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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Rose
Has anyone dealt with this issue?

HSBC Bank USA NA has not filed with the Secretary of State in Ohio yet is doing business here.

HSBC claims to represent Ace Securities Asset Backed Securities 2006 ASAP3

Neither Ace nor HSBC have filed anything business wise with the state of Ohio.

Does this matter, and if so, what can be done to these entities.

Thanks!

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Bill
Rose,

I think you will find that the N.A. after HSBC means National Association.  These are banks that are under a federal charter.  They are EXEMPT from MOST state laws.  Any state law that interferes with the national bank conducting business does not apply to the national bank.  This would include the need to register to conduct business in a state.  This is why most trustees are national banks.  The trust would need to register to do business BUT in most states purchasing property, selling property, owning property, ect.. is not considered conducting business.  This does raise an interesting problem with proving the trust EXISTS.  If the PSA is kept out of evidence, they are not registered in the state, or any other state, just adds to the proof problems for the Plaintiff. 
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Rose
What do you mean by the trust existing? The trust name shows on the SEC but individual property is not listed, so I have no way of proving nor disproving I am within it.

I should mention - on my actual note documents, it has no endorsements (even in blank) to anyone. MERS is NOT on the note.

This is why I'm trying to figure out what authority they have to invoke the subject matter jurisdiction of the court..and if this could make any judgment void ab initio.

Thanks

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Bill
Rose,

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What do you mean by the trust existing? The trust name shows on the SEC but individual property is not listed, so I have no way of proving nor disproving I am within it.




Proving the existence of the trust would usually fall under a lack of capacity argument.  Just because someone says they are a trustee and have the authority to act does not mean they are a trustee in anything other than the name. 


The lack of standing and lack of capacity are common motion to dismiss arguments. 

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The trust name shows on the SEC but individual property is not listed, so I have no way of proving nor disproving I am within it.



Because the there is a trust registered with the SEC years ago does not mean it exists today.  Because they say your loan is in a trust does not mean it is.  While you have no way of proving or disproving if you are in a trust, this is the PLAINTIFF's BURDEN OF PROOF.  They are the one that need to show this proof, it is your obligation to raise the argument.  This is why it is so important to keep the PSA out of evidence. 

This is not legal advice, just something that may warrant additional research in your jurisdiction. 

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Bill

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I should mention - on my actual note documents, it has no endorsements (even in blank) to anyone. MERS is NOT on the note.

This is why I'm trying to figure out what authority they have to invoke the subject matter jurisdiction of the court..and if this could make any judgment void ab initio.



If you post more detailed information there are some members more knowledgeable than me that may be able to steer you in the right direction.  Ohio has some very distinct nuances with assignments and foreclosure. 

1.  When did you receive the foreclosure complaint?

2.  When was the mortgage assigned to the trust?

3.  Who did the assignment?

Maybe Mr. Roper or a few others who are up to date with the Ohio cases will give an opinion. 
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Rose
There was a judgment back in 2008 after fighting it in 2007.

There are two assignments of mortgage. One dated March 14th, 2007 (a day after the case was filed) and another assignment filed in January 2009 with a date of May 5th, 2006 (which was filed during a chapter 7 bankruptcy)

I've been in the home fighting it, but the trial court barred the relief from judgment saying sorry, out of time under rule 60(b)(5)


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Cindy
After reading this topic, I checked my mortgage. The original lender is XYZ Mortgage Corp., dba ABC Wholesale Mortgage. According to an online search tool, the "dba" entity is registered in the state, but the Corporation entity is not. Lenders are required to be registered, so does this create another element of foreclosure defense? Or can a registered dba lender cover for the Corporation. MERS is the nominee.

The loan was closed almost five years ago.
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Rose
My original lender is no longer in business and had their license revoked by the state of California and Ohio at the time of the assignments of mortgage being done.

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Bill

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I've been in the home fighting it, but the trial court barred the relief from judgment saying sorry, out of time under rule 60(b)(5)



Your failure to raise an argument or challenge a judgment in the time allowed by the rules will result in a waiver.  Your going to be pretty hard pressed to get anything done if you allowed the time to challenge the judgment expire. 


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Rose
Its quite hard to challenge things they do after the fact. Or when the original issue occurred courts would not overturn the decisions since there was no case law.

Basically, what you're saying is because they defrauded the court so many years ago..get over it?
The whole purpose of 60 b 5 is dealing with issues that were not known at the time.

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Bill

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Basically, what you're saying is because they defrauded the court so many years ago..get over it?
The whole purpose of 60 b 5 is dealing with issues that were not known at the time.



Rose,

I personally read the rules a little different than you do.  I see your relief under rule 60 to be 2 or 3 which has a 1 year time limit.  That is why the judge may have denied your request for relief.  I am not an attorney, this isn't legal advice, I haven't read the case law in regards to rule 60 motions. 

I think your only hope is to find an attorney that may be willing to do the research and present your argument.

I'm not even sure what forum you could use due to the trial court denying your motion for relief and the long period of time that has elapsed.  The appeals process will have a time limit also to appeal judgments. 

There has to be a limit to litigation.  There has to be an end.

You really need to contact an attorney and seek his opinion.     



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RULE 60. Relief From Judgment or Order

(A) Clerical mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

 

(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

 

 

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William A. Roper, Jr.
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Rose said:
There was a judgment back in 2008 after fighting it in 2007.

There are two assignments of mortgage.  One dated March 14th, 2007 (a day after the case was filed) and another assignment filed in January 2009 with a date of May 5th, 2006 (which was filed during a chapter 7 bankruptcy)

I've been in the home fighting it, but the trial court barred the relief from judgment saying sorry, out of time under rule 60(b)(5).

 
Rose: 
 
I think that Bill has laid out the issues both starkly and correctly.
 
In general, parties are expected to use discovery to obtain the facts of a case and to plead and argue various disputed facts within the original trial.  Generally, arguments not raised are waived for appeal.
 
Rules 59 and 60 give some additional approaches to obtaining relief from wrongful judgments.
 
While the nature of the fraud being perpetrated in your case may have been unknown to you and your attorney in 2007, WE WERE DISCUSSING THESE ISSUES HERE AT THE MS FRAUD MESSAGE BOARD AT THAT TIME.
 
Moreover, in the Autumn of 2007, District Judges on the Ohio Federal Courts dismissed hundreds of cases as a result of fabricated assignments belatedly prepared for use as evidence in those cases.  These dismissals were framed as dismissals due to lack of standing, but actually reflected the fact that plaintiffs were relying on assignments fabricated after teh commencement of the suit.  We discussed these cases at length on this message board.
 
I would really like to see those who have been committing perjury, forgery and evidence fabrication brought to justice, but society has a very clear interest in the finality of judgments.
 
Perhaps you still have a valid cause of action against the servicer or foreclosure mill law firm.  The limitations period relating to criminal responsibility might not have run.  But you may be very near the end of the line in respect to litigating the ownership of your home.
 
It is very much in your interest to consult with an experienced and capable Ohio attorney.  Despite the assertions of some, which make it seem easy to get judgments set aside, this is actually untrue.
 
And the circumstances you describe do NOT seem to me to be the sort of situation where a judgment is going to be found to be void.  It might have been erroneous and voidable, but probably NOT void.
 
And consequenltly, it isn't clear to me how you would proceed.   Even Bankruptcy seems most likely to only be a speedbump rather than a barrier.
 
Best of luck and God bless you!
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Rose
1. I do have an attorney (Three in fact)

2. The assignments were done POST judgment and TWO years after the fact

3. They used different documents in TWO courts POST judgment

4. The bank that "assigned" the home had their license revoked for violations of state and federal law BEFORE they tried to file assignments and proof of claims in a bankruptcy

5. An attorney filed the Relief From Judgment - NOT ME

6. The IN RE Foreclosure cases in the Northern District do not really add nor take away to my situation

7. It was not known publicly until a few months ago that those signing my "documents" did not sign anything and lied under oath

8. I plan to sue the servicer, the foreclosure lawyers, and the "bank" for issues outside of the state court (and in the case of the service company and law firm - what did since they are a nonparty to it, so rooker feldman would not apply)

9. I am also waiting for a verification report about whether or not my home is in the "trust" and the date that the trust closed, as it no longer shows as an active trust.

So while I may be on my last legs, I'm going to give all of the above a go, even if it is just the principal of it and having my conscience know that I gave it all I had.

The sad thing about all of this, the money and time I am wasting with these fools I could be paying the mortgage..as long as I knew who I was really paying and it was actually owed to that person/entity.

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William A. Roper, Jr.
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Rose said:
1. I do have an attorney (Three in fact)


That is TERRIFIC!  I hope they specialize in consumer debt, bankruptcy and foreclosure.

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2. The assignments were done POST judgment and TWO years after the fact


This seems likely to be irrelevant in a judicial foreclosure state after entry of judgment.

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3. They used different documents in TWO courts POST judgment


This seems likely to be irrelevant unless you still have viable rights to appeals and raised issues relating to these in the trial court.

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4. The bank that "assigned" the home had their license revoked for violations of state and federal law BEFORE they tried to file assignments and proof of claims in a bankruptcy


This would seem to have been a potent means of impeaching the assignments in the trial court.  It seems mostly unpersuasive as a means of getting a judgment set aside three years after entry of the judgment.

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5. An attorney filed the Relief From Judgment - NOT ME


This is hardly confidence inspiring.  Capable attorneys should be familiar with the limits of what is possible in terms of obtaining relief from a judgment.

It is important to be realistic.

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6. The IN RE Foreclosure cases in the Northern District do not really add nor take away to my situation


It is unclear to me what you mean by this.  If you are asserting that the fact that problems with assignments were a matter of national news in 2007, but you didn't understand then that the assignments in your case were probably forgeries, then I think you are very naive.  Of all of the places where borrowers ought to have been aware of mischief with assignments, Ohio was ground zero!  And the dismissals were not only in the Northern District.  Judge Rose dismissed cases in the Southern District, too.

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7. It was not known publicly until a few months ago that those signing my "documents" did not sign anything and lied under oath.


Under our system of law, we do not typically rely upon the news media to discover the facts of our case.  That is what discovery is for.  The reason that it is now publicly known that some robo-signers engaged in misconduct was because some well represented defendants conducted effective depositions.

Did you conduct discovery?  Did you take depositions?  Did witnesses in your case lie under oath?

When you fail to conduct effective discovery, you have relatively little latitude to later complain that critical facts of the case were unknown to you at trial.

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8. I plan to sue the servicer, the foreclosure lawyers, and the "bank" for issues outside of the state court (and in the case of the service company and law firm - what did since they are a nonparty to it, so rooker feldman would not apply).


Best of luck with that!  Be careful NOT to throw good money after bad.

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9. I am also waiting for a verification report about whether or not my home is in the "trust" and the date that the trust closed, as it no longer shows as an active trust.


There seem to be a variety of folks peddling "reports" now.  Most of these are selling a pig in a poke.  A good researcher can usually find their loan within the trust documents on file with the SEC without hiring an expert.

I fear that you have been taken in and are expending money in a situation where things have become unsalvagable.

It isn't readily apparent to me what value might be found in the information as to whether your loan is in the trust.  Apparently, the court has entered a judgment.  The appeal period has run.  Your Rule 60 motion has been denied.  The Court of Appeals isn't going to consider evidence which isn't already in the record from the trial or motion to vacate.

Things sound pretty bleak!  We will keep you in our prayers!

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William A. Roper, Jr.
God grant us the courage to change the things we can,
The serenity to accept the things we cannot change,
And wisdom, always, to know the difference. 
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Tim
People are advocating that you do not want to enter the PSA into evidence, and for good reasons.  However, a well respected BK attorney, Max Gardner, wants this..

"Every time I file a civil action against a mortgage servicer the very first document I want is a copy of the “Pooling and Servicing Agreement.”

So.....?

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William A. Roper, Jr.
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Tim said:
People are advocating that you do not want to enter the PSA into evidence, and for good reasons. However, a well respected BK attorney, Max Gardner, wants this..

"Every time I file a civil action against a mortgage servicer the very first document I want is a copy of the “Pooling and Servicing Agreement.”

So.....?

 
Every time a borrower-defendant faces a foreclosure, and especially a judicial foreclosure, the borrower and his attorney should seek to identify and obtain the pooling and servicing agreement and registration statements for the purported trust asserting ownership of the loan.
 
This can often be found at the SEC web site without seeking it through discovery from the plaintiff.
 
The borrower should NEVER introduce the PSA or other SEC registration materials into evidence UNLESS this is expressly necessary to prove a rather stark and palpable perjury or forgery by the plaintiff.  Putting the PSA in may be the proof that the plaintiff NEEDS to prove its case.  It also sometimes proves perjury, forgery, evidence fabrication or other fraud on the part of the plaintiff, servicer or foreclosure mill law firm.
 
In many places, production of documents by a party opponent in response to a proper request for production authenticates these documents for use against the party opponent, but does NOT authenticate the documents for use by the producing party without an authenticating affidavit or a live foundation witness.  However, introduction by the party propounding the discovery will put the documents into evidence for use against that party.
 
Similarly, requesting the authentication of a document by interrogatory or request for admission typically establishes authentication should the party propounding discovery desire to use the document, but cannot be used against that party UNLESS actually introduced by the party propounding discovery.
 
*
 
I am NOT advocating that defendants fly blindGet the evidence either through research or discovery.
 
BUT DEFENDANTS SHOULD BE VERY JUDICIOUS AND USE EXTREME CAUTION IN PLEADING FACTS FROM THE PSA OR INTRODUCING THE PSA INTO EVIDENCE.  THE PSA IS A DOUBLE EDGED SWORD AND CAN BE USED TO PROVE EVIDENTIARY POINTS FOR EITHER THE PLAINTIFF OR THE DEFENDANT.
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FnDoomed
Yeah... I wish that sentence continued with " ... because ... " and then went on to outline what he wants to know and why.  

Without further comment from Max then one can only guess.  Maybe you can discover a document into your possession without entering into evidence?

As in any other complicated task, all "rules of thumb" have exceptions.  Rules of thumb are meant to be used by people who know what they're doing.

For me I guess if a trust is coming after your house, then you can use the PSA to force certain law into play and exclude other bodies of law - for example one can contract around the UCC via the PSA.   Whether this is a smart thing to do is situation dependent. 





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Angelo
Bill

I know that you have stated many times that the PSA should never be plead into evidence by the defendant, but isn't that the heart of the Horace case in Alabama.  Wouldn't the PSA need to be part of the evidence if you were attacking the validaty of the trust? or Prof. Levitin's argument that bearer paper cannot be used as collateral in a NY trust?


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Rose
Personally, after talking over some of this with other attorneys, my own attorneys, and a bankruptcy specialist this morning I will say with confidence that people should NOT take advice from anyone on this board.

Some people on here really do not get bankruptcy violations (discharge injunctions, violating automatic stays, proof of claim violations) so they are not offering proper advice.

Like anything else, hire someone local and do not try to hash this out with an internet guru.

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William A. Roper, Jr.
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Angelo said:
I know that you have stated many times that the PSA should never be plead into evidence by the defendant, but isn't that the heart of the Horace case in Alabama. Wouldn't the PSA need to be part of the evidence if you were attacking the validaty of the trust? or Prof. Levitin's argument that bearer paper cannot be used as collateral in a NY trust?


Angelo:

I believe that if a defendant or debtor makes a list of the facts the defendant needs to prove to make the LEVITIN argument as in the Horace case, that almost ALL of these points could be made by means of interrogatory responses and admissions in response to requests for admissions without actually having to put the PSA into evidence.

The LEVETIN arguments can also be made in the alternative.  Arguments pled other than in the alternative may very well constitute judicial admissions

I would think that the argument would go something like:

"In the alternative, the defendant argues . . . "

And:

"Assuming, without admitting that the alleged promissory note was even included within the schedule of loans for the ABC Trust . . . "

I would think that the most key admission would be that the trust was subject to New York trust law, together with the specific provisions describing the transfer of the mortgage collateral.
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William A. Roper, Jr.

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Rose said:

Personally, after talking over some of this with other attorneys, my own attorneys, and a bankruptcy specialist this morning I will say with confidence that people should NOT take advice from anyone on this board.

Some people on here really do not get bankruptcy violations (discharge injunctions, violating automatic stays, proof of claim violations) so they are not offering proper advice.

Like anything else, hire someone local and do not try to hash this out with an internet guru.


Rose:

You appeared on this board and sought feedback from Forum participants.  Those who have more knowledge and experience than you volunteered their time to try to address your questions and concerns.

If you are displeased or unhappy with the answers, please do not shoot the messenger!

A number of the Forum participants have been litigating for some time.  My case has been in litigation for almost five years.  The plaintiff's motion for a protective order was DENIED.  The plaintiff's amended motion for summary judgment was DENIED.

What distinguishes you and me is that you have employed lawyers and LOST.  I have litigated pro se for longer than you have and WON.

I do NOT pretend to know ANYTHING about Bankruptcy, because I have never filed for Bankruptcy and will never need to!

I know more than a little about mortgages, having served as president of a mortgage company.

I was happy to be of what help I could.  I think that it is terrific that you have an attorney.  I think that you should generally follow your attorney's counsel.  I would be careful about HOW MUCH YOU SPEND on the case given the circumstances.  It is unwise to throw good money after bad.

The suggestions and feedback you get at the Forum will inherently be of uneven quality.  But most of the participants have your best interests in mind.  And very often the overall quality of responses found here is exemplary after the competition of various ideas resolves to a consensus.

Scroll back and review your initial posts.  You said nothing about Bankruptcy in your initial questions.  People responded to the questions you asked.  It seems that by your inarticulate questions, you have wasted other people's time.  I wish I could have the time back.  It is clear that you are not only poorly informed, but also unappreciative of the charity and consideration of others.

Notwithstanding, I wish you luck and success!  I hope your ongoing defensive adventures are not overly costly!

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FnDoomed
Well... Ow.  My feelings are hurt, Rose.  I don't know squat about anything legal, but I do have lots of customer service experience.  I've lived for decades by solving problems described to me by others, without being able to see the broken system.

In other words, I relied on others to describe the problem and I framed my troubleshooting plans according to what I was told.  I can tell you that the customers who framed the best questions got the best answers.

I was raised not to criticize unless I could do a better job myself and was willing to do it.  Why don't you join us in TRYING TO HELP people rather than criticize the ones helping others, you included ?

You are also entitled to a full refund of every cent you paid for the advice you didn't like.  Just submit the form at http://refunds.ingrate.com/

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Sandy
God grant us the courage to change the things we can,
The serenity to accept the things we cannot change,
And wisdom, always, to know the difference.
 
This site has cleared my head and helped identity the things I can change in my foreclosure process, and to identify things I cannot change. I am praying for the wisdom to always know the difference.

I must say that sometimes the comments here are harsh enough to strip the bark off a tree, but I remind myself of how many times some of you have answered the SAME questions, for YEARS. I appreciate all of you and your willingness to help.

It is VERY clear that no one here tries to replace or give legal advice. But because of all of you, I have learned enough to ask intelligent questions when I talk to an attorney--and even when I talk to myself, for that matter. I have learned enough to know in minutes whether an attorney knows enough about foreclosure defense to help me. 
I cannot afford to pay an attorney per hour for his or her on-the-job training. Or to pet their ego.

I treasure the helpers on this site, but I know a good attorney is important too.  
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