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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I have two complaints active in Federal Court against the bank and the foreclosure mill, challenging the validity of all their paperwork; i.e., the foreclosure mill attorney (also the substitute trustee)filed as substitute trustee claiming the bank
to be note holder of my alleged mortgage, then filed a foreclosure action as though representing the bank as holder of the note. Bank has admitted in writing they are not the note holder, and can't be response for the actions of a third party.

Foreclosure hearing is tomorrow, and to be decided by the County
Clerk of Court, who has no legal background and always sides with the foreclosure mill. He's already told me he doesn't delve into fraud; just work something out with the bank.

Isn't this an obstruction of justice? I spent months working on both my complaints, filed them in Federal Court; yet the future of my home rests with some local yocal who is going to be the judge, jury and executioner?

Is there a Federal statute that prohibits this?
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FnDoomed
It sounds like you have three active cases, one of them a foreclosure and your arguments are against a clerk?

If that is so then IMO you should forget about the clerk. He's a victim too. I don't know HI but here clerks do things like record assignments of mortgages - if that's what you're complaining about definitely forget it. You don't have "standing" to challenge it.

Foreclosures involve a minimum of a note, a mortgage, and a default. They need to prove this. You need to stop them. Focus only on these three things and don’t get distracted.

You need to look your opposition and the Court in the face and say: The note is not in default to the holder. The opposition is neither THE holder of the note, nor a non-holder in possession of the note with the rights of the holder. Any mortgage assignment that may appear in the record is a nullity as the opposition has no rights to the note.

So you first need to get educated on a note.
The Uniform Commercial Code provides several ways to become a Person Entitled to Enforce an instrument.

Holdership of a note under UCC 3-301 (i) requires possession of the wet-ink note taken by negotiation with all indorsements of the Maker(s) and prior holders. The final indorsement may be made in blank or to the person claiming holdership.

Subsumed within the concepts of negotiation are the questions of when and where indorsement and delivery occurred, because this affects rights and obligations of the parties, as well as the law controlling the transaction, and would be a question of material fact requiring some external evidence.

UCC 3-301 (ii) requires that the person so claiming must prove two things. First, the person must prove they are in possession of the original wet-ink note. Second, the person must prove the transaction through which they acquired the note from the holder.

“Because the transferee is not a holder, there is no presumption under Section 3-308 that the transferee, by producing the instrument, is entitled to payment. The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unendorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder.”
U.C.C. ARTICLE 3 OFFICIAL COMMENTS COMMENT § 3-203 Comment 2 (emphasis added).

The Court of Appeals for the 1st Circuit agrees.

“Not being a holder, the FDIC had to show, as a prerequisite to enforcing the Note against the Houdes, that it was a transferee in possession entitled to the rights of a holder. See 11 M.R.S.A. § 3-1203. Comment 2 following § 3-1203 provides:
If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument ... if the transferor was a holder at the time of transfer.... Because the transferee is not a holder, there is no presumption ... that the transferee, by producing the instrument, is entitled to payment. The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder. At that point the transferee is entitled to the presumption.... (emphasis added)

Thus, in order minimally to be entitled to the presumption under Maine law that it could enforce the Note, the FDIC was required (1) to prove a sufficient transfer from a holder (here MNB, to which the Note was made payable by the Houdes) to the FDIC in its present capacity as receiver of NMNB, and (2) to produce the Note at trial.”

FDIC v. Houde, 90 F. 3d 600 - Court of Appeals, 1st Circuit 1996.

Your state has a version of the UCC too. You can find it using the UCC locator here: http://www.law.cornell.edu/uniform/ucc.html ...
Next you need to read a few other things – just to get you started on your own possible arguments.

W.A.R. Conditions Precedent: http://ssgoldstar.websitetoolbox.com/post/The-Conditions-Precedent-Affirmative-Defense-5059262

W.A.R. Personal Knowledge, Hearsay, Conclusions, Best Evidence Rule: http://ssgoldstar.websitetoolbox.com/post/Personal-Knowledge-Hearsay-Conclusory-Averments-and-the-Best-Evidence-Rule-4903945

W.A.R. Assignment of the Mortgage without the note is a NULLITY: http://ssgoldstar.websitetoolbox.com/post/Assignment-of-the-Mortgage-Without-the-Note-Is-a-NULLITY-5314462

AFTER you read those – use the forum’s navigation controls and scroll through the forum looking for the same author. The controls (are hard to see with my setup) are in the lower right corner.

BEFORE you are in court – Make sure that you can get a transcript or figure out how to ask for a change of venue if your court isn’t a “court of record”. Ask the court clerk.

WHEN you are in court – OBJECT to anything you can and get it on the record based on what you learned from all your reading.

Good luck

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In my state, the Clerk of Court issues the foreclosure judgement. He or she is not allowed to hear equitable defense, and can find only on four issues;

Is it a valid debt;
Is it past due;
Was respondent given notice of the hearing;
Does the Deed of Trust includes wording "power of sale".

He almost always finds in the bank's favor. He's not a judge; yet he has the authority to decide foreclosure cases, establish sale dates, rule on motions associated with the foreclosure.


Your information is great ..... not for this hearing, because the clerk can't hear it.
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FnDoomed
Argument on the note goes directly to validity of the debt - that seems to be in this clerks purview.

Stating that the note is not in default to the holder also seems to be in this clerks purview.

Whatever your appeal process is - get ready to use it.
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"I spent months working on both my complaints, filed them in Federal Court; yet the future of my home rests with some local yocal who is going to be the judge, jury and executioner?"

This sounds like a form of non-judicial foreclosure (you mention power of sale). If you have a meritorious defense to the efforts of the alleged holder of the note's attempt to foreclose, why did you not obtain a preliminary injunction out of the District Court. . . or did you file a Motion for one and it was denied?

Des.
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jlcam37
Defense- Persons that signed document recorded "caused to be recorded in a public office a defective instrument". Not admissible as evidence if not authenticated. Admission they are NOT holder equals they are WITHOUT LAWFUL AUTHORITY to substitute a new Trustee.


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