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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FightingInCali
Hello all,

Can anyone tell me where to find successful case rulings in California (non-judicial) for the produce the note defense? I want to make sure I'm armed to do battle with my judge and I hear California judges are throwing out most of these cases using this defense

Thanks!
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SW
I am fighting my foreclosure in California as well.  The produce the note does not work -- by itself.  I am not attorney so I will just tell you what I would have done differently -- first I would file in Bankruptcy court (check with an attorney, District Federal court may work as well) where they have to file a proof of claim that will require that they both show the note, and how they came into possession of it.
  California is non-judicial.  So all the lender has to show is that they have a valid assignment (which may or may not be recorded) to the Deed of Trust.  That DOT will have a "power to sell' clause, and that is all they need.  State judges think of these cases as "simple" foreclosure that they want off their calendar as soon as possible, regardless to what you demostrate.  And trust me, the produce the note by itself is a useless argument.  I think it is a fundamentally flawed legal ruling for a judge to dismiss their requirement to show the note but I will most likely have to appeal it and take it to the Appelate courts who I think will find the local judges stupid and lazy. 
   The opposition has filed a MSJ and we hear on Monday the status (tentative ruling) with oral arguments on Tuesday.  I am praying that the judge will see enough facts in dispute but the way it has gone, I am doubtful because I don't think the old crone even reads the dang papers.
   In my particular case we have discovered that even the assignment of the DOT is fatally flawed.  My lender immediately sold the loan to their parent company, who in turned sold it to a sister company of the company who deposited it in the trust.  The assignement goes from Company A (who is in bankruptcy itself) directly to D -- skipping all intervening assignments.  In addition, the assignment was done by the Servicer as an attorney in fact for Company A --- BUT THEY HAVE NO VALID POWER OF ATTORNEY to act on Company A's behalf.   We have laid this out in our response to the MSJ and again, I will see on Monday whether the judge sees this.  I am just trying to get to a jury trial because I think a jury of my peers will see the fraud and corrpution of these creeps.  But I faced with getting past the judge....and again, I am not hopeful.
    So, consult an attorney.  Homeowners are being heard in the federal courts but not in the state courts.  One of the attorneys overheard a superior court judge say, "Well there has been a lot of discussion about these cases and we are not impressed.  No homeowner should get a free house"...so otherwords, they think it is OKAY for a large, multi-billion dollar company can steal your house as long as you don't get a free one.   My recommendation, go find a judge who is interested in applying the law. and get a foresenic audit.  Find out what actually happen to your loan and where they got sloppy in their paperwork.   Good luck.
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Who Needs A Note
Non-judicial foreclosure under a deed of trust is governed by California Civil Code Section 2924 which relevant section provides that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.” California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, (case cited), and are “intended to be exhaustive,”(another case cited). There is no requirement that the party initiating foreclosure be in possession of the original note.

(1) See, e.g., Nool v. HomeQ Servicing, — F.Supp.2d —-, 2009 WL 2905745 (Sep. 4 2009) (“There is no requirement that the party initiating foreclosure be in possession of the original note.”);

(2) Candelo v. NDEX West, LLC, 2008 WL 5382259, at *4 (E.D.Cal. Dec.23, 2008) (“No requirement exists under statutory framework to produce the original note to initiate non-judicial foreclosure.”);

(3) Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D.Cal. Jan.5, 2009) (“Production of the original note is not required to proceed with a non-judicial foreclosure.”);

(4) Phillips v. MERS Mortgage Electronic Registration Systems, 2009 WL 3233865, 9 (E.D.Cal.2009); Vargas v. Reconstruction Co., 2008 U.S. Dist. LEXIS 100115, at *8-9 (E.D.Cal. Dec. 1, 2008).

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SW

Exactly Who Needs A Note, that is what the judges are saying.  I think this is a fatally flawed line of thinking because it is the beneficary of the note who needs to claim the "breach of default" in order to issue a "declaration of default" to start the foreclosure process.    So in order to make that declaration they should have to show they have the debt -- which is the note. 

I mean seriously, how can anyone possibly accept the rationale that a foreclosure can take place without the beneficiary holding the note? It's like saying that your neighbor can declare a foreclosure because he happens to live next door.

Civ. Code 2924c, which states that the borrower/trustor can cure the default by paying the "beneficiary" all of the amounts due under the note. Well, if the beneficiary isn't also the assignee of the note, then how the f*** can the trustor's payment to the beneficiary possibly cure anything? It can't, because unless the beneficiary is the assignee of the note, the beneficiary has no lawful right to payment, and the holder of the note has not been paid.

Homeowners will have to get it in front of the Cal. Supreme Court to overcome the obvious stupidity of the lower court rulings in this area.  IMHO.  And that is where I plan to go if these idiots win their MSJ this next week.  I am seeing this to the end.

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DyingTruth

Actually there's many ways you can make it work. Like for instance, your deed of trust & note says right on it "have THIS security instrument enforced"(not a copy or a imagination of it) and States are strictly forbidden from impairing the Obligation of Contracts by the US Constitution. another is that you need to make sure that if they do succeed in a recovery that someone else is not going to pop out of nowhere and start the whole process over again. & most importantly it's very big part of "due process" in the terms of contracts.

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Hey,

Just a quick note.  Have ya'll heard of bifurcation of the note and mortgage?  The mortgage (deed of trust) follows the note.  And without both, I don't believe there can legally be a foreclosure.  UCC 3  

Also, did you sign an agreement allowing your lender to securitize your note?

Might want to look into these suggestions.

Bob 
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SW
Bob I have read your postings with a very keen interest and they have helped me tremendously in understanding the whole securitzation process and what was happening to my loan.  For that, I can never thank you enough.   Unfortunately "Who Has My Note" is absolutley correct in that the local state judges feel that the 2924 foreclosure statue is "exhaustive" and they have no need to look outside of those statues in determing a company's standing to foreclose on a home.  Getting a judge to consider UCC3 has been impossible; I know of no state cases where the local judge has done so. NONE.   Again, I think it is a fatally flawed line of thinking but I believe the home owner will have to dig in and be ready to go to the wall --meaning go through the stupidy of the lower court, appeal and get to judges who will apply the law.  
  
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h gosh
Bifurcation of the note and mortgage is legal in PA.  Our corrupt politicians passed legislation in the wee hours of the morning (3:00 am) allowing foreclosure of the note or the mortgage.  The fact that this subjects the residents of double financial jeopardy has no meaning to these "pay to play" "bonus" advocates.  Even though my note is paid, I have had my mortgage foreclosed on, and not one section of the UCC applies.
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Good point Bob since the investors and other parties are using multiple title claims to increase the amount of leveraged or securitized assets based on the mortgages. Nye, myself and others here at the forum have been trying to get people to look at the money trail for years rather than just plain addressing the issue of manufactured default. There are only so many ways you can prove that you made the payments and the servicer/lender is foreclosing anyways, the judges know that can see the evidence, and are rubber-stamping foreclosures anyhow.

Ironic that an alleged commonwealth state is ignoring UCC which itself was created with intent to validate complicated third party transactions (using other peoples money) to gain title to transactions that would have been illegal under natural and common law.

Sounds like most of the state and local courts just plain ignore any type of due process with respect to mortgage and title law.

We have a window of opportunity to relate to everyone how this mortgage, investment and insurance fraud harms nearly everyone form the level of homeless who must compete with more homeless and people who are now less generous to the wealthy who have been hurt by the business and investment environment

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Hey Guys,

I understand the frustration.  I've just finished my Appellant Brief in 6th District, case # 09-5747.  Due to my health issues, I was "fortunate" to have a few friends that helped me with the writing.

The 6th is in Cincinnati, Ohio.  Ohio might not be a bad place to appeal.

None of us signed a contract to allow securitization of our mortgage.  If your note was pooled, then chances are your PSA will state the Negotiable Insrtrument  (Note) was scanned into securitization by Book Entry Registration. 

After the Negotiable Instrument was securitized, the bifurcation (separation) of the Security Instrument (Deed of Trust) from the Negotiable Instrument (the Note) has taken place. After this separation, the Negotiable Instrument no longer has a “Secured” status and the Negotiable Instrument is now an “Unsecured” indebtedness.  (I cannot take credit for this paragraph, it was a gift).

The case below, Tarrant County, Texas, foreclosure was denied using bifurcation and UCC.  If you can get this gentleman's response, it would be worth the time.

CAUSE NO. 096 239885 09 APPLICATION FOR ORDER FOR

FORECLOSURE.

A Broken Chain of Assignments renders the “Deed of Trust” Void and Unenforceable

under UCC 3-201, 3-204 & 3-302

Best To All,
Bob
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Vince
Bob, GREAT POST! thank you! I really think that Texas decision deserves it's own thread! not sure if that can be done but it appears to be very important! Thanks again, Vinny.
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SW & All,

I am not an attorney and do not give llegal advice.  Anything I post is from my own research or I have friends that help me understand what I missed.

SW, I'm pretty sure that if your note was in a trust (securitized) it was sold at least twice before it got to the depositor.  To make your note valid, whoever you are fighting would have to have all assignments and still prove they had equitable interest in the note.  If the note was digitized, it becomes invalid.  You need for them to produce a chain of title.

The note triggers the power to sell clause.  Without the note, there can be no foreclosure.  Once bifurcation occurs, (securitization), the note (negotiable instrument) becomes unsecured. 

Chances are the note (negotiable instrument) was not recorded in the Recorders office.  This further validates the bifurcation (separation) and once the note and deed of trust (security instrument) are separated, the deed of trust becomes a nullity.  Once this occurs, the negotiable instrument is unsecured. 

The negotiable instrument is governed by UCC Article 3.  Negotiable Instrument has to be negotiated.

Don't forget about holder in due course.   

Article 9-109(b) Subpart 2 - Comment 7

“Sec. 109(b) of Revised Article 9 provides (as did Former

Article 9) that “ [tjhe application of this article to a security interest in

a secured obligation is not affected by the fact that the obligation is

itself secured by a transaction or interest to which this article does not

apply. “However, Comment 7 to this section makes clear the

views of the drafters that a recorded assignment of a mortgage

has no bearing on whether a security interest in the mortgag

created or perfected and that any cases to the contrary are

overruled. According to Comment 7, “an attempt to obtain or

perfect a security interest in a secured obligation by complying

with non-Article 9 law, as by an assignment of record of a real property

mortgage, would be ineffective... lOlne cannot obtain a

security interest in a lien, such as a mortgage on real property,

that is not also coupled with an equally effective security interest

in the secured obligation.”

Hope this helps some.  The Article 9 is from me.  The negotiable instrument part, I had help with.

Best,
Bob
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Curious
How did you guys get to see that Texas decision?
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Vince
I found out more here:

http://ssgoldstar.websitetoolbox.com/post?id=3677657&trail=

and here:

http://www.scribd.com/doc/27860037/Securitization-With-Diagrams-Good

Vinny.



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Vince
http://www.msfraud.org/Law/Lounge/texasprosewin.pdf
Vinny.

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SW
Just a little bit of good news.  The following tentative ruling was confirmed.  The judge agrees the assignment is invalid because it violates CCC 1095.  Now how will the defendants prove they have an interest in the plantiffs home when they go to trial?

 

 

 

            

 

            Summary adjudication of the 2nd cause of action for fraud is denied.  Plaintiff alleges that Defendants falsely represented that they had the authority to sell her property and concealed from her that they had no such authority because they had never recorded an assignment of the Deed of Trust.   Defendants show that there was a recorded Assignment of Deed of Trust dated March 26, 2008, wherein New Century purported to assign to Deutsche Bank all beneficial interest under the Deed of Trust.  However, Plaintiff correctly asserts that this assignment is invalid for the reason it violates CC § 1095, in that it was executed solely by Wells Fargo as attorney-in-fact for New Century, without subscribing New Century’s name.  See Morrison v. Bowman (1865) 29 Cal. 337, 341, 352; Mitchell v. Benjamin Franklin Bond & Indem. Corp. (1936) 13 Cal.App.2d 447, 448.

 

            Regardless, Defendants contend in their reply that Plaintiff has admitted that Deutsche Bank entered into a Pooling and Servicing Agreement (“PSA”) dated March 1, 2006, and that pursuant to ¶ 2.01 of the PSA, Morgan Stanley Capital I, Inc., as Depositor, conveyed to Deutsche Bank, as trustee, “the right, title and interest to the subject Deed of Trust and subject Promissory Note.” Defendants assert that this concession by Plaintiff alone is sufficient to sustain summary adjudication in Defendants’ favor.  The court disagrees.  There is no evidence, submitted by either Plaintiff or Defendants, that the PSA or any of the other documents attached to Plaintiff’s request for judicial notice actually involve Plaintiff’s mortgage.  There is only Plaintiff’s assertion to that effect in her opposing argument.  The documents provided in Plaintiff’s request for judicial notice include only a few select pages from each of the documents, and it is not shown that Plaintiff’s mortgage is necessarily included in them. 

 

            Summary adjudication of the cause of action for declaratory relief is denied for the same reasons applied to the fraud cause of action.

 

            

 

            Summary adjudication of Plaintiff’s cause of action for quiet title is denied for the reason Defendants fail to address the entire cause of action as alleged.  Contrary to Defendants’ assertion, rescission under the TILA is not the sole basis for Plaintiff’s claim, as she also seeks to quiet title at ¶ 162 on the ground Defendants’ claims “are without any right, and Defendants have no title, estate, lien, or interest in the Subject Property.”  Because Defendants have not prevailed in regard to Plaintiff’s fraud cause of action, Defendants cannot assert that they have also shown Plaintiff is not entitled to quiet title on this basis.  In addition, Defendants fail to address Plaintiff’s express allegations that she is excused from tendering the full amount of the loan.  (¶¶ 164, 165.) 

            Defendants’ objections are sustained.  The parties’ requests for judicial notice are granted. 




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DyingTruth

SW what case was this and what court? District or superior?

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CASE#: MSC08-01603

 CASE NAME: CROMWELL  vs.  NDEX WEST LLC

 HEARING ON MOTION FOR SUMMARY ADJUDICATION

 FILED BY AMERICA'S SERVICING COMPANY, et al.

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I forgot to tell you, this is in the Contra Costa County Superior Court.

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SW, could you send arguement that you made regarding not having to tender mortgage amount for the Quiet Title claim.

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SW wrote:
I am fighting my foreclosure in California as well.  The produce the note does not work -- by itself.  I am not attorney so I will just tell you what I would have done differently -- first I would file in Bankruptcy court (check with an attorney, District Federal court may work as well) where they have to file a proof of claim that will require that they both show the note, and how they came into possession of it.
  California is non-judicial.  So all the lender has to show is that they have a valid assignment (which may or may not be recorded) to the Deed of Trust.  That DOT will have a "power to sell' clause, and that is all they need.  State judges think of these cases as "simple" foreclosure that they want off their calendar as soon as possible, regardless to what you demostrate.  And trust me, the produce the note by itself is a useless argument.  I think it is a fundamentally flawed legal ruling for a judge to dismiss their requirement to show the note but I will most likely have to appeal it and take it to the Appelate courts who I think will find the local judges stupid and lazy. 
   The opposition has filed a MSJ and we hear on Monday the status (tentative ruling) with oral arguments on Tuesday.  I am praying that the judge will see enough facts in dispute but the way it has gone, I am doubtful because I don't think the old crone even reads the dang papers.
   In my particular case we have discovered that even the assignment of the DOT is fatally flawed.  My lender immediately sold the loan to their parent company, who in turned sold it to a sister company of the company who deposited it in the trust.  The assignement goes from Company A (who is in bankruptcy itself) directly to D -- skipping all intervening assignments.  In addition, the assignment was done by the Servicer as an attorney in fact for Company A --- BUT THEY HAVE NO VALID POWER OF ATTORNEY to act on Company A's behalf.   We have laid this out in our response to the MSJ and again, I will see on Monday whether the judge sees this.  I am just trying to get to a jury trial because I think a jury of my peers will see the fraud and corrpution of these creeps.  But I faced with getting past the judge....and again, I am not hopeful.
    So, consult an attorney.  Homeowners are being heard in the federal courts but not in the state courts.  One of the attorneys overheard a superior court judge say, "Well there has been a lot of discussion about these cases and we are not impressed.  No homeowner should get a free house"...so otherwords, they think it is OKAY for a large, multi-billion dollar company can steal your house as long as you don't get a free one.   My recommendation, go find a judge who is interested in applying the law. and get a foresenic audit.  Find out what actually happen to your loan and where they got sloppy in their paperwork.   Good luck.
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SW wrote:

CASE#: MSC08-01603

 CASE NAME: CROMWELL  vs.  NDEX WEST LLC

 HEARING ON MOTION FOR SUMMARY ADJUDICATION

 FILED BY AMERICA'S SERVICING COMPANY, et al.

 

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A State
1. First Amended Complaint for: (1) Negligence; (2) Tort of Deceit and Constructive Fraud; (3) Tort of Intentional /Fraudulent Misrepresentation; (4) Fraud; (5) To set aside Trustee's Sale; (6) To void or cancel Trustees Deed Upon Sale; (7) Wrongful Foreclosure; (8) Violation of the Federal Debt Collection Practices Act 15 U.S.C § 1692 et.seq.; (9)Violation of California Business and Professions Code Section 17200 et. Seq.; (10) Slander of Title
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for Morgan Stanley Capital I Inc. Trust 2006 NC2, Deutsche Bank National Trust Company, NDEX West LLC, Does 1 through 20, Defendants. United States District Court, N.D. California., San Francisco Division, Oakland Division November 10, 2011

...On June 19, 2008 Plaintiff filed a Complaint, Contra Costa Superior Court Case No. MSC08-01603 (JN3), styled Kimberly Cromwell v. NDEX, America's Servicing Company and Deutsche Bank National, as Trustee of the Morgan Stanley Loan Trust Trust 2006-NC2, asserting causes of action for Declaratory Relief, Fraud, and Quiet Title....

...On March 30, 2010 in the matter of MSC08- 01603 of Cromwell v Ndex West, Americas Servicing Company, and DBNTC as Trustee of the Morgan Stanley Loan Trust, the court's ruling on the motion for summary judgment held that the assignment of Deed of Trust was invalid,[FN2] (See Exhibit 7) (JN4)...

Plaintiff Cromwell's Response to Order to show Cause

2. Plaintiff Cromwell's Response to Order to show Cause
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for Morgan Stanley Capital I Inc. Trust 2006 NC2, Deutsche Bank National Trust Company, NDEX West LLC, and Does 1 through 20, inclusive, Defendants. United States District Court, N.D. California. September 07, 2011

Reply to Plaintiff's Response to Motion to Dismiss

3. Reply to Plaintiff's Response to Motion to Dismiss
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR MORGAN STANLEY CAPITAL 1 INC. TRUST 2006 NC2, Deutsche Bank National Trust Company, Ndex West LLC, Does 1 through 20, Defendants. United States District Court, N.D. California. January 12, 2012

Plaintiff Cromwell's Response to Defendants Motion to Dismiss Fac

4. Plaintiff Cromwell's Response to Defendants Motion to Dismiss Fac
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR MORGAN STANLEY CAPITAL I INC. TRUST 2006 NC2, Deutsche Bank National Trust Company, Ndex West LLC, and Does 1 through 20, inclusive, Defendants. United States District Court, N.D. California. January 04, 2012

Deutsche Bank National Trust Company's Notice of Motion to Dismiss, or, in the Alternative, Stay Plaintiff's Complaint; Memorandum of Points and Authorities in Support of Its Motion to Dismiss, or, in the Alternative, Stay Plaintiff's Complaint

5. Deutsche Bank National Trust Company's Notice of Motion to Dismiss, or, in the Alternative, Stay Plaintiff's Complaint; Memorandum of Points and Authorities in Support of Its Motion to Dismiss, or, in the Alternative, Stay Plaintiff's Complaint
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY As Trustee for Morgan Stanley Capital 1 Inc. Trust 2006 NC2, Deutsche Bank National Trust Company, NDEX West LLC, Does 1 through 20, Defendants. United States District Court, N.D. California. December 01, 2011

Notice of Joinder and Joinder of Defendant NDEX West, LLC in Motion of Defendant Deutsche Bank National Trust Company's to Dismiss Plaintiff's Complaint

6. Notice of Joinder and Joinder of Defendant NDEX West, LLC in Motion of Defendant Deutsche Bank National Trust Company's to Dismiss Plaintiff's Complaint
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for Morgan Stanley Capital 1 Inc. Trust 2006 NC2, Deutsche Bank National Trust Company, NDEX West LLC, Does 1 through 20, Defendants. United States District Court, N.D. California. August 04, 2011

Deutsche Bank National Trust Company's Notice of Motion and Motion to Dismiss Complaint; Memorandum of Points and Authorities

7. Deutsche Bank National Trust Company's Notice of Motion and Motion to Dismiss Complaint; Memorandum of Points and Authorities
Kimberly S. CROMWELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR MORGAN STANLEY CAPITAL 1 INC. Trust 2006 Nc2, Deutsche Bank National Trust Company, NDEX West LLC, Does 1 through 20, Defendants. United States District Court, N.D. California. July 05, 2011
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