Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Hi Everyone!
I just finished my 1st draft of our Response to Plaintiff's Motion for Summary Final Judgement of Foreclosure and for Atty Fees and Costs. I'm going to attach the files. I believe I need some more with item 38 and 40 - 43. I'm not sure I stated my points correctly? Opinions please on the draft. I have a link to the affidavits in a previous post, but can upload those if need be.
Thank you in advance for opinions : )
Michelle
:::::::::my head is spinning::::::: Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_02.png, Views: 47, Size: 43.92 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_01.png, Views: 30, Size: 35.69 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_05.png, Views: 16, Size: 43.86 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_07.png, Views: 10, Size: 38.15 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_10.png, Views: 11, Size: 9.72 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_03.png, Views: 9, Size: 31.92 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_04.png, Views: 8, Size: 39.60 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_06.png, Views: 13, Size: 45.38 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_08.png, Views: 6, Size: 38.52 KB Click image for larger version - Name: MotiontoStrikeAffidavitsandDismiss_pdf_Page_09.png, Views: 15, Size: 32.80 KB
Quote 0 0
going to add the affidavits here..... Click image for larger version - Name: Affidavits_from_M&T_png_Page_3.png, Views: 20, Size: 682.20 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_2.png, Views: 16, Size: 650.79 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_9.png, Views: 14, Size: 699.36 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_1.png, Views: 10, Size: 578.44 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_4.png, Views: 9, Size: 592.45 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_5.png, Views: 12, Size: 615.76 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_6.png, Views: 11, Size: 715.78 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_7.png, Views: 10, Size: 636.46 KB Click image for larger version - Name: Affidavits_from_M&T_png_Page_8.png, Views: 12, Size: 668.24 KB
Quote 0 0
Alice
You might want to take a look at this post by Mr. Roper:

A CAUTION Regarding Posting or Communication of Personal Information
http://ssgoldstar.websitetoolbox.com/post/A-CAUTION-Regarding-Posting-or-Communication-of-Personal-Information-2393700


Mr. Roper used to post at the Forum and had a lot of good advice for borrowers.
Quote 0 0
Factman
thread name = Litton Loan Servicing --- begin (i think that this link will take you directly to this page, if not goto) 05-16-10 at 11:07PM -- right above the highlighted heading "BEWARE OF ALL MODIFICATIONS!

http://ssgoldstar.websitetoolbox.com/post/Litton-Loan-Servicing-1042390?highlight=motion+strike+affidavit+summary+judgment&trail=105


Finally, I attach here a detailed Motion to Strike Affidavit that I have filed in a case which, in great detail, describes why the affidavits submitted in foreclosure cases are legally insufficient. So what’s a crafty Plaintiff’s attorney or lender to do? Well, right now they’re just trying to push through as many foreclosures as they can before more judges catch on to what judges in this circuit have learned. But when courts finally shut down this evidentiary farce that’s occurring all across the country, they’re going to resort to other means….which brings us to the last exhibit in this post.
Quote 0 0
Factman
ok the link takes you directly to the beginning of the thread --- the portion I have indicated is on page 3 ----

good luck!
Quote 0 0
Factman
looked at your draft -- not sure of this but the Court may have a font requirment --- so check it out!

ps i would have done this for u but don't know which county you are in..
Quote 0 0
Hey Factman,
I'm in Volusia County, tried to click on your link for the Motion to Strike, but it only brings me to a blank page. We have some storms coming in, so I will try it when they pass. Sorry about posting too much info...

I will check out the rest of the information when I can get back on...

Thanks
Michelle
Quote 0 0
Got the Motion to Strike, etc., needed to use IE instead of Chrome. I like that one but I also have three others, the costs, fees and reasonableness of fees...so I need to keep looking for more to fight at least the last one...costs and fees, I think I can use some of what I have already.

Thanks again : )
Quote 0 0
Angelo
Michelle

Not a good idea to post a pleading to a live judicial proceeding on the internet.  What are you looking to gain from this?  Dont you think that your opponent might be looking at this forum, now you just gave them an inside look at what you are pleading, and you just now gave all the time in the world to draft a reply.  Not a smart idea IMHO.
Quote 0 0
...
Michelle wrote:
Hi Everyone!
I just finished my 1st draft of our Response to Plaintiff's Motion for Summary Final Judgement of Foreclosure and for Atty Fees and Costs. I'm going to attach the files. I believe I need some more with item 38 and 40 - 43. I'm not sure I stated my points correctly? Opinions please on the draft. I have a link to the affidavits in a previous post, but can upload those if need be.
Thank you in advance for opinions : )
Michelle
:::::::::my head is spinning:::::::


You need to read the cases and rules for SJ.  This is NOT a proper response to SJ that will give the Judge an opportunity to deny the motion.  

Where are the questions of fact that will preclude SJ?

The Plaintiff is clearly going to roll into court with a note that endorsed to the Plaintiff or in blank.

Your opposition is very hard to read, it is confusing, it lacks the legal standard, it lacks appropriate case law, it lacks clear arguments, it lacks WINNING arguments, it lacks a clear representation of what the disputed facts are, the motions to strike should be totally separate, you failed to designate any evidence you are relying upon, .ect....  (got tired of typing)

You need to really revisit this and pretty much start over.  This is more of a BAD pro-se motion to dismiss than an opposition to SJ.
 
It may seem harsh, but they only thing that you typed (plagiarized) that was anything close to being coherent was some of the Motion to Strike the Affidavit of Amount Due submitted by the Plaintiff.

It's better to hear it now then from the Judge, but what do I know anyways.

Quote 0 0
,,,
I also didn't notice you arguing any affirmative defenses.  Did you file an answer with affirmative defenses?  
Quote 0 0
Factman
Michelle listen to ...... i have not read ur info etc ... but i think i know who .... is and u gotta listen --- i have been following this board for approx 3 yrs --- so u gotta trust me -- u can not take something that sounds great to u --- u have to take what doesnt sound good to u and then defeat it!!!!!!!!!!!!!!!

since u have a very extremely short period of time -- why don't u simply request and extension of time ------ ????????????????????? use i have no money and cant hire an atty so proceeding pro se ------------- something

more than likely u will get the motion granted --- MAKE SURE THAT U FOLLOW THE PROCEDURAL REQUIREMENTS --


1. CONTACT THE OPPOISING PARTY AND TRY TO GET HIS PERMISSION TO AGREE TO EXTENSITON OF TIME SO AS NOT TO OPPOSE UR MOTION -- THEN (U MOST CONFIRM WHAT I AM SAYING HERE AS PROCEDURAL CORRECT) --- THEN FILE UR MOTION WIHT THE COURT -- I THINK THAT U WOULD NEED TO MAKE SURE IT IS SET FOR A HEARING??? (PLEZ THE FORUM HEAVY WEIGHTS --- WEIGTH IN THERE --)

2. ? -- HAVE YOU filed discovery???????????? has it been reponded too????????  that is an avenue u could use ---

the forum regualors that have always helped need to step in here --- jl
Quote 0 0
Alice

Quote:
Not a good idea to post a pleading to a live judicial proceeding on the internet. What are you looking to gain from this? Dont you think that your opponent might be looking at this forum, now you just gave them an inside look at what you are pleading, and you just now gave all the time in the world to draft a reply. Not a smart idea IMHO.
 

There is another related problem with posting identifying pleadings, motions and responses.  If someone gives you sharp and critical feedback, they are also coaching and taking your adversaries to school as to precisely how to defeat you.

In developing strong defensive material, there are pro and con arguments.  Sometime, you need to understand and anticipate your adversary's answer.  When, as here, you post your precise pleadings, including identifying information, you invite critique that, if tough, thorough and effective, helps your overworked adversaries make their argument, and, if weak and ineffective, gives you a false sense of security.

Also, while discussions about legal concepts in the abstract between anonymous persons may be an exercise of First Amendment rights to free speech, helping someone prepare a pleading for a particular case may be an Unauthorized Practice of Law (UPL).  Placing your pleadings online here at the Forum and soliciting critique puts not only you at risk, but imperils those who seek to help you.  It also puts the Forum at risk, since your adversaries may now also know to run discovery against you to include questions about your online postings and your unprivilieged correspondence with other Forum participants. 

Quote 0 0
Factman
'M' .... be very cautious as to any type of recommendation given by 'Alice' = Ann = Anh = unregistered!

since you are on a very short, well exactly extremely limited time frame, I would urge u to consider filing a chap 13 bk ---- this will put a stop to the foreclosure action and give you time to breath and come up with a viable game plan ---- the reason that i encourage you to investigate this avenue is that if you lose the sj, which seems like a likely course of outcome, it will be almost impossible to over come ---

seniors of this forum the bat light is being beamed!
Quote 0 0
....
Alice wrote:

Quote:
Not a good idea to post a pleading to a live judicial proceeding on the internet. What are you looking to gain from this? Dont you think that your opponent might be looking at this forum, now you just gave them an inside look at what you are pleading, and you just now gave all the time in the world to draft a reply. Not a smart idea IMHO.
 

There is another related problem with posting identifying pleadings, motions and responses.  If someone gives you sharp and critical feedback, they are also coaching and taking your adversaries to school as to precisely how to defeat you.

In developing strong defensive material, there are pro and con arguments.  Sometime, you need to understand and anticipate your adversary's answer.  When, as here, you post your precise pleadings, including identifying information, you invite critique that, if tough, thorough and effective, helps your overworked adversaries make their argument, and, if weak and ineffective, gives you a false sense of security.

Also, while discussions about legal concepts in the abstract between anonymous persons may be an exercise of First Amendment rights to free speech, helping someone prepare a pleading for a particular case may be an Unauthorized Practice of Law (UPL).  Placing your pleadings online here at the Forum and soliciting critique puts not only you at risk, but imperils those who seek to help you.  It also puts the Forum at risk, since your adversaries may now also know to run discovery against you to include questions about your online postings and your unprivilieged correspondence with other Forum participants. 



+1
Quote 0 0
Factman
"M" - do not repond to the above with any indication as to the action u might take --- as it could be used against you!

follow the advice of Angelo --- and reframe from any furthur postings...ever again! 
Quote 0 0
.....
Factman wrote:
"M" - do not repond to the above with any indication as to the action u might take --- as it could be used against you!

follow the advice of Angelo --- and reframe from any furthur postings...ever again! 


Have the moderator delete the post.  She deletes everything else she feels like deleting.
Quote 0 0
Texas
At least one senior is reading.
Quote 0 0
Michelle
; )
Quote 0 0
....

JOYCE TAYLOR and LANKFORD TAYLOR, Appellants,
v.
BAYVIEW LOAN SERVICING, LLC, Appellee.

Case No. 2D10-1493.District Court of Appeal of Florida, Second District. Opinion filed November 9, 2011.Enrique Nieves III of Ice Legal, P.A., Royal Palm Beach, for Appellants.J. Joseph Givner, Esther S. Meisels, and Randon Loeb of Higer Lichter & Givner, LLP, Aventura, for Appellee.

PER CURIAM.

Joyce and Lankford Taylor appeal a final judgment of foreclosure entered after the trial court granted a motion for summary judgment in favor of Bayview Loan Servicing, LLC. Because genuine issues of material fact remain regarding the Taylors’ affirmative defense of lack of notice, we reverse the final judgment and remand for further proceedings.

On January 4, 2006, the Taylors signed a mortgage securing an indebtedness in the principal amount of $194,350, evidenced by a note Joyce Taylor signed on the same date. The mortgage names the lender as USMoney Source, Inc., d/b/a Soluna First (USMoney) and the mortgagee as Mortgage Electronic Registration Systems, Inc. (MERS), acting as a nominee for USMoney. Attached to the note is an allonge signed by the president of USMoney and dated January 4, 2006, that endorses the note without recourse to Bayview.

On August 1, 2007, Bayview filed an unsworn two-count complaint against the Taylors. Count one sought to establish and enforce the note, and count two sought to foreclose the mortgage. Bayview alleged that it “owns and holds said note by virtue of the endorsement/allonge and said mortgage by virtue of the assignment of mortgage, copies of both of which are attached hereto.” No copy of the assignment of mortgage was attached to the complaint. Although Bayview alleged that it holds the note, Bayview further alleged that the original note was lost or destroyed after Bayview acquired it and that the exact time and manner of the loss or destruction was unknown to Bayview. Copies of the note, allonge, and mortgage were attached to the complaint. The complaint also contained the general allegation that “[a]ll conditions precedent to the filing of this action have been performed or have occurred.”

The Taylors filed an answer and affirmative defenses. Among their affirmative defenses the Taylors asserted that Bayview “is not the proper holder of the mortgage and therefore lacks standing to bring a foreclosure action.” The Taylors also asserted that Bayview “failed to give proper notice of the default in the payments on the note and mortgage” and thus was “estopped from accelerating said debt.”

On November 21, 2007, Bayview filed its motion for summary judgment and affidavit of indebtedness. Later, amended affidavits of indebtedness were filed. None of the affidavits mentioned an assignment of mortgage, and no documents were attached to the affidavits.

Bayview did not file its reply to the Taylors’ affirmative defenses until June 17, 2008. In its reply, Bayview alleged that it met the notice requirements. Bayview also alleged that it was entitled to maintain the foreclosure action without a written assignment of mortgage because the transfer of the note was sufficient. Bayview subsequently filed the original note, allonge, and mortgage.

The trial court held a hearing on the motion for summary judgment on February 22, 2010. The record contains a notice of filing copy of assignment of mortgage dated February 10, 2010, but the notice was not filed until February 23, 2010. The assignment of mortgage reflects that it was executed on August 7, 2007, after the complaint was filed. The trial court granted summary judgment and rendered the final judgment of foreclosure.

The standard of review on a summary judgment is de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment `if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fla. R. Civ. P. 1.510(c)). The movant has the burden to prove the absence of a genuine issue of material fact, and “this court must view `every possible inference in favor of the party against whom summary judgment has been entered.’” Id. (quoting Maynard v. Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003)). And, “if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000). Furthermore, to be entitled to summary judgment, the movant must not only establish that there are no genuine issues of material fact regarding the parties’ claims, but also the movant “must either factually refute the affirmative defenses or establish that they are legally insufficient.” Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011).

We reject the Taylors’ argument that Bayview lacked standing to foreclose the mortgage. The Taylors’ affirmative defense asserted, and they argue on appeal, that the assignment of mortgage did not occur until after the complaint was filed. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (stating that the plaintiff lacked standing to bring the foreclosure action when it did not own or possess the note and mortgage when it filed the lawsuit); Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (determining that a complaint to foreclose a mortgage did not state a cause of action when it was filed because the assignment of mortgage to the plaintiff was dated four months after the lawsuit was filed).

But Bayview contends that its standing to foreclose derives from the allonge to the note because the mortgage follows the note. Bayview argues that when USMoney transferred to Bayview the note which the mortgage secured, Bayview received equitable standing to foreclose the mortgage, even without a written assignment. We agree.

Bayview alleged in its complaint that it “owns and holds said note by virtue of the endorsement/allonge.” Bayview attached copies of the note and allonge to its complaint. The note and the allonge reflect that on the same day that Joyce Taylor executed the note in favor of USMoney, USMoney in turn endorsed the note without recourse to Bayview. Before the summary judgment hearing, Bayview filed the original note and the allonge. Thus Bayview established its status as holder of the note and its right to enforce the note. See § 671.201(20), Fla. Stat. (2005) (“`Holder,’ with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession.” Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007) (“The holder of a note has standing to seek enforcement of the note.&rdquoKaminik v. Countrywide Home Loans, Inc., 64 So. 3d 195, 196 (Fla. 4th DCA 2011) (affirming in part a summary final judgment of foreclosure where the plaintiff “tendered the original promissory note to the trial court, which contained a special indorsement in its favor&rdquoRiggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010) (“Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.&rdquo, review denied, 53 So. 3d 1022 (Fla. 2011).

Bayview also became the equitable owner of the mortgage when USMoney endorsed the note to Bayview because the ownership of the mortgage followed the note. In Johns v. Gillian, 184 So. 140, 143 (Fla. 1938),the Supreme Court of Florida summarized the law pertinent to the issue under review as follows:

[I]t has frequently been held that 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, unless there be some plain and clear agreement to the contrary, if that be the intention of the parties.

Johns stands for the proposition that a mortgage—as a mere incident to the debt it secures—follows the note unless the parties have clearly expressed a contrary intent. The First District Court of Appeal has cited Johns and other cases in support of the following proposition: “Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action.” Chem. Residential Mortg. v. Rector, 742 So. 2d 300, 300-01 (Fla. 1st DCA 1998) (footnote omitted). Because ownership of the mortgage followed the note in the absence of a contrary intention and Bayview owned and held the note when it filed its lawsuit, Bayview has standing to maintain the underlying foreclosure action. See Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011) (“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action.&rdquo.

Notably, the Taylors did not assert that the parties did not intend for the mortgage to follow the note, and they did not present any evidence in support of that proposition after Bayview filed with the trial court the original note, allonge, and mortgage. The mortgage itself reflects the parties’ intent that the mortgage would follow the note in the event of a sale. In addressing the subject of a sale or partial sale of the note in paragraph 20, the mortgage contemplates a sale of the note “together with this Security Instrument.” The note and the allonge reflect that USMoney sold the note to Bayview on the same day that the note and the mortgage were executed. The allonge also lists the “secured property address.” Thus the attachments to the complaint establish that Bayview acquired all of USMoney’s rights under both the note and the mortgage on January 4, 2006, before it filed the underlying action. Therefore, we conclude that Bayview refuted the Taylors’ affirmative defense and established its standing to foreclose the note and mortgage.

With respect to the affirmative defense of lack of notice, Bayview failed to refute this affirmative defense; it therefore prevents summary judgment in this case. Bayview made a general allegation that all conditions precedent had been performed, but the motion for summary judgment and affidavits do not negate the affirmative defense that Bayview failed to give proper notice of the default in the payments on the note and mortgage. Paragraph 22 of the mortgage, attached to the complaint, requires the lender to give the borrower notice prior to acceleration of the debt. In fact, the notice provision is the same as the one in Konsulian. SeeKonsulian, 61 So. 3d at 1284. There, the lender failed to establish that it met the condition precedent of providing the requisite notice when the borrower raised the issue as an affirmative defense; therefore, the lender was not entitled to summary judgment. Id. at 1285; see also Goncharuk v. HSBC Mortg. Servs., Inc., 62 So. 3d 680, 682 (Fla. 2d DCA 2011) (reversing summary judgment for plaintiff’s failure to address in its motion for summary judgment and affidavits the affirmative defense of lack of notice); Lazuran v. Citimortgage, Inc., 35 So. 3d 189, 189-90 (Fla. 4th DCA 2010) (reversing summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice). For this reason, summary judgment was premature. Therefore, we reverse the final judgment of foreclosure and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and NORTHCUTT and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

Quote 0 0
Write a reply...