ask why not Ocwen involved in the same tactics as the other large 4 banks. Get a title search done and get all recording on your property and go from there.
javagold, imo fnma and fhlmc become successors in interest to the loans when they have to repurchase based on their guarantees. But I sort of think they may be skipping their buy-back obligations and simply having the servicers foreclose in the trusts’ names. For one thing,
it’s possible this could help them avoid the application of the (at least) 4 payments they must make (at least fnma) before they may repurchase. Fnma must make the 4 payments at a moment in time when it’s not the successor lender.
Therefore, those payments should be identified and applied against what’s owing on the note and I’ve never ever seen such identification and application, no matter who is being called the lender in a f/c action or a bk proof of claim. It’s no different than if your uncle made the payments for you – you need to be credited and the loan may NOT be shown in default for the time fnma is making those payments. imo.
I don’t think fnma has rights of subrogation as to those four payments anymore than your uncle would, at least not under the note.
If fnma doesn’t want to exercise its right to repurchase after 4 pymts (to end its guarantee), then it must still be making the payments to the trusts and the loan is therefore not in default imo.
Other entities may pay after the dust settles on a foreclosure (I don’t know), but fnma if not fhlmc must pay at the instance of the borrower’s non-payment.
Bear in mind the bid-rigging practice of having the recorded beneficiary different from the beneficiary named on the notice of default which causes a clouded title at the point where the public is invited to join in the auction activities of a non-judicial foreclosure. This results in lower bids and fewer bidders.
mr reed, i also would like to know why, no lawyer is fighting the issue on when a mortgage note is destoyed to make a security/bond. as a matter of security laws , once destroyed, a mortgage note can not be reproduce as a oringinal. that would be like me makeing a check out and copying it and then giving it to bank to cash. right. they would have us arrested for fruad/forgery. just saying.
I AGREE, thank you. as its been ocwen as servicer for, this trust, gmacm mortgage loan trust 2006 j-1, that is saying they hold ,mortgage and note to foreclose. i totaly disagree..and this all happen as of august, 2012, this was the first assignment on record at regestry of deeds in mass. mers( mers to that trust in aug, of 2012. ) now gmac / rescap was in bankruprty in april 2012??? , the assignment was sign by someone saying they had authorty from gmac mortgage corporation, as of august 2012, now gmac mortgage corporation stop exsiting in 2006. so where could mers get any authorty 6 yrs later??? to assign anything out of mers???
@david your situation seem like the two cases in where the last owner of the debt is Deutsche who was endorsed on 11/8/2005, which in itself is unusually as these endorsement don’t have dates sign on the Notes.
So as in the two cases the judges are questioning how Wells Fargo as with in your case GMAC is servicing and who it is they are foreclosing for. The Note must reflect who Deutsche sold the loan to or the blank endorse is from Deutsche. Now we know Ocwen is in trouble, and if there proof of a sale its Deutsche who should be listed as the party foreclosing in court. The servicer can foreclose for, but the named party is Deutsche not MERS or some of bank or servicer, because it the banks debt.
@david my thought is a trust cannot be the owner of the loan if they are not doing so as a lender able to function as a lender. A car dealer cannot purchase your loan because they are not license to sell or service the loan and cannot pass on that responsibility.
The trust or investors are buying securities and not mortgage loans. The securities is a post loan closing by-product of the loan. The securities are created out of payment due to the lender who wants to create more loans. The loan either perform or not and that is what the securities is about.
I don’t see where a trust can foreclose if they are not a lender, and is the problem Freddie had in these two cases being written about. Why is Freddie not in title then or now is because they are not a lender and the assignment even if they had possession of one, is not of a entity that can claim they are a originator of the loans!
Does the trust originate home mortgage loans? Who are they regulated by to lend or sell? What banking agency do they report too? They don’t!
i also have 3 different copy’s of my mortgage note from servicer!!! i.e all came from 2 different servicers.
1/ copy of mortgage note in 2012, from gmac mortgage, showing a
signed and dated endorsement as follow’s
PAY TO THE ORDER OF
Deutsche Bank Trust Company Americas
WITHOUT RECOURSE
SIGNATURE OF THIS PERSON IS HERE. ALSO DATED,11/8/2005
____________________________________
D. CHIODO
ASSISTANT SECRETARY
GMAC MORTGAGE CORP, INC
2/ NOW OCWEN , SENDS ME 2 OTHER NOTES WITH NOTHING SHOWING ON IT????
3/ THEN THEY ALSO SENT ME ONE , STAMPED, IN BLANK, BUT WITH THE SAME PERSON AS ABOVE, SIGNING FOR GMAC MORTGAGE CORP. NO DATES ON THAT ONE.
SO I HAVE REALLY 3 / 4 DIFFERENT COPYS OF MY MORTGAGE NOTE SAYING DIFFERENT THINGS…
IF I DROP THIS OFF ON JUDGES DESK, WHAT DO YOU THINK HE WOULD SAY TO ALL DIFFERENT COPYS OF NOTE..???
could anyone explain something to me, please.
if a issuing entity in a offer of certificates is a trust, like this,
issuing entity is, gmacm mortgage loan trust 2006 j-1.
and that trust is now issuing certificates in the name of a new trust?
called, gmacm mortgage pass-through certificates,series 2006 j-1.
and the mortgage collateral file (show’s my mortgage), as part of this offer.
so lets say this was done in 2006/2007. who?? or what trust would have authority to foreclose , or should say try to foreclose?? and which one should be recorded as owner and holder of mortgage/note?
can anyone help here???
thank you
djabelanger@hotmail.com
It the obvious that not being seen here and that is how did Wells Fargo become involved in Washington Mutual Bank’s (WaMu) loans? It a result of the Jul 31, 2006 mortgage servicing agreement, and they over time transferred the 1.3 million loans to Wells Fargo processing. This loan started having it processing in Feb 2007 as my loan was in Dec 2006 as they all could not be handled at one time.
The main goal was to make sure these blank Notes or endorsed Notes to WaMu out of WaMu’s physical possession in the event that the bank collapsed, which it did on Sept 25, 2008 (bankruptcy remote). Freddie Mac purchase the loan and creates a Mortgage Backed Securities and the loan are the securities because Freddie & Fannie does own the Notes as they purchase them.
Now what occur in these two cases is either Freddie does not have a paper trail of the purchase and a failure of the bank to prepare a assignment of the title which is suppose to be done and placed in the file and not recorded but ready to be recorded in the event that a foreclosure is needed. Remember that less than 1.5% of the loans had gone bad, so the saving of recording the other 98.5% of the loans is what is being saved.
So as it seem in these cases is a upfronting of the funding through the bank from Freddie (giving credence to Neil claim of funding), where skipped a step and there no evidence of Freddie after the fact of the home loan closing were they purchase the loans. If there no proof of a sale then there not way to explain an assignment in the file as there would also be a receipt of purchase!
There is no way after Sept 25, 2008 that WaMu could be involved in any transact because they are a “failed bank” and any and every asset would be seized and under the bankruptcy court to be determine. So in the re:Franklin case we see the trouble that Wells & Freddie has and that is proving ownership. If thing were done right, all the 1.3 million that Wells is servicing would have come under the BK court to determine who the actual debtor is.
But if we take this to the Ginnie Mae loan of WaMu that are being serviced by Wells Fargo, the different is that we know for a fact that Ginnie cannot and does not purchase the loans, so the blank Notes in the files cannot be acted upon because there been a permanent separation from the Notes and debt. Under UCC3 a blank Note can be transferred and the possessor does own the Note, however if the debt the holder want to act on the Note under UCC9 they must simply provide proof of purchase.
Now because of the split of the Notes and debts, and the debt holder in WaMu does not possess the Note, it cannot and does not claim a debt due. The Ginnie Mae MBS unlike the Fannie & Freddie MBS is not secured because the loan are not purchase, but the Federal Government does insure the MBS at 100%, so the investors are not out of their initial principal investment!
How are they fraudclosing for Fannie Mae and Freddie Mac but not in their names ????
How are they claiming Fannie Mae and Freddie Mac are lenders ???
I am still very very pissed off.
Exactly what I thought since 2008 !!!!……So if I know. They know…..how the people haven’t revolted over this fraud is beyond me
All my assignment of mortgages were robobosigned. Post dated. By some company named Security Connections. I argued against this. I argued against Well Fargo holding any notes and mortgage . Being just a servicer and low life debt collecting scum. And now I get a 1099-A (only an A) that claims FREDDIE is the lender.