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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If some knowledgeable person out there could answer a few questions on assignments.  Deed of Trust    Grantor:  Me and  Grantee: XX Trustee and YYY Mtg Co.  THEN next assignment:  Assign of Deed  Grantor:  MERS and Grantee:  Wells.  My question here is how can MERS appear an assignment when it was not listed in the previous assignment?  Shouldn't MERS have been included in the first assignment in order for this to happen?  MERS is on the DOT as beneficiary.  Shouldn't the chain be A to B, B to C, C to D, D to E?

Second question regarding appointment of successor of trustee.  Grantor:  Wells and Grantee:  New Trustee.  I understand this assignment makes them the new trustee on record and but also does this assignment also assign the DOT to them?   There is wording that says is appoints them as successor trustee under the deed of trust will all powers of the original trustee.  It also states new trustee is the owner and holder of the obligation secured by the subject DOT and is not holding the same as security for a different obligation.  Can someone please clarify this for me.

I should also state that the foreclosure is in non-judicial state.  Thanks for your help in advance.  I understand that anyone answering is giving there own opinion and no legal advice.  
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Hi All

My assignment was from Sand Canyon Corp to US BAnk Trust in 2010.

Not sure how a company that when out of the mortgage business per the company President's Federal Bankruptcy chapter 13 deposition in Louisiana in March 2009 could actually assign a mortgage to a trust in 2010?

I think I'll ask the court the same question.

Best regards

Acesfull
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Bill

acesfull wrote:
Hi All

My assignment was from Sand Canyon Corp to US BAnk Trust in 2010.

Not sure how a company that when out of the mortgage business per the company President's Federal Bankruptcy chapter 13 deposition in Louisiana in March 2009 could actually assign a mortgage to a trust in 2010?

I think I'll ask the court the same question.

Best regards

Acesfull

I think it's important to take evidence flaws like this very slowly and let them sink in.  You really need to make the proper argument and NOT show your hand too early.  It is VERY easy to minimize the importance of a MERS assignment because it was just a paperwork mistake or simply memorialized a prior transfer.   

Rather than take them to school and point out this mistake, it may be far more useful to have the Plaintiff EMBRACE the assignment.  Asking them questions that force them to take a position UNDER OATH is usually important.

For example, if the assignment from MERS is post commencement, and the assignment is void because MERS really wasn't an agent of the originator, it would appear the Plaintiff does NOT own the mortgage. 

IF this post commencement assignment transfers the mortgage AND the NOTE this raises many more questions about WHEN and IF was the note negotiated to the Plaintiff. 

IF you combined a complaint in which the note attached was NOT endorsed, but they NOW claim to have an original that is endorsed, it would raise questions about how could a defunct company endorse a note, when was it endorsed, who endorsed it, when was it negotiated, was it part of the bankruptcy estate, was there fraud involved in obtaining the note, ect.......The list goes on and on.  Everyone's facts in their case are different. 

The key is making a good argument at the PROPER TIME.  You really need to have your ducks in a row.

While all these arguments seem to GUARANTEE the homeowner of sure victory, even if you make well researched, written, arguments and prevail, you would only DELAY a foreclosure.   These COULD show a lack of standing but would only end up with a dismissal without prejudice.  The Plaintiff would be free to refile with these problems FIXED. 

The ultimate goal would be to have the Plaintiff perjure themselves and enter fraudulent documents to support their position.  You make this far more difficult for the Plaintiff if you show how sophisticated you are by PREMATURELY attacking an assignment FORCING them to GET the REAL EVIDENCE supporting their position.   Mr Roper has several good threads on strategy, timing, and taking the opposition to school.  Read the old posts.








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ka

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If some knowledgeable person out there could answer a few questions on assignments.  Deed of Trust Grantor:  Me and  Grantee: XX Trustee and YYY Mtg Co.  THEN next assignment:  Assign of Deed  Grantor:  MERS and Grantee:  Wells.  My question here is how can MERS appear an assignment when it was not listed in the previous assignment?  Shouldn't MERS have been included in the first assignment in order for this to happen?  MERS is on the DOT as beneficiary.  Shouldn't the chain be A to B, B to C, C to D, D to E?

 

Need to know:

 

There are a lot of people who are either misinformed or seeking to deceive with regard to the role of assignments.  And there also seems to be much confusion about the legal efficacy of assignments which seem to be defectively drawn or to be of questionable authority or validity.

 

Generally, the posts of Mr. Roper on this subject are the best sources of useful information about assignments at this Forum (use the search feature).

 

But it is helpful to retreat to some really basic law of real property to understand and appreciate the role assignments play.

 

The first central idea is that an assignment is a means of conveying an interest in real property.  In this regard, assignments are very much like deeds.  For this reason, usually in most places, assignments have to conform to the requisites of a state's statute of frauds.

When thinking about real property very often students are encouraged to think not in terms of a right, but rather as a bundle of rights.  A study of ancient texts on the law of real property, such as Blackstone's Commentaries on the Laws of England (readily available online for free) shows the variety of rights that might be involved.

Permit me to share just a few by way of illustration.  In antiquity, it was quite common for interests in land to be granted for the lifetime of the grantee.  That is a Lord or Baron might vest in some knight or other trusted friend or subject the right to inhabit and use a tract of land for that person's lifetime only, with the land thereafter reverting to the grantor.

 

When this was done, the grantee received but a life estate in the land, while the grantor retained a reversionary interest.  So what might have once been one unified interest in the tract of land becomes two interests.  These might be reunited in the grantor or the grantor's heirs or assigns after teh grantee's death.

 

The grant of a leasehold estate is a similar fractional interest in land.  The lessee is given the right to occupy and to the enjoyment and use of a tract of land for a term, while the ownership of the parcel remains vested in the grantor.  The grantor owns the land and is entitled tothe lease rents, but during the term of the lease is not entitled to enter and occupy the land which right has been vested in the lessee (except as expressly provided fro in the lease).

 

Similarly, an owner of land might grant another an easement to make some partial use of the land, without actually owning it.  In antiquity, easements would have primarily been for highways, roads or pathways.  But easements might extend to rights beyond merely crossing the land, such as an easement to cross to a well and to draw water from the well, or a right to cross another's property to reach a freshwater spring or a navigable stream or river, either for transportation or navigation or to draw water, wash cloths, or anything else that neighbors might agree to allow.

 

Easements might be at will, for a term or perpetual.  The easement itself might be associated with a neighboring parcel or could be independent of it.

 

Yet another variant is for mineral rights to a parcel to be deeded separately from the ownership of surface ownership rights.  This isn't particularly common in urban residential areas, but is quite common in rural areas where subsurface oil, gas, coal or minerals might be present, whether actually produced or not. 

 

I use these examples to illustrate a variety of ways in which someone might share various interests in a particular parcel of real estate.

 

A mortgage or a deed of trust is simply another such interest.  The grantee of the mortgage or deed of trust obtains a security interest in the property pursuant to the terms of the mortgage, deed of trust or other security instrument. 

 

Conveyance of Interests

Generally, when one conveys a fee interest in a parcel of land, this is usually done by written deed, though this is not the exclusive method.  One would similarly deed mineral rights.

 

One more commonly refers to the assignment of a lease, when the lease allows for such an assignment.

 

With a mortgage or a deed of trust, the means of transfering an ownership interest in the mortgage, deed of trust or other security instrument is usually an assignment rather than a deed.  And in most places, it would be appropriate for the owner of the mortgage or deed of trust to be the grantor of such an assignment.

 

Forum contributor Bill has emphasized in a number of posts that the mortgage or deed of trust automatically follows the note and this is partially, but not completely true.  What is true is that the equitable right to the mortgage or deed of trust follows the note.  As is shown within the Ibanez decision, but which is also actually the law in most other places (though this seems to be mostly forgotten) is that the legal title to the mortgage or deed of trust remains vested in the original grantee, absent a written assignment.

 

So if A is the owner and holder of a note as well as the grantee and owner of a mortgage or deed of trust, A's valid negotiation of the note would typically carry with it an equitable right to the mortgage or deed of trust.  The legal title to the mortgage or deed of trust would follow with a written assignment.

 

Good practice would be for the written assignment to be made concurrently with the negotiation of the note.

 

Standing

Here it is helpful to note that if a note was validly and successfully negotiated to a subsequent mortgage investor or other holder and that subsequent holder was a valid holder under the UCC at the commencement of a judicial foreclosure action, this holder would seem likely to have standing at the commencement of the suit, at least in respect of the first count of a typical complaint, which is usually a count for a judgment on the note.

 

Very often, the foreclosure complaint contains a second count seekign foreclosure of the mortgage.

 

If the plaintiff was a valid holder at commencement, then it is unlikely that a defendant would be entitled to the dismissal of the suit due to a lack of plaintiff standing.

 

By contrast, if a plaintiff was only the holder and lacked any interest in the mortgage or deed of trust at commencement, a defendant might be entitled to a dismissal of the second count (foreclosure) only.  And if the plaintiff later obtained a valid interest in the mortgage or deed of trust after commencement, then the plaintiff would usually seem to be entitled to amend its complaint to add back in the foreclosure count.

 

For this reason, Bill is correct to focus on the plaintiff's right as holder to enforce the note.

 

MERS Mortgages Including MOM Mortgages

There are two ways that MERS becomes a mortgagee of record for mortgages and deeds of trust.  The original way was for the mortgagee (Lender / Original grantee) to assign the mortgage to MERS after the mortgage or deed of trust was executed.

 

Later, MERS developed a form language to insert into the instrument naming MERS as a mortgagee or beneficiary under the original mortgage instrument.

 

The language as to MERS differs slightly from place to place, but is mostly uniform within a particular state.

 

These latter mortgages are described by MERS and its members / customers as "MERS as Original Mortgagee" or "MOM" mortgages.

 

When there is no language describing MERS in the original instrument, MERS would have NO INTEREST in the mortgage or deed of trust, absent a valid written assignment of that interest.  By contrast, when a MOM mortgage is used, it is MERS' and the industry's position that MERS is the mortgagee of the mortgage or deed of trust.

 

Given the facts you indicate in your post, the first thing you need to do is to carefully read the exact language of the deed of trust to see if MERS is mentioned therein.  If MERS is expressly mentioned, then you have a so-called MOM deed of trust.  If it is NOT mentioned, then MERS could only have acquired an interest by assignment.  When you say in your post that MERS is on the DOT as beneficiary", this seems to indicate that yours is a "MOM" deed of trust.

 

If MERS is NOT shown in your original deed of trust, there exist several possibilities as to the situation you otherwise describe.  I am going to dispense with discussing these because it seems that yours is likely to be a MOM deed of trust and that would seem to be the end of the matter.

 

Your question as to the validity and efficacy of the MERS assignment doesn't end there, though.  The precise language appearing within the instrument may indicate that MERS is acting solely as nominee for the Lender.  This can be problematic, particularly when the originating Lender is no longer in business.

 

A question exists as to whether the language in the deed of trust makes MERS the owner of the deed of trust with an independent right to convey or whether merely as nominee (agent) of the Lender whether any right is extinguished with the demise of the Lender.

 

Unfortunately, the cases which seem to show some question about the authority of MERS to act for a defunct principal are most not in non-judicial foreclosure states.

 

And distressed borrowers in non-judicial foreclosure states have, to date, had very little success in resisting foreclosures, EXCEPT very recently in Nevada.  Distressed borrowers have generally had the greatest success in non-judicial foreclosure states in resisting foreclosure defensively within U.S. Bankruptcy Courts.

 

Other approaches to foreclosure defense in non-judicial foreclosure states, such as seeking a TRO have been mostly ineffective.  You might be able to buy a little time this way, but hardly enough to pay for the attorney. 

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Hi

The plaintiffs are referencing this assignment in there complaint.

US Bank National Trust number XXXX I will list the trust number at a later time.

Plaintiffs make reference to the assignment on two occasions.

1-In the complaint count # 4

then again in plaintiffs admissions propounded upon me.
to state.

The assignment listing Sand Canyon Corp assigning mortgage number XXX to US Bank Trust on April 2010 was recorded on date XXX and is listed in book XXX page AZZ in the county records office.

Admit  Deny

ADMITTED


Now I have an admission that is listed with the county recording office.

The Sotimoro deposition where he declared that Sand Canyon was no longer in the mortgage business either by servicing, writing or holding any real estate
mortgages was March 18th 2009.

I am not quit sure when to spring this piece of information on the court?
Or if I should even bring it to the courts attention.
My strategy is to win a summary judgment on plaintiffs lack of standing with other evidence that I now have. If I am unsuccessful at the local civil level then I will retain BK counsel and I am sure this fraudulent assignment will be uncovered in BK court.

I am simply looking to extend the whole process, not acquire a free and clear home however that would be an added bonus.

TIA for your opinions and comments.

Best regards

Acesfull
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Bill
acesfull wrote:
Hi

The plaintiffs are referencing this assignment in there complaint.

US Bank National Trust number XXXX I will list the trust number at a later time.

Plaintiffs make reference to the assignment on two occasions.

1-In the complaint count # 4

then again in plaintiffs admissions propounded upon me.
to state.

The assignment listing Sand Canyon Corp assigning mortgage number XXX to US Bank Trust on April 2010 was recorded on date XXX and is listed in book XXX page AZZ in the county records office.

Admit  Deny

ADMITTED


Now I have an admission that is listed with the county recording office.

The Sotimoro deposition where he declared that Sand Canyon was no longer in the mortgage business either by servicing, writing or holding any real estate
mortgages was March 18th 2009.

I am not quit sure when to spring this piece of information on the court?
Or if I should even bring it to the courts attention.
My strategy is to win a summary judgment on plaintiffs lack of standing with other evidence that I now have. If I am unsuccessful at the local civil level then I will retain BK counsel and I am sure this fraudulent assignment will be uncovered in BK court.

I am simply looking to extend the whole process, not acquire a free and clear home however that would be an added bonus.

TIA for your opinions and comments.

Best regards

Acesfull

You really need to read some bankruptcy cases in regards to re-litigating issues in Federal Court after you did or should have made these arguments in the State Court.  You are suggesting that you will be able to make this kind of argument AFTER a final judgment in favor of the Plaintiff.   I think you will find this is NOT correct.  While you may want to leave some arguments in your back pocket if you have a robust standing argument so you can challenge the bank when they refile, you never want to feel like you didn't "leave it all on the court" a failure to make arguments usually means a WAIVER of the argument.  It's a tightrope.  

Make sure you read the rules of evidence.  While a certified copy of a bankruptcy filing may be admissible as evidence, most of the time the depositions floating around are MUCH more difficult to get into evidence and an uncertified copy from the internet is going to fall short.  

You also need to read bankruptcy cases regarding the assignment of a mortgage.  It appears from some of the cases I've read that the bankruptcy court doesn't always feel the assignment of a mortgage violates the automatic stay. 

Generally, a question of owning the mortgage is MUCH less effective than raising a question of being the holder of a note and when the negotiation occurred.  Different jurisdictions have different nuances, make sure you know and understand the local rules as well as the cases..  

Read the bankruptcy cases and the cases in your jurisdiction.  


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t

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Now I have an admission that is listed with the county recording office. 

 

Aces -

 

I do not think that admission buys you very much.  You could have simply put in a certified copy of the assignment to get this result.

 

I would suggest that you try to get the plaintiff to make two other different admissions.

 

First, get them to authenticate the affidavit.  I would do this both by interrogatory and request for admission.

 

Then, I would ask them to admit that this assignment forms the basis for its asserted interest in the mortgage:

 

Attach the assignment to the discovery request as an Exhibit.  Then ask something like:

 

Interrogatory mm.  Authenticate the purported assignment dated April dd, 2010, showing assignment by grantor Sand Canyon Corporation to grantee US Bank, N.A., as Trustee, the alleged mortgage dated mmm dd, yyyy, recorded as Instrument Number (or Book and Page) XXX, which assignment is shown to be recorded on mmm dd, 2010, at Book XXX, Page AZZ in the [County Name, STATE] county records office, which purported assignment is attached as Exhibit "A".

 

 

Request for Admission mm.  The document attached as Exhibit "A" is a true and correct copy of the purported assignment dated April dd, 2010, showing assignment by grantor Sand Canyon Corporation to grantee US Bank, N.A., as Trustee, the alleged mortgage dated mmm dd, yyyy, recorded as Instrument Number (or Book and Page) XXX, which assignment is shown to be recorded on mmm dd, 2010, at Book XXX, Page AZZ in the [County Name, STATE] county records office

 

ADMITTED  /  DENIED

 

 

Interrogatory nn.  Identify the assignment(s) by which U.S. Bank, N.A. claims to have obtained its interest in the alleged mortgage dated mmm dd, yyyy, recorded as Instrument Number (or Book and Page) XXX. 

 

 

Request for Admission nn.  The purported assignment dated April dd, 2010, showing assignment of the alleged mortgage dated mmm dd, yyyy, by grantor Sand Canyon Corporation to grantee US Bank, N.A., as Trustee, shown to be recorded on mmm dd, 2010, at Book XXX, Page AZZ in the [County Name, STATE] county records office, is the instrument by which U.S. Bank, N.A. claims to have obtained its interest in the alleged mortgage.

ADMITTED / DENIED

 

This wording can probably be further improved.

 

*

 

Get the plaintiff to TAKE A POSITION on the assignment before attacking the assignment!

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Hi T

Thank you for the post.

I had to complete my discovery request by Jan 10th per the court order.

I did not acquire the Sand Canyon BK information until the first set of admissions and inter was propounded on the plaintiff.

I intend to let any documents in regard to the assignment be submitted. After I get them submitted and sworn to by plaintiffs as accurate, then I will attack the assignment.

Sand Canyon did not own the mortgage and therefore had no authority to assign the mortgage to the Trust.

Nemo Dat Quid Non Habit( One does not give what one does not have)

I will challenge the assignment when the timing is correct to do so.

Thank you again for your post, I need all the help and suggestions anyone can offer.

Best regards

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ka

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I had to complete my discovery request by Jan 10th per the court order. 

 

Without a better sense of precisely where you are in your litigation or the nature of the docket control order setting a date for completion of discovery, I would only point out that in many jurisdictions, one can seek by motion either some out of time filing or activity by the state equivalent of a Federal Rule 6(b) motion OR one can by motion request some modification in a docket control order.

 

I am NOT recommending that you seek such an alteration of the schedule.  If the deadline was set as a result of a prior continuance of a motion for summary judgment or if you have already obtained one or more enlargements, then asking for more time may simply annoy the Court.

 

But if you have never sought an enlargement and the discovery has not already been extended in respect of a coninuance of a scheduled hearing on a motion for summary judgment, you might consider asking for more time.

 

I would not do so without a clearer and larger list of questions.  If you already wasted a lot of questions using some long list of discovery questions you simply obtained off the Internet, then you may have already blown it.

 

Before seeking any enlargement or alteration of a docket control order, you should probably contact the plaintiff's counsel and first seek to obtain some agreement as to the enlargement or alteration.  Courts usually expect parties to cooperate in discovery.  In many places, discovery or docket control motions cannot be filed unless the movant certifies to the court that the movant sought to resolve the matter by agreement with the opposing party.

 

Why did you wait so long to seek help from other Forum participants?  Waiting until the last minute and then serving ill thought out and poorly worded questions is a certain prescription to LOSE YOUR SUIT.  You can draw the matter out and possibly even WIN, by avoiding making mistakes.  Waiting until the last minute and failing to put time in is always a mistake!

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