Further information please call 954-495-9867 or 520-405-1688
No radio show tonight because of birthday celebration — I’m 68 and still doing this
==============================
The enforcement of promissory notes lies within the context of the marketplace for currency and currency equivalents. The enforcement of mortgages on real property lies within the the context of the marketplace for real estate transactions. While certainty is the aim of public policy in those two markets, the rules are different and should not be ignored.
==============================
see
Click to access PEB_Report_111411.pdf
This article is not a substitute for getting advice from an attorney licensed to practice in the jurisdiction in which your property is or was located.
Back in 2008 I had some correspondence and telephone conversations with an attorney in Chicago, Robert Wutscher when I was writing about the reality of the way in which banks were doing what they called “securitization of mortgages.” Of course then they were denying that there were any trusts, denying that any transfers occurred and were suing in the name of the originator or MERS or anyone but the party who actually had their money used in loan transactions. It wasn’t done the right way because the obvious intent was to play a shell game in which the banks would emerge as the apparent principal party in interest under the illusion created by certain presumptions attendant to being the “holder” of a note. For each question I asked him he replied that Aurora in that case was the “holder.” No matter what the question was, he replied “we’re the holder.” I still have the letter he sent which also ignored the rescission from the homeowner whose case I was inquiring about for this blog.
He was right that the banks would be able to bend the law on rescission at the level of the trial courts because Judges just didn’t like TILA rescission. I knew that in the end he would lose on that proposition eventually and he did when Justice Scalia, in a terse opinion, simply told us that Judges and Justices were wrong in all those trial court decisions and even appellate court decisions that applied common law theories to modify the language of the Federal Law (TILA) on rescission. And now bank lawyers are facing the potential consequences of receiving notices of TILA rescission where the bank simply ignored them instead of preserving the rights of the “lender” by filing a declaratory action within 20 days of the rescission. By operation of law, the note and mortgage were nullified, ab initio. Which means that any further activity based upon the note and mortgage was void. And THAT means that the foreclosures were void.
Is discussing the issue of the “holder” with lawyers and even doing a tour of seminars I found that the confusion that was apparent for lay people was also apparent in lawyers. They looked at the transaction and the rights to enforce as one single instrument that everyone called “the mortgage.” They looked at me like I had three heads when I said, no, there are three parts to every one of these illusory transactions and the banks fail outright on two of them.
The three parts are the debt, the note and the mortgage. The debt arises when the borrower receives money. The presumption is that it is a loan and that the borrower owes the money back. it isn’t a gift. There should be no “free house” discussion here because we are talking about money, not what was done with the money. Only a purchase money mortgage loan involves the house and TILA recognizes that. Some of the rules are different for those loans. But most of the loans were not purchase money mortgages in that they were either refinancing, or combined loans of 1st mortgage plus HELOC. In fact it appears that ultimately nearly all the outstanding loans fall into the category of refinancing or the combined loan and HELOC (Home Equity Line of Credit that exactly matches the total loan requirements of the transaction (including the purchase of the home).
The debt arises by operation of law in favor of the party who loaned the money. The banks diverged from the obvious and well-established practice of the lender being the same party as the party named on the note as payee and on the mortgage as mortgagee (or beneficiary under a Deed of Trust). The banks did this through a process known as “Table Funded Loans” in which the real lender is concealed from the borrower. And they did this through agreements frequently called “Assignment and Assumption” Agreements, which by contract called for both parties (the originator and the aggregator to violate the laws governing disclosure (TILA and frequently state law) which means by definition that the contract called for an illegal act that is by definition a contract in contravention of public policy.
A loan contract is created by operation of law in which the borrower is obligated to pay back the loan to the source of the funds with or without a written instrument. If the loan contract (comprised of offer, acceptance and consideration) does not exist, then there is nothing to enforce at law although it is possible to still force the borrower to repay the money to the actual source of funds through a suit in equity — mainly unjust enrichment. The banks, through their lawyers, argue that the Federal disclosure requirements should be ignored. I think it is pretty clear that Justice Scalia and a unanimous United States Supreme Court think that argument stinks. It is the bank’s argument that should be ignored, not the law.
Congress passed TILA specifically to protect consumers of financial products (loans) from the overly burdensome and overly complex nature of loan documents. This argument about what is important and what isn’t has already been addressed in Congress and signed into law against the banks’ position that it doesn’t matter whether they really follow the law and disclose all the parties involved in the transaction, the true identity of the lender, the compensation of all the parties that made money as a result of the origination of the loan transaction. Regulation Z states that a pattern of behavior (more than 5) in which loans are table funded (disclosure of real lender withheld from borrower) is PREDATORY PER SE.
If it is predatory per se then there are remedies available to the borrower which potentially include treble damages, attorneys fees etc. Equally important if not more so is that a transaction, whether illusory or real, that is predatory per se, is therefore against public policy and the party seeking to enforce an otherwise enforceable document cannot do so because of the doctrine of unclean hands. In fact, if the transaction is predatory per se, it is dirty hands per se. And this is where Judges get stuck and so do many lawyers. The outcome of that unavoidable analysis is, they say, a free house. And their remedy is to give the party with unclean hands a free house (because they paid nothing for the origination or acquisition of the loan). I think the Supreme Court will not look kindly upon this “legislating from the bench.” And I think the Court has already signaled its intent to hold everyone to the strict construction of TILA and Regulation Z.
So there are two reason the debt can’t be enforced the way the banks want. (1) There is no loan contract because the source of the money and the borrower never agreed to anything and neither one knew about the other. (2) the mortgage cannot be enforced because it is an action in equity and the shell game of parties tossing the paperwork around all have unclean hands. And there is a third reason as well — while the note might be enforceable based merely on an endorsement, the mortgage is not enforceable unless the enforcer paid for it (Article 9, UCC).
And THAT is where the confusion really starts — which bank lawyers depend on every time they go to court. Bank lawyers add to the confusion by using the tired phrase of “the note follows the mortgage and the mortgage follows the note.” At one time this was a completely true presumption backed up by real facts. But now the banks are asking the courts to apply the presumption even when the courts actually know that the facts presumed by the legal presumption are untrue.
Notes and mortgages exist in two different marketplaces or different worlds, if you like. Public policy insists that notes that are intended to be negotiable remain negotiable and raise certain presumptions. The holder of a note might very well be able to sue and win a judgment ON THE NOTE. And the judgment holder might be able to record a judgment lien and foreclose on it subject to homestead exemptions.
But it isn’t as simple as the banks make it out to be.
If someone pays for the note in good faith and without knowledge of the borrower’s defenses when the note is not in default, THAT holder can enforce the note against the signor or maker of the note regardless of lack of consideration or anything else unless there is a provable defense of fraud and perhaps conspiracy. But any other holder steps into the shoes of the original lender. And if there was no consummated loan contract between the payee on the note and the borrower because the payee never loaned any money to the borrower, then the holder might have standing to sue but they don’t have the evidence to win the suit. The borrower still owes the money to whoever was the source, but the “holder” of the note doesn’t get a judgment. There is a difference between standing to sue and a prima facie case needed to win. Otherwise everyone would get one of those mechanical forging machines and sign the name of someone with money and sue them on a note they never signed. Or they would promise to loan money, get the signed note and then not complete the loan contract by making the loan.
So public policy demands that there be reasonable certainty in the negotiation of unqualified promises to pay. BUT public policy expressed in the UCC Article 9 says that if you want to enforce a mortgage you must not only have some indication that it was transferred to you, you must also have paid valuable consideration for the mortgage.
Without proof of payment, there is no prima facie case for enforcement of the mortgage, but it does curiously remain on the chain of title of the property (public records) unless nullified by the fact that the mortgage was executed as collateral for the note which was NOT a true representation of the loan contract based upon the real debt that arose by operation of law. The public policy is preserve the integrity of public records in the real estate marketplace. That is the only way to have reasonable certainty of title and encumbrances.
Forfeiture, an equitable remedy, must be done with clean hands based upon a real interest in the alleged default — not just a pile of paper that grows each year as banks try to convert an assignment of mortgage into a substitute for consideration.
Hence being the “holder” might mean you have the right to sue on the note but without being a holder in due course or otherwise paying fro the mortgage, there is no automatic basis for enforcing the mortgage in favor of a party with no economic interest in the mortgage.
see also http://knowltonlaw.com/james-knowlton-blog/ucc-article-3-and-mortgage-backed-securities.html
Filed under: foreclosure | Tagged: assignment, consideration, debt, endorsement, enforcement of debt, enforcement of mortgage, enforcement of note, loan contract, Mortgage, note, Regulation Z, rescission, Scalia, TILA |
In response to Rock, who on February 19, 2015 at 12:57 pm said:
“rciferri, Article 9 applies to all notes, whether negotiable or not. It governs ownership of notes when they are transferred. It is true that Art. 9 doesn’t apply to the creation of real estate security interests, but it does apply when notes that are secured by real estate interests are transferred. When ownership of the note is transferred, ownership of the mortgage goes along with it under 9-203(g). That’s true whether the note is negotiable or not.”
Rock, the owner of just an Article 9 security interest in a negotiable note may only enforce it against the note itself not the real property.
Ian: “Not even once in the last ten years has anyone seen one (1) mortgage which had two (2) true sales and was included in a trust before the cut off date, or bizarrely, at any other time.”
Right.
Why do YOU suppose that is?
My own belief is that it’s because the whole deal (never even minding mers) is illegitimate. That and or it’s about enforcement. But if it’s limited to being about enforcement, there would be little need for all the bull. The “existing” but unrecorded assgts called for in the agreements would simply be recorded in chronological order and somewhere “MERS” alienate whatever position it has in the coll instruments. Maybe that itself became an unforeseen problem – the way to do this.
Or maybe it’s that they couldn’t get all those things to be done done in time to meet the date they set and knowing this, set up MERS. Notes have never ever been recorded, which some people don’t seem to know. But, of course the coll instrument and any assgts have been and of course some more, the “missing” recordations would have outed that the loans weren’t assigned. Yes, MERS by intent or otherwise masks a multitude of sins.
I’m not sure the loans even exist any more, or at least that an obligation still exists under those docs, having been replaced by novation – someone else’s obligation to pay on the certificates. Or, the nexus (christine, that word is for you. You described it, but app didn’t know the word) between the obligation created in the loan docs and that of the
parties who must pay the certs is inextricably intertwined such that they both must be considered when determining the rights and obligations of all of them. I doubt that I will ever be the one to prove it. I have to interject that it’s a bitter pill to me that I can’t, given how strongly I believe it.
One thing I’m keen on fwiw – an agent has no right to do an act as if it’s being done in the agent’s own right. Since MERS swore it was an agent, its acts (as if) had to be done accordingly. The “accordingly” is to
execute an instrument “as agent for” a named principal, one of if not thee biggest things they seek to avoid (the identity of that principal). “MERS”, despite the laws of agency, executes an assgt as if in it’s own right. That’s either a false document (and this disregards the alleged
but impossible by MERS transfer of the note in that assgt) or is evidence that MERS claims it’s in fact the beneficiary – to the exclusion of the original lender. It can’t be both ways imo.
I hope you stay on the trail about ascertaining that all the ‘good folks’
involved with unnoticed transfers were MERSCorp’ members, such that they could continue operating under that (nasty adjectives) umbrella. Why no one goes there, got me. I pointed to it a long time ago to no
avail.
John gault- not job vault- you should see spellcheck at work when I list the genus and species of plants, in Latin.
But job vault might be a good username!
Job vault- NY trust law requires that the investors in a REMIC know exactly what they are buying before they buy it. To that end, the corpus of the trust has to be locked up, or chiseled in stone. For instance, there are 3000 mortgages in this trust, all purchased before the cut off date.
But of course this has t happened. Not even once in the last ten years has anyone seen one (1) mortgage which had two (2) true sales and was included in a trust before the cut off date, or bizarrely, at any other time.
Jg- at some point before a company files BK, they stop paying their bills. In MERS v Ocwen, Ocwen didn’t pay their bill due MERS, and was cut off from
Using MERS as per the court
Filing. Even though the MERS system is a joke, a scam, a criminal enterprise, servicers/banks/law firms use it to give alleged standing to other criminals, and the courts, in their infinite wisdom, point solemnly at the “assignments of mortgage” effected through MERS, slam their lignum vitae gavels, and throw another family into the street.
If the entity is
Not a member of MERS, they can’t do this.
Ian, et al: can someone remind me why courts say a late assgt to a trust is merely voidable (v void?)
Ian – I have never ever seen a case where anyone was asked to demonstrate that anyone was a MERSCorp’ member such that they could even pretend their straw officer was “mers-qualified” to execute an assgt (well, actually, I don’t believe their rules, unless changed since I looked, even provide that the straw officers may assign anything, but at this date, I’d have to look again since I forget things). They rely in court, say, solely on the statement in the assgt that it’s being executed by an officer of mers. There was that one case a couple years ago wherein the court said that since the person signing the assgt was an employee of the assignee and not an employee of mers, a false instrument had been recorded. In that case, the claimant folded. Could the claimant have forked over the mmship agreement and gotten favor with the court? I don’t know, but they never want to do that. And odd, that, isn’t it, given that the mmship agreement by the best evidence rule is prob the best evidence of the relationship. I can’t speak just now about what it is they don’t want the court to see because I don’t remember. The NV SC, on the other hand, said it found the alleged dual officership “unremarkable”, at which I gagged. So there are opinions which vary greatly.
I suppose a particular assignor could provide evidence of its own membership, for whatever that would be worth, but it would be a lot harder for that assignor to demonstrate anyone else’s (before him) mmship. I think that would be hearsay. Since one business is not the business records custodian for another, the business records exceptions wouldn’t apply imo.
As to agency, I can only posit that a dissolution of a corporation as a matter of law terminates any agency. And as I said, I believe corporate’ (or any other structure, like an LLC’s), bk does, also. This isn’t peculiar to the banksters – it’s just the law of agency. So if ABC is toast, so is any agreement it had with MERSCorp and accordingly, “mers” may not act for the defunct abc.
And anyway, agents generally can’t establish their own agency with their principals. The principal has to do it. If I am an officer of say XYZ, my affidavit that I am MGS’s agent doesn’t imo establish the agency.
A legitimate affidavit from MSG prob would, as would the agreement
executed by the principal and the agent establishing the agency.
A group of individuals holding themselves out as a corporation when they’re not is illegal, as I’ve said. (It’s also illegal to keep false records in private books, something we haven’t explored here). As a non-person (a corporation is a legal ‘person’, I believe) they can’t contract and they can’t make anyone an agent. People may contract by fictitious names (Tom Jones contracts as Butch Cassidy), but they may not pretend to be a corporation and enter a contract.
My first sentence here was:
“I have never ever seen a case where anyone was asked to demonstrate that anyone was a MERSCorp’ member such that they could even pretend their straw officer was “mers-qualified” to execute an assgt.”
I mean, the assgt simply says it’s executed by a mers’ officer and most courts take that as factual. From the hip, the only thing I know to do for it might be to introduce the entire mmship agreement, make a case that doing so is appropriate, and frame an argument that in order for anyone to do anything in mers’ name, membership must be established.
There’s a patent conflict of interest when the person executing an assgt is the employee of the assignee, I don’t care what agreement otherwise exists. This imo has nothing to do with agency. It’s a diff argument.
JG- preferential
Transfers either before the BK filing or after it are one thing. You also have to find out at what point in te
Did the entity stop
Paying their MERS bill? (See ” MERS v. Ocwen”) if they weren’t a member the they couldn’t “assign” the mortgage to
Anyone. Because they are the ones who do it. And if they ain’t a member, the they can’t do this. It is hard to find out at what point a given company was ineligible to
Assign anything out of MERS and on to
someone else, but it can be ascertained.
Comments pls.
If joe lives in a state with a healthy homestead exemption amt, and if he filed a homestead declaration before he filed bk (and before he had notice of an assgt re: his home), he could feasibly protect his home equity or a big chunk of it from even the bk trustee. This is not a suggestion. I’m just sharing what I believe. Each state has its own
homestead exemption amt. As far as I know, in some states one MUST record a proper homestead declaration to receive its benefit. Also,
as far as I know, owner occupancy is a must in all states.
So just for kicks, like this:
Joe purchases a home or refi’s in 2001.
In 2003, Joe records a proper homestead declaration (because
filing a hs declaration is required in his state).
His state’s homestead exemption is 300,000.*
In 2010, he’s in the tank and files bk.
There have been no recordations and thus no notice of assgts of
his 2001 loan.
Only the interest of the original lender on a claim BY the orig lender from 2001 may not be avoided.
But, in at least a 13 or 11, he may avoid the unrecorded interests of any assignees entirely.
Since the homestead exemption was recorded prior to Joe’s bk, Joe
may avoid the bk estate’s interest, also, either entirely or partially. The hs exemption protects Joe’s interest from the bk estate up to the amt of the hs exemption.
If Joe’s house (appraisal?) is worth 400k, then Joe has a right to the 300k hs amt and the bk estate has a right to the other 100k. One of two things would happen imo: Joe would make a deal to pay the bk estate the 100k, or the home would be sold and joe gets his 300k. If the bk trustee doesn’t want to join in any defense of these legal tenets, imo only, her 100k should be debited Joe’s cost of defense or at least half of it (I’m on all) since the bk trustee sat on her laurels and exerted no effort to protect the bk estate’s 100k. If there is no equity available to the bk estate (because the amt of the hs exemption exceeds the
value of the home), the bk trustee would be under no obligation to
defend nuthin’.
I guess a reasonable question is if this is true, why aren’t people doing it? My answer is ignorance (not to be confused with stupidity!).
Florida has a ‘healthy’ homestead exemption amt. I see from the link below, a primer on FL – specific hs exemptions, that the lobbyist-bankster’s have been at it – again.
Even if bk isn’t in one’s future, a hs exemption can still 86 execution of judgments on one’s home. In fact, to the extent that a judgment encroaches on a homestead exemption, it’s violative, I think, but forget. And now that I think about it, an assgt may itself be violative (if proven by a determination of the home’s value). Even if not, the new interest of the assignee is still unenforceable against a first in time properly recorded homestead declaration. IMO. **caveat: This is totally dependent on the amt of the homestead exemption v the value of a home.** If the home is worth 500k and the hs exemption is only 10k,
it doesn’t provide much protection. But hey, 10k is at least moving money. It might be that I have no case law (I forget) which supports that a homestead exemption would trump an unrecorded interest outside bk. Nay sayers will say that’s because it doesn’t. I obviously disagree. BK law is fashioned, by and large, after other law, meaning 544 has its origin elsewhere. There is a ton of case law which supports a hs exemption defeating judgment creditors (which means they must find another source for collection on the judgment).
http://www.alperlaw.com/asset-protection/florida-asset-protection/homestead-protection/
THESE ARE STRICTLY LAY OPINIONS. ASK AN INFORMED ATTORNEY (no offense where n/a: good luck).
Thanks for the info. I will file it away in my never-ending files on how to survive and extrajudicial world.
Louise: ” in the first lawsuit against me, the judge dismissed their case because the recordation of the assignment was AFTER THE ACTION WAS FILED. I am in a judicial state.”
So their first action was filed in bad faith. imo. The reason the first law suit was dismissed was lack of notice. Enforcement requires notice.
And also imo it was an abuse of process to force you to expend time and money on a non-event / non-claim. These things wear us down and are oppressive. Filing an action before a claim may be made is wrong and the fact that it’s wrong should have some teeth in a remedy for those adversely affected. It prob does.
If it had been me and I knew what I know today, I would’ve filed bk (if i had nothing to lose otherwise, that is) after that first action. Either I or the trustee would’ve avoided the unrecorded interest (the one later asserted). If it were the trustee, I would’ve made a deal with the trustee to pay him the market value of my home. This avoidance power is found in U.S. Code Section 544. If interested, just google ‘bankruptcy
code 544″ and it’ll come up. I think it applies in at least chapter 13’s and 11’s. This is the section of the code Zitta (AZ), for example, as debtor in possession used to avoid the unrecorded interest of the claimant who was after his home. Or, if you live in a state with a noteworthy homestead exemption amt, you might file a homestead declaration. The homestead won’t protect you from the original lender because, long and short, that was a voluntary action by you and it preceded the homestead declaration, but it may protect you from any claims made by those making claims based assgts recorded after the recordation of a homestead declaration. In other words, if your homestead is filed properly before an assignment is recorded, it may (should will) preclude enforcement by the assignee.
this is not legal advice or any advice. it’s strictly lay opinion. ask a lawyer.
Ian, no argument there outta me. A non-existant corporation (app like AWL) can’t endorse a note, say. Nor can someone, like a former officer of a dissolved corporation, effectively execute an assignment for the dissolved corporation. So let’s say ABC Lender were the named payee and ben on a dot (and by the way, any relationship with anyone else, like say an agent, dies with the corporation and I think bk extinguishes agency, also). If ABC’s corporate structure is toast, it can’t do one thing because it doesn’t exist, and therefore, any ‘down the road’ reliance on “ABC’s” anything is no bueno. Now, what’s the fix, if any, for that by the banksters? The truth is there may be NONE, in which case the bankster, at law a sophisticated party, is appropriately made to suffer for his own lack of diligence. I don’t know beyond that speculation, but imo it’s certainly something anyone who got a loan out of a now dissolved corporation should keep in mind. At least look at the sec of state’s office for the date of the dissolution.* If you’re in Iowa, see if the corp were a domestic or foreign-registered (f-r’d to do business in your state of Iowa). If you don’t find them at all at the Iowa sec of state, that’s a problem for them imo. Search their name anywhere and everywhere to find their state of incorporation and then check their “standing” with that state’s sec of state. (i can’t recall if the note says “ABC, an Iowa corporation” or just “ABC, a corporation”. Btw, it’s illegal to hold oneself out as a corporation when not a corporation. To me, since it surely extends to an endorsement, that means that not only is an endorsement or assgt by a non-existant corporation wholly ineffective, it’s illegal, for whatever the h that’s worth these days. The day of dissolution imo become dispositive of anyone’s subsequent right, and therefore, the date of alleged endorsement or assgt becomes paramount. If there were never a corporation, but rather one or more individuals holding himself or themselves out as a corporation, I believe there is no (defensible) contract. I guess in other words, the agreement is void. Buuut, see de facto corporation, below, for hints only.
A Corporation needs a thing called a “Certificate of Good Standing” from sec’s of state. They get that by filing and paying certain things with the s of state. Corporations lose this by not doing and paying those
certain things, generally annually, but it’s NOT to be confused with dissolution of the corporation. Corporations have a prescribed amt of time to remedy their deficiencies with the sec of state. Once that time has come and gone, it they haven’t done ‘stuff’ they should, the s of s will revoke their cert of incorporation. This is from majorly old memory.
Bottom line imo: the proponent of a corporate endorsement, at least when it comes to a dissolved or bk’d corporation, must demonstrate that the endorsement or assgt preceded the corp’s dissolution or bk. As to bk, it additionally matters because even if it were before the bk, there’s a chance the act could be or was set aside as a “preferential” transfer or liquidation. That’s a whole ‘nother matter, but long and short is that abc can’t pay a particular party or assign interests which give one of its creditors or obligees a big fat leg up on / over its other creditors / obligees. The bk trustee’s ‘long arm’ can pull back any preferential transfer. A transfer may as a matter of law be called preferential if it’s done within, I forget, like 180 days prior to the bk filing. If a transfer were done within those x amt of days before a corporate bk, imo there is a material issue of fact of whether or not the act will or did stand. This bk issue needs a seasoned bk attorney and not the kind who runs a chop-shop assembly line.Those guys imo generally don’t litigate, if at all, beyond very limited issues.
http://en.wikipedia.org/wiki/De_facto_corporation_and_corporation_by_estoppel
Note this from the link: “There must have been a good faith attempt to comply with the statute by the intended incorporators”.
If one is a corp officer, one knows or should know if there has been dissolution. Willful ignorance isn’t good faith and it doesn’t legally justify an act made in willful ignorance of a fact, by either the actor or the intended beneficiary of his act. And if there simply never were a corporation in the first place, a defense of ignorance can’t even come on the field imo.
Not ALL of them. Just the enormous majority. Hence their results or lack thereof.
Good point, Ian. The alleged entity that was the alleged lender in their lawsuit against me was bankrupt and out of business so it could not “assign” anything. But if you allow forgery and fraudulent documents to dictate the law, that is what you have–forgery and fraudulent documents. Void from the beginning. Christine, if you think all the people here are stupid, worthless and ill-informed, why are you still posting here? Maybe because you are a shill or a sociopath, which is it?
christine, thanks for that glowing endorsement.
You: “Fair to assume that:
1) Case was dismissed without prejudice
2) Judge supported his decision with case law
3) Case was refiled by alleged “real party of interest”.”
So I think you just supported my position. I didn’t say a bankster couldn’t get its ducks in a row and come back. I merely said that an unrecorded assgt, while binding on the parties thereto, is not enforceable unless noticed, and THAT, acc to you, is just what happened, is it not? I also didn’t address “timely” recordation. So let me now.
If Gangster 1 (“g1”) is the orig lender and sells and assigns to g2 who sells and assigns to g3 who sells and assigns to g4 and it’s g4 who is after Gweneth, g4 may not enforce until the assignments before his as well as his own are recorded / noticed. And, they must be recorded in the correct chronological order (what the ‘fix’ is is another story if they’re not).
As to what is timely, I’d have to say timely is only applicable to enforcement. Depending on state law – caveat – none of those assgts need be recorded until and unless enforcement is sought. Of course, it’s at the peril of those who don’t record.
As to where I get my info, since you asked: education, experience,
tomes of research, and everyone’s favorite, school of hard knocks. And while I’m at it, this ain’t my first rodeo.
Christine/ jg- don’t know if you are overlooking “nemo dat” legally binding principle. You can’t give what you don’t own or have. If the previous person in the chain is bogus, nonexistent, bankrupt etc then they couldn’t effect the current entity foreclosing.
Haven’t seen this mentioned lately if ever. Your thoughts-
“JG, in the first lawsuit against me, the judge dismissed their case because the recordation of the assignment was AFTER THE ACTION WAS FILED. I am in a judicial state.”
Fair to assume that:
1) Case was dismissed without prejudice
2) Judge supported his decision with case law
3) Case was refiled by alleged “real party of interest”.
Absence of timely recordation doesn’t hold water. Homeowner still ends up losing house. Pure BS.
JG, in the first lawsuit against me, the judge dismissed their case because the recordation of the assignment was AFTER THE ACTION WAS FILED. I am in a judicial state.
“…but unrecorded assgts are not binding on anyone, including the homeowner, without notice of them.”
Pure BS. In fact, as far as I know, OH might be the only state with a specific case addressing recordation, the Schwartzwald case (as far as a I know. Check for your state though).
Your opinion does not matter: facts are facts. Whether recorded or not, a transfer/assignment is valid and enforceable. Besides, the only persons having the authority to enforce the duty to record are the AG (didn’t Coakley go after servicers for that very reason?) and the county’s recorder (we’ve seen a few actions over the past years, including in SFO, in Oklahoma and other states).
As far as notice is concerned, pure BS again. Anyone can check the county records and look for recent recordings but neither the servicer nor the recorder has any legal obligation to notify anyone.
Where the F*** do you all get your info from? Do you even think before you write? JG, I’ve always considered that you were full of it and flaunting it but this one takes the cake.
From one of “Rock’s” cases:
(Plaintiff argues that the foreclosure sale was invalid because Defendants failed to record every transfer of the Deed of Trust,…As the unrecorded assignments in this case occurred by operation of law when the Note was transferred by endorsement in blank, no recording was necessary. ”
I of course disagree that the assignments occurred by operation of law. However, even if that were true, the finding is still flawed imo. Legitimate but unrecorded assignments are generally binding on the parties thereto (assuming a couple things), but unrecorded assgts are not binding on anyone, including the homeowner, without notice of them. I didn’t go dig that case up, but if the consumer had no notice of the unrecorded assgts prior to f/c, I’m hard pressed to see how a foreclosing claimant who was a transferee, even if the assgt to him were recorded, had a colorable claim for lack of that Notice. Courts like to say the purpose of recording is to protect
the lender’s priority position. That’s not the end of the story. Recordation is also to give Notice to anyone impacted by the claim of interest being made in an assignment. Anyone who’s interested in this should look to see if her own state has such a law. Succinctly, enforcement requires Notice of the interest.
The court is confusing two issues in this context. There are two issues: 1) how a transfer of an interest in a mtg or dot occurs and 2) that no matter what is deemed to accomplish that transfer, enforcement of the acquired interest requires Notice.
The court only (errantly imo) determined the first.
David,
You need an attorney. I don’t think you have a clear understanding of what issues are accessible to you. And asking for advice from bloggers here is a terrible mistake. Unless, of course, LL is your entire social and intellectual life.
did everyone really read what was posted. SO AGAIN IF ITS BEEN 10 YRS FROM CLOSING , BUT JUST FOUND OUT OVER PAST YEAR OF ALL THE FRAUD IN OUR MORTGAGE, 3 DIFFERENT NOTES, STATING A BLANK ENDORSEMENT, ON WITH NO ENDORSEMENT, THEN ONE WITH A DATED AND SIGN ENDORSEMENT BACK IN 2005 FROM DAY OF CLOSING SHOWING A FINIANCIAL INSTATUTION NOT ON ANY PAPERWORK OR HAD NO KNOWLAGE OF.
SO I SHOULD BE A ABLE TO RESIN THE WHOLE DEAL, RIGHT
THE WAY I SEE IT IS THAT THEY OWE US AMERICANS MILLIONS ON OUR OWN MORTGAGE NOTES THEY STOLE AND USE TO UNJUSTLY ENRICH, THEMSELVES. NOW THAT IS TO THE POINT.
(2) Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money,
or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.
(3) If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph,
WHEN THE CREDITOR HAS COMPLIED!!!!!!!
SO ONLY WHEN THEY ( CREDITORS) PAY YOU THE BORROWER ALL MONEY THEY HAVE GOTTEN SO HOW ABOUT THE 30 TO 40 TIMES THE VALUE THEY GOT WHEN THEY BROUGHT YOUR MORTGAGE NOTE TO TRES/FED, ???( YOUR NOTE) OF 350,000 DOLLARS, THEY WOULD OF
GOTTEN AT LEASE 12,000,000 ( MILLON )…. SELLING YOUR MORTGAGE/NOTE 10 TIMES 20 TIMES OR MORE FOR THE FRAUDULENT, APPRAISAL PRICES. AND PAY YOU BACK ALL PAYMENTS MADE. THEN AND ONLY THEN WILL YOU THE BORROWER HAVE TO TENDER ANYTHING. BUT WAIT, LOOK AT BELOW.
TENDER ITS REASONABLE VALUE!!!!!!!!!!
the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value.
At the consumer’s option, tender of property may be made at the location of the property or at the consumer’s residence. Tender of money must be made at the creditor’s designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer’s tender, the consumer may keep it without further obligation.
James L. Macklin, Managing Director
Secure Document Research(Paralegal Services/Legal Project Management)
Agent for Charles T. Marshall, Esq. (SBN 176091)
917 Tahoe Blvd #201 A
These purveyors of false & misleading information belong in jail!
Scammer claims people winning “all these” standing cases. Here’s proof of more misinformation he’s peddling to his dupes.
In re Correia, 452 B.R. 319, 324-25 (B.A.P. 1st Cir. 2011) (finding debtors lacked standing to challenge validity of mortgage assignment, based upon alleged noncompliance with pooling and servicing agreement); In re Smoak,— B.R. —, 2011 WL 4502596, *5-6 (Bankr. S.D. Ohio 2011) (holding debtors under securitized notes lacked standing to raise violations of PSA);In re Almeida, 417 B.R. 140, 149 n. 4 (Bankr. D. Mass. 2009) (noting holder of second mortgage on property was “not a third party beneficiary of the PSA, and, ironically, he would appear to lack standing to object to any breaches of the terms of the PSA. . . . [Instead] the investors who bought securities based upon the pooled mortgages would be the parties with standing to object to any defects in those mortgages resulting from any failure to abide by the express provisions of the PSA.”); Livonia Property Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 717 F. Supp. 2d 724, 748 (E.D. Mich. 2010), aff’d, 399 Fed. Appx. 97 (6th Cir.2010) (same); Anderson v. Countrywide Home Loans, 2011 WL 1627945, *4 (D. Minn. 2011) (rejecting argument that assignment to a securitization trust was invalid because the PSA provided that the trust ceased accepting mortgages several years before the contested assignment from MERS because “compliance with the chain of assignment mandated by a PSA was not relevant to the validity of the assignee’s interest.”) (citing Peterson-Price v. U.S. Bank Nat’l Ass’n, 2010 WL 1782188, *10 (D. Minn. 2010)); Greene v. Home Loan Serv., Inc., 2010 WL 3749243, *4 (D. Minn. 2010) (“Plaintiffs are not a party to the [PSA] and therefore have no standing to challenge any purported breach of the rights and obligations of that agreement.”); Long v. One West Bank, 2011 WL 3796887, *4 (N.D. Ill. 2011) (rejecting argument that assignment executed after trust was closed in violation of the PSA rendered transaction invalid, reasoning that non-parties to the PSA lacked standing to challenge the assignment and “it is irrelevant to the validity of the assignment whether or not it complied with the PSA”); Juarez v. U.S. Bank Nat’l Ass’n, 2011 WL 5330465, *4 (D. Mass. 2011) (reasoning that plaintiff “does not have a legally protected interest in the assignment of the mortgage to bring an action arising under the PSA”); Cooper v. Bank of New York Mellon, 2011 WL 3705058, *17 (D. Haw. 2011) (dismissing breach of contract count brought by delinquent mortgagors for breach of PSA, reasoning that mortgagors were not third-party beneficiaries of PSA and thus had no standing to enforce its terms); Abubo v. Bank of N.Y. Mellon, 2011 WL 6011787, *7-9 (D. Haw. 2011) (rejecting argument that PSA violation could form basis for relief, noting that this “argument has been rejected in recent decisions by many courts”); Bascos v. Fed. Home Loan Mortg. Corp., 2011 WL 3157063, *6 (C.D. Cal. 2011) (“To the extent Plaintiff challenges the securitization of his loan because Freddie Mac failed to comply with the terms of its securitization agreement, Plaintiff has no standing to challenge the validity of the securitization of the loan as he is not an investor of the loan trust.”).; In Re Walker, 466 B.R. 271, 285 nn. 28-29 (Bankr. E.D. Pa. 2012) (collecting cases and noting that “[A] judicial consensus has developed holding that a borrower lacks standing to (1) challenge the validity of a mortgage securitization or (2) request a judicial determination that a loan assignment is invalid due to noncompliance with a pooling and servicing agreement, when the borrower is neither a party to nor a third party beneficiary of the securitization agreement.”).
Other district courts have also held that borrowers do not have standing to challenge breach of securitization agreements. See Armeni v. America’s Wholesale Lender, 2012 WL 253967 at *2 (C.D. Cal. Jan. 25, 2012)(same); Junger v. Bank of Am., N.A., 2012 WL 603262 (C.D. Cal. Feb. 24, 2012)(same);) Greene v. Home Loan Servs. Inc., 2010 WL 3749243, *4 (D. Minn. Sept. 21, 2010) (“Plaintiffs do not have standing to bring their challenge regarding the securitization of the mortgage” because they were “not a party to the Pooling and Servicing Agreement.”). Kain V. Bank Of New York Mellon (D.S.C. 3-18-2013) (the third-party debtor who is not a beneficiary to the pooling and serving agreement lacks standing to challenge holder’s rights to enforce the negotiable instrument due to an alleged invalidity in or noncompliance with the pooling and serving agreement): Metcalf V. Deutsche Bank National Trust Company (N.D.Tex. 6-26-2012) (Courts in this circuit have repeatedly held that borrowers do not have standing to challenge the assignments of their mortgages because they are not parties to those assignments…Plaintiffs do have standing, however, to challenge defendants’ authority to foreclose on the ground that foreclosure did not comply with the terms of the deed of trust); Almutarreb v. Bank of New York Trust Co., N.A., 2012 WL 4371410, *2 (N.D. Cal. Sept. 24, 2012) (“holding that “because Plaintiffs were not parties to the PSA, they lack standing to challenge the validity of the securitization process, including whether the loan transfer occurred outside of the temporal bounds prescribed by the PSA.”); Lane v. Vitek Real Estate Industries Group, 713 F.Supp.2d 1092, (E.D.Cal. 2010) (“The argument that parties lose interest in a loan when it is assigned to a trust pool has also been rejected by numerous district courts.”); Sami v. Wells Fargo Bank, 2012 WL 967051, at *5-6 (N.D. Cal. 2012) (rejecting claim “that Wells Fargo failed to transfer or assign the note or Deed of Trust to the Securitized Trust by the ‘closing date,’ and that therefore, ‘under the PSA, any alleged assignment beyond the specified closing date’ is void” because the plaintiff lacked standing); White v. IndyMac Bank, FSB, No. 09-00571, 2012 WL 966638, at *7-8 (D. Haw. Mar.20, 2012) (recognizing a servicer can foreclose on behalf of the beneficial owner of the loan); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011) (“None of their allegations indicate that the plaintiffs were misinformed about MERS’s role as a beneficiary, or the possibility that their loans would be resold and tracked through the MERS system …. By signing the deeds of trust, the plaintiffs agreed to the terms and were on notice of the contents.”); In re Weisband, 427 B.R. 13, 22 (Bankr. D. Ariz. 2010) (“Arizona’s deed of trust statute does not require a beneficiary of a deed of trust to produce the underlying note (or its chain of assignment) in order to conduct a Trustee’s Sale.”); U.S. Bank, N.A. v. Knight, 90 So. 3d 824 (Fla. 4th DCA 2012) (“to have standing, an owner or holder of a note, indorsed in blank, need only show that he possessed the note at the institution of a foreclosure suit; the mortgage necessarily and equitable follows the note.”); WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004), (“a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt. . . .” Id.); Wolf v. Fed. Nat’l Mortg. Ass’n (4th Cir. 2013) Wolf lacks standing to attack the validity of the assignment. Furthermore, the assignment does not affect Wolf’s rights or duties at all. Wolf still has the obligation under the note to make payments. In fact, the only thing the assignment affects is to whom Wolf makes the payments. Thus, she has no interest in the assignment from MERS to BAC. Accordingly, she has no standing to challenge it); Rhodes V. JPMorgan Chase Bank (S.D.Fla. 6-28-2012) (a failure by Defendant to record its assignment is “applicable only to and enforceable by competing creditors or subsequent bona fide purchasers of the mortgagee, not by the mortgagor.” Tapia V. U.S. Bank, N.A. 718 F. Supp.2d 689, 697-98 (E.D.Va. 6-22-2010) (‘Plaintiffs argue that Defendants could not demonstrate standing to institute the foreclosure because they could not prove Article III injury. The Court rejects Plaintiffs’ standing argument to the extent that Plaintiffs use the term “standing” to refer to the requirement that a secured party first prove in court its right to initiate a foreclosure before the procedure commences. The fundamental flaw in Plaintiffs’ allegation is that Virginia is a non-judicial foreclosure state…a non-judicial foreclosure, does not require an interested party to prove “standing” in a court of law before initiating the foreclosure process…The Court therefore rejects Plaintiffs’ “standing” argument) (internal citations omitted); Indymac Bank, FSB V. Decastro, NJ: Appellate Div. 2013 (“we now have made clear that lack of standing is not a meritorious defense to a foreclosure complaint. Russo, supra, 429 N.J. Super. at 101 (holding that “standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not `void’ within the meaning of Rule 4:50-1(d)”); Kan v. OneWest Bank, FSB, 823 F. Supp. 2d 464, 470 (W.D. Tex. 2011) (dismissing suit for failure to state a claim where one of the arguments was that the mortgage documents were robosigned and therefore somehow invalid); Tuille v. Am. Home Mortg. Servs., Inc., 483 F. App’x 132, 135 (6th Cir. 2012) (internal citations omitted) (“any defect in the written assignment of the mortgage would make no difference where both parties to the assignment ratified the assignment by their subsequent conduct in honoring its terms, and that [the plaintiff], as stranger to the assignment, lacked standing to challenge its validity.”); Benham v. Aurora Loan Services, No. C-09-2059 SC, 2009 WL 2880232, at *3 (N.D. Cal. Sept. 1, 2009) (“Other courts in this district have summarily rejected the argument that companies like MERS lose their power of sale pursuant to the deed of trust when the original promissory note is assigned to a trust pool.”); Van Hauen v. Wells Fargo Bank, N.A., 2012 WL 4162138 (E.D. Tex. Aug. 24, 2012), report and recommendation adopted, 2012 WL 4322518 (E.D. Tex. Sept. 20, 2012) (“Courts in Texas have repeatedly recognized that Texas law allows either a mortgagee or a mortgage servicer to administer a deed of trust foreclosure without production of the original note.”) ; Soberanis v. Mortgage Elec. Registration Sys., Inc., 13-CV-1296-H KSC, 2013 WL 4046458, at *4 (S.D. Cal. Aug. 8, 2013) (“As unrelated third parties to the allegedly failed securitization and any other alleged transfers of the beneficial interest under the subject loan and deed of trust, Plaintiffs lack standing to enforce any agreements related to such transactions.”); Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”); Neal v. Bank of America, N.A., No. CV 12-08104-PCT-FJM, 2012 WL 3638762, at *4 (D. Ariz. Aug. 24, 2012) (rejecting Plaintiff’s argument that the assignment of the deed of trust and the substitution of trustee are forgeries, were robosigned, and are therefore invalid under state statute because “Plaintiff, who is not a party to either the assignment or the substitution of trustee … does not have standing to challenge the validity of these documents”); Javaheri v. JPMorgan Chase Bank, N.A., No. 2:1D-cv-08185-ODW, 2012 WL 3426278, at *6 (C.D. Cal. Aug. 13 2012) (holding that “[w]ile the allegation of robo-signing may be true, . . [the plaintiff] lacks standing to seek relief under such an allegation, noting that “District Courts in numerous states agree”); Mottale v. Tirey (S.D. Cal., 2014) (“Plaintiffs cite the recent California Court of Appeal case Glaski v. Bank of America National Association, et al., 218 Cal. App. 4th 1079 (Aug. 8, 2013), to support the plausibility of Plaintiffs’ unlawful securitization theory of liability. (Dkt. No. 22 at 3.)….The Court first notes that the weight of authority rejects Glaski as a minority view on the issue of a borrower’s standing to challenge an assignment as a third party to that assignment. See Rivac v. Ndex West LLC, No. C 13-1417 PJH, 2013 WL 6662762 at *4 (N.D. Cal. Dec. 17, 2013) (collecting cases); Boza v. U.S. Bank Nat. Ass’n, LA CV12-06993 JAK, 2013 WL 5943160 at *10 (C.D. Cal. Oct. 28, 2013) (same); In re Sandri, 501 B.R. 369, 374-78 (Bankr. N.D. Cal. 2013) (same).”); (“This Court finds the reasoning in the above-cited caselaw to be more persuasive than the reasoning in Glaski. See Rivac v. Ndex W. LLC, No. 13-1417-PJH, 2013 WL 6662762, at *4 (N.D. Cal. Dec. 17, 2013) Covarrubias v. Fed. Home Loan Mortg. Corp. (S.D. Cal., 2014) (“This court is persuaded by the majority position of courts within this district, which is that Glaski is unpersuasive,…(“[N]o courts have yet followed Glaski and Glaski is in a clear minority on the issue. Until either the California Supreme Court, the Ninth Circuit, or other appellate courts follow Glaski, this Court will continue to follow the majority rule.”) (citations omitted).”); Scomparin v. Deutsche Bank Nat’l Trust Co. (In re Scomparin) (Bankr. N.D. Cal., 2014) (“As determined in In re Sandri, 501 B.R. 369 (Bankr. N.D. Cal. 2013), the clear weight of authority is against Glaski and its reasoning is unpersuasive. The Glaski court’s interpretation of New York law is contrary to the more well-reasoned cases that have found that an act in violation of a trust agreement is voidable, not void….Consistent with Sandri and the majority of California court decisions that have addressed this issue, this court finds that Plaintiff has no standing to successfully challenge the validity or effectiveness of the transfer. Id. See also Patel v. Mortgage Electronic Registration Systems, Inc., 2013 WL 4029277 (N.D. Cal. Aug. 6, 2013); Sami v. Wells Fargo Bank, 2012 WL 967051 (N.D. Cal. Mar. 21, 2012) (collecting cases). Further, Plaintiff provides no response to Defendants’ position that they are entitled to enforce the debt even if the Loan was not deposited into the PSA. Specifically, if the Loan was not placed into trust, then whomever possesses the blank-endorsed Note memorializing the Loan is entitled to enforce the debt. Cal. Comm. Code § 3301. “); Colletti v. Nationstar Mortg., LLC (E.D. Mich., 2013) (Neither pooling the mortgage into mortgage-back security and selling it to a trust nor splitting the note from the indebtedness creates a cause of action. See Stafford v. Mortgage Elec. Registration Sys., Inc., 12-10987, 2012 WL 1564701, at *4 (E.D.Mich. May 2, 2012) (Cohn, J.) (quoting and collecting cases for the proposition that “courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor with a cause of action.” “To the extent that Plaintiffs’ proposed amended complaint would rely on claims regarding the securitization of the loan . . . into a mortgage-backed security, there is no merit to the contention that securitization renders the lender’s loan in the property invalid.”) (and citing cases for the proposition that splitting the indebtedness from the note does not render either invalid.) (citations omitted). The Court dismisses this claim.): M&T Bank v. Strawn, 2013 Ohio 5845 (Ohio App., 2013) (“the holder of a promissory note secured by a mortgage has an equitable interest in the mortgage and need not demonstrate that it was validly assigned the mortgage in order to establish standing.”): The transfer of a promissory note secured by a mortgage operates as an equitable assignment of the mortgage. See Fed. Home Loan Mortg. Corp. v. Rufo, 11th Dist. Ashtabula No. 2012-A-0011, 2012-Ohio-5930, ¶41; Citimortgage, Inc. v. Loncar, 7th Dist. Mahoning No. 11 MA 174, 2013-Ohio-2959, ¶17 (“in a foreclosure action, the holder of the note, regardless of whether it has been assigned the mortgage, has standing not only because it is the party entitled to enforce the instrument, but because it also has an equitable interest in the mortgage”); Citimortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, ¶21 (holder of the note has standing to foreclose). Thus, appellee acquired an equitable interest in the mortgage when it became a holder of the note, “regardless of whether the mortgage [was] actually (or validly) assigned or delivered”. Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶65; In reality, of course, a PSA is executed to benefit the investors who buy securities backed by the mortgage pool-investors who would be harmed by enforcing the PSA to keep mortgages out of the pooling trust. Unsurprisingly, courts invariably deny mortgagors third-party status to enforce PSAs. See, e.g., In re Walker, 466 B.R. 271, 284-85 (Bankr.E.D.Pa.2012); Kelly v. Deutsche Bank Nat’l Trust Co., 789 F.Supp.2d 262, 267-68 (D.Mass.2011); Bittinger v. Wells Fargo Bank NA, 744 F.Supp.2d 619, 625-26 (S.D.Tex.2010); Richard A. Lord, Williston on Contracts § 74:50 (4th ed.2012) (“If the objection to the validity of an assignment is not that it is void but voidable only at the option of the assignor, or of some third person, the debtor has no legal defense whether or not action is brought in the assignee’s name, for it cannot be assumed that the assignor is desirous of avoiding the assignment.”); Nobles, 533 S.W.2d at 926-27 (“It is settled that … a deed [executed by a person fraudulently misrepresenting his agency] is valid and represents prima facie evidence of title until there has been a successful suit to set it aside … [which] can only be maintained by the defrauded [principal].”); Rivac v. NDEX W. LLC (N.D. Cal., 2013) (District courts have consistently found that conclusory allegations of robo-signing are insufficient to state a claim, absent some factual support. See Baldoza v. Bank of America, N.A., 2013 WL 978268 at *13 (N.D. Cal. Mar. 12, 2013); see also Chan Tang v. Bank of America, N.A., 2012 WL 960373 at *10-11 (C.D. Cal. March 19, 2012); Sohal v. Fed. Home Loan Mortg. Corp., 2011 WL 3842195 at *5 (N.D. Cal. Aug. 30, 2011); Chua v. IB Property Holdings, LLC, 2011 WL 3322884 at *2 (C.D. Cal. Aug. 1, 2011))…Further, where a plaintiff alleges that a document is void due to robo-signing, yet does not contest the validity of the underlying debt, and is not a party to the assignment, the plaintiff does not have standing to contest the alleged fraudulent transfer. See Elliott v. Mortgage Electronic Registration Systems, Inc., 2013 WL 1820904 at *2 (N.D. Cal. Apr. 30, 2013); Javaheri v. JPMorgan Chase Bank N.A., 2012 WL 3426278 at *6 (C.D. Cal. Aug. 13, 2012). (“Plaintiffs here do not dispute that they defaulted on the loan payments, and the robo-signing allegations are without effect on the validity of the foreclosure process.); Tran v. Bank of N.Y. (S.D.N.Y., 2014) (“courts considering EPTL § 7-2.4 have held that “even if it is true that the Notes were transferred to the trust in violation of the trust’s terms [after the closing date of the trust], that transaction could be ratified by the beneficiaries of the trust and is therefore merely voidable.”); Brandrup v. Recontrust Co. N.A., 353 Or. 668, 303 P.3d 301 (Or., 2013) (Because a promissory note generally contains no description of real property and does not transfer, encumber, or otherwise affect the title to real property, it cannot be recorded in land title records.); Romani v. Nw. Tr. Servs., Inc. (D. Or., 2013) (Plaintiff argues that the foreclosure sale was invalid because Defendants failed to record every transfer of the Deed of Trust,…As the unrecorded assignments in this case occurred by operation of law when the Note was transferred by endorsement in blank, no recording was necessary. Defendants failure to record such assignments will not undo the completed foreclosure sale.); (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507.) (“Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note.”); Jenkins v. JPMorgan Chase Bank, N.A. 216 Cal.App.4th 497, 515 (2013) (“An impropriety in the transfer of a promissory note would therefore affect only the parties to the transaction, not the borrower. The borrower thus lacks standing to enforce any agreements relating to such transactions.”); Dow Family, LLC v. PHH Mortg. Corp., 2014 WI 56 (Wis., 2014) (“We also note that the doctrine of equitable assignment is not unique to Wisconsin case law. In Carpenter v. Longan, 83 U.S. 271, 275 (1872), the United States Supreme Court stated: “The transfer of the note carries with it the security, without any formal assignment or delivery, or even mention of the latter.” In the Restatement (Third) of Property (Mortgages) § 5.4(a) (1997) we find additional support for the doctrine of equitable assignment: “A transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise.”).
What is stupid is that Neil seen the light in my opinion with the two recent victories in court where one single case win $2.95 million in a $145,000 mortgage balance. Look at the possibility that all these “No Standing” cases being decided with cash payout of $500,000 or as little as $150,000 equals $150 billion in just the mortgage balance.
You got Freddie, Fannie and all of Ginnie Mae pooled loan not having a single bit of proof that there was a consideration of cash.
Now you got a Guy like Rock coming here telling folks don’t believe your eyes and take what the Holm & Franklin case and attack the banks and agencies with the same tactics, but this loser is saying it does not work?
If your currently going through bankruptcy you don’t think raising the same issue should not bring up were is the receipt of purchase? If you been foreclosed by Wells Fargo and you know you got a WaMu loan that you should not bring to the court attention that Wells Fargo did not purchase the loan and neither could Ginnie?
The WaMu Ginnie Mae MBS are in default because the issuer no longer exist and cannot pay its bills, and that bill is paying the investors a principal and interest payment for the securities they have purchase!
Love your comment Deborah Wynn!! The Universe is the Law!!
You of little faith. Smell the roses look at nature, it will all work out in the end how it is supposed to For better or worse. Be kind to people and see what happens. Off to work.
Finally, Happy 68th Birthday Neil Garfield. Regardless of what the ingrates say… You don’t look a friggin day over 67.
Finally, Happy 68th Birthday Neil Garfield. Regardless of what the ingrates say… You don’t a friggin day over 67.
@ deborah – using the term “Mr.” out in front of anything addressing me lends way to much creditbility.
Yo Christine – So far we have the people of Iceland, Greece. Argentina and several other credit-slave nations just saying “no”. When American’s realize that the balance sheet debt system only has the power to put the wheel in the cage, we will all be happier..
We, the cute little American hamster’s do not have to get on the wheel, and apparently, we can get off at any time. Human productivity has always spun the wheel – and without us, the need for banks and other corporate masters diminishes.
Everyone take a moment, think about where the human species will be 1,000 years from now if we make it. Will there even be a need for humans to work, harvest or pay bills.
John Lennon was right… we don’t understand the assignment.
Right it starts with self – the doers, and im not talking about you mr net present value, its by doing we get to find out what works and what rabbit holes to avoid. This is very complex stuff and each case is different . Yes get an attorney is my advice but know what you are looking for in that attorney, learn some before you go hunting and never ignore the ol ” gut feeling”.
This is simply and what it boils down too. You got this blank endorsed Note that not endorsed to you that you have physical possession of, and if you are calling this Note due we need to know how much consideration was paid. Simply provide your proof of purchase!
How does a bank and agency come to court in the Holm case after 7yrs and instead of coming to court with the receipt for $145.000 loan balance, but the leave owning $2.95 million. So the answer is they was never a receipt. There no secret to the fact that a Washington Mutual Bank loans that in a Ginnie Mae MBS was not purchase by Ginnie Mae no way no how, which is unlike Fannie & Freddie, but now we find out that Freddie cannot come up with the receipts of purchase!
Huge is going in front of a bankruptcy court and having this determine as President Obama thought this should have gone down in the first place. The thought was how fair was it to homeowners and a primary home loan to not be given the same opportunity than a investor with 3 or 4 properties the the bankruptcy adjust debt. Rich investors such as Trump have gone through bankruptcy.
The judge ruled the the two alleged holder of the loan did not prove that they had a debt. Now the judge did not dismiss debt, but determine the debt was not Freddie or Wells in re:Franklin. Now with a property that already been foreclosed, now we got harm and the individual harm must get restitution!
NPV,
Refusing collectively to feed the problem would have been a good start but people are afraid of taking a stand. It’s everybody for himself. And a lot of whining, complaining, bitching. Areal nation of doers!
I awesome at masturbation because I am mental…. i am mental as a cause of masturbation.
Why is the ink black and the page white? What can we do together?
Its tragic that so many people bash the attorneys and Judges all because of a few bad apples. Sighs
Attitude is Everything
The most educated people I know are smart enough to know they don’t have a law degree and hired attornies.
David b, you mention tolling which is to be therefore raised and argued, in my case i did it within three years so i dont have to argue tolling. I post for the possibility that it helps others, like give rise to researching and not taking anything on here as its presented all in a nice little nut shell, (excuse the pun) especially coming from those who keep having pokes at others for trying, and for what kind of “payoff” Well only they know . The only way to help each other is to share what we are finding out, so, thats all im saying about that.
also a big hit, with allot of info. best read.
from the office of the
COMPTROLLER OF CURRENCY ( ADMINISTRATOR OF ALL NATIONAL BANKS)
ASSET SECURITZATION COMPTROLLERS HAND BOOK, NOVEMBER 1997.
OH BOY, WE HAVE A WINNER.
I believe the status of limitation is long on these cases as they are not some mortgage procedure but a thief, and that thief is something the government failed to prosecute because the states have not realized the crime as well as the Fed Gov. So how are we setting a limitation to something the legal system has failed to recognized it existed?
You called the local police, state police and the fed police as to a theft of your property and no investigation occurred. This is about forgeries where the party foreclosing has created through MERS was illegally submit to the county land record to obtain control of the title to sale the stolen goods.
This is a currency fraud, as the title is a part of a bank Note and one other than the currency belong to is claim to be the owners!
sorry yr was sept, 2000
christine,
you need to read the following, really. all should.
statement of financial accounting standards, no.140,
( replaces FASB statement no.125.
its great reading.
David,
For the last time: it is none of my problems for what my fight is concerned. Keep in mind: I fight with specific allegations I can prove. I win. Your questions make no sense to me. Pure mental masturbation. Not interested.
I truly believe until u can organize a million heads to march on whatever the capital of your state is nothing will change and it should not be too hard with social media but that too is prob going to change.
christine, how can you say it makes no sense. really. is it true for anyone to transfer any type of interest in anything they first must own that interest. right. come on. its not that hard. to understand.
i cant go up to your house with someone, and say, here is the copy of the note i own, ( just forged it on computer, ) and your house is worth say 300,000 but i own it with the fake note, and tell them for 100,000 cash, i will sign it over to you.
if i was caught, by you, it would be over wouldn’t it. because i dont own the asset i was selling.
DEB, i beleive nothing has been said about the timing of when the 3 yrs would start if you just found out about a problem, so if you did a mortgage in 2005, and found out in 2013 of all the fraud in your mortgage. when does the 3yr start, or even 3 day start, if you find out that your lender didnt lend a dime in the transaction. right.
David,
For what I am concerned, your questions make no sense. Why is water wet? Why does fire burn? Not my problem. Certain things simply are what they are. I don’t waste time asking questions, the answers to which have no impact whatsoever on my personal situation. I don’t do well with mental masturbation.
So it follows -loan not qualified to be in trust,( cut off date) no trustee, but, they are in court and being given that grace already by presumption. Burden if proif is on the plaintiff dont forget that.
christine,
with that very very large bk, ( RESCAP/GMAC) INCLUDING 5 OTHER BANKS, BY THE WAY. AND OVER 500 TRUST, AND OVER 500 BILLIONS IN ALL TRUST.
THAT WAS WASH AWAY. BUY BUY.
and not only do all banks,and enity have to show bk judge all asset at time of filing, as they all did.
i went through all assets of rescap/gmac mortgage/ and they did not show they had my mortgage as a asset. all 5000 pages of assets and nothing of mind was in there.
thats why i say, its impossible for gmac mortgage to give or have anything to with my note and mortgage as of august 2012, so there is no way they could of given MERS any authority to assign my mortgage and note to anyone,
it was not a ASSET OF THE COMPANY.
christine,
i have a question for you, under a securitized mortgage trust, if a trustee of that trust, after the originator,/ servicer, goes belly up in bk, and during the bk, ALL TRUSTEE’S OF OVER 500 TRUST, settle all claims, and settlement is made for all investors/bond holder/certificate holder, in all trust. including the trust that my mortgage is in.
so if all of them settled in this bk. on all claims. first there would be nothing in the trust as we know, but beside that.
what would a trustee now 3 yrs later, could say to court or any judge as you know all his jo is to protect the INTEREST’S OF CERTIFICATE HOLDERS AND BOND HOLDERS. so if the trustee and all investor,etc etc. have settled. his job is done,over,caput.
just asking.
the trust trying to foreclose cant say he is protecting the interest of anyone, now that he settled with them all already.
Yes john and was it not supposed to go a to b to c etcetera to e being depositor must assign and deliver to the trust. ( just a reminder)
Deb, looking back it would have been a good idea to give principal reductions. It would have kept the scam going without so much scrutiny, but their greed was too great and their total disrespect for their follow humans was too great as well.
Fwiw
I miss being a homeowner, i held a mortgage all my working life until the bubble market. I can be kicked out of the rental with 30 day notice as it stands. The market as it is – no thanks ill manage, its an illusion and nothing has really changed, i know folks who are being teased into a loan mod, with outrageous medical bills and cant afford their current mortgage, talk about the system being broken. Something has got to change, its all collapsing.
NG: “So public policy demands that there be reasonable certainty in the negotiation of unqualified promises to pay. BUT public policy expressed in the UCC Article 9 says that if you want to enforce a mortgage you must not only have some indication that it was transferred to you, you must also have paid valuable consideration for the mortgage.”
I wish you’d go into more detail about that, because if what you’re saying is true, I’ve been wrong about some things I’ve always believed. I’ve opined that consideration would only be paid for the note and therefore the consideration recited in any purported assgt of a note and dot is for the note. You seem to be saying transfer of a mtg, and here I assume you mean to include a dot, requires payment to enforce, independent of consideration for the note. Maybe you’ll cite the part of article 9 which states this? Anyone? Honestly, it doesn’t make sense to me since the mortgage (and dot) is naught without the right to payment on the note. Years ago, I had a case around here wherein “Joe” sold the note and dot to diff parties, the only case I’ve happened to see where moolah was paid for the coll instrument. I think the action was brought by the guy who paid for the coll instrument. The court ruled that neither were enforceable for lack of the other part of the agreement. I’ve always thought it was an important case, but I don’t want to miscite, esp for that reason, so I can only say that what I do remember specifically is that the court ruled the guy who bought the note had a right to the assgt of the coll instrument, BUT that he didn’t have it til he had it. In other words, his right to it existed, but that didn’t itself give it to him. He had to get an assignment.
As it relates to what you said, NG, I don’t see any reason why that guy would’ve had to pay money for an assignment of the coll instrument, already having paid for the right to payment. So I think it would be great if you would expound on this.
This was an older case, like 80’s, I think. I’ve looked high and low for that case and finally gave up. I’ve wanted it for its finding that the note buyer didn’t have the coll instrument until he got an assgt, even as he had an equitable right to it. People think Carpenter is the bomb and would undermine this case. Carpenter app stands for the prop that a mtg follows a note and does so without ben of an assgt. Maybe a mtg did or maybe THAT mortgage did. I didn’t have the benefit of reading that mortgage. But (at least ) a dot puts the title to one’s home in a trust; that’s what it does. As a conveyance of real property, it’s subject to the writing requirements of the statute of frauds and so is a transfer (assgt) of that interest. For all we know, the statute of frauds didn’t even exist back then.
David b
If you rescinded and it was within the three years you should perhaps look at raising that within your case, appropriately, with exhibits of this ruling – US Supreme court ruling we have been talking about on here.
Jesinowski v. countrywide,inc.574U.S. 2015
I have.
Pro se not an attorney not legal advice
Java,
It all depends on what you want to see accomplished.
Some people are in it just for the hell of fighting and changing the landscape for others to follow suit. For them, a mod makes no sense since the house does not represent their value: the fighting does. They will go for broke just to make a point. If they win, fin. If they lose, fine. In their views, they haven’t lost since the object was the fighting.
Others are so attached to the house that the idea of losing it is like tearing off one of their limbs. A mod is a temporary dressing, oftentimes on a wooden peg: a mod lasts only a few years and reverts to the original payment.
If you’ve lost your job, have been unable to find anything comparable but are still hopeful you will, a mod might make sense. If you’ve lost your job, have been unemployed for years, have racked up enormous bills and the house is in total disrepair, a mod makes no sense: in a few years, you’ll be even more under than you were beforehand. I would cut my losses short.
Some people fought and used up all their options. Rather than conclude a foreclosure, the servicer is willing to modify, usually because it is a government backed mortgage (Fannie, Freddie) and they are under pressure to offer one. Again, it’s a calculation that everyone has to make for himself based on current and future financial outlook.
You have to decide what YOUR goal is. There have been a few miracles but… those don’t last. Big awards have all been appealed and slashed. And the free house is a mirage. No matter what you decide, understand that many homeowners were foreclosed upon, moved out and on with their lives. Many were still on the hook for deficiency judgment afterwards and a foreclosure does not automatically remove R.E. tax liabilities.
You can’t ask general questions without knowing already where you want to land. Why? Because the ultimate result you want is what will lead you to the actions you need to take.
David, interesting point during my settlement proceedings before mediator. Partner/atty made it a big deal to keep the same note, so note was not modified. However, they added so much money on the end of the deal with a balloon payment that put the whole thing totally underwater, I think this is stupid, because I realized that no matter what I do, I can never own the house and only rent it. So F%&k them. I am not paying, and I am not going to make it easy for them to steal my house. I would say that through numerous lawsuits, they have paid more than $500,000 in atty costs for a $88.000 loan. Can you smell the desperation?
i was sent one, 3yrs ago, after reading all small print on it. i started laughing and sent it back and said are you kidding me. they said no we are not kidding you sir, its worse then the mortgage itself. oh well they said,
and by the way, we were told at a hud event, stop making your payments if you want help from anyone. this was after i was only 2months behind and wife got scard and payed it all in one payment to get back to never being late, ever.
so they lady at this event, said oh wait you just got all paid up, sorry cant help you, until you are at lease 90 days behind. so now 5yrs behind. and nothing still.
modification, is to cover up all the fraud, and to put you under a new contract. so i say no f-ing way is it good .
AGREE, with you about allot of attorney’s are in it just to make money off of us.
am still in my home also, and its been going on over 5 yrs of not sending anyone any money until someone can show me who, what were.
as i said before, i have sec. and exchange doc’s showing my mortgage as being paid in full as of the first payment ever made on loan.
then they sold it for 500,000 dollars. so please explain to me why anyone would buy a mortgage note that is worth 350,000, and pay 500,000 for it????
so some one owes me allot of money, 6yrs of paying it, plus all money they made on selling it. without my knowledge.
any sane person if told what they were doing would of said , ok lets split all that money you are going to get for useing my home and credit and mortgage note. dont you think.
and if the bank aid well no we dont split that. then i would of said i guess i dont want to refi then. simple/ common sense
Javagold, I got a settlement agreement for a low monthly payment which they breached in less than a year. I sent them 3 certified letters inquiring about a fee they had no right to change me. Never answered and sent 2 back-dated letters. I called Ocwen, and they said “we do not take court’ordered settlement agreements only government loan mods”, so I sued them for breach of contract, bad faith, negligence, etc. Still at it and in appeal.
I have a question I never seem to understand what members here believe.
Do you think a modification is good for the homeowner ?? If not what do you think should be the end goal ??
I am still here and still in my house. Attorneys are mostly a complete waste of time and mostly money. They are usually in on the scam. The atty who did my closing did 3 years in the federal pen for wire fraud related to real estate transactions. We had several here in my county alone engaging in these crimes. Entire transaction was bogus, fraudulent, forged, etc. Yes. The notes were all shredded. Counsel on the other side told me so. It is the largest scam every perpetrated on the world, because it is worldwide and is still going on.
David,
Then do something and win. Not impressed until then.
Here what funny is that there is talk of a guy being in ruins, but Edward O’Donald just got $57.6 million for his Countrywide claim. It like the news always giving story about the Lotto winner that blew $10 million and is not down and out. However if you ask most people would they like to have $10 million, they would take it. Just with the Powerball Lottery at $500 million and they were saying they odds were several billion that a person’s changes were, but three people from different places won and the split the $500 million. Millions of people payment to pay.
I would rather shot for the moon and if I miss be amount the star, instead of looking back one day and saying I should have, but I did not.
I believe that because of my complaint (before Christmas) that the 592 servicemember received their settlement for the recent SCRA with the letter I was writing the President of the lack of full due process. If you see it only the in the States where there is non-judicial that these Troops received the $125,000. equity and any interest to be paid to them, and this is because the a judge was not able to see before the foreclosures that these people were in combat zone when the foreclosure took place.
The same thing goes for loan being foreclosed by the Federal Government (Ginnie) a judge needs to determine if the 4th Amendment is being followed with all alleged to be government owned as in the Wells Fargo situation, any and all loan should have been in front of a judge and proof of purchase was required.
Bottom line is there no need for a “Forgery” if you got the original documents. Proof of purchase is needed to redeem if your not the originator of the loans!
CHRISTINE, i have occ doc’s, statements, grafts, and fed statements, wells fargo own statements, and other banks saying the most inportant number 1 person in a securitized mortgage trust. is the
BORROWER, and with out the borrower as number 1 in chain if mbs, there wouldn’t be any MBS.
David,
Get a grip. I already said I’m not wasting my time with yellers.
Unclean hands and breach of contract for misapplying payments and filing a foreclosure on a current loan…..Exactly! All this other crap I learned was a direct result of that breach.
I also believe Shadowcat won her 1st case before Christine..Right Louise? I also believe it was Louise who was fool enough to fall for mod fraud because she was/is one of those little miss know it all..without an attorney after she defaulted on her loan. Oh well..can save them all.
You should stick to spell checking and tattling Louise…it suits you.
the only contract a borrower sign, and is valid is the ORIGINAL mortgage and note, AND THE BANKS DESTROYED THEM. ALL.
AND I WOULD SAY THIS. A COPY CANT BE USE TO REPLACE THEM,
YOU CANT TAKE A COPY OF A BANK CHECK, AND TRY TO CASH IT IN, THIS IS WHAT THEY ARE TRYING AND DOING.
SO I DONT KNOW HOW ANY COURT CAN AGREE WITH THAT! IT’S COMMON SENSE.THAT I WOULD GO TO JAIL FOR TRYING TO CASH A COPY OF A CHECK.
THE NOTE IS INFACT A CHECK TO THE LENDER, SO THEY TAKE THE ORIGINAL TO FED/TRES AND GET UP WARDS OF 30 TIMES THE VALUE OF THE MORTGAGE NOTE, AS A CREDIT TO THEM THE LENDER. SO DO YOU THINK THE FEDS/TRES/ WOULD GIVE THEM A DIME IF THEY BROUGHT IN A COPY OF THE NOTE??
NO WAY!!!!!!!!!!!!!!
David,
The PSA is between the trustee and the servicer. Nothing to do with you. If the trust files (seldom happens. It’s usually the servicer, for a slew of very good reasons, including discoverability of documents, admissibility of all contracts and revelation of potential fraud as a result), then you can raise standing and party of interest and, within certain parameters, argue relationship between you, the plaintiff and the different servicers.
Most servicers file foreclosure and fight tooth and nail to prevent the trustee from being brought in as a party. There are reasons for it.
K.I.S.S.
Dc
How can they explain away the 1099a the servicer says they are lender and they are not the lender, who is who was and who is not ive the the who is not.
or even a contract with any trust. as a matter of contract law.
Share my recent experience.Wells Fargo client with past loans paid on time and in full,financial adviser,ira,my sons accounts,my mothers loan and biz accounts, for 14 years the day I was sick of being ignored online and went to local branch.The in house loan guy after looking at the screen of his computer says NO cant do anything as we must follow investor guidelines,this was a Interest only,6% refi of my principle residence,with a loan broker who I had done about 15 loans with and trusted.That was 2010 around 4 years and 250k in interest only and 3 years longer than I should have had the interest only garbage and I told my mother this heavy solicitation by my broker was strange and I only owed a third of what is owed today and could have paid it off.Knew there was a problem so left there went home google the so called investor and see they are in BK and are calling WF a Unsecured Non Priority Creditor,and disputing all there claims and US Banks claims.Send QWR get the documents that I never got at closing that was at my brokers office and she let me leave that day with the original loan packet including the deed and note.Strange huh,so WF sends me some documents and the HUD 1 and after 3 weeks or so Im scrutinizing the Hud 1 and it has that WF paid my second with Chase and I was shocked because I paid it 2 months prior and have the cancelled checks and statement with a zero balance so call wells fargo and by that time after being told no to a streamline refi or helping a very long term client out of a loan product that has yielded 250k in interest only and that they will have me move my accounts and fabricate and lie to keep me locked into this garbage so I have to sell my house or be foreclosed upon since I took the advice of a phone handler and missed 2 payments as a way to get a mod not realizing now it will be almost impossible to refi outside of WF. When I told them about the HUD 1 they told me that it must have been paid 2 times and if I had a receipt to go fetch it from Chase,and that was when I stopped paying them completely.Almost four years later they file a nod and I file a suit and this is where it gets hairy.My lawyer lies multiple times telling me he didnt move my case from downtown to Santa Monica to a judge who was accused of a real estate scam in their court with another judge and the head of the bar.So in email after passionately telling me it is random and he had nothing to do with it he tells me “yes I did move it to that court and that judge “I have a good relationship with the judges there.My case even with the chase lies they never paid that and who knows who got the funds since they have destroyed all records but I didnt,DISMISSED against WF and the Escrow company who was awarded 18k by using a unsigned document and a sworn affidavit from the owner who says she recalls the transaction and yes he signed,even though Ive never met her or been to her office as we did this at my brokers office,they make no bones about the name of the person who prepared these docs named HONEY NICKNAM who never worked there paid 25k to my lawyer and had 5k stolen from a lawyer in the valley for nothing so back to square 1.unless I want to end up losing more or being locked up on trumped up crap I best pay WF their money then sell my house so my point is if you think that you can get out of these regardless of fraud,fabrication,forgery,or any other issue via rescending your loan you are better off shooting yourself in the foot.The mountain of fraudulent docs are massive and the docs that their lawyer turned in are all created from thin air and past loans and why do u think the board of directors is a very mixed bag of folks?I respect livinglies and the commitment but if you follow the information as one would hope that our court would you will end up in a sorry situation that u may never come back from.Good luck and god bless.
and the borrower does not have a valid contract with any servicer.
The irony at the end of that article it says ” yes you can lose everything”
Very f#%^* funny
research folks….
http://www.assetprotectionattorneys.com/Legal_and_Business_Counsel/Contract_Formation_and_Review/Uniform_Commercial_Code_UCC_Contacts_vs_Common_L.aspx
CHRISTINE,
under the psa = ( contract ) of the trust( its states no matter if the borrower pays his mortgage or not. the servicer will pay the trust. the mortgage payments.
so if a trust is taking you to court , on failure to pay the mortgage amount. sorry. you have been payed all along. so borrower is not in default. ???
Charles,
Don’t flatter yourself. Michael Winston, previously from Countrywide, blew a hell of a whistle. Look where he is now. Matt Taibbi just wrote on him. That guy (incredibly articulate and extremely well-educated) used to make the rounds of TV educational shows on foreclosure and banks. Now? Sick, ruined, flat broke and unemployable. I hate to tell you but your SEC gig has as much a chance to yield a result as a pig has to fly (and my money would be on the pig any day!)
Some of you may recall that Shadowcat was thrown off this blog, and to my best memory, more than once. Also, Stripes and Ivent. If you want to come back on the blog, change your name. If you are a narcissist, raise your hand.
The problem with educated people like Rock and his group of supporters is that he got not skin in the game, and what he would do if he was paid the amount of monies that these banks are paying their lawyer he would figure out a way to present their point and not take the first exit.
You see just as within the last 4 months or so we seem 4 people receive whistleblower payout in the ten of million per with one guy getting $56 million and he had the most recent claim that was filed in summer of 2014. However if we left it to Rock the guy is wrong.
Winning a modification for a person is not winning, however as the state schooled attorney in Missouri is a part of a $2.95 million settlement. All this you cannot do this and cannot do that is Zero percent of nothing, and to stop when we listening to legal minds that have won nothing but got a guy a modification, is the bland leaving the blind.
As Freddie got a securities program that been exposed, then the money on the fact that Fannie and Ginnie have the same problems and that is they cannot provide proof of purchase! UCC 9 as I been saying here for over two years and that is “where is the receipt”. I never changed that view and I brought it here, not just lately!
“These bank are not settling for billion because they are right!”
Irrelevant to foreclosure defense. Whom are they settling with and on what allegations/accusations? Absolutely nothing to do with Joe-six-pack having contracted a mortgage loan and having defaulted on the payment.
And about claiming “unclean hands” (a pet allegation for some here), there has to be a direct correlation between the nature thereof and the foreclosure. The “unclean hands” have to be the proximate cause for the foreclosure. The fact that banks passed mortgages and notes from hands to hands under murky circumstances does not change the homeowner’s obligation to make his monthly mortgage payment.
If I rear-end you while you are stopped at a red light, drunk as a skunk, and I cause you serious injuries, the fact that you were shit-faced has nothing to do with my failing to keep my car under control at all time. Who owed a duty? Me. The fact that you were in the bag did not cause your injuries: my hitting your car is the ONLY proximate cause for your broken bones. Nothing else.
Likewise, if you stop paying your mortgage, that fact alone is the breach of contract the bank will justifiably raise to try and seize your house. Who’s got the unclean hands? You, for what the foreclosure is concerned. You can raise all kinds of defenses and some may stick (standing, party of interest, etc.) but you are de facto in breach of the contract.
And if you don’t want to be caught with a breach of contract, endeavor to prove that the other party started by misapplying or losing your payments. THEN and only THEN can you raise “unclean hands” and ONLY within the context of the contract.
That said, there is absolutely no excuse for being a defendant in a foreclosure any longer. You’ve all been given years of heads up on what works and what doesn’t. Attacking first works. Answering foreclosure rarely does, other than by allowing to renegotiate the contract (modification) or, in very, very rare cases, by obtaining a rescission and we all know what that entails.
I still maintain that NG is doing an enormous disservice to homeowners by posting editorials that may, to a point, explain the conundrum this country finds itself in but SHOULD NOT be used to defend foreclosure. The same way homeowners have had 7 years to learn something, NG has had 7 years to learn whom he’s been read by. At the very least, he ought to load all his editorials with serious warning not to try this at home and unaccompanied…
Charles your argument didn’t hold water when you lost your home to foreclosure in 2011….. And it still doesn’t. Sorry but the Truth hurts sometimes.
David. Notice to the agent is notice to the principal. But there are procedures …. I strongly advise you to hire an attorney.
We can all rumble and roll later . . .but today belongs to Neil – Happy Birthday Neil!
SO ROCK, WHO DO I SEND MY RESCISSION TO , NOW THAT IT WAS ALL FRAUD.
AND I HAVE DOCS SHOWING THIS MORTGAGE PAIDED OFF IN 2 FEB, 2006, AND THEM SELLING MY NOTE AND MORTGAGE FOR THE FRAUDLENT APPRAISEL PRICE OF 500,000 DOLLARS.
The SEC whistleblowing case is still current, you see that of the big 4 bank Wells Fargo is not done yet, and Attorney Linda Tirelli and the case with Lynn Szymoniak are about the same thing I had already submitted and the is how Wells Fargo is foreclosing when blank Notes are involved and we all agree that MERS and the outside attorneys are creating forgeries to accomplish this! It ain’t over until the fat lady sings.
You cannot have from three different sources the same conclusion and two victories in re:Franklin and the earlier DocX case that clearly shows what Wells Fargo up too!
rock, a question for you to figure out, because you are so smart on all this fraud. k
1/ do you think that any bank/originator/or pretending lender, sold your application,appraisal,credit score,to someone that would give them the money to close the refi,or mortgage??, ahead of you signing the note?
2/ at the time of closing, the attorney is told BY the closing instructions to fax over ASAP AFTER HOMEOWNERS SIGN NOTE!! TO PRETENDER LENDER? WHY??? also attorney is told to send them 3 certified copy’s of the note. why???? so really how many copy’s of the note is needed, and why do they need 3??? so know there are 3 or more copy’s of my note going who no where. and to whom???
3/ what do you say about this. i have 3 different copy’s of my note, that i have gotten from 2 different servicer’s. ??
4/ first note is clean nothing on it.
2nd note, sign over in blank from gmac mortgage corp.. no date,or signed by anyone, only a robo name acting for gmac mortgage corp, his name is D. CHIODO, BY STAMP AND HIS SIGNATURE??, AS ASSISTANT SECRETARY
3RD, NOTE, AND MOST IMPORTANT I FEEL. READY FOR THIS.
PAY TO THE ORDER OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
WITHOUT RECOURSE
_________________________ SIGNED,DATED, AS OF 8 NOV 05
D.CHIODO
ASSISTANT SECRETARY
GMAC MORTGAGE CORP,INC
THIS WAS DAY OF CLOSING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
NOW I also have the BANK WIRE FUNDING WIRED ADVICE OF CREDIT. FROM WHO FUNDED THE REFI OF THIS MORTGAGE/NOTE.
WELL ITS NOT THE LENDER ON MY MORTGAGE OR NOTE..
BUT IT IS FROM THE SAME NAME ON THE THIRD COPY OF NOTE I HAVE. DEUTSCHE BANK TRUST COMPANY AMERICAS..
YOU DO SEE THE DATE RIGHT. NOV 8,2005…!!!
OH BY THE WAY , IT WAS ALSO SECURITIED IN A TRUST ALSO, THAT HAD A CLOSING DATE, FOR TRUST TO GET MORTGAGE AND NOTES, ON 27 FEB,2006
THE FIRST ASSIGNMENT ON RECORD IS THIS.
MERS TO TRUST, DATED AUG, 2012. WITH THE AUTHORITY OF GMAC MORTGAGE CORP.
NOW- GMAC MORTGAGE CORP, STOPPED EXSISITING AFTER 2006.
SO WERE WOULD MERS GET ANY AUTHORITY FROM, IN 2012 TO ASSIGN ANYTHING??????????????????????
AND REMEMBER RESCAP/GMAC WERE IN BK AS OF MAY 2012!!
Rock you with all your intelligence resort to name calling, but fail to understand that the UCC act to standardize the 50 States in how transacts are. Now as i don’t write as clear, as you don’t think clear in that there are no Federal rule on foreclosing which is a function of State rules and not Federal, so the foreclosing of these properties as one standard law does not exist.
But what is standard in contract law is that you must own something to claim something and if you look at the two cases in Holm v. Wells & Freddie and re:Franklin you can clearly see the the court are wanting Freddie Mac to prove that they purchase this debt which they were unable to.
The re:Franklin causes the most problems because it a Federal Bankruptcy case which Wells & Freddie after 7yrs cannot prove the judge with a simple receipt.
Now as the Holm case is a State ruling for $2.95 million for a $145,000 loan, and will either be appealed or settled, but we have to wonder if Wells is wanting more attention to this case where they are servicing what left of the 1.3 million loans they are servicing for WaMu. Bot the Holm & Franklin cases are WaMu loans!
Now as I been saying for 4yrs that Wells cannot foreclose on the WaMu loan there are these two case where judges have not seen it Wells or your way.
You need to understand that these securities are not with the debts if the debt are not purchase. Glade that in these two cases these attorney did not listen to your thought that they should not even present the facts to the court!
These bank are not settling for billion because they are right!
LOL Christine…So True!
Which is why you need an attorney in the Jurisdiction your property is located.
Sorry Charlie…. Your whistle blower claims don’t hold water.
Rock…We do teach social skills in Kindergarten. ..including the fact that name calling is a form of bullying . Lets keep this debate clean.
Behave and play nice.
Rock,
Kindergartners would have a valid excuse… 🙂
From what planet do these functional morons come from?
UCC is not a federal law, but a product of the National Conference of Commissioners on Uniform State Laws and the American Law Institute. Both of these organizations are private entities that recommend the adopting of UCC by state governments. State legislatures may either adopt UCC verbatim or may modify it to meet the state’s needs. Once a state’s legislature adopts and enacts UCC, it becomes a state law and is codified in the state’s statutes. All 50 states and territories have enacted some version of UCC.
This is why its a waste of time posting on this group. Outside of Gene, Christine, and a very few others, it is like trying to explain the Heisenberg’s Uncertainty Principle to kindergartners.
Rock UCC is federal and does not deal with a mortgage, deed of trust or securities deed which are all state titling matter so the title does not follow the Note unless the States determine that to be the case. And as we see in the recent Massachusetts settlement with the big 4 banks that not the situation and not that way in other States.
But if the Note not purchase there is no title to follow because there no purchase of the debt. The reason no title is to secure the debt to the properties only!
They are unsecured creditor and are collecting on a debt that was satisfied already through third party payments/ swaps, hence we have a servicer claiming they are lender on an irs document 1099a and a party in court for a trust for ” certificate holders” who are a third party stranger, the sub trustee was given authority by a entity devoid of authority to do so and a bunch of paper crap submitted into evidence that cannot be relied upon and they are 90k out between the trustees deed upon sale ( issued by sub trystee) and the 1099a issued on the same day, i raised this with the irs and got bupkis.Getting to the money trail will be a dog fight, we will be ripped to pieces , however the criminal aspects are present and looming over their miserable heads and jail cells with their names on the door.
Not an attorney just sharing my personal opinion.
I have a whistleblower claim to the SEC from Aug 2011 just this situation and it start with Wells Fargo Bank’s handling of Washington Mutual Bank (WaMu) Ginnie Mae MBS. We know for a fact that Notes were endorse in blank and relinquished to Ginnie because this is the rule on the Ginnie MBS, and it is a fact of that program that Ginnie does not purchase a single loan.
So on Sept 25, 2008 WaMu is dead and now as there was never a purchase of the Ginnie pooled loan of WaMu but only servicing these loans. Wells knows it only the servicer (which this is questionable) as the loan are already pooled into this post home loan close, where the home loan documents don’t have any language in the contract/Note as to a later financial agreement to a securities.
The Note is a contract between two parties in the lender and borrower, which each have an equity stake in the property. The lender gives away it stake in a Ginnie MBS for zero consideration and the borrowers have monies through down payment and monthly principal & interest payments. So now it come to the new holder of the Note who is demanding a payment due but the holder under UCC3 has not purchase the debt, and has Zero financial interest in the property and the homeowner has 100% of the equity that is in the property.
The Zero percent party cannot dictate to the 100% holder in the borrower anything because Zero percent of $1 trillion dollar is still Zero. The holder of the blank Notes must under UCC9 present evident of consideration!
The dead parties such as WaMu or other defunct banks and the serciver working for them have “No Standing” because the lender has “No Standing”! We got to question how even in fact can a lender that already relinquished the blank Notes to Ginnie Mae can servicer or have another service the loans when in fact the they don’t possess the Notes and the new possessor has not purchase the debt. Let take this one step forward were the MBS issuer (lender/WaMu) no longer exist and Ginnie not being a lender but Wells Fargo is servicing the loans how and under what valid servicing agreement. Ginnie not a lender and WaMu is dead so who is it that Wells can service for? The answer is no one as it all a hoax.
It is as simply as we got 100% of something and the bank has Zero percent and I have 100% equity that is confirmed with the payment receipts!
Very succinct shadowcat – you said
“They are using the foreclosures to bring them back together. This can only be done with the express consent of all trustees and benificaries.
They do not claim HIDC status because they come to court with dirty hands and are trying to dodge successor liability.”
You are correct on the Breach of Contract issues Christine..
But those assignments / transfers / conveyances in the mortgage are applicable to state and federal laws….. It says so right in the mortgage. The question is how does their action (and or lack of) harm you? Criminal acts do cause financial harm. Slander to title and criminal slander to title come to mind.
The note gives rise to the mortgage…what does the note expressly imply?
You can not separate the note and mortgage …
You can not foreclose on the note without the mortgage no more than you can foreclose on the mortgage without the note.
They are using the foreclosures to bring them back together. This can only be done with the express consent of all trustees and benificaries.
They do not claim HIDC status because they come to court with dirty hands and are trying to dodge successor liability.
The thing is EACH CASE is unique as regards to the shall we say ” courtship path” there are things waivered and things morphed the way the judge decided and navigating our cases is like navigating the rapids and without a paddle especially if you are pro se. You cant always do what you want, you have to navigate the course you are already on. Fwiw im still in the canoe!
rciferri, Article 9 applies to all notes, whether negotiable or not. It governs ownership of notes when they are transferred. It is true that Art. 9 doesn’t apply to the creation of real estate security interests, but it does apply when notes that are secured by real estate interests are transferred. When ownership of the note is transferred, ownership of the mortgage goes along with it under 9-203(g). That’s true whether the note is negotiable or not.
Once again, it is completely irrelevant to homeowners. The only recourse homeowners have is to attack actual breaches of the contract they entered into in good faith. Since transfer/assignment/conveyance were provided for in the contract (regardless whether banks exchanged any money or not), raising the issue is counterproductive and moot: whatever banks did among themselves is none of homeowners’ business, as judges consistently have ruled.
Breaches of contract would be misapplication of moneys paid by the homeowner, conversion, random imposition of fees not clearly listed and such down-to-earth, nitty-gritty trivialities easily documented with a little time and homework. Claiming anything under the jurisdiction of regulatory agencies, the legislature or the DOJ is a waste of time, money and energy and it proves that homeowners don’t have a clue about their rights and/or duties under the contract.
7 years into this debacle, people still don’t know the difference between civil and criminal wrongs and which ones apply to them! Mind boggling…
Happy birthday Neil
Over five years readin your blogg
And its amazing what ive learned
TNL- the problem that you have is this. HOW DO YOU KNOW THAT COPY OF THE BLUE INK NOTE IS THE ORIGINAL.
IF YOU DONT THINK THAT THEY ARE PRODUCING , FORGING THESE BLUE INK NOTES.
THAN YOU DONT LIVE IN THE REAL WORLD.
JUST SAYING.
IF ALL WOULD JUST DENY ALL OF THE TRANSACTION, AT CLOSING. MORE WOULD HAVE TO BE PRODUCED TO PROVE WHAT THEY SAY IS HAPPENING.
DENY DENY DENY EVERYTHING, CANT RECALL, DONT KNOW IF THAT IS MY SIGNATURE ITS BEEN 9 YRS . SORRY CANT SAY IT’S MY ORIGINAL.
Not utter nonsense …. More like half truths.
Happy Birthday Neil.. May you have many more to come.
Dear Neil: First of all, Happy Birthday! Second, I’ve seen you say (or imply) a few times that a mortgage (or note) is enforceable under Article 9 if the person trying to enforce is a proper transferee, i.e., paid consideration. However, I think an important distinction must be made that the transferee cannot force the sale of the property with an Article 9 security interest. The property pledged under Article 9 is the mortgage or note itself, not anything held as security under those instruments – if the note is not negotiable. The only way a purported creditor can sell a mortgaged property by foreclosing a negotiable note is under Article 3. This argument is presented in a brief that I wrote which is currently under consideration by the California Court of Appeals (Sixth Appellate District). I’ve attached a word document containing that portion of the brief that deals with the UCC because the footnotes would not cut and paste here properly.Â
Please feel free to disseminate the below argument free of charge.Â
However, I do hope you will re-consider my proposal that we do business together (several of my emails and phone calls regarding the same have gone unanswered). I am a New York attorney (and California paralegal).
Its all predatory and thats the way it works. ( so far)
The unfortunate reality is — In Florida the possession of the blue ink note by the Plaintiff as simply Holder wins every time !
So all the above sounds nice, but doesn’t work in the real world we live in.
RE: [ACTION REQUIRED] Thank you for contacting us David!
david belanger 2/18/15
To: Kevin Hardin
HELLO SIR, I WISH I LIVED IN ARIZONA, I LIVE IN MASS. AM WORKING WITH MY SENATOR,( STATE ) AS HE IS CHAIRMAN OF THE FINANCIAL SERVICES, SO AM HOPEFULLY, GOING TO GET A FEW THINGS CHANGE ASAP, 1/ MERS/ GET THEM KICK OUT FOR GOOD, BUT NICE TO SEE AND HEAR ATTORNEY AS YOUR SELF GET IT, ALL FRAUD.
FIGHT TO DEATH
DAVID A BELANGER
VETERAN,U.S.ARMY INFANTRY.
Revolution1,
please i have question for you. simple i think, but would like what you think.
i have spent 10’s of thousands so far, i would consider myself a expert on securitization of mortgages after 5yrs of working on my stuff,
i’am having marie mcdonnell looking into all this also, spending $$$$$. with her, and have found stuff she didnt know exsisted in this fraud. anyways
over past few yrs i have ask my servicer to send me copy’s of what they have, and i have been sent 3 differant copys of my mortgage note??? from them. them meaning. GMAC MORTGAGE CORP/ AND THIS DEBT COLLECTOR OCWEN MORTGAGE.
FIRST MORTGAGE NOTE, HAS NOTHING ON IT FOR ASSIGNMENT.
2ND NOTE HAS A ASSIGNMENT THAT SAY PAYED TO THE ORDER OF ——— NOTHING THERE!NOT SIGN OR DATED,FROM GMAC MORTGAGE CORP.
3RD MORTGAGE NOTE, SAYS PAYED TO THE ORDER OF, DEUSCHUER BANK AND TRUST AMERICAS,INC,WITHOUT RECOURSE, SIGNED AND DATED . AS OF THE CLOSING DATE OF 8 NOV 2005..
NOW WE ALL KNOW GMAC MORTGAGE CORP NO LONGER EXISTED AFTER 2006.BUT NEW ENTITY WAS BORN, CALLING ITSELF,GMAC MORTGAGE,LLC. THEN THAT WENT BY THE WAIST SIDE IN 2009, WITH ALLY BANK, AND GMAC MORTGAGE AND RESCAP WROTE OFF 22 BILLION IN MORTGAGE LOANS????? I WOULD SAY MAKING THEM UNSECURED DEBT?? AT THAT TIME??
NOW COMES BK FOR THEM IN MAY 2012, IF MY MEMORY IS CORRECT, NOW COMES THE FIRST ASSIGNMENT ON RECORD IN THE REGISTRY OF DEEDS FROM. MERS, TO SECURITIZED MORTGAGE TRUST. DATED AUGUST 2012. 4 MONTHS INTO BK?
FIRST HOW COULD A DEAD,NON EXISTENT CORPORATION GIVE MERS ANY AUTHORITY TO ASSIGN ANYTHING AT THAT POINT IN 2012,TO A TRUST THAT CLOSED 27 FEB 2006, BY THE PSA.
AND SO HOW COULD GMAC MORTGAGE SAY ANYTHING AFTER THEY SIGN THE MORTGAGE /NOTE TO DEUSCHUER BANK IN 2005, WITHOUT RECOURSE. RIGHT.
SO UNDER THE RECSISSION, I DO BELEIVE I HAVE A CASE, TO SAY WE WERE NOT TOLD THEY SOLD OUR MORTGAGE THE SAME DAY WE SIGN IT, AND THAT THE SAME BANK THAT GMAC MORTGAGE ASSIGN IT TO. WAS INFACT THE FUNDER OF THE MORTGAGE LOAN, REFI WE DID, AS I HAVE THE BANK DOC’S SHOWING THIS BANK AS THE FUNDING BANK TO CLOSING ATTORNEYS BANK ACCOUNT. HUM FUNNY ISNT IT
Yes, the courts do not work the way they are supposed to work including the problem with discovery. The banks/servicers attorney never produces the receipts or proof of payment for the debt. The notes do not have the appropriate endorsements, etc. Who paid off the note and when and how many times? If you have a document from the attorney authorizing the closing and it shows another entity in the mix (not located in the note and mortgage), that should be enough for a court to declare the transaction predatory per se and fraudulent. It happened thousands of times, and the courts still do not recognize it.
This all sounds wonderful. Still it’s 2015. Where is the change ? Where are the results ??? All I see is things continuing on ad always. Kicking the can if must. And another tidal wave of foreclosures is about to hit the shore !!!
Reblogged this on patrickainsworth.
Utter nonsense!