Powell v. Wells Fargo: The Party seeking foreclosure must demonstrate that it has standing to foreclose

Posted on April 25, 2017 by Neil Garfield

In this case the Bank was required to prove a chain of transfers starting with the indorsee, GreenPoint Mortgage to the current servicer.  The Bank failed to prove the series of transactions through which it purportedly acquired the note from the indorsee and the judge ordered an involuntary dismissal.  However, because this is Florida and statute of limitations are not upheld, it is likely that Wells Fargo will have time to regroup, create a new strategy, and file to foreclose again on the tortured homeowners.

https://scholar.google.com/scholar_case?case=15240496488023418351&hl=en&as_sdt=2006

MARA POWELL and GLENN KENNETH POWELL, Appellants,
v.
WELLS FARGO BANK, N.A., as Trustee for Structured Asset Mortgage Investments II Inc., Greenpoint Mortgage Funding Trust 2006-AR2, Mortgage Pass-Through Certificates Series 2006-AR2, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., CITY OF FORT LAUDERDALE, FLORIDA, and CITY OF LAUDERHILL, Appellees.

No. 4D15-3013.District Court of Appeal of Florida, Fourth District.

April 19, 2017.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barry J. Stone, Senior Judge; L.T. Case No. CACE08052451.

Rachel M. Coe of Polaris Legal Group, Lighthouse Point, for appellants.

Elliot B. Kula, W. Aaron Daniel and William D. Mueller of Kula & Associates, P.A., Miami, for appellee Wells Fargo Bank, N.A.

DAMOORGIAN, J.

Mara and Glenn Powell (“Borrowers”) appeal the trial court’s entry of a final judgment of foreclosure in favor of Wells Fargo Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc., GreenPoint Mortgage Funding Trust 2006-AR2, Mortgage Pass-Through Certificates, Series 2006-AR2 (“the Bank”) following a bench trial. Because the Bank failed to establish standing, we reverse the final judgment and remand for entry of an order of involuntary dismissal.

In 2005, Borrowers executed and delivered a note and mortgage to Bankers Mortgage Trust, Inc. (“the original lender”). In 2008, the Bank, in its capacity as trustee, filed a two count complaint against Borrowers after they defaulted on the loan, alleging one count for mortgage foreclosure and one count for reestablishment of a lost note. Therein, the Bank alleged that it was the “legal and/or equitable owner and holder of the Note and Mortgage and ha[d] the right to enforce the loan documents.” The copy of the note attached to the complaint contained no indorsements, however an allonge affixed thereto contained one undated, special indorsement from the original lender to GreenPoint Mortgage Funding, Inc. (“GreenPoint Mortgage”). The Bank later amended the complaint and dropped the lost note count.

In October 2013, nearly five years after the filing of the original complaint, the Bank filed with the trial court the “true and correct” original note. That note reflected the same affixed allonge bearing a special indorsement from the original lender to GreenPoint Mortgage. The back-side of that allonge, however, also reflected an additional undated, special indorsement from GreenPoint Mortgage to the Bank. A second, separate allonge was also filed with the original note and bore an undated, blank indorsement from the Bank.

The matter ultimately proceeded to a bench trial. At trial, the Bank presented its case through the testimony of a single witness, Pamela Bingham (“the witness”). The witness worked as a home lending research officer for JP Morgan Chase Bank, N.A. (“JP Morgan”) which serviced Borrowers’ loan on behalf of the Bank. Through the witness, the Bank introduced the original note and two allonges, including the allonge bearing a special indorsement from GreenPoint Mortgage to the Bank. The witness, however, was unable to testify as to when the special indorsement to the Bank was placed on the back-side of the first allonge, when the blank indorsement from the Bank was placed on the second allonge, or why the back-side of the first allonge and the second allonge altogether were not attached to either the original or amended complaint.

As to how the Bank purportedly became the holder of the note, the witness explained the following series of transactions. On January 17, 2006, an entity named EMC Mortgage Corporation (“EMC Mortgage”) purchased and acquired Borrowers’ loan and began servicing the loan. The witness was unable to specify from whom EMC Mortgage purchased Borrowers’ loan. The witness then testified that on March 1, 2006, Borrowers’ loan was placed in the “Structured Asset Mortgage Investments II, Inc., GreenPoint Mortgage Funding Trust 2006-AR2, Mortgage Pass-Through Certificates, Series 2006-AR2” trust via a pooling and servicing agreement (“PSA”). The PSA, which was thereafter admitted into evidence, listed Structured Asset Mortgage Investments II, Inc. as the Depositor, EMC Mortgage as Servicer, and the Bank as trustee. The PSA did not reference GreenPoint Mortgage or the Borrowers’ loan, nor was a mortgage loan schedule attached thereto. The witness then testified that in May 2008, JP Morgan acquired EMC Mortgage and all of its assets, including Borrowers’ loan. According to the witness, the original note had been in the continuous physical possession of either EMC Mortgage or JP Morgan since January 25, 2007.

At the close of evidence, the Bank candidly acknowledged that it could not establish standing as holder of the note in light of the witness’s testimony. The Bank therefore moved to amend the complaint to conform to the evidence presented at trial and to change its theory of standing from holder in possession to nonholder in possession with the rights of the holder. The court granted the motion and ultimately entered final judgment of foreclosure in favor of the Bank.

On appeal, Borrowers argue that the court erred in finding that the Bank had standing as a nonholder in possession with the rights of the holder because the Bank failed to prove the series of transactions through which it acquired the note from the original lender. The Bank counters that the witness’s testimony that Borrowers’ loan was purchased and placed in the subject trust in 2006, coupled with the PSA which reflects an effective date of March 1, 2006, sufficiently established the Bank’s standing as nonholder in possession. We disagree with the Bank.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose” when the complaint is filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). “If the note does not name the plaintiff as the payee, the note must bear a special [i]ndorsement in favor of the plaintiff or a blank [i]ndorsement.” Id. “When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person.” § 673.2051(1), Fla. Stat. (2015) (emphasis added).

“Where a bank is seeking to enforce a note which is specially indorsed to another, the bank is a nonholder in possession.” Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884, 885 (Fla. 4th DCA 2016). “A nonholder in possession may prove its right to enforce the note through: (1) evidence of an effective transfer; (2) proof of purchase of the debt; or (3) evidence of a valid assignment.” Id. As this Court has made clear, “[a] nonholder in possession must account for its possession of the instrument by proving the transaction (or series of transactions) through which it acquired the note,” starting with the first holder of the note. Id. (citing Murray v. HSBC Bank USA, 157 So. 3d 355, 358 (Fla. 4th DCA 2015)).

In the present case, and because neither party disputes the validity of the special indorsement appearing on the allonge filed with the original complaint, the Bank was required to prove a chain of transfers starting with the indorsee, GreenPoint Mortgage. Aside from the witness’s testimony that EMC Mortgage purchased and acquired Borrowers’ loan from “someone,” the only evidence admitted at trial purporting to transfer the note was the PSA. The PSA, in turn, did not reference GreenPoint Mortgage or Borrowers’ note. Moreover, absolutely no testimony was adduced at trial which explained how the Depositor, Structured Asset Mortgage Investments II, Inc., acquired mortgage loans to convey in the first place. At most, the evidence at trial established that EMC Mortgage acquired Borrowers’ loan in 2006 and placed the loan in the trust, and that the Bank became the trustee. There was nothing, however, connecting the indorsee of the note, GreenPoint Mortgage, to EMC Mortgage or the Bank. In other words, the Bank failed to prove the series of transactions through which it purportedly acquired the note from the indorsee.

Accordingly, we reverse the final judgment and remand for entry of an order of involuntary dismissal of the foreclosure action.

Reversed and remanded.

MAY and CONNER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Filed under: foreclosure | Tagged: , | 5 Comments »

Back to HOLDER and HOLDER IN DUE COURSE

Posted on December 13, 2013 by Neil Garfield

When I first got into this mortgage mess I called counsel for Aurora on a foreclosure case pending in California. I asked him how the currently self-designated entity pursuing foreclosure could justify its actions. His answer was “we are the holder.” So I asked him again why a company that has no financial stake in the outcome and who clearly does not meet the definition of a creditor of this borrower could initiate a foreclosure proceeding. And he answered again “we are the holder.” So I asked him does this mean the entity that he is alleging is the holder is acting for or against the interest of the actual creditor? And he answered again “we are the holder.” So I asked him, whether he was asserting that the entity pursuing foreclosure was a holder in due course. And he answered again “we are the holder.” By the way, this was not some foreclosure mill newbie. This was the main guy in Chicago who had been the architect of the legal plan for foreclosures.

In the months after that I received a quick lesson. Everything I knew about bills and notes (commercial paper, negotiable instruments etc.) was going to be put to the test. And it became apparent that notwithstanding clear law to the contrary, the holder was going to be treated as a holder in due course regardless of the actual facts. The justification for this practice rested squarely on two assumptions that were considered to be axiomatically true:

(1) It was assumed that the borrower and received the loan and failed to pay it “back”
(2) It was inevitable that despite any technical defenses a borrower could raise, that the outcome would be foreclosure — which led to a disastrous public policy of rubber stamping millions of foreclosures without any requirement that the forecloser and its paperwork be subject to any scrutiny at all.

The millions of foreclosures had placed an impossible burden on the court system. Based upon the  above assumptions, the remedy was clear — get the cases pushed through to to the foreclosure auction as quickly as possible and thus clear the docket. The idea of retaining existing practices where a Judge would scrutinize the documents and allegations with or without the homeowner present, was set aside despite the fact that every state has declared that forfeiture is an extreme remedy.

Instead in non-judicial states, a trustee was installed and merely had to receive instructions from the beneficiary of a deed of trust. Anyone could and would do that. Some entity not on the loan and having no relationship with the originator of the loan would state that it was the beneficiary and was now executing a substitution of trustee under the powers vested in the beneficiary, and the new “trustee” was a controlled or contract entity that was created for the express purpose of foreclosing on the property — minding only the instructions of the new beneficiary — without any verification that the claimed beneficiary had any interest in the loan, the debt, the note or the deed of trust.

In judicial states Judges routinely ignored meritorious defenses treating these fictitious entities as though they were holders in due course and thus excluding nearly every potential defense. The same logic applied — since it was inevitable that the foreclosure would happen anyway, why hold it up? The idea that this was part of a vast scheme of financial fraud and that the perpetrators were being being rewarded with houses when they had already stolen the money that paid for the loans was mere poppycock, conspiracy theory. Even when the lawsuits and charges from investors, administrative agencies, law enforcement, insurers, guarantors and co-obligors stated that the basis of these transactions was rooted in financial fraud, Judges continued to rule based upon the public policy of clearing the docket of inevitable foreclosure sales.

But now, it appears as though some cases of mine are being transferred out of the foreclosure docket and into general litigation or even complex litigation where the old rules apply. Judges in the foreclosure docket are commenting about the shell game played where the servicers are suddenly changed right before trial, and where the elements of their cause of action don’t appear to be present. Judgments are being entered in favor of the borrower that are reciting that the Plaintiff failed to meet its burden of proof — still coming up short on the statement that this was part of a fraudulent scheme and that the perpetrators of such a scheme should not be allowed to profit from it.

So now that we are heading back into the territory where the rules of law, the rules of evidence and the rules of procedure apply again, it is important that you understand the essential nature of bills and notes (negotiable instruments). And we start with the proposition that there has been a legislative and judicial determination that negotiable cash equivalent instruments should be allowed to exist. This means that if you receive a negotiable instrument as a holder in due course, it is yours to use anyway you want the same as cash or to collect from the original maker, regardless of anything that happened between the original maker of the note and whoever he or she or they were dealing with at the time the negotiable instrument was created.

The first point is that a negotiable instrument can ONLY be a promise to pay that is NOT conditioned on anything. The maker is agreeing to pay regardless of any other dealings he has had with any other party at any time. A promissory note can be an unconditional promise to pay. A mortgage is not an unconditional promise to pay (there are not two notes for the same transaction). The mortgage is a collateral agreement for protection of the creditor in the event that the collection on the note does not satisfy the full debt. The mortgage is not a negotiable instrument. But in some jurisdictions it is treated as an attachment to the note such that the endorsement (“indorsement”) of the note also transfers ownership of the rights under the collateral mortgage or deed of trust. Those are called “mortgage follows the note jurisdictions.” In other jurisdictions the assignment of the mortgage gives rise to an implied assignment of the note. Those are called “note follows the mortgage” jurisdictions. Note that a mortgage cannot be endorsed — it is a legal agreement that requires assignment. And there are jurisdictions that do both.

The aim here under public policy that is centuries old, is to promote the free flow of commerce and leave disputes to the people involved in the dispute and not present a danger to an innocent third party who takes an apparently negotiable instrument as an unconditional promise to pay only to be confronted with the maker’s defenses of fraud in the original or subsequent transactions. This is an over-riding public doctrine. It is the reason why I have warned from the beginning that failure to dot an “i” or cross a “t” is going to get you nowhere in terms of winning your case. But if you can prove that the current “holder” is part of the fraud you can knock them down from their pedestal of being a holder in due course and thus just a holder or even less a possessor (bailment) holding no rights to enforce under any conditions. This is why the actual transaction documents and methods of payment at each stage of the “assignments”or “endorsements” of the instruments must be carefully examined starting with the origination. By actual transactions I mean — “SHOW ME THE MONEY.” The UCC says “for value” and so if someone claims to have received ownership of the note then in order for them to aspire to holder in due course status they must show they paid for it.

When you see a loan closing followed some hours later by an assignment followed a few minutes later by another assignment, you can assume that something was not disclosed to the borrower and that the actual lender was probably not stated on the loan papers, which means the basics of contract law apply — the borrower’s act of executing the loan papers, including the note (that would have otherwise been a negotiable instrument) was not counterbalanced by the named payee making the loan. Thus the contract is unexecuted and unenforceable unless the Payee and mortgagee can establish disclosure and an actual relationship with the true source of the loan, such that the Payee was the borrower in a transaction in which a third party actually made the loan.

But just because you have it and just because you claim to be a holder in due course doesn’t make it true. You might not have it, you might have forged or fabricated the original, and you might have actually known about problems and defenses of the maker when you took it, or the maker might not have known the true nature of the transaction and you did. In all those cases you are not a holder in due course and every action or defense that could be brought in a breach of contract action would apply to you as a holder (if you really have it) or mere possessor. AND THE KEY ELEMENT BEFORE ALL OTHER INQUIRIES IS WHETHER YOU RECEIVED THE NEGOTIABLE INSTRUMENT FOR VALUE, WHICH MEANS YOU PAID MONEY FOR THE SALE OF THAT INSTRUMENT. The banks that assert that their own self-serving allegation of holder or holder in due course ends the inquiry in terms of discovery are just plain wrong.

This is long enough. I will expand on these issues in upcoming articles. In the meanwhile read carefully the following cases, especially the KIND case, which shows how extraordinary the powers of a holder in due course can be.

See UCC 3-305

U.S. v Second National Bank of North Miami, 1974, 502 F. 2d 535, cert denied, 95 S Ct. 1567, 4221 U.S. 912, 43 L. ed. 777

Davis vs. West, App 2 d DCA 114 So. 2d, 703 (1959)

Daiwa Products, Inc. v Nationsbank, N.A. 885 So. 2d 884 (Fla 4th DCA 2004)

Kind v Gittman 889 So.2d 87 4th DCA (2004)

EDITOR’S NOTE: read the Kind case. see if you don’t agree that this case opens the door to appraisal fraud both as a counterclaim and set off. But the basis is that you must plead and prove that the property was worth something different at the time of the transaction that what the appraisal said. The action is against both the appraiser and the lender, because the appraisal is a representation of the lender. The resulting damages in interest and principal payments could produce the reduction in principal sought by so many homeowners in litigation.

Filed under: CASES, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure mill, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , , | 144 Comments »

More Investors Are Suing Chase: Cheer them on!

Posted on June 12, 2010 by Neil Garfield

Submitted by Beth Findsen, Esq. in Scottsdale, Az

Investors-suing-Chase-includes-list-of-mortgage-backed-securities-various-originators-like-New-Century-WAMU-Wells-Fargo-ResMae-Greenpoint-Coun

One of the many things I find interesting in this lawsuit is that FINALLY the pretender lenders are at least being referred to as originators and not banks, lenders or any of the other things that had most people believing.

Here too investors sue the rating agencies, Moody’s, S&P, Fitch paving the way for borrowers to make virtually the same allegations against the appraisers and the pretender lender who hired the appraiser.

The only thing left for the investors is to realize that the only way they are actually going to mitigate losses is by creating an entity that negotiates modifications directly with borrowers. Otherwise these intermediaries in the securitization chain are going to continue cleaning their clocks.


Here are some morsels you too might find interesting

7. The true facts that were misstated in or omitted from the Offering Documents
include:
(1) The Originators systematically disregarded their stated underwriting
standards when issuing loans to borrowers;
(2) The underlying mortgages were based on appraisals that overstated the
value of the underlying properties and understated the loan-to-value ratios
of the Mortgage Loans;
(3) The Certificates’ credit enhancement features were insufficient to protect
Certificate holders from losses because the underwriting deficiencies
rendered the Mortgage Loans far less valuable than disclosed and the
credit enhancement features were primarily the product of the Rating
Agencies’ outdated models. As such, the level of credit enhancement
necessary for the Certificates’ risk to correspond to the pre-determined
credit ratings was far less than necessary; and
(4) The Rating Agencies employed outdated assumptions, relaxed ratings
criteria, and relied on inaccurate loan information when rating the
Certificates. S&P’s models had not been materially updated since 1999
and Moody’s models had not been materially updated since 2002. These
outdated models failed to account for the drastic changes in the type of
loans backing the Certificates and the Originators’ systemic disregard for their underwriting standards. Furthermore, the Rating Agencies had conflicts of interest when rating the Certificates.
8. As a result, Lead Plaintiff and the Class purchased Certificates that were backed by collateral (i.e., the Mortgage Loans) that was much less valuable and which posed greater risk of default than represented, were not of the “best quality” and were not equivalent to other investments with the same credit ratings. Contrary to representations in the Offering Documents, the Certificates exposed purchasers to increased risk with respect to delinquencies, foreclosures and other forms of default on the Mortgage Loans.

Filed under: bubble, CASES, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, trustee, workshop | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , | 21 Comments »

Goldman Sachs – Wells Fargo SEC Filings –DISCOVERY REQUESTS

Posted on April 7, 2010 by Neil Garfield

GSAMP 8K INCLUDES SEVERAL SCHEDS AND SWAP INFO

FORM 10-D ASSET-BACKED ISSUER GSAMP DISTRIBUTION REPORT for January 29 2008

FORM 10-D ASSET-BACKED ISSUER DISTRIBUTION REPORT for January 29 2008

SEC INDEX OF FILING GSAMP

Wells Fargo-Thornburg reconstituted Pooling and Service Agreement

Notwithstanding anything herein to the contrary, the Custodian has made no determination and makes no representations as to whether (i)
any endorsement is sufficient to transfer all right, title and interest of the party so endorsing, as Certificateholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.

Exhibit 1 Underwriting Agreement, dated as of April 17, 2007, by and
between GS Mortgage Securities Corp., as depositor and
Goldman, Sachs & Co., as underwriter.
Exhibit 4 Pooling and Servicing Agreement, dated as of March 1, 2007, by
and among GS Mortgage Securities Corp., as depositor, Avelo
Mortgage, L.L.C., as servicer, Wells Fargo Bank, N.A., as
securities administrator and as master servicer, U.S. Bank
National Association, as a custodian, Deutsche Bank National
Trust Company, as a custodian and LaSalle Bank National
Association, as trustee.
Exhibit 10.1 Representations and Warranties Agreement, dated as of April
20, 2007, by and between Goldman Sachs Mortgage Company and GS
Mortgage Securities Corp. (included as Exhibit S to Exhibit
4).
Exhibit 10.2 ISDA Master Agreement, dated as of April 20, 2007, by and
between Goldman Sachs Mitsui Marine Derivatives Products,
L.P., as swap provider and as cap provider, and Wells Fargo
Bank, N.A., as securities administrator (included as part of
Exhibit X to Exhibit 4).
Exhibit 10.3 Schedule to the Master Agreement, dated as of April 20, 2007,
by and between Goldman Sachs Mitsui Marine Derivatives
Products, L.P., as swap provider and as cap provider, and
Wells Fargo Bank, N.A., as securities administrator (included
as part of Exhibit X to Exhibit 4).
Exhibit 10.4 Confirmation, dated March 30, 2007, by and among Goldman Sachs
Capital Markets, L.P., Goldman Sachs Mitsui Marine Derivatives
Products, L.P., as swap provider, Goldman Sachs Mortgage
Company, L.P. and Wells Fargo Bank, N.A., as securities
administrator (included as part of Exhibit X to Exhibit 4).
Exhibit 10.5 Confirmation, dated March 30, 2007, by and among Goldman Sachs
Capital Markets, L.P., Goldman Sachs Mitsui Marine Derivatives
Products, L.P., as cap provider, Goldman Sachs Mortgage
Company, L.P. and Wells Fargo Bank, N.A., as securities
administrator (included as part of Exhibit X to Exhibit 4).
GSAMP Trust 2007-HE2 (Form: 8-K, Received: 05/24/2007 06:01:20) Page 3 of 274
http://

Filed under: bubble, CDO, CORRUPTION, expert witness, foreclosure, GTC | Honor, HERS, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 20 Comments »

Wells Fargo, Option One, American Home Mortgage Relationship

Posted on March 30, 2010 by Neil Garfield

Wells Fargo Bank, N.A. appears in many ways including as servicer (America Servicing Company), Trustee (although it does not appear to be qualified as a “Trust Company”), as claimed beneficiary, as Payee on the note, as beneficiary under the title policy, as beneficiary under the property and liability insurance, and it may have in actuality acted as a mortgage broker without getting licensed as such.

In most securitized loan situations, Wells Fargo appears with the word “BANK” used, but it acted neither as a commercial nor investment bank in the deal. Sometimes it acted as a commercial bank meaning it processed a deposit and withdrawal, sometimes (rarely, perhaps 3-4% of the time) it did act as a lender, and sometimes it acted as a securities underwriter or co-underwriter of asset backed securities.

It might also be designated as “Depositor” which in most cases means that it performed no function, received no money, disbursed no money and neither received, stored, handled or transmitted any documentation despite third party documentation to the contrary.

In short, despite the sue of the word “BANK”, it was not acting as a bank in any sense of the word within the securitization chain. However, it is the use of the word “BANK” which connotes credibility to their role in the transaction despite the fact that they are not, and never were a creditor. The obligation arose when the funds were advanced for the benefit of the homeowner. But the pool from which those funds were advanced came from investors who purchased certificates of asset backed securities. Those investors are the creditors because they received a certificate containing three promises: (1) repayment of principal non-recourse based upon the payments by obligors under the terms of notes and mortgages in the pool (2) payment of interest under the same conditions and (3) the conveyance of a percentage ownership in the pool, which means that collectively 100% of the ivnestors own 100% of the the entire pool of loans. This means that the “Trust” does NOT own the pool nor the loans in the pool. It means that the “Trust” is merely an operating agreement through which the ivnestors may act collectively under certain conditions.  The evidence of the transaction is the note and the mortgage or deed of trust is incident to the transaction. But if you are following the money you look to the obligation. In most  transactions in which a residential loan was securitized, Wells Fargo did not work under the scope of its bank charter. However it goes to great lengths to pretend that it is acting under the scope of its bank charter when it pursues foreclosure.

Wells Fargo will often allege that it is the holder of the note. It frequently finesses the holder in due course confrontation by this allegation because of the presumption arising out of its allegation that it is the holder. In fact, the obligation of the homeowner is not ever due to Wells Fargo in a securitized residential note and mortgage or deed of trust. The allegation of “holder” is disingenuous at the least. Wells Fargo is not and never was the creditor although ti will claim, upon challenge, to be acting within the scope and course of its agency authority; however it will fight to the death to avoid producing the agency agreement by which it claims authority. remember to read the indenture or prospectus or pooling and service agreement all the way to the end because these documents are created to give an appearance of propriety but they do not actually support the authority claimed by Wells Fargo.

Wells Fargo often claims to be Trustee for Option One Mortgage Loan Trust 2007-6 Asset Backed Certificates, Series 2007-6, c/o American Home Mortgage, 4600 Regent Blvd., Suite 200, P.O. Box 631730, Irving, Texas 75063-1730. Both Option One and American Home Mortgage were usually fronts (sham) entities that were used to originate loans using predatory, fraudulent and otherwise illegal loan practices in violation of TILA, RICO and deceptive lending practices. ALL THREE ENTITIES — WELLS FARGO, OPTION ONE AND AMERICAN HOME MORTGAGE SHOULD BE CONSIDERED AS A SINGLE JOINT ENTERPRISE ABUSING THEIR BUSINESS LICENSES AND CHARTERS IN MOST CASES.

WELLS FARGO-OPTION ONE-AMERICAN HOME MORTGAGE IS OFTEN REPRESENTED BY LERNER, SAMPSON & ROTHFUSS, more specifically Susana E. Lykins. They list their address as P.O. Box 5480, Cincinnati, Oh 45201-5480, Telephone 513-241-3100, Fax 513-241-4094. Their actual street address is 120 East Fourth Street, Suite 800 Cincinnati, OH 45202. Documents purporting to be assignments within the securitization chain may in fact be executed by clerical staff or attorneys from that firm using that address. If you are curious, then pick out the name of the party who executed your suspicious document and ask to speak with them after you call the above number.

Ms. Lykins also shows possibly as attorney for JP Morgan Chase Bank, N.A. as well as Robert B. Blackwell, at 620-624 N. Main street, Lima, Ohio 45801, 419-228-2091, Fax 419-229-3786. He also claims an office at 2855 Elm Street, Lima, Ohio 45805

Kathy Smith swears she is “assistant secretary” for American Home Mortgage as servicing agent for Wells Fargo Bank. Yet Wells shows its own address as c/o American Home Mortgage. No regulatory filing for Wells Fargo acknowledges that address. Ms. Smith swears that Wells Fargo, Trustee is the holder of the note even though she professes not to work for them. Kathy Smith’s signature is notarized by Linda Bayless, Notary Public, State of Florida commission# DD615990, expiring November 19, 2010. This would indicate that despite the subject property being in Ohio, Kathy Smith, who presumably works in Texas, had her signature notarized in Florida or that the Florida Notary exceeded her license if she was in Texas or Ohio or wherever Kathy Smith was when she allegedly executed the instrument.

Filed under: bubble, CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, Investor, Mortgage, securities fraud, Servicer | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 52 Comments »

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