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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Sandy
                                                                                                               
                                                                                       

Don't miss this case. I am tired, but I couldn't stop reading! I am not so sure now that only the assignment is a nullity. The way I understood it, the mortgage is unenforceable, leaving the debt unsecured. Can't wait to hear what the wise ones here have to say about this case!

Posted at http://stopforeclosurefraud.com

http://tinyurl.com/3rlfarn

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Sandy

Sorry, I couldn't remember my password directly to the Scribd site when I first posted this.

Here is the direct link:

http://www.scribd.com/doc/57568003/IN-RE-VEAL-w?autodown=pdf

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Footnote 18 on pg 19 was revealing. "An instrument that evidences a promise to pay..., does not evidence an order to pay."

"Pay to the order of_________ without recourse"
http://livinglies.wordpress.com/2010/06/28/without-recourse-hangmans-noose/






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NOTE -look at footnote five of the Opinion.  This footnote says exactly what Bill Roper has been warning about since god was a corporal.  Placing the PSA into evidence may in fact doom your case and that you provide evidence of who the parties really are.  The Court pointed this out and had the Veal's introduced the PSA into evidence, properly, we may not now be reading an Opinion favorable to the Veal family.



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FnDoomed
Beautiful...
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Brindy wrote:
NOTE -look at footnote five of the Opinion.  This footnote says exactly what Bill Roper has been warning about since god was a corporal.  Placing the PSA into evidence may in fact doom your case and that you provide evidence of who the parties really are.  The Court pointed this out and had the Veal's introduced the PSA into evidence, properly, we may not now be reading an Opinion favorable to the Veal family.

"May" is right. It didn't seem to hurt Ibanez & LaRace. Watch the video.
http://www.suffolk.edu/sjc/archive/2010/SJC_10694.html
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Adam
See note 12... The ruling states that their commentary and application of UCC is attributed to the Draft Report of the PEB on the UCC Rules Applicable to the Assignment of Mortgage Notes and to the Ownership and Enforcement of Those Notes and the Mortgages Securing Them..

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Sandy
Adam, what a great find! I'm still trying to drill into this:

13 UCC § 3-412. (If the note has been dishonored, and an indorser has paid the note to the person entitled to enforce it, the maker’s obligation runs to the indorser.)

It is important to note that this document is a draft. I noticed that comments were invited until May 28, 2011, so let's keep an eye out for the final document. 

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Adam wrote:
See note 12... The ruling states that their commentary and application of UCC is attributed to the Draft Report of the PEB on the UCC Rules Applicable to the Assignment of Mortgage Notes and to the Ownership and Enforcement of Those Notes and the Mortgages Securing Them..



From that link, pg 2:

"In cases in which the notes fulfill the technical requirements of negotiability,(The requirements are set out in UCC 3-104)"

According to UCC 3-104, it's not a check, so it is either a note or an order. Orders can either be checks or drafts. I say it is a draft governed by Article 8.
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bored
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From that link, pg 2:

"In cases in which the notes fulfill the technical requirements of negotiability,(The requirements are set out in UCC 3-104)"

According to UCC 3-104, it's not a check, so it is either a note or an order.  Orders can either be checks or drafts.  I say it is a draft governed by Article 8.


I say you are a total idiot!
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Sandy
Here is an interesting footnote for South Carolina:

26 See UCC § 1-201(b)(35) [UCC § 1-201(37) in states that have not yet enacted the 2001 revised text of UCC Article 1]. (For reasons that are not apparent, when South Carolina enacted the 1998 revised text of UCC Article 9, which included an amendment to UCC § 1-201 to expand the definition of “security interest” to include the right of a buyer of a promissory note, it did not enact the amendment to § 1-201. This Report does not address the effect of that omission.) ...

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bored wrote:
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From that link, pg 2:

"In cases in which the notes fulfill the technical requirements of negotiability,(The requirements are set out in UCC 3-104)"

According to UCC 3-104, it's not a check, so it is either a note or an order.  Orders can either be checks or drafts.  I say it is a draft governed by Article 8.


I say you are a total idiot!

I say prove it.

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Texas
Can somebody explain footnote #25.
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can spot a fool
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Footnote 18 on pg 19 was revealing. "An instrument that evidences a promise to pay..., does not evidence an order to pay."

"Pay to the order of_________ without recourse"
http://livinglies.wordpress.com/2010/06/28/without-recourse-hangmans-noose/ 

 
Here we have this fool christopher once again seeking to draw traffic over to Garfield's site so Garfield can rip people off.
 
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May" is right. It didn't seem to hurt Ibanez & LaRace. Watch the video.
http://www.suffolk.edu/sjc/archive/2010/SJC_10694.html


Christoper's reading comprehension is close to zero.  He needs to get a smarter seeing eye dog or, if reading the decision in Braille, to take greater care to dust the sand off the pages before attempting to read either the Ibanez or the In Re Veal decision.

In Ibanez, Ibanez was saved from the effects of the introduction of the PSA and registration statement by the fact that the material was found to be inadmissible.  The attorney representing the Veal makes the mistake so often advocated by wingnuts and tries to put the PSA into evidence.  The Veals are saved from the consequences of this blunder by the omission of mention of AHMS in the PSA. 

Christopher once again proves that he has nothing useful to contribute and is merely using questionable posts to try to drive traffic to Garfield's site so that people can be victimized.

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can spot a fool wrote:
Quote:
Footnote 18 on pg 19 was revealing. "An instrument that evidences a promise to pay..., does not evidence an order to pay."

"Pay to the order of_________ without recourse"
http://livinglies.wordpress.com/2010/06/28/without-recourse-hangmans-noose/ 

 
Here we have this fool christopher once again seeking to draw traffic over to Garfield's site so Garfield can rip people off.
 
Quote:
May" is right. It didn't seem to hurt Ibanez & LaRace. Watch the video.
http://www.suffolk.edu/sjc/archive/2010/SJC_10694.html


Christoper's reading comprehension is close to zero.  He needs to get a smarter seeing eye dog or, if reading the decision in Braille, to take greater care to dust the sand off the pages before attempting to read either the Ibanez or the In Re Veal decision.

In Ibanez, Ibanez was saved from the effects of the introduction of the PSA and registration statement by the fact that the material was found to be inadmissible.  The attorney representing the Veal makes the mistake so often advocated by wingnuts and tries to put the PSA into evidence.  The Veals are saved from the consequences of this blunder by the omission of mention of AHMS in the PSA. 

Christopher once again proves that he has nothing useful to contribute and is merely using questionable posts to try to drive traffic to Garfield's site so that people can be victimized.



Pure baloney. If you really want to spot a fool, look in the mirror, but be careful as it might shatter in your stupid face and make you even uglier.
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Gary
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NOTE -look at footnote five of the Opinion. This footnote says exactly what Bill Roper has been warning about since god was a corporal. Placing the PSA into evidence may in fact doom your case and that you provide evidence of who the parties really are. The Court pointed this out and had the Veal's introduced the PSA into evidence, properly, we may not now be reading an Opinion favorable to the Veal family.

Amen.



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Sophie

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Christoper's reading comprehension is close to zero. He needs to get a smarter seeing eye dog . . . 


This is probably very unfair to the seeing eye dog.  He barks, but Christopher never listens.

It isn't the dog that is the idiot.

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dave
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I say prove it.


You prove it yourself on every visit to this web site.  No further proof is necessary beyond a thoughtful critical reading of your idiotic posts.
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dave wrote:
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I say prove it.


You prove it yourself on every visit to this web site.  No further proof is necessary beyond a thoughtful critical reading of your idiotic posts.

What's it to you horse's ass? Just scroll on by if you don't like it.

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Sophie wrote:

Quote:
Christoper's reading comprehension is close to zero. He needs to get a smarter seeing eye dog . . . 


This is probably very unfair to the seeing eye dog.  He barks, but Christopher never listens.

It isn't the dog that is the idiot.



Speaking of dogs, I don't crap from mutts like you either now buzz off.
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I am sincerely trying to follow and understand....

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Originally Posted by Brindy
NOTE -look at footnote five of the Opinion.  This footnote says exactly what Bill Roper has been warning about since god was a corporal.  Placing the PSA into evidence may in fact doom your case and that you provide evidence of who the parties really are.  The Court pointed this out and had the Veal's introduced the PSA into evidence, properly, we may not now be reading an Opinion favorable to the Veal family.

I understand that at times, admitting the PSA is giving too much information that could be used against the borrower, however, in this particular case, it states, "The PSA did not, however, identify AHMSI in any capacity"(line 27) and "the record is devoid of any indorsement of the Note from Option One to WellsFargo." (lines 12-14) 

So how would we "not now be reading an Opinion favorable to the Veal family." if they did properly admit the PSA ? What am I missing?  I am not arguing that it would not,  I am just wanting to understand why admitting their PSA would have doomed their case.


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At the risk of sounding snippy, and I don't intend to be doing so, I reiterate that it is important to actually READ the entirety of footnote 5.  I'll reproduce the footnote below and please READ it and understand what the Court is saying.

In the body of the Opinion the court questions the alleged root of the nexus as to how Option One and Wells Fargo could have made their claims against the debtor.  HOWEVER, in the footnote the court clearly says that had the PSA been properly authenticated, the linkage between Option One, Wells Fargo, the present location and holder of the note, and the debtors may have been proven.

The opinion clearly states that it is addressing TWO motions, one from AHMSI and one from Wells Fargo.  The matter isn't over but indeed it is a great, albeit temporary win, for the Veal's.  Since the case was remanded, their will certainly be another attempt to bite the appeal by Wells Fargo.

As for AHMSI, their toast.

Attempting to enter the PSA into evidence is fraught with peril.  The Veal's, regarding Wells Fargo, were saved for the moment, in my opinion, by their own misguided attempts to introduce the PSA.

So, one more time, here is footnote five (and, yes, there are reasons the court inserts footnotes and this is but a good example of how the courts explain their reasoning through footnotes).

Further, footnote five contains a bombshell comment in its last paragraph:  "The PSA is similarly unhelpful as to the current holder of the Note."  What is going to happen is Wells will appeal the Bankruptcy Appeals Panel decision and try to 'connect the dots', which I doubt they will be able to do. 

I know it's a bizarre paradigm but I don't think Wells will want this opinion to stand, and its NOT for the reason most people think, the lack of nexus to Wells.  It is the comment that the PSA is unavailing as to the ownership of the Note.  Why?  Because a significant number of foreclosures and resulting assignments cite the authority allowed by the PSA to appoint trustees or substitute trustees.  If the PSA can't point to the actual Note holder - well, darn, as we all know, who DOES hold the Note?

The Veal's are halfway to their goal.  If they stay focused NOW on not allowing Wells Fargo to create linkage - they will have won. 

5. The Veals did refer the bankruptcy court to documents available on the website of the Securities Exchange Commission supposedly related to the alleged securitization of the Veal Loan, but there is no indication in the record whether the bankruptcy court actually looked at or considered these documents.

These documents, had they been properly authenticated, might have filled some (but not all) of the gaps in the evidence. For  instance, the documents contained a Pooling and Serving Agreement (“PSA ) for a securitization trust. The PSA identifies and appoints Option One as servicer for the trust assets and identifies Wells Fargo as trustee of the trust. Further, the schedules attached to the PSA appear to identify the Veal Loan as one of the trust assets. Thus, the PSA, had it been properly authenticated and admitted, would have tied both Option One and Wells Fargo to the Veal Loan. The PSA did not, however, identify AHMSI in any capacity, including its alleged role as successor servicer or subservicer of the Veal Loan. The PSA is similarly unhelpful as to the current holder of the Note.


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footnote 25 basically describes what happens in a typical foreclosure case when 3rd party debt collectors uses false/forged note to get a free house.

If the PSA can be found on SEC Edgar and you know how not to hurt yourself in court with it, certified copies can be ordered from the SEC for dirt cheap and they are self-authenticating. 
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John Lewis

OMG Christopher,,,,,,,, " Thus, the PSA, had it been properly authenticated and admitted, would have tied both Option One and Wells Fargo to the Veal Loan."

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charles
From Ibanez:

According to Wells Fargo, Option One later assigned the LaRace mortgage to Bank of America in a July 28, 2005, flow sale and servicing agreement.  Bank of America then assigned it to Asset Backed Funding Corporation (ABFC) in an October 1, 2005, mortgage loan purchase agreement.  Finally, ABFC pooled the mortgage with others and assigned it to Wells Fargo, as trustee for the ABFC 2005-OPT 1 Trust, ABFC Asset-Backed Certificates, Series 2005-OPT 1, pursuant to a pooling and servicing agreement (PSA).

. . .

Wells Fargo did not provide the judge with a copy of the flow sale and servicing agreement, so there is no document in the record reflecting an assignment of the LaRace mortgage by Option One to Bank of America.  The plaintiff did produce an unexecuted copy of the mortgage loan purchase agreement, which was an exhibit to the PSA.  The mortgage loan purchase agreement provides that Bank of America, as seller, "does hereby agree to and does hereby sell, assign, set over, and otherwise convey to the Purchaser [ABFC], without recourse, on the Closing Date ... all of its right, title and interest in and to each Mortgage Loan."  The agreement makes reference to a schedule listing the assigned mortgage loans, but this schedule is not in the record, so there was no document before the judge showing that the LaRace mortgage was among the mortgage loans assigned to the ABFC.

Wells Fargo did provide the judge with a copy of the PSA, which is an agreement between the ABFC (as depositor), Option One (as servicer), and Wells Fargo (as trustee), but this copy was downloaded from the Securities and Exchange Commission Web site and was not signed.  The PSA provides that the depositor "does hereby transfer, assign, set over and otherwise convey to the Trustee, on behalf of the Trust ... all the right, title and interest of the Depositor ... in and to ... each Mortgage Loan identified on the Mortgage Loan Schedules," and "does hereby deliver" to the trustee the original mortgage note, an original mortgage assignment "in form and substance acceptable for recording," and other documents pertaining to each mortgage.

The copy of the PSA provided to the judge did not contain the loan schedules referenced in the agreement.  Instead, Wells Fargo submitted a schedule that it represented identified the loans assigned in the PSA, which did not include property addresses, names of mortgagors, or any number that corresponds to the loan number or servicing number on the LaRace mortgage.  Wells Fargo contends that a loan with the LaRace property's zip code and city is the LaRace mortgage loan because the payment history and loan amount matches the LaRace loan.

US Bank National Association v. Ibanez, 458 Mass. 637, 644-5 (Mass. 2011)
http://scholar.google.com/scholar_case?case=4569784280786262124

Then the decision continues:

The plaintiffs claim that the securitization documents they submitted establish valid assignments that made them the holders of the Ibanez and LaRace mortgages before the notice of sale and the foreclosure sale.  We turn, then, to the documentation submitted by the plaintiffs to determine whether it met the requirements of a valid assignment.

. . .

Focusing first on the Ibanez mortgage, U.S. Bank argues that it was assigned the mortgage under the trust agreement described in the PPM, but it did not submit a copy of this trust agreement to the judge.  The PPM, however, described the trust agreement as an agreement to be executed in the future, so it only furnished evidence of an intent to assign mortgages to U.S. Bank, not proof of their actual assignment.  Even if there were an executed trust agreement with language of present assignment, U.S. Bank did not produce the schedule of loans and mortgages that was an exhibit to that agreement, so it failed to show that the Ibanez mortgage was among the mortgages to be assigned by that agreement.  Finally, even if there were an executed trust agreement with the required schedule, U.S. Bank failed to furnish any evidence that the entity assigning the mortgage — Structured Asset Securities Corporation — ever held the mortgage to be assigned.  The last assignment of the mortgage on record was from Rose Mortgage to Option One; nothing was submitted to the judge indicating that Option One ever assigned the mortgage to anyone before the foreclosure sale. [19]  Thus, based on the documents submitted to the judge, Option One, not U.S. Bank, was the mortgage holder at the time of the foreclosure, and U.S. Bank did not have the authority to foreclose the mortgage.

Turning to the LaRace mortgage, Wells Fargo claims that, before it issued the foreclosure notice, it was assigned the LaRace mortgage under the PSA.  The PSA, in contrast with U.S. Bank's PPM, uses the language of a present assignment ("does hereby... assign" and "does hereby deliver") rather than an intent to assign in the future.  But the mortgage loan schedule Wells Fargo submitted failed to identify with adequate specificity the LaRace mortgage as one of the mortgages assigned in the PSA.  Moreover, Wells Fargo provided the judge with no document that reflected that the ABFC (depositor) held the LaRace mortgage that it was purportedly assigning in the PSA.  As with the Ibanez loan, the record holder of the LaRace loan was Option One, and nothing was submitted to the judge which demonstrated that the LaRace loan was ever assigned by Option One to another entity before the publication of the notice and the sale.

US Bank National Association v. Ibanez, 458 Mass. 637, 649-50 (Mass. 2011)
http://scholar.google.com/scholar_case?case=4569784280786262124

*

The Plaintiffs in Ibanez sought to put the PSA and securitization doucments into evidence but LOST because they left out critical schedules and failed to put in signed and authenticated copies.

If the borrowers in Ibanez and LaRace had put valid copies of the PSA into evidence, they could have lost.
 
Christopher is one of the biggest proponents of homelessness in the United States.  If you want to lose your home really quickly you should contact him right away to learn more bizarre strategies to lose your case.
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Betty
The PSA isn't the only insight that Mr. Roper seems to have gotten right.  Look at this old post:
For example, within a foreclosure case, the promissory note is usually controlled by the law of the place of execution.  The mortgage or deed of trust is usually controlled by the law of the place where the property is located.  And the negotiation of the promissory note would usually be controlled by the law of the place negotiated (delivered).  So a court sitting in Florida to decide a foreclosure of a promissory note actually executed in New Jersey and delivered in New York secured by a Florida property might need to apply the laws of FL, NJ and NY to the various aspects of the case.  When applying the laws of the other places, the court decisions of those places would be authoritative.
Who can sign an indorsement?
http://ssgoldstar.websitetoolbox.com/post?id=5245529
Compare from the In Re Veal decision:
"In this case, Illinois law governs the issues related to the Mortgage's enforecement [32] . . ."

[32]  The Mortgage contains a choice of law provision, which states that the law of the state where the real property is located applies to "this Security Instrument".  The Property is located in Illinois, so this clause would require application of Illinois law to issues concerning enforcement of the Mortgage.

. . .  As will be seen later, the Note is governed by the law of Arizona.  . . .

(at page 33)

"Here, Shelli Veal apparently signed the Note in Arizona.  Given the lack of choice of law clause in the Note, Arizona law would presumptively govern who has rights to enforce the Note.  [41]"

[41]  etc.

(at pages 42, 43)

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jm
Roper also talks about the law of the place of indorsement as being important, something that wasn't addressed in In Re Veal:

"Conflict of Laws: Law of Negotiation"

http://ssgoldstar.websitetoolbox.com/post?id=5082064


But the other choice of law discussion in the decision suggests he might be on to something.
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   For whatever its worth folks, I am willing to bet that this great Opinion was written by Honorable Bruce A. Markell. His writing style is clearly distinguishable, in my opinion.
 
   Besides being a Bankruptcy Judge, Judge Markell is also a professor at UNLV's Boyd School of Law.
 
   In the nightmare of Las Vegas housing bust, arguably Judge Markell is the only bright light.
 
 One of his pet peeves is attorney ethics and he has written some truly blistering Opinions, slamming lawyer misconduct. Just for fun you may want to Google "Judge Markell" sanctions. I find them to be rather therapeutic. 
 
   I am certainly most fortunate to have my Ch-13 before him. This is not to be construed as some type of "suck-up" post. Those of you who know me, would attest that I am kind of harsh. But one must give credit, where credit is due and Judge Markell's writing is second to none.

   Veals got a long road ahead of them, and once carefully examined, this Opinion clearly shows them the way.

   I welcome all comments at: providencegroup@ymail.com 

 
  P.S. Mr. Roper, you may remember from my prior posts comments about our great Judge. Enjoy reading his handy-work. I can't wait to read your analysis.
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Here is a 10th Circuit Court of Appeals case regarding the law governing the transfer of negotiable instruments:

"validity and effect of a transfer of a negotiable instrument are determined by the law of the place where the negotiable instrument is at the time of its transfer." Restatement, Conflict of Laws, 349.
 
Citizens Bank v. National Bank of Commerce, 334 F.2d 257 (10th Cir. 1964) - http://law.justia.com/cases/federal/appellate-courts/F2/334/257/108962/  

In the Citizens case, Citizens Bank (an Arkansas bank) sued National Bank of Commerce (an Oklahoma bank) on a dishonored cashier's check.  The court opined that since the check was made in Arkansas but presented to the Oklahoma bank for payment, the transfer occurred in Oklahoma and therefore Oklahoma's UCC statute was controlling. 
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Sandy
How is the place of transfer proved in court so the judge can apply the correct UCC law?

The more I find out about this convoluted mess, the more I don't know.


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charles wrote:


The Plaintiffs in Ibanez sought to put the PSA and securitization doucments into evidence but LOST because they left out critical schedules and failed to put in signed and authenticated copies.

If the borrowers in Ibanez and LaRace had put valid copies of the PSA into evidence, they could have lost.
 
Christopher is one of the biggest proponents of homelessness in the United States.  If you want to lose your home really quickly you should contact him right away to learn more bizarre strategies to lose your case.

Really?!? There were no valid assignments of the LaRace and Ibanez mortgages anywhere in the world, and that includes the securitization documents, you assclown.

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First time I have ever posted to a forum so hope I'm OK in what I'm posting

Comments on Veal decision From Matt Weidners Law Blog...

http://mattweidnerlaw.com/blog/

"I have been hammering away especially over the last several weeks about the fact that possession and delivery of the original “blue ink” promissory note is absolutely essential in every foreclosure case. (There is an exception to the general rule that you need the original note, but for general discussion purposes, consider the general rule that requires the original note)

In order for a Plaintiff to state a claim for foreclosure, they must:

1) Be in possession of the promissory note, (with a limited exception) and;

2) they must be legally authorized to enforce the promissory note.

This means that even if a Plaintiff shows up in court with a blank endorsed promissory note, this is only the first step in a two step analysis. The second and the critical step is the Plaintiff seeking to enforce that note they possess must present properly authenticated evidence that they are legally authorized to be in possession of the note and that they have the right to enforce it.

But far too often, all of this is ignored.  Any old Plaintiff filing a foreclosure will in most cases get a judgment because the basic laws of standing and the Uniform Commercial Code are being flat out ignored.  This is entirely inexcusable anymore. You must read this long opinion in its entirety, it is a masterful treatment of the very basic elements of foreclosure that have been blown millions of times all across this country and continue to be blown in courtrooms every single day.

Read the opinion and pay particular attention to the discussion of what it means to be a “Holder” under the UCC.  This more or less destroys the whole servicer fiction.  I hesitate to break out any highlights from this opinion, because every word of it is important, but following are some of the key take aways:

  • The concept of a “holder” is set out in detail in UCC § 1-201(b)(21)(A), providing that a person is a holder if the person possesses the note and either (i) the note has been made payable to the person who has it in his possession or (ii) the note is payable to the bearer of the note. This determination requires physical examination not only of the face of the note but also of any indorsements.
  • under the common law generally, the transfer of a mortgage without the transfer of the obligation it secures renders the mortgage ineffective and unenforceable in the hands of the transferee. Restatement (Third) of Property (Mortgages) § 5.4 cmt. e (1997) (“in general a mortgage is unenforceable if it is held by one who has no right to enforce the secured obligation”). As stated in a leading real property treatise: When a note is split from a deed of trust “the note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgage) § 5.4 cmt. a (1997). Additionally, if the deed of trust was assigned without the note, then the assignee, “having no interest in the underlying debt or obligation, has a worthless piece of paper.”
  • (“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”); Orman v. North Alabama Assets Co., 204 F. 289, 293 (N.D. Ala. 1913); Rockford Trust Co. v. Purtell, 183 Ark. 918 (1931).
  • As a result, to show a colorable claim against the Property, Wells Fargo had to show that it had some interest in the Note, either as a holder, as some other “person entitled to enforce,” or that it was someone who held some ownership or other interest in the Note. See In re Hwang, 438 B.R. 661, 665 (C.D. Cal. 2010) (finding that holder of note has real party in interest status). None of the exhibits attached to Wells Fargo’s papers, however, establish its status as the holder, as a “person entitled to enforce,” or as an entity with any ownership or other interest in the Note.
  • AHMSI apparently conceded that Wells Fargo held the economic interest in the Note, as it filed the proof of claim asserting that it was Wells Fargo’s authorized agent. Rule 3001(b) permits such assertions, and such assertions often go unchallenged. But here the Veals did not let it pass; they affirmatively questioned AHMSI’s standing. In spite of this challenge, AHMSI presented no evidence showing any agency or other relationship with Wells Fargo and no evidence showing that either AHMSI or Wells Fargo was a “person entitled to enforce” the Note. That failure should have been fatal to its position.
  • If, however, the maker pays someone other than a “person entitled to enforce” – even if that person physically possesses the note the maker signed – the payment generally has no effect on the obligations under the note. The maker still owes the money to the “person entitled to enforce,” Miller & Harrell, supra, ¶ 6.03[6][b][ii], and, at best, has only an action in restitution to recover the mistaken payment. See UCC § 3-418(b)."
Now an attorney with whom I am consulting asks the following questions...

I agree with Matt Weidner. Hie reap above seems to have hit the most important portions of the opinion. What I’m not clear on is how he gets the following from the opinion:

This means that even if a Plaintiff shows up in court with a blank endorsed promissory note, this is only the first step in a two step analysis. The second and the critical step is the Plaintiff seeking to enforce that note they possess must present properly authenticated evidence that they are legally authorized to be in possession of the note and that they have the right to enforce it.

Seems to me that the opinion basically says that you can enforce a note if you establish you have possession of the note and can show either: (A) it was properly endorsed to you, or (B) it is a bearer note. Also, you may be able to enforce it if you show you have possession and it was “transferred” to you.

I think the opinion also supports the position that a servicing agent can successfully file a claim if it shows it is the authorized servicing agent for a party who satisfies the above standards.

Given the opinion’s careful UCC analysis this seems like a fairly undisputable conclusion. Unfortunately, however, this case involved a record devoid of evidence supporting the Wells position. Also, this cases apparently did not involve securitization. Thus, the opinion doesn’t really go into much detail as to what specific evidence has to be presented to support a finding of real party in interest. For example, can we require the alleged “note”  be brought to court and examined by an expert? Maybe that answer depends on whether the proceeding is a motion to lift stay (lower standard) or objection to claim (higher standard). Thus I am reserving judgment for the moment as to whether this opinion is truly “huge” or a “monster” oninion!!!

Having said that, I do think the decision is strong precedence (assuming it isn’t appealed and reversed) for arguing that a claimant or movant must show it has physical possession of the note and that the note was properly endorsed (or transferred to it) or that it is a bearer note, OR that it is an authorized servicing agent for such a holder.

Assuming a claimant or movant can establish to the court’s satisfaction it has possession of the original “blue-ink” note, it still must establish proper endorsement or “transfer”. Seems to me that this means it must establish the complete “chain of title” from the original lender to the movant or claimant.

I hope my general conclusions are correct. I find this a very complex area of law and appreciate any comments or feedbacks.

 I think one of the most interesting parts of the opinion is the discussion of splitting the note from the mortgage on pages 32-34. This was not a MERS case and the opinion seems to suggest that a proper mortgage assignment from the owner or holder of the note that also expressly includes reference to the note as being assigned (which the assignment to Wells Fargo in this case did not) will constitute a valid assignment or “transfer” of the note.

However, I wonder if this language of the opinion could be used to argue that the typical MERS assignment of a mortgage which includes specific reference to assignment of the note, “splits” the mortgage from the note because MERS may have had authority to assign the mortgage but did not have authority to assign the note. If so, could you then argue that the note has become irrevocably “unsecured”?

The discussion running from the middle of page 37 though the top of page 39 seems to state that a decision of a bankruptcy court against a claimant in an objection to claim hearing is res judicata as to the claimant for all purposes. And as I read the opinion, there doesn’t seem to be a requirement for an adversary proceeding.  If this is correct, it seems this might be a very important part of this opinion?











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William A. Roper, Jr.
At some peril in inadvertently inviting wingnuts and idiots to follow us to a singularly useful new thread on the same topic, I feel impelled to crosslink the continuation of this thread (maybe they can SHUT UP and learn something):

"Terrific Decision of 9th Cir. Bankruptcy Appellate Panel: In Re Veal"

http://ssgoldstar.websitetoolbox.com/post?id=5348323

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tulaclifford
Creative suggestions . I was fascinated by the analysis , Does someone know if my company can obtain a template FL HSMV 84901 form to edit ?
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