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.
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William A. Roper, Jr.
Judge William C. Todd, III, of the Chancery Division of the New Jersey Superior Court handed down a very thorough and thoughtful decision in June 2010.  I was traveling when the decision was announced and its length seemed to suggest that a larger block of time was necessary to abstract or summarize the decision.

The decision sort of fell off my plate.

With the GMAC robo-signing meltdown in October and the wide variety of other foreclosure fraud related news items since, I never got back to it.  But it merits a read.

The case is Bank of New York, N.A. v. Raftogianis.  The case was released for publication on November 16, 2010.  The full Lexis citation is:
Bank of N.Y. v. Raftogianis, DOCKET NO: F-7356-09, SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, ATLANTIC COUNTY, 417 N.J. Super. 467; 10 A.3d 236; 2010 N.J. Super. LEXIS 221, June 29, 2010, Decided,  Approved for Publication November 16, 2010.

Despite its publication, the case seems not to have made it onto Google Scholar.  Perhaps if everyone here at MS Fraud Googles the case, Google will take the hint and ADD it to Google Scholar.

I have posted a copy of the decision at Scribd:

http://www.scribd.com/doc/50670724/Bank-of-NY-v-Raftogianis-Decision-29-Jun-2010


*

Judge Todd's discussion of the UCC as it applies to mortgages is very thorough.

One of the more remarkable aspects of this case is how generous Judge Todd was in giving the plaintiff the latitude to correct and supplement its pleadings.  In the end, they failed to fix the defects and the case was dismissed, albeit without prejudice.

While I disagree with Judge Todd in respect of a few of his holdings, particularly in respect of MERS, I haven't had the luxury of reading the record of this case.  Perhaps these decisions were correct given the arguments and evidence presented.  Mostly, Judge Todd gets the law RIGHT.  We might not always LIKE how the law reads, but I can really respect Judge Todd for taking the time and the effort to write this thoughtful decision.

I am going to refrain from other comments or analysis for now, moving on to some other topics and threads, but I will endeavor to stop back and supplement the discussion with a little additional analysis.  And if others take an interest in this thread and add comments, I will probably give the case more attention and sooner! 
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Bill
This post by Mr. Roper received no comments or discussion.  I do wonder if the LENGTH of the opinion resulted in a failure of many readers to review the decision.  I think this is a MUST READ for anyone fighting foreclosure of a securtized loan.  While after reading this decision, I feel the points 
discussed in detail should EACH have their own thread to keep a particular discussion from being hijacked, I'll start with one interesting thought.
 
When looking at an assignment after the commencement of the lawsuit:
 
Quote:

Conversely, commentators have noted the propriety of treating the assignment of a mortgage, without a specific reference to the underlying obligation, as effectively transferring both interests.But it does not follow that an assignment in terms of the“mortgage” without express reference to the secured obligation is insufficient to transfer the obligation and is therefore a nullity, as some courts have held. As Mr.Tiffany long ago pointed out,The question is properly one of the construction of the language used, and in arriving at the proper construction, evidence of the sense in which that language is ordinarily used is of primary importance.
 
The expression “assignment of mortgage” is almost universally used, not only by the general public, but also by the Legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee’s rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends,not an effective transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term “mortgage”, but is also in direct contravention of the well recognized rule that an instrument shall if possible be construed so as to give it a legal operation.
 
 
 
I find this an interesting STANDING argument.  By embracing the assignment, without addressing the FRAUD involved in a MERS assignment, the plaintiff is admitting to the transfer of the Mortgage and Note AFTER the commencement of the suit based on the language of the assignment.

It also appears after a dismissal of a complaint for a failure of standing, the Defendant would get a Second Bite of the Apple by then attacking the Fraud involved in the assignment itself.

This also raises the Standing Issue of whether or not the Plaintiff actually did possess the note when the complaint was filed, and when the alleged transfer did take place, before attacking the assignment of mortgage and showing the fraudulent document created to mislead the on the court.   

It appears both arugments may preclude Summary Judgement.

QUOTE]
Separate questions are presented, however, as to whether the note was in fact physically transferred to plaintiff, when that would have occurred and whether the note had been endorsed prior to that time. Those are issues that would have to be addressed before one could determine whether the plaintiff was a person entitled to enforce the note pursuant to the UCC at any particular time.

 

Feel free to post your thoughts and comments.
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Angelo

What I really find amazing is the quote from the judge...."

It was entirely appropriate to argue that the February 2009 assignment from

MERS, as nominee for American Home Acceptance, to the Bank of New York, as

Trustee, was ineffective. From the court’s perspective, that assignment was, at best, a

distraction."

How does a judge with such knowledge of the facts, can call a forgery and fabricated evidence, a distraction.  ITS A FELONY.......
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Sandy
Very good question, Angelo.

I have lost all hope that the felons will ever be apprehended or even slightly inconvenienced.



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PeeWee

Angelo and Sandy,

 

I can tell you from my experience of this mess that the court room is always a double edged sword. Most of us want ALL the fraud out on the table but that has its consequences. If you keep the fraud out of your case and off the record they can’t prove much. No assignment, no note, no PSA, etc… then they have a hard time proving you’re in default. That is the object to everything approach.

 

The other approach is to allow the plaintiff to submit and swear to, with their witness, the fraud and then attack from there.

 

 

In these cases we are the defense, we defend. The plaintiff has all the burden of PROVING we are both in default and they have the right to foreclose. We as defendants have a curiously simple task of objecting and shifting the burden back to them.

 

 

In my case I had conflicting information on legal strategies. I spent hours reading and talking to many intelligent folks. Many people make great arguments and there are many ways to skin a cat but in the end you need to be informed and decide how the law will best serve you. I had an attorney and thought it best to talk out the options and opinions of others and let him do the litigating for me.

 

 

The idea of cherry picking cases and specific opinions of cases is a subjective thing. The problem that we all face is not the law itself, but in fact the judges and how they interpret the arguments and laws themselves. The judge decides the case based on the arguments presented, if you don’t argue your case well, you lose. No matter how right you are.

 

 

The main issue that took a while to sink in was evidence. What does that mean and what is it? It is not having 100 documents with so-called robo-signers on them and claiming they also signed your doc’s. It’s not hearsay and what happened to someone else. It is not what is going on in the media with the attorneys generals. It is all about the documents in your specific case and how you can prove that there are inconsistencies that show fraud and wrong doing. So how do we do that? Expert witnesses, thorough discovery, depositions, finding case law to support your arguments and being informed and not mislead.

 

 

Best advice on this message board is hire a competent lawyer.

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I do not see anyone addressing a response to the cited 'unusual' situation where Raftogonias signed the note, but Krywopsuk did not sign the note.  I have a similar situation where one party signed the note, but the other owner did not.  Do you know if this was addressed at all, why was it ignored, and will it be addressed in the refiling which has been refiled.
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William A. Roper, Jr.
Google Scholar has posted the Bank of N.Y. v. Raftogianis case, including links to many of the underlying cases cited therein:

http://scholar.google.com/scholar_case?case=6925691976934098814

 



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William A. Roper, Jr.
Google Scholar has posted the Bank of N.Y. v. Raftogianis case, including links to many of the underlying cases cited therein:

http://scholar.google.com/scholar_case?case=6925691976934098814

 



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Hi All
 I am reviving this tread not only for future responses and because I have a genuine interest in this particular case.
I fully intend to argue my case based on this case history. STANDING and STANDING only. My case is being heard in the same court by the same judge.

Something I noticed in reviewing this case and which I was surprised the plaintiff counsel did not address. May be its not a big issue?

The defendants did not respond to the original complaint in the proper amount of time required by NJRCP. The defendants actually took three months or 90 days to file an answer to the complaint. NJ RCP requires that a complaint be answered in 35 days. I didn't see mention anywhere that the defendants file a motion for an extension of time to reply to the original complaint. May be I missed that? However if the extension motion was not filed, it appears the plaintiffs missed an opportunity to have the case dismissed for not responding to the original complaint..

Did anyone else notice this late filing of the answer?

Is there any follow up in regard to the plaintiff filing another suit?

TIA

Best regards

Acesfull

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Hi

 

Well I have a conference with the judge today, The same Judge Todd that wrote an eloquent opinion on the subject of standing.

 

I will be using this same defense while citing other case law revalent to standing.

 

Judge Todd wrote a treatise on the subject.

 

I will also be challenging the plaintiffs complaint for failure to attach important documents that the plaintiff alludes to,

 

1- No Original note attached.

 

2- no original deed

 

3- no signed contracts

 

4- no notice of intent to foreclose documents.

 

5- No sensitization of documents,

 

The plaintiff violated  nj rule 4;46-2  that states all foreclosure complaints must have annexed a copy of any and all documents it alludes to in the foreclosure complaint,

 

I will be asking the court to dismiss the case with prejudice for Lack Of Standing.

 

My hearing is at 10am,, I will report back some time after.

 

I am prepared to defend my issue,

 

Thanks to everyone.

 

Best regards

 

Acesfull

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Angelo

Best of luck kid, Kick some A@#

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Hi All

In regard to my hearing.  The judge set the discovery to be completed by 11/20. He would not dismiss the case based on my argument(S),
He scheduled another conference for Feb 28th 2012.

All in all a miner victory, I get to stay in the house for another 4 months that equates to a savings of 10k.

Now I need to get working on discovery phase of the case.

Something I thought was interesting at the conference this morning.

The Judge ask me what I thought the value of the property was?
Then asked how much the balance owe was?

The plaintiff lawyer did not ask any questions.

Thanks to everyone for there advice and opinions.

TIA again

Best regards

Acesfull

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Did you file the Answer yet ? Remember to put Affirmative Defenses in the Answer . It is your only chance to get all your defenses into the lawsuit.  Go to this link to find samples of discovery and Answer

 

http://www.scribd.com/my_document_collections

 

 Discovery consists of Request for Production, Request for Admission and Interrogatories. Plaintiff has 30 days to reply to Request for Admission, if they fail to do so, it means they admit all you state in the Request for Admission.

They also have 30 days to reply to RP and Interrogatories.

 

I often see foreclosure defense lawyers submitt lengthy discovery and the Plaintiff would take months to reply.

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Hi All

Hi Ann-- Thank you for the great link on discovery.

I answered the complaint within the time line for NJ state RCP which is 35 days. My defense is quit simple. Have the plaintiff prove they have the legal standing to bring a foreclosure action.

The judge gave both litigants until Nov 20th to submit discovery to each other. He also scheduled another hearing for Feb 28th.

I have been doing some research on the subject of Securitization. and also FFA- Fair Foreclosure Act. Very boring but very interesting reading for homeowners facing foreclosure. Anyway both subjects are a great topic for a later discussion.

Now getting back to discovery an my case.

I intend to ask the plaintiff for every investors name that is affiliated with the trust that is held by US Bank that holds my mortgage note. I also intend to ask for all SEC filing in regard to the Trust that supposedly holds my mortgage note. ( This information should take lots of time.) How would they have access to every individual named in the trust?
I will also be asking for a copy of The Master Servicing and Pooling agreement relating to the mortgage note that was filed with the SEC.

So, yes I have my work cut out for me. However I feel that my case Will get more attention from me working Pro Se then hiring an attorney that is defending hundreds of cases.

Ann, many thanks for all your valuable post and valuable information.

TIA and best regards.

Acesfull
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If you want to argue in Court about Securization, PSA, this is a Must Read:

 

http://www.scribd.com/doc/69035881/Securitization-Crisis-How-the-Mortgage-Securization-Process-is-Best-Offense-for-Forclosure-Defense

 

Don't ask for PSA in discovery. You may hurt yourself if the PSA has your loan in the Trust. (All documents provided during discovery can be used in trial). Look for the PSA yourself to see if the Plaintiff has standing to foreclose. It is too long to write it here but read the above document first and ask more questions.

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Hi All

 

Hi Ann--- I will do more research into the whole Securitization process along with Pooling and Servicing Agreements.

 

Another major concern is, Are Judges starting to learn about the whole securitization process? The term Securitization itself is relativity a new term in terms of Law. Its probably a whole new and very complex ball game for most law scholars to understand let alone a lay-person. I will venture to say that the term will have its own place in Law dictionary's in the near future.

The spell check feature on this board shows that SECURITIZATION is not in the dictionary, LOL  that should say something for the newness of the term.

 

TIA for the great info.

 

Best regards

 

Acesfull

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Ann wrote:

If you want to argue in Court about Securization, PSA, this is a Must Read:

 

http://www.scribd.com/doc/69035881/Securitization-Crisis-How-the-Mortgage-Securization-Process-is-Best-Offense-for-Forclosure-Defense

 

Don't ask for PSA in discovery. You may hurt yourself if the PSA has your loan in the Trust. (All documents provided during discovery can be used in trial). Look for the PSA yourself to see if the Plaintiff has standing to foreclose. It is too long to write it here but read the above document first and ask more questions.

Hi Ann

Since my mortgage is tied to a trust and the trust is full of investors.

I intend to ask the plaintiff attorneys for all the names of persons and entity's associated with the trust.

 

TIA for all replies and opinions.

 

Best regards

 

Acesfull

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Hi All

 

Bumping in the hopes that Mr. George Burns reads my situation and my case to date has to avoid any confusion from any previous post.

 

TIA

 

Best regards

 

Acesfull

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<p style="margin: 0px;"><b>Not sure what happened with this judge but he now is siding with the banks and doing things I have never seen in a court room.</b></p><p style="margin: 0px;"><b>He wrote his decision in a 44 page document and decided even before the hearing that the bank could work their magic and kick us out of home.</b></p><p style="margin: 0px;"><b>I stood and asked if I could speak, at first he said through your attorney and then I went out in the hall fired the useless attorney and then went back in and spoke.</b></p><p style="margin: 0px;"><b>I stated, I got no mediation, no trial, nothing, since this all happened I tired to do a loan mod with Bank of America which was the bank who had my loan, never received notice of transfer to Bank of New York Mellon.  I said a lot of stuff, but not phase him at all.</b></p><p style="margin: 0px;"><b>I am a Disabled Veteran who served her country and now who's country is failing her.  He said without a blink of an eye, it does not matter, you are going to have to appeal.  Everything in this case he ignored.  </b></p><p style="margin: 0px;"><b>Why the big changed in how you are handing cases?  </b></p><p style="margin: 0px;"><b>He has no heart, uncaring corrupt judge.</b></p><p style="margin: 0px;"><b>Mellon's attorney KERRI DUFFY ran the show, he looked annoyed when the fired attorney spoke, that was before I fired him.</b></p><p style="margin: 0px;"><b>No New Jersey homeowner is going to justice in his court.  I would win over appeal because he even said I doubt they will over turn it.</b></p><p style="margin: 0px;"><b>He should be removed from the bench, he is changing law and totally in favor of the bank as you can see by attached document he wrote.</b></p><p style="margin: 0px;"><b>I was not allowed Due Process and he put my case in with another that he found the same.  How can you decide a case before the hearing and oral arguments???  There is more, but right now that is enough.  Mellon is going to wish they sat down with me.</b></p><p style="margin: 0px;"><b>They are blaming the homeowner, that I took out the loan, doesn't matter that Mellon didn't check out the loan, didn't see my tax returns, that the loan officer lied about my income, I said between 2500 to 3000 a month, he said 8500.00 at closing i never say that document, I am an Insurance agent if I get caught in a lie like I would lose my license, no income. I had to claim Bankruptcy, I have lost contracts with companies.  The reason was I was not paid commission so Kerri Duffy said that it was a change in income, hello you all lied about my income, which would caused me to stop paying my mortgage.  so much went on in that court room, they are stealing homes and Judge William Todd gave the keys to do...</b></p><p style="margin: 0px;"><b>Forgive me if some doesn't make sense, but I have a learning disability and not good at writing....</b></p>
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Just to let everyone know, he also said that when I received the complaint that it was served right, in other words, the note was attached and what other paperwork should be done.

 

This judge is not a huge part of the problem.  I only received the lawsuit, THERE WERE NO ATTACHMENTS.

 

Also Bank of New York changed the deposition record of the one I gave, Mellon's Attorney asked what my disability was and now it is not in the record...

 

I am planning on going after all of them, the stole my home and the judge handed them the keys.

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Seth
Judge William C. Todd, III, is a learned, fair and ethical jurist, as is demonstrated by his thoughtful and judicious decision in Raftogianis.

While we all are sympathtic to the plight of every distressed borrower, and especially those who have faithfully served their country as well as those whose disabilities make their adversities af greater concern, it is very important for every distressed borrower to bear in mind that inability to pay is NEVER a valid defense in any judicial foreclosure action. 

Defending on this basis is going to be a shortcut to homelessness, no matter how sympathetic the defendant may be.

A second point which cannot ever be emphasized often enough is that in a summary judgment proceeding, NO ORAL TESTIMONY IS TAKEN.  To any extent that a plaintiff moves for summary judgment and a defendant files a timely oral response, the actual summary judgment hearing is for essentially TWO PURPOSES ONLY. 

First, through oral argument, the parties can focus the court's attention on particular written arguments.  But if these arguments did NOT appear within teh motion or response, they will be IGNORED BY THE COURT.

Second, parties can usually make objections to the admissibility of evidence at the oral hearing, although these too usually need to be made in writing

If a party appears at the oral hearing and wants to testify or to talk about anything other than what appears within the written motion and written responses, the court need not let that person even speak.

It should also be noted that in most states, the written response to a motion for summary judgment is usually due well in advance of the hearing, sometimes about seven days (this varies).  Since the motion will be decided based upon the written motion and its accompanying evidence together with the written response and defensive evidence, a well prepared jurist ought to arrive at the summary judgment hearing with an understanding of the issues and arguments.  He might well have some questions for the parties' lawyers.  He will listen to their arguments, but usually already knows how he is going to rule before the argument UNLESS someone presents an evidentiary objection at the hearing that results in exlcusion of the evidence.

The circumstances described by Lynn do NOT establish some basis for concluding that Judge Todd acted unfairly or contrary to the law.  Rather, it suggests that he arrived well prepared, having read the motion and response.  That he allowed Lynn to speak at all reflects that he was erring on the side of compassion.  But nothing she said orally at the hearing would have been considered as evidence and this information would almost never form the basis of a successful appeal!

If Lynn has a legitimate complaint, it may be with her own defense attorney.  The attorney ought to have known that inability to pay would never form the basis of a valid defense.  Since we haven't seen either the motion or the response, we are not in a position to know or understand the various arguments.

Perhaps Lynn has some valid appealable issue, but this is not apparent from her post.  Attacking Judge Todd, who is amongst the fairer jurists on the bench seems to this participant to be unfair and intemporate.  There are plenty of ignorant, corrupt and lazy judges on the bench.  Lets not heap criticism on those who are giving borrowers a fair shake!!
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sorry seth he did act unfairly and has changed a lot since that ruling and I am not the only that feels that way, there has been a lawsuit filed to that fact Camden against the Superior of Court of NJ.  so much fraud and yes my inability to pay has a lot to do with it, when they lied about my income on the application, no due diligence done by anyone involved in this loan that I could afford it, a huge lie, never knew about mellon, my loan was predatory and he threw out every defense and said everything was done right, no it was not, the lawsuit nothing was attached and you have according to NJ Law... you were not in the courtroom, so you don't know really know.  sorry todd is unfair and now could careless about the homeowners.  he wrote a 44 page comparing my case to another, in that document I was not mention only by attached memo, he decided two days before the hearing and no matter what I should have been granted either a mediation, trial or more time to hire a new lawyer.  so I think he is an uncaring man and didn't treat this Disabled Veteran fairly.  he is changing the laws, you didn't read what he wrote, very injustice.  I don't think he should be on the bench, deciding to throw people out of their homes without giving equal treatment, like true discovery, cross examining the big banks, I did not have a fair shake and you think he was being fair when I spoke up, no I stood up for myself and said something and at first he didn't want to, but others were in the court and he knew it, so don't defend him for that or anything...
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Judith
Why don't you post the decision like on Scribd or something so that every one can read it and see how corrupt this judge is?
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How do I do that, have no problem posting. 
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Peter
Go to http://www.scribd.com and follow the instructions to register and set up an account (or just use Facebook).  Then follow the instructions to upload a document.  It is pretty easy.  Then you can post a link to the document here in the Forum.
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