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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Joe B
Folks-

     I had a friend ask me this question, and didn't know the answer, or what to tell him. However, I knew the place to turn... So:

1. Anybody know who can legally have a document removed from County records (they were assignment papers)?
2. Is it legal to have documents removed?
3. Will there be a paper trail that shows who asked that documents be removed?
4. Anything I can tell him about this?

Thanks in advance!!

JB
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Ohio
You don't give enough info for ANYONE to offer an answer.

It would be helpful to know what the basis for removal is...fraud? mistake?
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Joe, I think once something is entered into county records it becomes public (state) property. If it is erroneous one might be able get it fixed by contacting the entity who filed it and ask for the correction.

A person can file anything into public record. If there is something that is incorrect your friend might be able to file an affidavit into the record attesting to the error along with proof of the error. Erroneous public record can be amended but not erased short of a court order, is my understanding.

There will almost always certainly be notes about anyone who has asked for changes in the record. To do this secretly is probably impossible.

Or so it is in my state, anyway.

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Joe B
O-

     No sweat, I thought I was clear, but apparently I wasn't.

AG-

     Thanks. This was my assumption, that there would be some kind of paper trail to show how or why it was removed, and who requested that it be removed.  

     What is odd is that she has a copy of an assignment from several months ago complete with signature, county seal, and showing the actual page number of the filing. Now it simply doesn't exist, no matter how the search is entered. This seems quite suspicious. So,  I turned to the folks who I figured would know about this possibility.

     Anybody else think this is extremely weird? Thanks!

JB
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Joe B,
That's what I've been trying to figure out..I posted about this on another thread. I dont know what to file to protect myself either...Anyone?>
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You mean that it is not in the county's "main ledger" anymore; yeah, that is extremely weird. Maybe the online site had a meltdown?? I am assuming you are looking online here. Electronic systems are not always what they are touted to be and it may just be a temporary glitch. You can try again later and see if it reappears.

If I had this instance, I would go to the courthouse and ask to see the "real" physical file and see if a copy is in there. Depending on the circumstances, whether it will help or hurt your friend, it might be prudent to make the county refile it with a notation that the "original" filing had evaporated. Only, of course, if it is not in the physical file, either.

Public record has to be addressed in court. Some people file proof of their monthly mortgage payments into public record for that very reason; judges cannot ignore it then no matter how the servicers try to lie. This sounds fishy to me. It might sound the same to a judge.

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Ohio

Who did the searching? your friend or someone in the recorders office? I'd speak to someone in the recorders office directly and in person. If they can't locate it they will know the next step. If your friend has the instrument number it will be easier to do the search.

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~beenawhile
Joe B wrote:
Folks-

     I had a friend ask me this question, and didn't know the answer, or what to tell him. However, I knew the place to turn... So:

1. Anybody know who can legally have a document removed from County records (they were assignment papers)?
2. Is it legal to have documents removed?
3. Will there be a paper trail that shows who asked that documents be removed?
4. Anything I can tell him about this?

Thanks in advance!!

JB
Joe, if there has been a document removed from the County Courthouse Records, there is a problem.

I know this, because the same thing has happened to me.
Last year it was there in the records, 1 month later it was gone.
I went looking for it a second time based off of some advice i received here.

I asked the county clerk where the document had gone, she said she didn't know, She looked into her computer program, and could not find anything for us in their system.

Joe, someone was bought, and for some reason.
I don't know why or what.

I still have not pursued this, been busy doing other things.
Will get to it when i can.

It's illegal for it to be gone, and whats worst, it is not in their system any more.
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Joe B
O and BAW-

     Thanks for the feedback. I will suggest that she head on down to the county herself and review the trail of docs and see if there is anything that tells why or how this may have happened. Thanks to everyone. I had a feeling someone here might now what to do!

You guys rock!

JB
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~beenawhile

Joe B wrote:
O and BAW-

     Thanks for the feedback. I will suggest that she head on down to the county herself and review the trail of docs and see if there is anything that tells why or how this may have happened. Thanks to everyone. I had a feeling someone here might now what to do!

You guys rock!

JB

your quite welcome!
Hope she gets some answers, and let me know when she does, LOL I'll have to know where to start with this issue also.
For now its on the back burner.
Good luck
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Hey Guys,

Might I suggest certified documents from the register's office at your earliest convenience.  These being certified will prove their existence.  Won't work, obviously, after the fact.

Bob
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Joe B.:

Your question is a very interesting one and merits a thoughtful response.  But the ANSWER is going to depend both upon state law of the relevant jurisdiction AND the actual business practices of the county where the recording took place.

Some of the ambiguities of your question as initially framed actually present an opportunity to answer what would be more than one useful question.  Even though you have clarified, I am going to give a LAY answer using alternative interpretations to your question.  Everyone should bear in mind that I am suggesting avenues for research as opposed to proffering any legal opinion.

First, let us consider the situation where something was recorded which ought NOT have been recorded. 

I will offer several examples of this situation, a couple of which I have actually faced.  One example would be where a record tendered for recording fails ON ITS FACE to meet the minimum requisites for recording.  I actually ran across this situation just two days ago in randomly SPOT CHECKING some recorded assignments in Ohio.  I came across an assignment which LACKED the required authentication (notarization), but which had been recorded anyway.  [I should mention as an aside, that I am UNFAMILIAR with Ohio law.  This MIGHT be OK.  But in SOME STATES, notarization or PROOF by two witnesses in open court is REQUIRED for a document to be eligible for notarization.]  One can see where given the volume of assignments, an occasional MISTAKE will be made.

In this instance, if it is readily discernible from the FACE of the record that a document is INELIGIBLE for recording, then it would seem possible that in some jurisdiction that a Recorder of Deeds, Clerk or similar official with the responsibility for recording deeds pursuant to the jurisdiction's recording statutes MIGHT voluntarily REMOVE the erroneous recording.  But one would EXPECT that the official would also probably want to NOTIFY the affected parties.  In any case, the official will no doubt seek a legal opinion from an attorney as to what to do.  I can readily imagine that MANY attorneys might tell the official, DO NOTHING without Court sanction.

If the official fails to voluntarily remove the erroneously recorded document, the alternative would appear to be to SUE the official responsibile for recording, probably also NAMING those affected by the document, asking the Court to ORDER the removal of the document which is ineligible for recording.

IF the official believed that the document WAS recorded erroneously, the official would probably NOT resist greatly, etc.  To the contrary, though embarassed by the error, the official might be happy to be directed to do the right thing and the court order gives assurance that the official cannot be criticized for the corrective action.

Two other instances similarly bear mention.  In one, I am aware of a Texas deed of dubious validity to which was AFFIXED a FRAUDULENT authentication.  We have PROVEN that the authentication was fraudulently prepared AFTER the death of the person who purportedly executed the deed.  The notary has also since been DISCIPLINED for the creation of the authentication AFTER the purported grantor's death!  And yet the dubious deed was accepted for recording by an official who found the purported deed to be regular on its face.

I am aware of another instance where a power of attorney which had EXPIRED and which was also VOID ON ITS FACE for lack of acceptance by the attorney in fact was recorded.  This is a little different an issue.  The document does NOT appear to be a forgery.  But it IS VOID.

In either of these instances, it seems UNLIKELY that the recording official will voluntarily REMOVE the document from recording absent a court order.  The recording statutes do NOT generally impose any duties on recording officials to verify the underlying truthfulness of validity of documents accepted for recording.

So one avenue is to seek a court order for the REMOVAL of the document from the record.  Another in the first instance is to seek a judicial determination of the validity of the deed or in the latter a judicial determination of the validity of the power of attorney.

And yet, one must also bear in mind that under the recording acts of most states the FAILURE TO RECORD or to EXECUTE a document withthe requisites necessary to quaify for recording may NOT affect the validity of the instrument.  That is IF the assignment was VALID, but lacked authentication, then it would be ineligible for recording, but would NOT itself be VOID.  And in this instance, having the recording removed from the record seems to achieve relatively little.

Where a deed was ALTERED by the forgery of a false authentication by the alleged grantee, the deed would in fact appear to be VOID due to alteration.  If a deed is VOID, then it really doesn't always MATTER whether is was recorded or not.  An action to quiet title might be indicated or a judicial determination of the validity of the deed as indicated above.

The same would be the case in the instance of the power of attorney.  IF this power of attorney is critical to a chain of title, it is the recognition of the instrument's VOIDNESS that is really the central issue.  The recording really is only the public notice of this instrument.  The instrument clouds the title.  The recording clouds the title.  Putting the genie back in the bottle after it has been let out is problematic.  The public is NOW on notice of a dubious docuent.

Overall, anyone facing this situation should consult an attorney and look to the jurisdiction's statute of frauds (which will specify the requisites for a valid instrument), the recording acts (which will specify the requisites for recording), statutes relating to the authentication of documents, and statutes pertaining to the responsibilities of government officials responsible for the records.  Of course, case law also would be consulted interpretting these various laws.

Finally, I want to add that a CORRECTNG RECORDING of some sort, including the recording of an affidavit stating additional facts as to the erroneous or missing records might be indicated.  This would create a NEW record and put people on notice of it!

* * *

The second interpretation of your question relates to what to do when something WAS properly recorded and found within teh record and later seems to simply DISAPPEAR.

Everyone should bear in mind that when it comes to public recording what really HAPPENS is that the original instrument is presented to the officials to be enterred into the record and thereafter it is COPIED into the public record.  The original is then usually returned to the grantee. 

The EARLIEST recordings involved HAND COPYING of instruments from the original into the jurisdiction's bound record book.  And in periods before copying became instant and economic, there was usually no BACKUP COPY or archive.  The County record book WAS the record.  When a county court house burned down and the records were destroyed, holders of deeds were invited to bring the originals back for re-recording.  Needless to say a courthouse fire was a disaster.  Genealogists are well familiar with records destructions challenges presented by these disasters.

As MICROFILM came into widespread use in the last century, paper records were routinely microfilmed as a part of an archival and disaster recovery plan and the microfilm OUGHT TO BE stored OFF-SITE separate from the primary records.  But microfilming might not be contemporaneous with the creation of the original copy of the record.  Practices varied widely.

Since the advent of better copying technologies, the instrument is usually duplicated by some good copying technology.  Some sort of backup record is also typically made (in the old days, Microfilm).  Many states have laws relating to retention, archival, backup and destruction of public records.  THese laws may SPECIFY the actual archival and backup requireents.

More advanced counties with large recording volumes have now mostly moved to some sort of digital imaging.  Counties with smaller populations and smaller transactional volumes have sometimes clinged to older ways of doing things.  But the technology employed is VERY uneven.  In some large urban counties, offical have clinged to old ways of doing things because the departments are PATRONAGE HAVENS for the party in power (a great place to HIDE people on padded payrolls).  There are large jurisdictions doing thing manually or using older automated technology and small jurisdictions with technology saavy official embracing newer recording and imaging technologies.

Having set forth this framework, it seems to me that the questions you OUGHT TO BE ASKING INCLUDE: 

  • Is there a computerized RECORD of the PAYMENTS OF RECORDING FEES and the INSTRUMENTS recorded? 
  • Is there a computerized INDEX of the recordings?  How is this Index BACKED UP and where are both precautionary and archival backup copies kept?
  • Is there a BACKUP COPY of the recorded IMAGES?  Where is the backup copy stored and are older backups retained?
It seems inconceivable to me that any responsible public official would NOT have a disaster recovery strategy for courthouse records to include recovery of a backup INDEX and a BACKUP OF IMAGES of recorded documents (See the topic "Backup" at Wikipedia http://en.wikipedia.org/wiki/Backup .  There are disaster recovery firms that specialize in this.  Recovering data from backups CAN be expensive though!

IF a record WAS recorded, one would EXPECT IT to make its way onto a backup of the Index and a backup of the images.  One needs to distinguish between precautionary and archival backups.  The county should be taking BOTH.  The precautionary backups should probably be being done DAILY.   Precautionary backups very often are done on an incremental or differential basis to minimize the time and resources necessary to complete such a backup ( http://en.wikipedia.org/wiki/Incremental_backup ). 

IF a record was DELETED BEFORE it found its way to an archival backup, it might be irretrievable AFTER the regular precautionary backup cycle runs its course.  But IF the record found its way onto an archival backup, it OUGHT TO persist for some time!  (That is, of course, the PURPOSE of an archival backup!)

The first of the bullet questions shown above bears elaboration.  Separate and distinct from the INIDICES will be ACCOUNTING RECORDS reflecting the recording.  I have found that in some Texas jurisdictions helpful employees in the County Clerk's office can produce FROM THE ACCOUNTING RECORDS a DUPLICATE RECEIPT using the recorded document number. 

This proved very helpful in the instance of the deed with the fraudulently forged AUTHENTICATION mentioned above.  This receipt showed us the name of the LAW FIRM that submitted the document for recording and even the CHECK NUMBER they had used.  Before that, the other party in the litigation claimed NOT OT KNOW who had recorded this forged document!

IF the legacy document number is KNOWN, I would START THERE with the ACCOUNTING RECORDS.  Use the document number to ASK FOR a duplicate RECEIPT.  That gives a little initital traction as to the fact that the document actually EXISTED.

Bear in mind that IF the document was REMOVED without authorization, this may very well have been a CRIME.  An HONEST public official in a supervisory position OUGHT TO BE very interested and concerned about investigating such an alteration of the records.  As with any matter you seek to investigate, bear in mind that asking questions has second and third order effects.  If the senior official was complicit in the alteration of records, that person may also be in a position to effect a cover-up. 

Depending on the value of the altered or missing record, it may or may not be economic to litigate.  If litigating, then an attorney would be wise to get some immediate discovery underway as to the nature and character of backups, etc.

I would think that an HONEST official would almost surely WANT to cooperate AND ought to be able to find a COPY of the missing record on backups.   

Feel free to correspond with me directly for additional idea and thoughts! 
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Moose
Joe B wrote:
Folks-

     I had a friend ask me this question, and didn't know the answer, or what to tell him. However, I knew the place to turn... So:

1. Anybody know who can legally have a document removed from County records (they were assignment papers)?
2. Is it legal to have documents removed?
3. Will there be a paper trail that shows who asked that documents be removed?


The Clerk's office is immune from any request for a "removal" with the sole exception of a court order, which will itself be recorded.

Joe B wrote:
4. Anything I can tell him about this?

Thanks in advance!!

JB


In the jurisdictions I'm aware of, the act of removal of a recorded document by an employee is a felony. Some states call it tampering with public records, others have a variety of terms. If someone asked them to do it you can add conspiracy charges for both parties. I'm not saying that's not possible, but the chances are much more likely that it has been misplaced, misfiled or someone's memory is faulty.

Moose
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Originally Posted by Moose at 4:58 PM 29 Nov 2007
In the jurisdictions I'm aware of, the act of removal of a recorded document by an employee is a felony. Some states call it tampering with public records, others have a variety of terms. If someone asked them to do it you can add conspiracy charges for both parties. I'm not saying that's not possible, but the chances are much more likely that it has been misplaced, misfiled or someone's memory is faulty.


I would weigh in that I AGREE with Moose as to the maximum likelihood.  The possibility that the record has been misplaced or misfiled should NOT be underestimated.  Particularly in the case of advent of digital images, an eggregious error in INDEXING may make a record disappear.

When you are searching be very careful to AVOID OVERSPECIFICIATION of search parameters.  For example, you may KNOW that you are looking for a 1998 record.  But if the date was mistranscribed as 1989, by specifying 1998, you will assuredly NEVER find the record.

Experienced title searchers KNOW not to overspecify.  Less experienced searchers will often make this mistake.

Subtle differences in abbreviations can make a BIG DIFFERENCE in search results.  I was recently searching a county records web site under "NEW CENTURY MORTGAGE" for a particular time frame.  There were a LOT of search hits.  I was satisfied with my work until I happened to try under just "NEW CENTURY".  It turned out that I had MISSED a large portion of the possible hits because MANY of the records in that jurisdiction had been INDEXED under "NEW CENTURY MTG."

Based upon what you KNOW about the missing instrument, do alternative searches that are MORE PERMISSIVE with each possible search term.  Overspecifying the record type is particularly problematic as many jurisdictions have soem enormous list of record type choices in a standard drop down menu, but local practice has records CODED as to record type in unusual or unexpected ways.

I would certainly do a really, really thorough search before I CONCLUDED that a record is really MISSING.  This would even include OMITTING any grantor and grantee and seaching solely on the record date if this is actually KNOWN.

Finally, I would add that more than one set of eyes can be helpful.  Give the record details to someone else and challenge THEM to find the record.

*

One additional afterthought to the discussion in my prior post is that some jursidcitions have title abstract companies that regularly pull ALL grantor-grantee data from a county or group of counties and then maintain their own separate copies of the record database.  This used to be a more valuable service before certain aspects of automation became so inexpensive.  The abstract company furnished a value added version of the public record data by making the data more readily accessible.

I mention this because IF such an arrangement existed in the locality which is of interest to Joe B.'s friend, the Abstract Companies would then be another possible place to go to learn MORE about the missing record!

*

As to Moose' first asserted point, I am inclined to AGREE that records are unlikely to be altered after recordign EXCEPT by Court order, but I am less inclined to believe that officials are universally PRECLUDED from doing so if it is readily apparent from the face of the record that a mistake was made and that the record was INELIGIBLE for recording.  But whether PRECLUDED by law or not, I believe that risk aversion and inertia will have this EFFECT.  And I believe that most attorneys, when in doubt, would tell the official to DO NOTHING to alter the record absent a court order.  But I am making this assertion based upon business and real world experience, as opposed to any legal research.  AND as I have repeatedly cautioned, I am NOT an attorney, so EVERYTHING expressed in my LAY opinion. 

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srsd

I went to our probate judges office a few days before our house went into foreclosure to get a "stamped copy" for a lawyer and our docs were not on file. All of our other property was listed but not the one that Ameriquest was involved with.  I had 2 people at the office check and we made copies of everything that was on file...everything was there except that one record.

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Originally Posted by srsd at 4:58 PM 29 Nov 2007
I went to our probate judges office a few days before our house went into foreclosure to get a "stamped copy" for a lawyer and our docs were not on file. All of our other property was listed but not the one that Ameriquest was involved with.  I had 2 people at the office check and we made copies of everything that was on file...everything was there except that one record.


What was the nature of the missing record and what were the implications of the fact that this record was missing to your case??  Did you have another "non-certified copy" of the missing record?  Has the record turned up since?  What is the basis for your belief that the missing record was ever recorded?

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srsd

I have an attorney and he wanted me to send him a "stamped copy" of the mortgage that is on our property. I do have the copy of the mortgage that was left with me. he wanted to compare the 2 copies because there are several things wrong with the copy that I have. I don`t know if it was ever recorded but since our house was foreclosed on, it looks like someone somewhere had to have a copy. I know it was not on file on Oct 23 or Oct 24th. I am going to check and see if I can find anything else about what happened to our record and if it is on file now.

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