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. Show full post »
Bill
ka wrote:

Quote:
If a plaintiff has attached a unindorsed copy of the note as an exhibit to its complaint, there is a lot of case law in most places that this is a judicial
admission
that the note was unindorsed at commencement and the matter
probably ends there, at least on the first outing.

 

In elaboration of this point, see Mr. Roper's post:

 

Judicial Admissions -- Exhibits Control Over Allegations In Pleadings: Khan v. Bank of America

http://ssgoldstar.websitetoolbox.com/post/Judicial-Admissions-Exhibits-Control-Over-Allegations-In-Pleadings-Khan-v.-Bank-of-America-5179188

 

"While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation.   When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla 2d DCA 2000)."

Khan v. Bank of America, N.A., Case No. 5D10-3288, FLorida Court of Appeals for the Fifth District, Opinion Filed April 8, 2011.
http://www.5dca.org/Opinions/Opin2011/040411/5D10-3288.op.pdf

Defendants can WIN with Mr. Roper's arguments!  Or they can just get swindled by the scammers who continue to spread false information and myths to perpetrate their frauds.


This is the kind of decision that makes me bang my head against the wall.  This is NOT a NEW argument.  This is NOT an anomaly.  The failure to plead an endorsed note seems standard operating procedure.  I have seen notes attached to the complaint that were endorsed, but this is defiantly rare.  Mr. Roper has been making this argument for YEARS but it is never made.  Too many lawyers FAIL their client.  They fail to attack even the most basic deficiencies over and over. Evidence issues and procedural failures are the TRUE winning arguments. You will NOT prevail on the MERITS.  

Homeowners and attorneys get so wrapped up in securitization arguments attempting to PROVE the bank doesn't own the note instead of following the basic principal that the plaintiff has the burden of proof.  Mr. Roper beat this to death.  THE PLAINTIFF HAS A PROOF PROBLEM.  Let THEM PROVE they can enforce the note.  All you have to do is poke holes in this assertion.  This isn't your burden to prove.


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t

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What I'm try to figure out is with the billions of loans that were securitized and servicers were changing hands like underwear, along with the foreclosure mills handling tons of documents, what is the probability that important papers get lost, misfiled, etc.  That is where I think the problem lies, If there is truly a document custodian for all of these notes, how big is that vault or warehouse that houses them. 

 

Angelo -

 

The probability that institutional custodians lost the note or mortgage is essentially ZERO.

 

The servicer doesn't have these documents.  The are in the custodial file.  The servicer does have digital copies of all of the other documents in the loan file.

 

Yes, the vaults are enormous.  The institutional custodians are well compensated of the protection and custody of these documents.  There are careful and elaborate procedures in place for tracking and protecting these documents.

 

This is not to say that the documents cannot be lost or misplaced.  But it would NEVER HAPPEN at the institutional custodian.

 

IF such documents were lost or misplaced, it would be while in the custody of the servicer or the foreclosure mill after foreclosure is initiated.  The note would be requested in writing by the servicer.  The servicer would agree to accept responsibility for the instrument.  It would be accompanied by a bailee letter and would be sent by courier insured.

 

Similarly, the servicer would REQUIRE the attorney to accept responsibility.

 

What you are missing here is that the elaborate procedures and the requirement that a bailee accept responsibility is precisely the reason that the foreclosure mill doesn't want to bother with the original.

 

There are three advantages to the foreclosure mill in using a copy rather than an original:

1.  Speed.

2.  Cost.

3.  Liability.

Inability to find or produce the original is NEVER an issue!  Period.  End of subject.

 

If you remain fixated trying to prove something that is UNTRUE, then you are almost certainly going to LOSE YOUR CASE.

 

If you really know and correspond with Mr. Roper, ASK HIM.  This is not a matter about which there is the slightest doubt.

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In Florida , if the Bank refiles the foreclosure lawsuit, the lawsuit must be verified. It means that the Bank and its lawyer must swear to the Judge that they have real standing or else the lawyer can be sanctioned. With all the securization issues, many times no one is sure who is the real owner of the notes so they haven't refiled or they try to settle.

 

Win a dismiss even without prejudice is  already a big step forward.

 

 

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t

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Win a dismiss even without prejudice is  already a big step forward.

 

And yet, if a borrower can be confident of getting the initial suit dismissed for lack of standing, it is probably better to draw the matter out as long as possible.  This may create additional evidentiary challenges for a lender when the servicing rights are sold and can get a borrower closer to limitations!

 

What's the hurry?

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In Florida, the foreclosure road map is as follows:

 

1 - Summon with Bank complaint

2  - Defendant Motion to Dismiss or Answer

3  - If MTD granted , lawsuit stops.

4. - MTD denies, Defendant has to filed Answer

5. - Bank usually files Motion to Summary  Judgment next and set hearing date.

6.  Defendant file discovery and Motion to Oppose MSJ before hearing

 

Depend on how rapidly the Bank lawyer's  response to Discovery, the MSJ hearing date can be delayed for sometime.  But the MSJ hearing will be inevitable at some point except in some cases the defendants have good lawyers, the Bank cancelled the hearing , settled or voluntarily dismiss the case. You can delay by depose plaintiff & witnesses, file more discovery. Each deposition can delay the case few weeks  but eventually the hearing will happen. It is similar to bench trial, the judgment is nearly impossible to reverse on Appeal.

 

Pro  Se often lost at MSJ hearing, no matter what they write  in their Opposition to MSJ. Lawyers sometimes lost MSJ too if the Judge is tough.

So don't go to MSJ hearing without a GOOD lawyer. However, put all the defenses you can find on the Motion to Oppose Summary Jugment so there will be bases for appeal.  Strike ALL the Bank's Affidavit. The next step is Bankruptcy or Appeal Court.

 

So make sure you get the right lawyer for your case. Measure the financial cost of fighting in court to decide if it is worth it to pay thousands of dollars to lawyers. Or just delay, delay, delay as long as you can to save money and move forward..

 

Here are some legal defense ideas and pleadings samples at

http://www.foreclosureprose.com

http://www.scribd.com/my_document_collections

 

Best wishes

Not a legal advice. Consult a lawyer

 

 

 

 

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HungarianProse

Here is a question for everybody, if the allonge is not fixed to the alleged original Note, is that makes that Note just a copy and not the original?

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Perplexed

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Here is a question for everybody, if the allonge is not fixed to the alleged original Note, is that makes that Note just a copy and not the original?
 

Huh? 

 

If the original price tag is removed from your new gold Rolex watch, is it no longer actually a Rolex, but rather a base replica?

 

If you remove the tag from your feather pillow that say "Do Not Remove Under Penalty of Law" with the goose down turn to foam?

 

If the license plate is removed from your car, will it no longer be a Chevrolet?

 

If you steal the identifying plaque beneath the original of the Mona Lisa, will Da Vinci's famous painting no longer be an original?

 

The possibilities associated with your reverse alchemy seem to be endless.

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John Lewis

I have a ? for HungarianProse: why did you ask your ?:

 

quote: "if the allonge is not fixed to the alleged original Note, is that makes that Note just a copy and not the original?"

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Walt

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Here is a question for everybody, if the allonge is not fixed to the alleged original Note, is that makes that Note just a copy and not the original?
 

In order for there to be a valid negotiation constituting the transferee as holder with a right of enforcement, there must be a valid indorsement and delivery.

 

In order for there to be a valid indorsement, the indorsement must either appear on the face or back of the instrument OR be affixed to the instrument upon an allonge.  If the allonge is not affixed to the instrument, then the instrument has not been validly indorsed.

 

If you observe the original instrument and original allonge and the allonge is not affixed to the original note, then the note has not been indorsed.  Therefore, no negotiation has occurred.  Whether a copy of the allonge is affixed to a copy of the note is irrelevant, though a missing allonge may imply that the note was unindorsed at the date of the copy.

 

If you are foolish enough to simply inform the plaintiff of this defect then the defect can be instantly cured with a staple.  Boy, you really showed them, didn't you!  You pointed out a missing staple, they went and got a stapler and now you are homeless!  Brilliant!!

 

If given the opportunity to inspect the original instrument, there are several procedural safeguards which ought to be employed.  First, ALWAYS BRING AT LEAST ONE AND PREFERABLY MORE THAN ONE RELIABLE WITNESS TO INSPECT THE NOTE.  Second, bring a camera.  Third, COACH the witnesses in advance NOT to say or do anything to call attention to the missing staple.  Fourth, photograph the note before touching or otherwise handling the instruments.  (Realize that you might be accused of removing the staple!)  Fifth, have one of the witnesses take photographs while the inspection is underway.  Include the witnesses as well as the instrument in the photos.  Sixth, AFTER completing the inspection, privately debrief the witnesses and have each review and inspect the photographs taken.  Seventh, get each witness to immediately sign an affidavit attesting to the fact of their inspection and the fact that the staple is missing.

 

DO NOT HARBOR ANY ILLUSIONS THAT THE MISSING STAPLE IS GOING TO ULTIMATELY PREVENT AN ENFORCEMENT OF THE NOTE AND A COMPLETED FORECLOSURE.  TO THE CONTRARY, ABOUT THE BEST OUTCOME (ABSENT OTHER ISSUES AND MISCHIEF IS A DISMISSAL DUE TO LACK OF STANDING.  THEN THE PLAINTIFF STAPLES THE ALLONGE TO THE NOTE AND RE-FILES THE SUIT, CREDITOR'S CLAIM OR MOTION FOR RELIEF OF STAY, ETC.

 

The missing staple is a speedbump rather than a barricade.  As noted by Perplexed, whether the allonge is affixed has no effect whatsoever on the fact of whether the note is an original or whether the note is valid and enforceable.

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J

quote 'Walt': "The missing staple is a speedbump rather than a barricade."

 

are there any 'barricade's' available, or, is placing one 'speedbump' after another and then another till there's no more 'speedbump's' available? ~ is that the primary objective/goal? 

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George Burns
You are seeing it from the wrong angle.

In "The missing staple is a speedbump rather than a barricade." the "speedbump" was placed by the Plaintiff.

The Defendant should not be placing speed bumps, but rather ensuring that the Plaintiff's "speedbumps" are used to slowdown the Plaintiff's progress. That is, of course, assuming that the objective is to delay the action.

On the other hand, " barricades" which serve to steer the Plaintiff in a particular direction, including driving over the "speedbumps", should be used whenever possible, but strategically.


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J

George Burns, understood, thanks for the clarity!

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A Two Million Unity Rally Aimed at Gathering Together America’s Disenfranchised Middle Class, including labor unions, the unemployed, and progressive groups; to address various urgent issues afflicting them including: unemployment, anti-labor laws, women’s rights, gay rights, separation of church and state and fraudulent bank foreclosures, is currently in the planning stages by various power movements. If successful, this would be the largest rally in the history of the United States of America. The rally is being planned for October, before the 2012 elections. http://solidarityus.org

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J

First, HungarianProse, thank you for your question as it has generated quit an 'educational' discussion!  Jim your response, along with that of George Burns, certainly added a 'new dimension' to not only the 'allonge' but 'overall strategy'. TU!

 

Secondly, isn't it nice to have an on-going discussion without the 'Anh' distraction?  I hope it stays that way!

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Ka wrote:

//////////////////////////////

What of the allonge showing another different indorsement?

 

Well, the plaintiff is going to tell the court that this allonge simply doesn't matter.  That works pretty well if there has never been any authentication of the allonge.  But if one or more witnesses have authenticated the allonge and sworn to its genuineness, this presents a real problem for the plaintiff.

 

The plaintiff has (a) fabricated evidence, (b) presented the court with a perjured affidavit authenticating the allonge, etc.

 

Go back and look at Mr. Roper's suggested discovery questions! 


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Can you please provide a link to those discovery questions? I am not sure whach thread you are referring to. Thank you!


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J

Defensive Discovery: Starting Off On the Right Foot!

 

http://ssgoldstar.websitetoolbox.com/post/Defensive-Discovery-Starting-Off-On-the-Right-Foot!-4893757

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&!#$

Quote:
Defensive Discovery: Starting Off On the Right Foot!

http://ssgoldstar.websitetoolbox.com/post/Defensive-Discovery-Starting-Off-On-the-Right-Foot!-4893757

    

 

Defensive Discovery: Starting Off On the Right Foot!

 

Thanks, J!

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Thanks for the discovery link, it is very helpful.

If you somehow successfully proved that an allonge was defective or fraudulent, is that fatal to the other side? Let's say the lending parties are still around (not defunct). Can they go back and get the proper chain of indorsements for the note done correctly? Or is it too late at that point? Thanks.
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J

William A Roper Jr:

 

The Folly of Attacking Rather Than Embracing the Assignment Forgery: Harvey v. Deutsche Bank National Trust Company

 

http://ssgoldstar.websitetoolbox.com/post?id=5374903

 

 

Mr. Roper's:

 

Alteration of Instruments

http://ssgoldstar.websitetoolbox.com/post/Alteration-of-Instruments-5057829

 

and, I would strongly urge ALL to read:

 

William Roper Summary

http://ssgoldstar.websitetoolbox.com/post/William-Roper-Summary-5006356

 

Also, it would be in your best interest to ignore any post authored by MikeH, Ann or Anh or unregistered.  It is a waste of energy and mostly incorrect material.  But to each their own....

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t

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Also, it would be in your best interest to ignore any post authored by MikeH, Ann or Anh or unregistered. It is a waste of energy and mostly incorrect material. But to each their own....

 

Amen!

 

As bad as the material is posted by swindler Mike H., the material posted by SPAMMER Anh is clearly worse because it gives the appearance of being legitimate while misleading distressed borrowers into using crooked lawyers she celebrates or vacuous arguments that these inferior lawyers post to entrap borrowers into their swindles.

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