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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This is a unique situation so forgive me if some of the facts are a little off the wall.

In October 2008 I filed a Chapter 7 bankruptcy and received a discharge in February 2009. The creditor listed was the servicers address, but the records on the property were still in the name of the original lender.

During the bankruptcy, another bank who had started a foreclosure proceeding filed an assignment of mortgage, but did not tell the court, me, or anyone else for that matter. This was done on January 5th, 2009 and was recorded March 12th, 2009.

Would this transfer be valid? Would it be a viable defense to try and reopen the bankruptcy?

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Bill
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During the bankruptcy, another bank who had started a foreclosure proceeding filed an assignment of mortgage, but did not tell the court, me, or anyone else for that matter. This was done on January 5th, 2009 and was recorded March 12th, 2009.
 
Was the home addressed in bankruptcy?  If you file chapter 7 and were behind, I would think the attorney would include this in the chapter 7 and have it discharged so you did not own anything on the home and would have to surrender it to the creditor.
 
Why is the assignment an issue?
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FnDoomed
Hi Rose.  I don't think that the assignment created a cause of action for you.  For an example reference, have a look at: 


Where it says:  "The postpetition assignment of a mortgage and the related note from one holder to another is not a transfer of property of the estate. The mortgage and note are assets of the creditor mortgagee, not of the Debtor. Nor is the postpetition assignment of a mortgage and the related note an act to collect a debt; the assignment merely transfers the claim from one entity to another."

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The reason the assignment is an issue is the home was bankrupted to another party, not the one trying to take it. The assignment, as defined under 362, transfered title, interest, etc. It was not an assignment stating their equitable interest..it was actually a transfer of the property, which was not known to the court or me.
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It should also be noted that the "assigning" bank no longer existed as well. It is also a situation to where the bank was not bought out..it simply went under and there was no POA to Mers or any other corp.
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Rose

I think this took care of my question. I just have to spin it a different way.

Thanks for your help with the prior case, it led me to that one!
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Bill
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The reason the assignment is an issue is the home was bankrupted to another party, not the one trying to take it. The assignment, as defined under 362, transferred title, interest, etc. It was not an assignment stating their equitable interest..it was actually a transfer of the property, which was not known to the court or me.



Rose,

I understand your argument, this is becoming more and more common in the bankruptcy arena. 

What I am failing to understand is what does it matter? 

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In October 2008 I filed a Chapter 7 bankruptcy and received a discharge in February 2009


Your chapter 7 was discharged.  All the debt/liability is gone.  YOU FAILED TO ARGUE THIS AT THE MOTION FOR RELIEF OF THE STAY or before the discharge of you debt.  How is reopening your bankruptcy going to change anything?  Usually the failure to raise an argument results in WAIVER of the argument.  Your questions can quickly be resolved by a phone call to the attorney that filed/completed your bankruptcy.  

Maybe some members that have more knowledge of bankruptcy will add a comment on this.

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Rose
The liability was discharged to another party, not the party trying to take it. It would have been impossible for the rights of the original to be transferred since they were not able to do so. Plus, the party that is still trying to take the property has filed into a Chapter 13 trying to get PAID for the debt that was discharged to the prior party.

Yes, this is one of the oddest and backwards foreclosure cases I've come across or heard about.

Basically A bank had a mortgage. B bank filed an assignment. During the Chapter 7 B bank filed ANOTHER assignment saying A Bank gave them the same property as the first assignment but on a different date, effectively changing the original assignment. If the first assignment was not "perfected" since it did not include a property description, correct dates, etc, they tried to fix the errors of the first assignment by filing ANOTHER assignment during the bankruptcy with missing and different information.

I'm reviewing multiple cases about assignments during bankruptcy cases, and while they all pretty much agree they don't violate the stay, I am trying to figure out how this applies when they are trying to correct errors and omissions to a prior filed assignment of the same bank from A Bank (which no longer existed and was actually barred by the state from even acting as a mortgage company)

Like I said, this is a screwed up situation.
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FnDoomed
Well... You're discharged as to the Note, but you still have in rem liability of the Mortgage.  Bank "B" has executed two assignments of the mortgage that was held by "A", so Bank "B" seems to have nothing.

The case you cite seems to indicate that the judge denied the motion for relief from stay because of the Note and the impossible allonge.





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I just want to bring forth something that has been wronged for nearly 100yrs in the judicial system. Banks have no such thing as "In Rem" rights. This has been settled in the US Supreme Court in Freeman v. Alderson, 119 U.S. 185 (1888). Here is a quote:

"There is, however, a large class of cases which are not strictly actions in rem, but are frequently spoken of as actions quasi in rem, because, though brought against persons, they only seek to subject certain property of those persons to the discharge of the claims asserted. Such are actions in which property of non-residents is attached and held for the discharge of debts due by them to citizens of the state, and actions for the enforcement of mortgages and other liens. Indeed, all proceedings having for their sole object the sale or other disposition of the property of the defendant to satisfy the demands of the plaintiff are in a general way thus designated. But they differ, among other things, from actions which are strictly in rem, in that the interest of the defendant is alone sought to be affected, that citation to him is required, and that judgment therein is only conclusive between the parties."

This is about subject matter jurisdiction people must understand this. ABN AMRO Mortgage Group Inc. vs Nona McGahn Docket No. 107954  Supreme Court of Illinois, in 2010 recently use this case correctly and subject matter jurisdiction was properly used. This case forever changed the landscape of foreclosures in this state. They went on to say that :

"We are not persuaded by Financial Freedom. As noted above, Waughop and Marcus did not engage in any analysis in reaching the conclusion that foreclosures were in rem actions. We have found, however, that the nature of a foreclosure proceeding mandates our conclusion that foreclosure actions are quasi in rem proceedings. Accordingly, we reject Financial Freedom,and to the extent that decision and any statements in our prior cases are contrary to our holding here, they are hereby overruled.
In sum, we hold that, based on the well-settled principles distinguishing in rem and quasi in rem actions and the requirements of the Mortgage Foreclosure Law, a foreclosure proceeding is a quasi in rem action. 

Read these 2 cases and R. Waples, Treatise on Proceedings In Rem §64, at 88 (1882). (its free on Google Books)

Discharge from Bankruptcy is a powerful thing be it chapter 7, 11, or 13. If the personal liability is gone, no bank can come forward because court lacks subject matter jurisdiction on the person because they are no longer a party. Also this is the same judge and the same year that ruled on the Long vs Bullard. The very case that every judge uses, Bullard was about fraud trying to concealed property. The court had jurisdiction over the res and took it from the defendant. When a bankruptcy has been adjudicated and there was no fraud concealment the court can not use In Rem because the court is not the one taking the property, but the bank trying to close out your interest. That is Quasi In Rem. Now I know people will scratch there head on this, thats why I ask for people to read and understand the law and document. 

Only then when you see documentation in law books that can be supported not a person on the internet, should you then use the information in your own situation.
This banks have In Rem has been fraudulently use for way to long and must be stopped. Bank can not and will not ever have In Rem rights. The promissory note is the instrument of the wrong, without the person there is no mortgage. Indeed this is just like the method of Standing and Real Party in Interest. If they do not have standing the court lacks subject matter jurisdiction to rule on anything and the case must be dismissed. This is the same thing. 

The purported power they so call get that allows them to walk in your home and lock the door is from the old rule of Corporate Mortgages (check out Bouvier Law Dictionary and Concise Encyclopedia) but they seem to forget the huge rule if they do this. it would be a huge liability on them for this, for the law is clear if the so called bank comes in and takes the property then the trustee is liable for price of the note, and you are no longer liable period. Now why would the trustee want to pay off a debt for you without having the right to come after you? 

Information is out there but you just must know how to find it. For the record I am not in foreclosure I pay everything in cash, but I just do not like seeing people becoming debt slaves and held in bondage. I'm tried of people saying that it doesn't matter what the defense of the debtor is they owe the money and thats it. The country was built to be a Republic and a Democracy, but instead we have Democracy Republic one person can have a voice but if a majority doesn't like it then your out of luck.


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