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 Albert L. Johnson of the Alabama Circuit Court for Russell County recently issued an order embracing Professor Adam LEVITIN's argument that New York trust law requires strict adherence to the PSA of a NY Trust and that provisions of the PSA require indorsements between each entity in the chain of ownership.  Longtime Forum participants will recall that I have expressed skepticism that this theory will ultimately be embraced by the Courts.

The case is Phyllis Horace v. LaSalle Bank, N.A., Case No. 57-CV-2008-000362.00.

The case was litigated by able Alabama foreclosure defense attorney Nick WOOTEN.

Stories about this decision are already posted at HousingWire and AOL:
HousingWire: "Alabama judge denies securitization trustee standing to foreclose" By Kerri PANCHUK (Friday, April 1st, 2011, 2:41 pm) 
http://www.housingwire.com/2011/04/01/alabama-judge-denies-securitization-trustee-standing-to-foreclose

AOL Daily Finance: Court: Busted Securitization Prevents Foreclosure by Abigail FIELD (Posted 6:25 PM 04/01/11
http://www.dailyfinance.com/story/real-estate/court-busted-securitization-prevents-foreclosure/19900530/
The Order from the decision is posted on Scribd:

http://www.scribd.com/doc/52092358/Order-in-Horace-Case


I expect we will be seeing other published articles about this decisioin.  It will no doubt send a few shudders through the financial markets as to the valuation of Residential Mortgage Backed Securities.

The decision does NOT alter my view that this argument is NOT going to prove to be a valid and durable basis to avoid foreclosure.  But it is noteworthy that Mr. WOOTEN has persuaded an Alabama Judge and in a case in which he had the burden of proof!  This decision is likely to be subject of an appeal.

By contrast, if defendants in judicial foreclosure states are able to persuade the Court of the argument's validity, the defendant would usually need to only show a dispute of material fact to preclude summary judgment.
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Bill
I think the most important part of the decision was:

Quote:
"Horace is a third-party beneficiary of the pooling and servicing agreement … without such … plaintiff Horace and other mortgagors similarly situated would never have been able to obtain financing
."

Now that is an interesting argument especially because the first thing that prohibits a PSA argument and MR Levitin's argument is not being privy to the contract. 

On the other side of this argument, wouldn't you pretty much be admitting that the Trust is the equitable owner of the Note and Mortgage?  Would their recourse be by filing a lawsuit against the originator? 

It will be interesting to see what the court of appeals feels about this.


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Angelo
Bill

I'm sure the blank endorsement was without recourse....
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Angelo
Here is a pretty interesting artice that I found from another foreclosure blog, just wondering what other think of this argument.

"Almost every Mortgage loan investigated which was produced by a major Banking Institution between the years 2000 – 2008 was securitized. Securitization is the act of producing an investment vehicle of Mortgage-Backed Securities (“MBS”) using the Borrower’s Mortgage NOTE as the under-lying corpus, as collateral.
In each and every securitized loan produced by these Banking Institutions, file with the Securities and Exchange Commission certain documents which are mandated, include but is not limited to the Pooling and Servicing Agreement, Prospectus, Indenture, 10-K [yearly report], 10-Q [quarterly report], 8-K [current report] Form 15-D and the Servicing Agreements] (herein after referred to as “Documents”), agreed to by the Party’s.
Reading these Documents, in each investigation to date, the common mandated procedure is as follows; first we have the Lender. Shortly after the Mortgage
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NOTE documents have been executed [or before the NOTE is executed] the Lender sells [or has already sold] its right, title and interest in this Mortgage NOTE to a third party, an arms length transaction [true sale] to a party known as the Seller. Within thirty [30] days or less the Seller will sell its right title and interest to this Mortgage NOTE to another party known as the Purchaser, also identified as the Depositor. The Depositor agrees to “trade” with a named Trust-Entity, it’s Mortgage NOTE for a predetermined amount of Mortgage-Backed Securities [less commission], these Certificates are then sold to investors.
Now a really interesting thing happens once the Mortgage NOTE is acquired by this named Trust Entity, witnessed through the use of specialty licensed software which permits investors [or licensed users] access to any “named Trust-Entity”. I can see each Mortgage Loan held by this named Trust-Entity, and I can see its currant status. I can see if the named Trust-Entity is in possession of the Mortgage NOTE documents. I can see if a Mortgage NOTE is thirty (30) days late, sixty (60) days late, ninety (90) days late, or if it is in foreclosure. I can also see how many “tranches” have been created within this named Trust-Entity. The analogy to describe what a tranche is [in my minds eye] would be similar to, you giving me one apple, I return this one apple to you as apple juice [different form], and however I manage to create from this one apple, ten additional artificial apples out of thin air and transform them into apple juice. Now this named Trust-Entity has the authority and ability to sell [juice from ten artificial apples] Mortgage-Backed securities in multiples of the underlying collateral by creating multiple tranches within the said named Trust Entity. Within these multiple tranches I find the same Mortgage NOTE to exist, at full face value. The last investigation which I just completed within this past week the named Trust Entity held twenty one tranches and the target Mortgage NOTE appeared in each one of those tranches. This one Mortgage NOTE now has the potential of generating twenty one times its face value of this Mortgage NOTE, in Mortgage-Backed Securities sold to investors. Based on the foregoing if a Trust sells these Mortgage-Backed Securities to investors and receives only ten times the face value of the original under-lying Mortgage NOTE [Security] has the named Trust Entity been damaged by the Mortgagor not making the promised monthly payments under the Mortgage NOTE agreement? In other words, if Sam goes to the Bank and borrows a sum of money but Sally pays off the debt can the Bank still claim to be a damaged party because Sam did not make the payments as promised?
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In the event whereby the Lender knows fore-hand this loan [Mortgage NOTE] will be sold out-right, securitized once executed, the Borrower is actually entering into an undisclosed investment contract, not a loan, per-say. In the not so distant past and throughout our history, prior to securitization, the Maker of the Mortgage NOTE Holds a possessory right to said Mortgage NOTE. Once the debt was discharged the Bank which held this Mortgage NOTE as a “Special Deposit” returned it to the Borrower. Today, with the advent of securitization these so-called loans [Special Deposits] are truly investment contracts [Mortgage NOTE sold out-right to generate profit] and the Borrower is an undisclosed investor with possessory rights to the profits generated from said Mortgage NOTE. Because this undisclosed investor [Borrower] is unaware of the moneys due it abandons the right to receive said funds when Borrower / Maker fail to make a claim to said funds within three years. To prove my point the Attorney General needs to request the Servicer, or the Trustee to produce a copy of the 1099-OID Form which was filed with the Internal Revenue Service, and the 1099-A including the 1099-B. These three Forms are filed with the Internal Revenue Service by either the Servicer or the Trustee and will prove the aforementioned allegation, that it is the Borrower that created, and is entitled to the “O”riginal “F’ssue “Discount, but the Borrower has abandoned these funds [1099-A] which is now claimed by the Servicer, or the Trustee [1099-B]. In other words, these aforementioned Forms will identify the Bank as the Debtor. The profit made from the invested Mortgage NOTE belongs to the Maker. We live in a wonderful place, if it wasn’t for the deceit.
Many of today’s so-called Lenders only lent their name to the Mortgage loan transaction. In other words, the Lender did not lend you their money, an undisclosed third party provided the funds for the Borrower making it appear like the Lender / Bank / Broker provided the funds. A group of investors, or a single investor creates what is commonly known as a Special Purpose Vehicle (“SPY”) wired the money to the Lender just prior to Closing. The Lender / Bank now acting in the capacity of a Nominal Lender used this SPY money to transact the Closing. Once the Closing was completed the Nominal Lender was paid in full plus a commission, then the Nominal Lender put its name on the Mortgage NOTE. Within twenty-four (24) hours from Closing the Nominal Lender was required to physically conveyed the Mortgage NOTE to the true Lender / Investor. Thereafter this Nominal Lender takes on a new role as the Servicer of the debt, or it may employ a subServicer. The Borrower makes the monthly payments to the Servicer who s/he believes is the Lender, who forwards the payment [less its fee] to the true Lender / Investor[s]. The Homeowner was
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tricked into thinking he was a Borrower of a Loan, when in fact was a Seller of a Mortgage NOTE into an Investment Trust [SPV]. This Investment Trust has no right to a Mortgage which is used to facilitate the purchase a NOTE, fraudulently procured under the guise of a “Loan”, when in fact it was not a Loan but rather the “Purchase / Sale of a Mortgage Note” facilitating the foundation of these Mortgage-Backed Securities; the true nature of this Transaction was not disclosed to the Borrower either before or at Closing; and this Nominal Lender was paid in full plus a commission for loan it did not fund. Question; can a Nominal Lender that did not fund the transaction [Loan], putting its name on a Mortgage NOTE pretending to be the True-Lender, tricking a Homeowner into signing over a Mortgage NOTE in order to secure an Investment Security, thereafter assign a Beneficial Right to a third party, a right which it never Held from the beginning?

A reading of the Corporate / Trust Documents filed with the Securities and Exchange Commission two constants are apparent; the Original Lender after selling its right, title and interest to said Mortgage NOTE becomes the Servicer of this debt; and
the “conveyance” of the Mortgage NOTE, Documents [law of the case] mandate the delivery of the Original Mortgage NOTE, endorsed in blank … without recourse … with ALL prior and intervening endorsements showing a complete chain of endorsement from the Originator [Lender] to the “person” so endorsing to the Trustee. In every investigation that I have personally conducted find there are four parties to the initial transaction, if we exclude the Borrower. The “Originator / Lender,” who sells its right, title and interest to said Mortgage NOTE to the “Seller,” the Seller sells its rights, title and interest to the “Purchaser / Depositor,” who sells to the “Trustee in trust for the benefit of the Certificate-Holder[s].” Although the named Trust Entity Documentation [law of this case] mandates this “chain of endorsements” I have yet to witness these endorsements on any Mortgage NOTE. Rather I witness an “Assignment” of the Mortgage that purports to convey the NOTE directly to the named Plaintiff. My understanding is a NOTE can not be assigned; it is endorsed from the present Holder / Owner of said NOTE and conveyed to the new Holder / Owner. Instead I am witnessing the Servicer [who was once the Lender] claiming to be the Plaintiff with all the rights title and interest as an Owner / Holder of a Mortgage NOTE, after selling its right title and interest to that same Mortgage NOTE to a third party, at an arms length transaction, viewed as a true sale. The Documents [law of this case] mandate it to be a true sale.
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I witness assignments [and or endorsements] being filed with the Courts assigning [endorsing] the right title and interest of the Originator / Lender directly to the Plaintiff, passing-over the Seller, Purchaser and the Trustee, when the Plaintiff is a named Banking Institution. The named Banking Institution would need to acquire this said Mortgage NOTE from the Trustee in order to foreclose, [not from the Lender] thus the Trustee’s endorsement would be expected on the NOTE, from it to the named Plaintiff, in a proper chain of endorsement. Instead I witness over and over again where an assignment of the Mortgage will go directly from the source [Lender] to the Plaintiff, as there are no prior and intervening endorsements showing a complete chain of endorsement from the Originator [Lender] to the “person” so endorsing the NOTE to the Trustee.
If the Trustee is the named Plaintiff acting for a named Trust-Entity would still require the endorsement from the Depositor / Purchaser to the named Trustee in trust for the Certificate-Holder. In my opinion, [non-attorney] this is why there was a rash of “Lost NOTE” claims in the past; the endorsements are missing, however re-establishing a NOTE cures that problem; however re-establishing a NOTE you never Owned, Held or possessed is a criminal act, in my opinion. Not only do I believe this act is a Fraud upon the Court but it is also using the legal system to facilitate a counterfeited financial instrument. The Homeowner who loses their home to foreclosure [95% are uncontested] with the use of a re-established NOTE faces the added threat that the true Owner / Holder may appear at some future date requiring the Homeowner to pay this same NOTE a second time, unless the Order from the Court provides the Defendant protection against such an occurrence. However when a Homeowner does not defend their case, lack of funds, or whatever, this protection [should the Real-Party-In-Interest appear at some future date and demand payment for the Original Mortgage NOTE] against paying twice, is often missing from the Final Order for Foreclosure, because the Homeowner lacked the legal capacity to request this protection be included in the Order from the Court, and the Plaintiff will not do the right thing, voluntarily, by including this protection, exparte.
In the event the Plaintiff does possess and produces the Original NOTE bearing the once wet ink signatures of the Borrower[s], it [NOTE] must contain the endorsements of all the aforementioned parties, otherwise there is a clear break in the Chain of Title. The Chain of Title in every securitized document I have personally reviewed requires an endorsement from the Originator / Lender to the Seller, from Seller to Purchaser and from the Purchaser to the Trustee in trust for the benefit of the Certificate Holder [s], this is in accord with each one
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of the documents I have reviewed, filed with the Securities and Exchange Commission.

These investigations that I have personally conducted disclose that most Trustees over-see dormant, dissolved or unregistered named Trust-Entities. Every named Trust Entity that I personally have investigated filed a Form 15-D with the Securities and Exchange Commission, notifying all parties of its Termination of Registration and suspension of its Duty to File Reports under the Securities and Exchange Act of 1934 (15 U.S.C.A. §§ 77a et seq., 78a et seq.). The Trustee foreclosing on a Homeowner [after filing a Form 15-D] is doing so on behalf of a named Trust-Entity contrary to the INVESTMENT COMPANY ACT OF 1940, see Section 7, under TRANSACTIONS BY UNREGISTERED INVESTMENT COMPANIES.

What is really transpiring with these Mortgage loans is [in my minds eye] the Lender is selling the Borrower an automobile that the Lender knows has faulty brakes, and then said Lender takes out an insurance policy on that automobile. Once the automobile is totaled in a crash, the Lender collects on the insurance and still holds the borrower liable to pay the out-standing balance due on the automobile. Look no further than the foreclosure rates here in Florida or your home State, and then look at the record profits being generated by the Banks. How do you think this feat is being accomplished? Are foreclosures a negative force on the economy, because it does not seem to be negatively impacting the major banking institutions.
Brings me to my final observation, Mortgage Electronic Registration Systems (“MERS”), which acts as the purported Mortgagee of record [which we know is not true; as MERS did not loan any money and the Borrowers] do not owe any money to MERS]. MERS usually acts in the capacity as nominee for the Mortgage NOTE Owner / Holder; however, according to the procedural manual produced by MERS, it may only act in such a capacity [nominee] for and on behalf of another MERS’ Member. To the best of my knowledge none of these securitized named Trust Entities are MERS Members, thus bifurcating the Mortgage and NOTE, destroying the security and rendering the Mortgage a nullity.
When you get right down to it I think we would all agree, the bottom line is, the Creditor is the party with the skin in the game, they are the Certificate Holder[s], they are true investors], Hard-Money-Lender[s]. All Certificate Holders are customers of Cede & Co., being the nominee of the Depository
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Trust Company (“DTC”), a subsidiary of the Depository Trust and Clearing Corp. The Entities that purchase these Trust Certificates must purchase them from Cede & Co., or from one of its authorized agents. Seems to imitate the MERS model in so far as Cede & Co. appears to be the central recordation hub were investors trade positions by electronic registration. These named Trust Entity’s Certificates are almost always Held in the “street name” of Cede & Co.
Within the past month I was engaged to conduct research / investigation into a Mortgage Note foreclosure, Plaintiff is JPMorgan Chase, the Original Lender was Washington Mutual Bank (“WaMu”). Within this Complaint JPMorgan Chase avers it is the Mortgage NOTE Owner and Holder by virtue of a Purchase and Assumption Agreement facilitated by the Federal Deposit Insurance Corporation (“FDIC”) after it seized WaMu. Within this Complaint filed by JPMorgan Chase is attached as prima fascia evidence this aforementioned Purchase and Assumption Agreement between JPMorgan Chase and the FDIC which read, [paraphrasing] JPMorgan Chase purchased all of the assets of WaMu, as such is the Owner / Holder of the Mortgage NOTE being foreclosed on [presumptively giving JPMorgan Chase Standing]. However, reading the Documents filed with the Securities and Exchange Commission WaMu sold this Mortgage NOTE out right to a third party [true sale] long before its seizure by the FDIC. The only nexus held by WaMu in reference to this Mortgage NOTE in question were its right to Service this debt. In the case styled UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, case number 09-CV-01656-RMC, Document 55, styled DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for the Trusts listed in Exhibits 1-A and 1-B, Plaintiff, vs. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Washington Mutual Bank; JPMORGAN CHASE BANK, National Association; and WASHINGTON MUTUAL MORTGAGE SECURITIES CORPORATION, Defendants; JPMorgan Chase herein pleads, on page 33. of 39;
“Under the plain terms of that agreement, JPMC did not become WMB’s successor in interest. Since its closure, the FDIC as receiver has controlled WMB. While JPMC purchased all of the assets of WMB, it assumed only specified liabilities: those that had been reduced to a dollar amount on WMB’s ‘general ledger and subsidiary ledgers and supporting schedules which support the general ledger balances.’”
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I only know of this one case in particular whereby JPMorgan Chase is foreclosing on a property in which it holds no right title nor interest aside from its Servicing right[s] acquired under a Purchase and Assumption Agreement, still to be executed between it and the FDIC. However JPMorgan Chase is telling a Judge in New Jersey it Owns and Holds this particular Mortgage Note by virtue of the aforementioned Purchase and Assumption Agreement acquired from the FDIC. Then in this case, [as sited above] in order to avoid / evade liability now pleads it”… did not become WMB.’s successor in interest.” You’ all know the difference between “avoid” and “evade,” [twenty years]!
It is my sincere hope the Attorney General of Florida along with the Attorney General in the other forty-nine States investigate JPMorgan Chase’s claim as successor in interest to WaMu, wherein JPMorgan Chase claims to be a Plaintiff, as its foundation points to the Purchase and Assumption Agreement. Equity would call for an Estoppel of all foreclosure Actions in which JPMorgan Chase claims to be WaMu’s successor in interest.
In closing, these named Trust Entities by-and-large are missing a mountain of Mortgage NOTEs. I have not had the time to do a mean average [as some named Trust Entities hold literally a thousand Mortgage Loans and the calculations must be done manually] however the field marked “Doc” [abbreviation for Documents] either reads “Unknown” or “Limited” in over 50% of these Mortgage Loans [by observation] conservatively. The named Trustee of the named Trust Entity clearly did not do even a reasonable job in receiving the Mortgage NOTEs as mandated under these named Trust Documents filed with the Securities and Exchange Commission."

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Bill
1.  There is always a proof problem with this.  I have not seen any publicly available search that can pull a list of loans in every tranche/trust.

2.  Without this proof, I really think you will be hard pressed to get a judge to even begin to accept this argument.  I also think without proof of this you will lose credibility with the court making this argument.

I don't doubt that this happens.  I have read several articles by securities experts claiming that it does happen.  I just haven't seen someone willing to do an investigation that can PROVE this. 

If you could find me a publicly available search vehicle that can pull this list, we can both be millionaires offering our affidavit services to foreclosure defense lawyers. 
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William A. Roper, Jr.
In reflecting upon and assessing this decision, it is useful to consider Professor Adam LEVITIN's discussion of the chain of title issues.  These Credit Slip posts contain some useful argument and analysis:
Credit Slips: The Big Fail by Adam LEVITIN (November 22, 2011)
http://www.creditslips.org/creditslips/2010/11/securitization-fail.html#more

Credit Slips: Fisking the American Securitization Forum's Congressional Testimony by Adam LEVITIN (December 4, 2011)
http://www.creditslips.org/creditslips/2010/12/fisking_the_asf.html#more

Credit Slips: Securitization Chain-of-Title: The US Bank v. Congress Ruling by Adam LEVITIN (March 6, 2011)
http://www.creditslips.org/creditslips/2011/03/securitization-chain-of-title-the-congress-ruling.html#more

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Bill
William,
   I like Mr. Leviten's arguments, but he even says himself over and over that there is no caselaw to support his arguments.  Until there is caselaw in NY to support a NY trust argument this is the equivalent to foreclosure suicide. 

You would have to introduce the PSA and pretty much admit it was the intent of all the parties to transfer your note and mortgage into the trust. 

You would have to overcome not being privy to a 3rd party contract.

Then you would have to HOPE your local judge agrees with you on a very complicated issue that he is not use to dealing with. 

Even with NY caselaw you could easily be shot down by an unfriendly judge and never get to the meat of your argument just as in the case Mr. Leviten quoted U.S. Bank v. Congress.

IF a Judge did allow a Plaintiff to admit a PSA over objection, I do think an affidavit from Mr. Leviten would create a great deal of confusion.  Especially in a jurisdiction like mine where the court is bound by the 4 corners of the document when interpreting a contract. 



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Angelo
Here is the plaintiff's Motion for summary judgement and memorandum of law from Matt weidner blog.

http://mattweidnerlaw.com/blog/wp-content/uploads/2011/04/case-file.pdf

This attorney really gets to the heart of New York trust law, and lays down a great arguement for all of these fabricated assignments and trusts that try and claim ownership after the closing date. 

"The intent to transfer an asset to the trust is not a transfer to the trust"

The well-settled new york trust law provides that "the mere intention to make a gift which is not carried into effect, confers no right to the intended beneficiary.  There must be also delivery beyond the powers of further control and dominion."(vincent v. Rix, 248 N.Y. 76,85)

The memorandum of law has some very good case law for NY trust!
A MUST READ FOR ALL!



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Angelo
Also here is the expert witness affidavit for the plaintiff.

http://www.scribd.com/doc/52092257/Tom-Adams-Affidavit-Horace-case
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equaltime
But see http://www.housingwire.com/2011/04/04/third-alabama-judge-takes-on-foreclosure-standing-for-securitized-trustees?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+housingwire%2FuOVI+%28HousingWire%29.

There is a split of opinion in Alabama. With US Bank v. Congress included, it looks like this theory is headed for the appellate courts to decide.
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Angelo
equaltime

I think that the congress decision is a bit different because it was a post-judgement motion for an ejectment action.
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William A. Roper, Jr.
Quote:
Angelo said:
I think that the congress decision is a bit different because it was a post-judgement motion for an ejectment action.


Agreed.  The Congress decision and the Horace case are apples and oranges.

I haven't seen enough details as to the new decision yet to understand precisely what was argued and decided.

While this MIGHT be a case where a capable attorney presented the SAME LEVITIN arguments set forth within Horace, it also might be some pro se litigant who didn't get the argument right or the evidence properly admitted into the record.

The rapidity with which this new decision was identified actually is more suggestive that the industry is flailing around for some traction to discredit the Horace decision.

I chastised the reporters at HousingWire a couple of weeks ago when they went to press with a story on a so-called MERS "win" in New York state that was not only an unpublished opinion, but the decision isn't even posted at the state courts opinion web site!  A copy of this unpublished decision, which has NO PRECEDENTIAL VALUE WHATSOEVER, is available ONLY from the publicist at MERS.

Regrettably, HousingWire regularly prints as news re-written industry news releases without actually investigating or vetting the story.
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Here is a pretty interesting artice that I found from another foreclosure blog, just wondering what other think of this argument./QUOTE]

I get it.  After all this time, I finally get it.  Thank you for your post!
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Bill

Quote:

In reflecting upon and assessing this decision, it is useful to consider Professor Adam LEVITIN's discussion of the chain of title issues.  These Credit Slip posts contain some useful argument and analysis:

Credit Slips: The Big Fail by Adam LEVITIN (November 22, 2011)
http://www.creditslips.org/creditslips/2010/11/securitization-fail.html#more

Credit Slips: Fisking the American Securitization Forum's Congressional Testimony by Adam LEVITIN (December 4, 2011)
http://www.creditslips.org/creditslips/2010/12/fisking_the_asf.html#more

Credit Slips: Securitization Chain-of-Title: The US Bank v. Congress Ruling by Adam LEVITIN (March 6, 2011)
http://www.creditslips.org/creditslips/2011/03/securitization-chain-of-title-the-congress-ruling.html#more



I'm a bit confused.  In these posts by Mr. Levitin he states there is no case law supporting his argument because it hasn't been argued yet in NY.  In the Horace case they do have quite a bit of case law. 

Is there enough case law to make this argument?
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Angelo

I think he means in a foreclosure case, the case law that is cited is trust law cases, but I don't think its been used in securitization trust cases in NY. 

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Bill
After rereading the Horace decision, I had a question.  This was a motion for summary judgment, but they did a deposition of Horace's expert witness Tom Adams. 

Is this common? 

Who has the burden of the costs involved with this deposition?


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William A. Roper, Jr.
Quote:
Bill said:
After re-reading the Horace decision, I had a question. This was a motion for summary judgment, but they did a deposition of Horace's expert witness Tom Adams.

Is this common?

Who has the burden of the costs involved with this deposition?


Depositions are a central part of a program of discovery.

ANY discovery is UNCOMMON in an average mortgage foreclosure case.  MOST judicial foreclosure cases are still undefended and won by default judgment.

When a defendant-borrower actually answers, only a handful of these ever conduct ANY discovery.  Written discovery -- interrogatories, requests for production, requests for admissions and depositions on written questions -- is more economic and often helps to establish some baseline facts which can be a basis for confrontation of witnesses in depositions.

A party is typically going to only get a single shot to depose a particular witness, so the deposing party wants to get maximum impact out of this.  But one can conduct follow-up written discovery and depose additional witnesses, as well.

With depositions, typically each party pays for its own attorney(s) and the party noticing the deposition pays for the court reporter.

Pro se parties almost never conduct depositions.  An experienced attorney is going to eat the typical pro se litigant alive and engage in all manner of discovery abuse if a pro se litigant seeks to do a deposition unaided by an attorney.  Bear in mind that the typical penalty for violations of the Rules and discovery abuse is the opposing party's attorneys' fees which can NEVER be recovered by a pro se litigant.  So in respect of disputes that arise, it is going to be the pro se litigant's word against the foreclosure mill attorneys aided only by the deposition transcript and verity of the court reporter.  But the typical court reporter is going to see the attorney as a possible source of ongoing business and see the employing pro se defendant as a soon to be homeless non-recurring source of business, so the court reporter may prove to be a rather unreliable anchor.  And there will be no sanctions to award based upon the plaintiff's attorney's misconduct.

*

It seems likely in the Horace case that when the defendant laid out its defense, including the securitization argument with the defendant represented by a capable attorney, the plaintiff decided that it wanted to have a go at getting the defendant's expert either disqualified OR to make admissions that would make it possible to prevail. 

Parties would almost never depose their own witnesses, EXCEPT to preserve testimony of a person expected to be unavailable for trial.  In a summary judgment setting, each side will prefer to get their affirmative evidence in by affidavit.  Depositions are typically used to obtain admissions or evidence and/or discredit the opposing witnesses.
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David
It probably makes sense to cross-link this interesting thread recently revived by T-Bill:


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TheEquitableOne
Several cases have come out recently relating to "governing law and jurisdiction." 

 

LIVONIA PROPERTY HOLDINGS, L.L.C.,  v 12840-12976 FARMINGTON ROAD HOLDINGS, L.L.C.,  717 F.Supp.2d 724 (E.D.Mich. 2010)

LARRY R. TALTON and STACIE C. TALTON, v BAC HOME LOANS SERVICING LP, No. 11-14512, United States District Court, Eastern District of Michigan, Southern Division

  It is true that the Livonia Properties opinion contains the statement that "there is ample authority to support the proposition that 'a litigant who is not a party to an assignment lacks standing to challenge that assignment, '" Livonia Properties, 399 F. App'x at 102 (quoting Livonia PropertiesHoldings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 717 F.Supp.2d 724, 736-37 (E.D. Mich. 2010)); but when read carefully the case does not stand for such a general and unqualified position. The Court believes, therefore, that Livonia Properties does not compel the conclusion that a foreclosure plaintiff can never attack the foreclosure by challenging the validity of an underlying assignment.



BANK OF AMERICA NATIONAL ASSOCIATION v BASSMAN FBT, L.L.C., and MAXIMUM MANAGEMENT, LLC,  2012 IL App (2d) 110729

We are cognizant that we have already concluded that defendants are not entitled to rely on the PSA's choice-of-law provision; however, we do not view the application of New York law under these circumstances as an invocation by defendants. Quite simply, plaintiff was a party to a transaction that took place under and contained a choice-of-law provision expressly contemplating the application of New York law. At oral argument, plaintiff suggested that the purportedly significant contacts between the transaction and this state should trump the parties' choice of law in the PSA. This is not the law. See Westchester Fire Insurance Co. v. G. Heileman Brewing Co., 321 Ill.App.3d 622, 628 (2000) (holding that choice-of-law principles control only in the absence of an effective choice-of-law provision). Indeed, giving effect to a choice-of-law provision only when it is consistent with choice-of-law rules would render such provisions ineffective, since they would apply only when (in this state) the most-significant-relationship test already selected the law of the jurisdiction chosen in the choice-of-law provision. Put differently, choice-of-law provisions exist to negate choice-of-law rules. In any event, by participating in transactions under the PSA, it is plaintiff's actions, rather than defendants', that make New York law applicable to this issue. We now turn to the issues raised by the parties.

 

 

 

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David

When thinking about Prof. Levitin's arguments, it is probably also appropriate to remind everyone to read the recent decision of the Alabama Court of Civil Appeals reversing the trial court's decision in U.S. Bank v. Congress:


Congress v. US BANK, NA
, No. 2100934 (Ala. App. 2012)
http://scholar.google.com/scholar_case?case=5456300928636210078

Although this decision did not turn on the Levitin argument, it still has the net effect of putting Levitin's argument back into play in the remand of the earlier decision.

Generally, courts nationally have been holding precisely as Mr. Roper predicted they would, against any Levitin style attacks on securitization.  Still the Congress case is one to watch.

There are also several recent decisions upholding other attacks on assignments which are predicated on theories not central to Prof. Levitin's argument, but which instead focus on Mr. Roper's suggested attacks.  These cases deserve an even more serious look.

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Angelo, I am attorney in Texas and from I have read you are well versed in theses securitiztion documents. Please email me at gene@therosasfirm.com so we may discuss your services and fees or contact me at 210.472.3900.

Quote 0 0
,,,
Gene R. Rosas wrote:

Angelo, I am attorney in Texas and from I have read you are well versed in theses securitiztion documents. Please email me at gene@therosasfirm.com so we may discuss your services and fees or contact me at 210.472.3900.


23 years since Gene R. Rosas was first licensed to practice law.

StateLicense statusYear acquiredLast updated by Avvo
TexasNot Eligible To Practice In Texas198907/19/2012


StateCitation typeYear citedLast updated by Avvo
TexasDisbarment200907/19/2012
TexasActive Suspension200807/19/2012
TexasPartially Probated Suspension200707/19/2012
Quote 0 0
Angelo
,,, wrote:
Gene R. Rosas wrote:

Angelo, I am attorney in Texas and from I have read you are well versed in theses securitiztion documents. Please email me at gene@therosasfirm.com so we may discuss your services and fees or contact me at 210.472.3900.


23 years since Gene R. Rosas was first licensed to practice law.

StateLicense statusYear acquiredLast updated by Avvo
TexasNot Eligible To Practice In Texas198907/19/2012


StateCitation typeYear citedLast updated by Avvo
TexasDisbarment200907/19/2012
TexasActive Suspension200807/19/2012
TexasPartially Probated Suspension200707/19/2012


Thanks ''',

Not that I would ever call that clown.  Now I think I should call the district attorney for Tx and see what he says about the UPL.
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Texas
Angelo

I do not see UPL, but I did drop the clown an email. No response and his phone system is a joke.
Quote 0 0
Angelo
Texas wrote:
Angelo

I do not see UPL, but I did drop the clown an email. No response and his phone system is a joke.


He was disbarred in 2009 and his first statement to me was that he was a lawyer in TX. Ifh e is no longer a lawyer and is claiming such, that wouldn't constitute UPL?

Maybe fraud instead.....
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Texas
He has a Juris Doctorate that makes him an attorney, just not licensed to practice as attorney for the public.
Quote 0 0
Angelo
Texas wrote:
Angelo

I do not see UPL, but I did drop the clown an email. No response and his phone system is a joke.


His first statement to me was that he is an attorney in TX, but he was disbarred in 2009, if thats not UPL was is?  Maybe fraud??????
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Texas

Angelo

Most attorneys I know are idiot clowns looking for the cheap.

Gene Rosas: http://www.texasbar.com/AM/customsource/displayfullstatusinfo.cfm?bc=17244250

Maybe he is in process of restoring his license to practice, unknown to me.

Disciplinary Status
Disbarred
For more information, please contact the State Bar of Texas Office of the Chief Disciplinary Counsel at (877)953-5535
Administrative Suspension
This attorney has been suspended by the State Bar of Texas for an Administrative reason. The suspension may be the result of one or more of the following:
  • Failure to pay Inactive or Active Membership Dues
  • Failure to pay Attorney Occupational Tax
  • MCLE requirements non-compliance
  • Texas Guaranteed Student Loan Default
  • Failure to pay Child Support
  • Failure to take A Guide To The Basics Of Law Practice course
For more information, please contact the State Bar of Texas Membership department at (800)204-2222 ext. 1383
Quote 0 0
Angelo
Angelo wrote:
Texas wrote:
Angelo

I do not see UPL, but I did drop the clown an email. No response and his phone system is a joke.


His first statement to me was that he is an attorney in TX, but he was disbarred in 2009, if thats not UPL was is?  Maybe fraud??????


I beg to differ, an attorney, or attorney-at-law, is a person who is a member of the legal profession. An attorney is qualified and licensed to represent a client in court. By most definitions, an attorney may act on the client’s behalf and plead or defend a case in legal proceedings. The English word attorney has French origins, where it meant “a person acting for another as an agent or deputy."

A lawyer, by definition, is someone who is trained in the field of law and provides advice and aid on legal matters.

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