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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DEFEATING FORECLOSURE
DEFEATING FORECLOSURE: IS YOUR BANK ACTING UNDER FRAUD??

DEFEATING FORECLOSURE: IS YOUR BANK ACTING UNDER FRAUD??

Florida has one of the highest foreclosure rates in the country.

Is your bank operating under fraud??

I can=92t tell you how many calls that I get from homeowners asking me
if there is any way that they can prevent foreclosure. One very
important issue is normally in the complaint that is filed by the
plaintiff (bank) in a case.

Typically what I have seen is that most of the foreclosures are based
on blatant, premeditated fraud by the banks and mortgage companies. In
their complaint, there may be a paragraph that states "the original
note has been lost or misplaced" this may be true or maybe a blatant
lie but it is the real issue to challenge the plaintiff's complaint by
filing a petition for discovery and/or deposing the bookkeeper for the
bank and getting down the "brass facts" of what really happened to the
original note.

There has been more and more federal cases surfacing in which some
(honest) federal judges are dismissing the plaintiff cases for lack of
standing or jurisdiction because they cannot produce the original
mortgage note.

In Florida, Florida=92s best evidence rule =93requires that when the
contents of writing =85 are being proved, an original must be offered
unless a statutory excuse.

The Florida Evidence Code provides that Except as otherwise provided
by statute, an original writing, recording, or photograph is required
in order to prove the contents of the writing, recording or
photograph. =A7 90.952, Fla. Stat. The requirement of an =93original=94
ensures that the evidence presented is an accurate transmittal of the
critical facts contained within it. See McKeehan v. State, 838 So. 2d
1257, 1260 (Fla. 5th DCA 2003). the =93original writing is required
because oral testimony may be inaccurate [or] fraud may result.=94 C.
Ehrhardt, Fla. Evid. =A7 952.1. See also U.S. v. Howard, 953 F.2d 610,
613 (11th Cir. 1992).

The Evidence Code, however, does permit the introduction of duplicates
under certain circumstances:
A duplicate is admissible to the same extent as an original, unless:
=85.
(2) A genuine question is raised about the authenticity of the
original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in
lieu of the original. =A7 90.953, Fla. Stat. Thus, for the copies of the
purported Holder paper to be admissible, (a) the copies must be
=93duplicates,=94 (b) no genuine question can exist regarding
authenticity; and (b) it must be fair to admit the paper in lieu of
the original. When there is insufficient proof to establish that the
photocopy is the same as the original, the evidence must be excluded.
A duplicate may not be admitted into evidence if there is =93genuine
question is raised about the authenticity of the original or any other
document or writing.=94 =A7 90.953(2), Fla.
Stat. As a leading treatise on Florida evidence explains,

If there is a genuine question concerning the authenticity of the
duplicate, the duplicate is not admissible under section 90.953(2).
For example, if a defendant alleges that he did not sign a contract
upon which the plaintiff sued, but rather signed a different contract,
a genuine question is =93raised about the authenticity of the original=94
and the duplicate is not admissible under section 90.953(2). The
original must be offered unless an adequate excuse for its non-
production is demonstrated under section 90.954.=94 See: C. Ehrhardt,
Fla. Evid. =A7 953.1 (2004).

The bottom line is "proof of claim" , the burden of proof falls back
into the lap of your bank - if your bank cannot provide prima facie
evidence that they do not have standing or jurisdiction to sue you in
a foreclosure action. Furthermore, it makes your bank subject to
counter-claim under false claim act 31 U.S.C. =A7 3729 (federal) or
Florida False Claims Act 68.081-68.09, not to mention, violations of
FDCPA, FTC "deceptive business practices" and "fraudulent
presentments", SEC, and mail fraud, etc.

The court recognized that the debtor had the necessary motive to
fabricate the =93letter=94 to serve his own self-interest. Some banks have
sold the original note in asset backed trust pool to international
investors. Similar to "factoring" where the note is sold for a
discounted price or cash to a new owner.

The biggest hurdle that any pro-se litigant or non-attorney faces
today is the corruption of our courts but don=92t give up - winners
never quit and quitters never win. Fight for your rights and for your
home.

Ten Tips for Success in Court: by Fredrick graves, Esq.

1. Deserve the Judgment You Seek
2. Follow the Rules
3. Make Everyone Follow the Rules

a. Rules of Civil Procedure
b. Rules of Evidence
c. General Legal Principles
d. Common-Sense & Reason

4. Allow No Monkey-Shines!
5. Demand the Truth

a. Require Sworn Testimony
b. Verify Pleadings & Motions

6. Make an Effective Record

c. Use Well-Paid Court Reporters
b. Do Not Go Off-the-Record

7. Use Simple Sentences
8. Manage Your Own Case

a. Don't Allow Opponent Control
b. Don't Allow Court Direction

9. Expect a Favorable Judgment
10. Demand Your Right to Win!

NEVER GIVE IN AND NEVER GIVE UP!

If anyone has any questions, feel free to contact us at:

(941)822-4663 OR INFO@HOMESTEADSERVICESFLORIDA.COM

http://www.homesteadservicesflorida.com

Respectfully Submitted,

Darren Michaels

PRIVATE ATTORNEY GENERAL: 42 U.S.C. 1988
QUALIFIED CRIMINAL INVESTIGATOR: 18 U.S.C. 1510
FEDERAL PROTECTED WITNESS: 18 U.S.C. 1512-13
AMBASSADOR/ORDAINED MINISTER 18 U.S.C. 112
FLORIDA NOTARY F.S. 117
FLORIDA INSURANCE BROKER: LIC. 215,216,218,240,266, ASSET PROTECTION/
ESTATE PLANNING
LEGAL RESEARCHER/WRITER

DISCLAIMER: we are not a law firm or attorneys. Nothing in this
message should be considered legal or tax advice. If you need legal
advice, please consult an attorney licensed by your state bar
association and for tax advice please consult a CPA or qualified
accountant.

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Quote 0 0
    Check to see if the originator was licensed to make mortgage loans with
your home state Office of Financial Regulation. For example, many non-bank
mortgage companies were operating in Florida without a license from the
"Florida Office of Financial Regulation".
    When this happens, the Note might be good, but the mortgage is no good.
If the property is homesteaded, the unlicensed lender can't foreclose. It could still get a judgement, and put a lien against the property but no en-
forcement could take place until the property is sold or otherwise disposed of. This puts the owner in a strong position as far as getting a loan mod.
to "cram down" the principal owed and the interest rate.
Quote 0 0
It is the same for California?  I've been trying to search the internet to find out about private lenders and what laws apply.  Can you tell me where to look for this information or what I;'m looking for.

Had private lender.  No license.  They somebody that buys and sells commercial and residential properties and manages them. 

I know I got a TILA and Wrongful Foreclosure but looking for how I can pursue that against a non-licensed lender.

Thanks

Kirk

Quote 0 0
   California appears to have very strong licensing laws. Go to Department
of Corporation and then to Financial Services Division Licensee adress listing.
   By doing this you can see if the entity ever had a license and if so, if it was revoked. For example, look up Homefield Financial Inc. It had a license
but then lost it.
Quote 0 0
Hey thanks for responding.   Yeah, checked with those agencies and they said nothing for this person and that they can't enforce regulatory laws on them.

I checked the Dept. of Real Estate too and they never had anything for this person.

It's just a guy that got rich from owning rental properties and did a one-year loan on my place that netted him another rental property and me homeless.

Quote 0 0
I am interested in finding information about Homefield Financial.  I checked with Florida and they were licensed at the time of my loan.  I know they imploded sometime between April 2007 and August 2007.  As for Florida, they were revoked in September 2008 for not filing the annual report. 

In California, they appear to still be active.  However, I have information that they actually only changed their name to Homewell Mortgage, Homewell Realty, Homewell Short Sale.  The owner is a Danny Bowz who is an attorney.  He has offices in California, Texas, Louisiana, Mississippi, and North Carolina. 

Any other info would be greatly appreciated.

Alina

Quote 0 0
could you explain what it means to have a good note but mortgage is no good?

Barb


Mike H wrote:
   
    When this happens, the Note might be good, but the mortgage is no good.
Quote 0 0
Dear Barb,
    To answer your question as to how a Note might be valid, but a mortgage
not valid, my response is as follows: In order to be in the mortgage lending
business, in most states, one must be licensed.
     If an entity is not licensed to make mortgage loans, then the mortgage,
ie the lein against the property, is unlawful. Since a mortgage foreclosure
attempts to enforce an equitable issue, the plaintiff must come to Court with
"clean hands" ie must have obeyed all the laws of the State where the Note
was made. If not, it can not foreclose.
     A note is merely a promise to pay a certain sum of money. It is a contract so if one can prove that the other failed to honor the contract,
one could get a money judgement and THEN place a lein against the defendant's property like any other kind of money judgement. It would be
like a credit card money judgement. If the property of the defendant was
homesteaded as in Florida or Texas, the plaintiff would have to wait for the
property to be voluntarily sold before collecting the judgement. No forced sale would be possible as in a foreclosure sale.
Quote 0 0
Interesting.  So even all the legal fights about Mortgage Servicing Fraud, could be quickly settled if it turns out the lender was not licensed in the state the loan orginated.  Do I have that correct?

Barb


Mike H wrote:
Dear Barb,
    To answer your question as to how a Note might be valid, but a mortgage
not valid, my response is as follows: In order to be in the mortgage lending
business, in most states, one must be licensed.
     If an entity is not licensed to make mortgage loans, then the mortgage,
ie the lein against the property, is unlawful. Since a mortgage foreclosure
attempts to enforce an equitable issue, the plaintiff must come to Court with
"clean hands" ie must have obeyed all the laws of the State where the Note
was made. If not, it can not foreclose.
     A note is merely a promise to pay a certain sum of money. It is a contract so if one can prove that the other failed to honor the contract,
one could get a money judgement and THEN place a lein against the defendant's property like any other kind of money judgement. It would be
like a credit card money judgement. If the property of the defendant was
homesteaded as in Florida or Texas, the plaintiff would have to wait for the
property to be voluntarily sold before collecting the judgement. No forced sale would be possible as in a foreclosure sale.
Quote 0 0
Moose
Barb wrote:
Interesting.  So even all the legal fights about Mortgage Servicing Fraud, could be quickly settled if it turns out the lender was not licensed in the state the loan orginated.  Do I have that correct?

Barb


The likelihood of a mortgage getting through the securitization conduit from an unlicensed originator, especially if PMI was involved is almost nonexistent.

Moose


Quote 0 0
   It seems to me that "securitization" is mainly concerned with the "Note"
not with the "mortgage". That is why the mortgage goes to MERS, but the
Note gets bundled together with other Notes into a CDO.
   When one really thinks about it, except in the case of Homesteaded property, the mortgage is really not that important, because if the borrower
doesn't pay, a judgement and lein will be placed against the property in any
case, and if it's not paid in a reasonable amount of time, a sheriff's sale will
transfer title.
    WMC Mortgage Corporation is an example of a company that lost its
licence in Florida on June 4, 2004 for whatever reason, and yet continued
making mortgage loans in Florida as late as 2006. Deutsche Bank ended up
with many of their Notes and is trying to foreclose on some of them.
    I haven't done alot of research on this, but contrary to Moose's opinion,
I'll bet this happened alot more frequently than alot of people believe. In
any case, it's the first research I do when a new case comes across my desk. So far, I've detected three out of ten.
Quote 0 0
Good Morning Mike,

I'm new to this mortgage servicing fraud issue.  Would you please explain what is

MERS

and

CDO




Mike H. wrote:
   ...That is why the mortgage goes to MERS, but the
Note gets bundled together with other Notes into a CDO.
Quote 0 0
MERS= Mortgage Electronic Registration System.
CDO = Collatereralized Debt Obligation
   In the old days, the bank would hold the mortgage and the note, but today, the Notes are bundled together and sold to investors like a Bond.
These Notes can be traded like "baseball cards" to different investors.
Mers is supposed to keep a record of who owns the "Note" at any given
point in time. The servicer is an independent third party which collects
the payments and sends them to the "trustee" of the CDO. The servicer
receives a fee for this service. What started this problem was the fact
that 'servicers" wern't happy with the "nickles and dimes" they were getting
so they started manufacturing "defaults" on loans that were not in "default"
where there was lots of equity in the property. It was attempted "equity
theft". Since after the 2008 crash, most borrowers have no "equity" left,
 servicers are now being very nice and "modifying" loans to keep borrowers
in their homes and making payments. The situation has completely changed
and now the focus is on "mortgage fraud" at origination. It turns out that
"mortgage fraud" was widespread, and would invalidate the mortgage and
possibly, even the Note. Stay tuned for future developments!

Quote 0 0
   Good News from Tampa, Florida. One of my pro se clients defeated a
foreclosure attempt by US Bank. The case was dismissed without prejudice
because US Bank had a bogus "assignment of mortgage" which did not state
the "book and page" of the original mortgage which was given to "Mers" by
Homefield Financial. Also, US Bank could not produce a copy of the "original
Note" which further weakened their case.
   They did not even bother to attend the trial, possibly because the defendant filed a "counterclaim" for mortgage fraud for one million dollars
against "defunct" Homefield Financial of California for the "TILA" offenses
of submitting an "inflated appraisal" and an "inflated income statement" from
the borrower in order to obtain the "mortgage" against his property.
   I'm sure US Bank figured it was not worth it to lose the counterclaim against the originator and its assigns, so it wisely chose not to pursue the
matter. THIS SHOULD BE HIGHLY INSTRUCTIVE TO OTHER PRO SE'S.
   Also, my client brought along a "Court Reporter". He surprised the first
Judge with this, and she recused herself. The second Judge followed the LAW!
  
Quote 0 0
Knows About Assignments
Quote:
Originally posted by Mike H.

I'm sure US Bank figured it was not worth it to lose the counterclaim against the originator and its assigns, so it wisely chose not to pursue the matter.  THIS SHOULD BE HIGHLY INSTRUCTIVE TO OTHER PRO SE'S.


Mike:  You reasoning here just doesn't make sense.  Typically, a dismissal of the original claim either with or without prejudice woudn't necessarily extinguish the counterclaims.  Counterclaims against another separate defunct entity shouldn't be of great concern to the plaintiff either.

I would think that what caused the plaintiff to stay away from the courtroom is the fact that the defendant FIGURED OUT that the plaintiff was using a fabricated assignment.  The law firm that countenances perjured and/or fabricated evidence could get sanctioned and the attorneys could lose their law licenses!

Since the dismissal without prejudice simply delays the disposition, the law firm tactically retreats to fight a different day. 

I do NOT pretend to know any particular facts in this case nor do I have any actual knowlege of the motivations of those involved, but the idea that it was the counterclaim that scared the attorneys away makes no sense to me!
Quote 0 0
    Interesting point! So what you are saying is that the defendant's counter
claim survived the dismissal and is still alive against the originator, Homefield
Financial.
    My thought is that if US Bank claims the rights of Homefield Financial, it
would also inherit the liabilities of Homefield. I'm not an attorney but that seems logical to me. Please correct me if I've missed something here.
Quote 0 0
Knows About Assignments
Quote:
Originally posted by Mike H.
My thought is that if US Bank claims the rights of Homefield Financial, it would also inherit the liabilities of Homefield. I'm not an attorney but that seems logical to me. Please correct me if I've missed something here.


Mike H.:

The liability of a successor in interest is wholly dependent on how the successor came into that interest.

Generally, only if the successor acquires an entity in whole and merges the entity into itself, does the acquiring entityalso acquire the liabilities.  For example, Bank of America acquires Fleet Bank and wholly merges operations of the entities, rebranding all the retail locations and transferring deposits, etc.  Even this maybe a BAD example, as this could also be largely accomplished (and might have been in the NofA /Fleet merger, I haven't researched it) by selling the branches and deposits from one entity to the other and leavng the old entity as a shell with cash from the transfer, which cash can then be distributed in a dissoluton or dividend.

Suppose that you purchased an incorporated bicycle shop, including all the inventory, accounts receivable, accounts payable, etc. and merged it into your larger chain of bicucle shops.  Suppose also that the prior owners and or managers of the small bicycle shop had a penchant for molesting oung boys who worked there.  Your chain had no knowledge of this activity nor participated in it in any way.  What is your chain's liability when the boys come foreward and start suing?

In the case of a merger, you might very well find chain is liable.  If, instead, you purchased the building, the inventory, the accounts receivable, and the goodwill, leaving the accounts payable, for example, for cash, you would in most cases leave the liability behind.

There might be some good reasons that you would be inclined to merge, as where an entity has unused tax loss carryforward that can be readily applied to the acquiring entities tax liability in a merger, but might otherwise be abandoned.

This is somewhat a matter of common sense. Some very smart lawyers will have looked over the circumstances and will have chosen the strategy that seems most advantageous for the purchaser.

Most of the subprime lenders have collapsed leaving defunct corporate carcasses behind.  Acquiring entities are well aware of the unlawful and even criminal behavior perpetrated by these entities and have cherry picked the lucrative assets, leaving the liabilities behind.  Very often, the sale of assets has been supervised by a federal Bankruptcy Court.  Those with claims against the bankrupt estate have or had a duty to come forward with their claims or face the discharge of these claims.

*

In most situations in mortgage finance, loans are being sold either one at a time on a "flow basis" or in packaged bundles.  When the loan is sold the promissory note is indorsed, usually in blank, and delivered to the purchaser or, more likely, to the institutional custodian of the purchaser.

Only the loan itself typically goes forward.  Other ancilliary liability for the originator's misdeeds remains in the originator's corporate shell.  The loan is very often sold through more than one separate corporate entitiy, so-called bankruptcy remote entities, further shielding liability between the seller and the ultimate purchaser.  Both the large institutional seller and the institutional buyer will interpose a bankruptcy remote entity between each other in these transactions.  Instead of A selling to D, A sells to its bankruptcy remote affiliate B, which in turn sells to D's bankruptcy remote affiliate C, which then sells to D.

The note ends up in the vaults of D's institutional custodian.  The cash purchase price ends up in A's accounts.  B and C insulate A and D from each other's misdeeds and liabilities.

Within the Uniform Commercial Code (UCC) is a provision and doctrine called "holder in due course" status.  When negotiable instruments are indorsed and delivered and the purchaser is unaware of any defects or valid impairments in the instrument, certain defenses against the instrument may NOT be asserted against the purchaser!  Read the provisions of your state's UCC and the cases relying thereon to get a better idea as to how this works.

Generally, the idea is this.  Suppose that ABC Piano company sells a piano to SMITH, taking SMITH's promissory note topayfor the piano over a five year period.  ABC piano also takes a security interest in the piano allowing its repossession if SMITH fails to make timely payments.

After the sale, ABC Piano sells the promissory note to Collossal Global Finance.  Now SMITH has the piano, ABC has its cash purchase price and Collossal has the note.

SMITH later becomes dissatisfied with the piano's veneer and the fact that he cannot seem to keep the piano in tune.  Moreover, the keys seem to big for his young daughter's hands.  SMITH decides to stop paying the monthly payments on the piano.  He wants the veneer replaced and the piano retuned, etc.  Perhaps he even wants to give the piano back and unwind the transaction with ABC.

Collossal will take the probably valid position that it is a holder in due course and that it is NOT responsible for the veneer, the tuning issue, the challenges his daughter has with the keyboard, etc.  Their position will be that they purchased ONLY the promissory note -- the negotiable instrument -- and that any and all other claims as to the merchadise securing the transaction need to be taken up with ABC.  The law will generally support this position.

SMITH still might have a valid cause of action against ABC, but these asserted defects cannot usually be interposed in his defense against the suit brought by Collossal under the note.  When he stops paying, he is likely to have the piano repossessed and Collossal may sue and get a judgment against SMITH under the note.

An exception to this might occur where ABC waited some time before selling the note.  IF SMITH had ALREADY notified ABC about the defects and STOPPED PAYING BEFORE the negotiation and saleof the negotiable instrument, the hlder in due course doctrine probably would NOT apply

Where A and D are conspiring and colluding to break the law, courts may also overlook the holder in due course doctrine.  But with little proof of this and the interposed bankruptcy remote entities B and C used to launder the transaction, it will typically be very hard for a borrower to PROVE that D had any knowledge of, much less participation in A's misdeeds.

The bottom line is that the institutional trusts holding the mortgage debt are generally pretty well insulated from the fraud taking place at origination.  And a suit or counterclaim naming the originator would typically NOT expose the trust to ANY liability at all.

As for whether the counterclaims survive, this is both a matter of law and Court Rules of the jurisdiction and elections made by the defendant.  The defendant may PREFER to preserve the counterclaims for determination in another later cause of action.  The counterclaims may have been voluntarily non-suited.  IF the defedant does NOT pay attention and fails to voluntarily dismiss the counterclaims, the plaintiff MIGHT get a final determination of those claims PRECLUDING their later assertion!  They might do that right away or wait until the discovery period passes and ask for a dismissal of the counterclaims by summary judgment.

It is probably better if the defendant makes some well informed decisions as to the disposition of unresolved counterclaims!

While the counterclaims are probably NOT intimidating, the prospect of getting caught lying or furnishing false evidence in court actually emperils the lawyers and their franchise.
Quote 0 0
Knows About Assignments
Mike H.: 

In discussing the possible survival of a counterclaim, it occurs to me that the mention in the original post and your follow-up suggests that the defendant really didn't know what he or she was doing in fashioning the counterclaim.  Typically, a counterclaim is another claim filed against the original plaintiff.  If Plaintiff D sues borrower SMITH alleging default and asking the court to foreclose, SMITH makes a counterclaim when alleging his own causes of action against D.

If SMITH complains of "A" in his answer, this would tend to be a "third party complaint".  In order for the third party complaint to be properly before the court, SMITH would have to arrange to SERVE A with official process of his third party complaint.  If SMITH failed to do that the court lacks ANY jurisdiction over A and SMITH's third party complaint cannot be properly heard.

D has no duty to answer SMITH's complaint against A or to even notify A of this complaint.  And SMITH's complaint against A can hardly be a defense against D if D isn't alleged to have done the wrongs set forth in the complaint against A.

So if SMITH's defense was to allege causes of action against A, and then fails to serve A, D's counsel certainly wasn't staying away from the court out of any FEAR.  Amusement, perhaps, but NOT fear. 

In pretty much any action, the complaining party obtains jurisdiction over the party from whom he seeks to obtain judgment by proper notice through timely official service of process under the law and rules of the jurisdiction.
Quote 0 0
The Equitable One
Knows about...,

I read and appreciate your knowledgeable posts. In this instance, however, your assessment of liability may not be accurate.

As I read section 131(d) of the Consumer Protection Act it looks to me that assignees do have liability. It is pertinent in my own situation so I am continuing to read the act and to try hone my understanding and interpretation of it. 131(d) says:

 (d)  RIGHTS UPON ASSIGNMENT OF CERTAIN MORTGAGES.--
    (1)  IN GENERAL.--Any person who purchases or is otherwise assigned a mortgage referred to in section 103(aa) shall be subject to all claims and defenses with respect to that mortgage that the consumer could assert against the creditor of the mortgage, unless the purchaser or assignee demonstrates, by a preponderance of the evidence, that a reasonable person exercising ordinary due diligence, could not determine, based on the documentation required by this title, the itemization of the amount financed, and other disclosure of disbursements that the mortage was a mortgage referred to in section 103(aa). The preceding sentence does not affect rights of a consumer under subsection (a), (b), or (c) of this section or any other provision of this title.

This is only one part of the act, and there are other sections that seem to relate to "assignee liability" as well, but personally I like this section.



Quote 0 0

Knows About Assignments/Notes,

What you say for the most part is true here's the truth as well..Whoever originated the mortgage is the real party in interest to be paid. Not the one whom the mortgage has been assigned to.

If the person who originated isn't in court then the group the note was assigned to needs to get outta court! Otherwise there's fraud upon the court. Think I'm lying? I found one of these finally after doing my due diligence here in ST. Louis.

This particular mortgage was originated with scumbags Argent/Ameriquest. Then it was never recorded before the people filed banko. Some how the judge let the bank who came forward cure their lack of standing. Cost them a few thousand. However, in the end the judge ended up lying about the amount due to reinstate the loan for the people. So the people lost the home to foreclosure. I believe the bank that came forward initially was the no other than Wells Fargo...

Bottom line I'm getting to is I don't care how many times the debt has been sold or what have you who controls that debt will somehow also have the right to sell that debt as a whole loan. So forget about the investors bs...  They can and should make sure the perpetrator of the fraud is brought forward. Except in my case they've refused to.

From what I've found to me this judge is on the take. Another Denied me my rights then two months later recused. This means she was disqualified when she made the ruling she did on my case. The next Judge did the same thing then they kicked it to a judge in Ar a magistrate who never should of been able to rule. Since this point I've yet to do an appeal because everything I've now done I've done on my own.

The attorneys and judges are on the take if you ask me. Because I'm not FORMAL WITH PROCEDURE on my civil suit I know I still got my point across or else two judges wouldn't of recused. Therefore, the second judges order really should be vacated and charges brought against my former atty. The bk judge and the state atty all for FRAUD!

I just want some fairness! I wanna be able to take a job and know I'm being told the truth by who ever hires me. That after 2.5 yrs on a job they won't LIE ABOUT HAVING THE RIGHT TO SELL MORTGAGE NOTES FOR ONE OF THE LARGEST BANKS IN THE WORLD.

So folks it is PROVE PROVE PROVE THE NOTE! STAND UP FOR STANDING! YOU HAVE SOME. GIVING UP DOESN'T WORK WHEN ITS your livelihood on the line. Your income, your house,car, kids, sanity.

Cause they do come to court WITHOUT STANDING. They do come to court and the judge does let them of on $500,000 penalities,5 yrs in jail or both. The BANKRUPTCY TRUSTEE doesn't ALWAYS DO HIS JOB!

I proved they don't know in court who owned my 2nd. I believe he let them off on the 1st as well. As there was origination fraud. I may of been stupid when I signed but I've now got evidence of what a properly assigned mortgage should look like.

And mine doesn't look the way it does. The endorsement is messed up . The 2nd PAY TO THE ORDER OF ISN'T TYPED IN ON THE NOTE! Which means they didn't properly assign to Citi. Citi put probably 10-15 different names on the Proof of Claim in the court. The assignment on the 2nd was never filed in county. And in BK court we were granted the objection for not knowing who owns the 2nd. As the assignment given to the court WAS BLANK. But they knew it was BLANK before filing anything in the COURT. They have a RESPONSIBILITY to provide truth and factual evidence. My atty at one point told me he could possibly get my note settled for cheap. Well HOW can they SETTLE anything if their claiming by a blank assignment they don't know who owns? This is also a Wells Fargo Trustee deal...

Some people beg for dam recusals. I didn't. I hear both good and bad about them. But I've never been taught to lie. There are circumstances not always within one's control. I believe the picture I painted the judge agreed with me hence the recusal of her previous denial.


However, Since I've determined those other people basically had their home stolen for trying to follow the path as I have to get to the truth. I've also found another couple with a home worth about $300k. From what I've found they basically have no help from their representation. No QUESTIONING of anything..On a 300k note they've got almost 11% interest with an arm. Which will kick in this Sept.

So with the info I have I'm stuck trying to figure out something for an appeal.  What a nightmare. I've thought about doing a VIDEO APPEAL and put it LIVE ON THE NET.
I'm tired of NO RESULTS! oR Bankers that get to lie for NO REASON! We NEED HELP NOT SCAM  ARTISTS...SO  in SUMMARY...

How would you like for me to pay my bills if no real banker, atty or judge knows how to do business? Especially if you help I can help put a few Billion into the banks hand and NO ONE WANTS TO HELP. The mortgage notes that could of been purchased and sold they didn't wanna do. You know the amount was to small to spend or they were crooks and wanted to make money on something once they sold it. So now that Gold and Diamonds are Hot the banks still have nothing but WANNA BE PLAYERS.

So regardless of what your trying to sell for the most part your terribly mistaken that anyone is real anymore. So I'm now thinking of becoming a professional witness for people..My thought process for this is maybe getting my story in front of another judge may help that particular family if they TRULY DO HAVE CAPABILITY TO DO SOMETHING DIFFERENT. The more I get this info out the better chance someone will have in getting HELP!

Although, it seems most don't care to HELP. They WANT THEIR MONEY! Which they've already made how much off of you? How much did you put down? Did you have equity you refinanced? Did they properly write your loan even? Mine was to be a refi-they wrote it up as a purchase money mortgage to get out of a recission period refis require.

If anyone tries to determine I'm a nut case maybe I am. But I can also say I've never been paid for being stupid either. So are you ready to help me make money to help everyone yet? I know most call me crazy for this as well. But why not just even the playing field?

Knowledge is everything. Stealing needs JAIL TIME AT THIS MAGNITUDE. They can't even get it thru their head they don't know who owns the debt! Or who really has the RIGHT TO SELL THAT DEBT OR FORECLOSE ON IT AS WELL. So how do you try to get me to take it as a taxable as income when your the one who didn't live up to YOUR FIDUCIARY RESPONSIBILITY? I almost made it to be a multi millionaire before I was even 40 until CROOKS GET TO DEAL IN THE PICTURE. Will I make it b4 41? Doubt it the CROOKS are still in PLACE! DAM THE LUCK! But LUCKILY some GOOD BANKERS are still IN PLACE for us to FACILITATE. Depending on WHO HELPS ME means I'll be able to HELP SOMEONE BESIDE MYSELF. That means the WORLD TO ME...besides my immediate family I can't think of anything better to do with the turmoil so many are forced to endure due to circumstances not totally within their control.

To me the people that are capable to make and have that kinda cash have the responsiblity to make the world a better place. Some of them do but there should be more of us that can do this as well. Or else I wouldn't have the people to help me that will if there's any REAL BANKERS LEFT.  

And on and on the circle of crap goes! To me I'm the best hope us Homeowners and AMERICANS have against these TYRANTS. But then again maybe not ME but ALL of us are! That's probably the real issue. How much money would the banks owe if ALL THE FRAUD IS REALLY FOUND?
Hence THE RUSH TO MODIFY! Then if you refuse to modify for the FRAUD perpetrated against you they will just steal your home anyway!  At least that's what's up in St. Louis. SERIOUSLY! I'm NOT  A WANNABE BANKER! There's to many of them. This type OF HONESTY as WRITTEN will make a JUDGE RECUSE THEMSELF! To me it seems to now be a case of RICO. Since, I've been honest asked for help and no one but me cares about making sure the crooks are OFF THE BENCH! But guess what? there's not one atty in 5 yrs in St. Louis TO HELP!

So good luck folks!
 



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Sara
KSU: I feel your pain and frustration!  We all do!!

I still think the media is our best bet of any hope on evening up the playing field.  Get them involved and don't let them forget.

The American public is sympathetic and getting angry at the financial industry!  Every single person here in the US either knows a family that is/was in foreclosure or has seen their own home values decrease due to this nasty mess.  They are not all stupid as some people (bankers and service rs) think!

Everyone is asking: Why won't the banks work with people to keep them in their homes?  The answer is simple...it's all about money!!!  And even the illiterate are figuring this out!

This is a big money making feast for a few select people and it's time to start throwing it in the media every chance we get!

S



 
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Knows About TILA
Quote:
Originally posted by The Equitable One
As I read section 131(d) of the Consumer Protection Act it looks to me that assignees do have liability.


I am presuming you are referring to 15 U.S. Code § 1641. Liability of assignees:

http://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00001641----000-.html

Though I haven't read any cases interpretting this provision, it would seem to me to be rather clearly limited to TILA violations.  That is TILA violations follow the negotiation of the negotiable instrument and the assignment of the mortgage.  I do NOT believe that other originator fraud would follow the instrument as well.

But this is certainly a meritworthy topic for further research and discussion!
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Well look what I found about servicers:

http://www.law.cornell.edu/uscode/html/uscode12/usc_sec_12_00002605----000-.html
Legal Information Institute




TITLE 12 > CHAPTER 27 > § 2605

§ 2605. Servicing of mortgage loans and administration of escrow accounts

(a) Disclosure to applicant relating to assignment, sale, or transfer of loan servicing
Each person who makes a federally related mortgage loan shall disclose to each person who applies for the loan, at the time of application for the loan, whether the servicing of the loan may be assigned, sold, or transferred to any other person at any time while the loan is outstanding.
(b) Notice by transferor of loan servicing at time of transfer
(1) Notice requirement
Each servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person.
(2) Time of notice
(A) In general
Except as provided under subparagraphs (B) and (C), the notice required under paragraph (1) shall be made to the borrower not less than 15 days before the effective date of transfer of the servicing of the mortgage loan (with respect to which such notice is made).
(B) Exception for certain proceedings
The notice required under paragraph (1) shall be made to the borrower not more than 30 days after the effective date of assignment, sale, or transfer of the servicing of the mortgage loan (with respect to which such notice is made) in any case in which the assignment, sale, or transfer of the servicing of the mortgage loan is preceded by—
(i) termination of the contract for servicing the loan for cause;
(ii) commencement of proceedings for bankruptcy of the servicer; or
(iii) commencement of proceedings by the Federal Deposit Insurance Corporation or the Resolution Trust Corporation for conservatorship or receivership of the servicer (or an entity by which the servicer is owned or controlled).
(C) Exception for notice provided at closing
The provisions of subparagraphs (A) and (B) shall not apply to any assignment, sale, or transfer of the servicing of any mortgage loan if the person who makes the loan provides to the borrower, at settlement (with respect to the property for which the mortgage loan is made), written notice under paragraph (3) of such transfer.
(3) Contents of notice
The notice required under paragraph (1) shall include the following information:
(A) The effective date of transfer of the servicing described in such paragraph.
(B) The name, address, and toll-free or collect call telephone number of the transferee servicer.
(C) A toll-free or collect call telephone number for
(i) an individual employed by the transferor servicer, or
(ii) the department of the transferor servicer, that can be contacted by the borrower to answer inquiries relating to the transfer of servicing.
(D) The name and toll-free or collect call telephone number for
(i) an individual employed by the transferee servicer, or
(ii) the department of the transferee servicer, that can be contacted by the borrower to answer inquiries relating to the transfer of servicing.
(E) The date on which the transferor servicer who is servicing the mortgage loan before the assignment, sale, or transfer will cease to accept payments relating to the loan and the date on which the transferee servicer will begin to accept such payments.
(F) Any information concerning the effect the transfer may have, if any, on the terms of or the continued availability of mortgage life or disability insurance or any other type of optional insurance and what action, if any, the borrower must take to maintain coverage.
(G) A statement that the assignment, sale, or transfer of the servicing of the mortgage loan does not affect any term or condition of the security instruments other than terms directly related to the servicing of such loan.
(c) Notice by transferee of loan servicing at time of transfer
(1) Notice requirement
Each transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer.
(2) Time of notice
(A) In general
Except as provided in subparagraphs (B) and (C), the notice required under paragraph (1) shall be made to the borrower not more than 15 days after the effective date of transfer of the servicing of the mortgage loan (with respect to which such notice is made).
(B) Exception for certain proceedings
The notice required under paragraph (1) shall be made to the borrower not more than 30 days after the effective date of assignment, sale, or transfer of the servicing of the mortgage loan (with respect to which such notice is made) in any case in which the assignment, sale, or transfer of the servicing of the mortgage loan is preceded by—
(i) termination of the contract for servicing the loan for cause;
(ii) commencement of proceedings for bankruptcy of the servicer; or
(iii) commencement of proceedings by the Federal Deposit Insurance Corporation or the Resolution Trust Corporation for conservatorship or receivership of the servicer (or an entity by which the servicer is owned or controlled).
(C) Exception for notice provided at closing
The provisions of subparagraphs (A) and (B) shall not apply to any assignment, sale, or transfer of the servicing of any mortgage loan if the person who makes the loan provides to the borrower, at settlement (with respect to the property for which the mortgage loan is made), written notice under paragraph (3) of such transfer.
(3) Contents of notice
Any notice required under paragraph (1) shall include the information described in subsection (b)(3) of this section.
(d) Treatment of loan payments during transfer period
During the 60-day period beginning on the effective date of transfer of the servicing of any federally related mortgage loan, a late fee may not be imposed on the borrower with respect to any payment on such loan and no such payment may be treated as late for any other purposes, if the payment is received by the transferor servicer (rather than the transferee servicer who should properly receive payment) before the due date applicable to such payment.
(e) Duty of loan servicer to respond to borrower inquiries
(1) Notice of receipt of inquiry
(A) In general
If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period.
(B) Qualified written request
For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that—
(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and
(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.
(2) Action with respect to inquiry
Not later than 60 days (excluding legal public holidays, Saturdays, and Sundays) after the receipt from any borrower of any qualified written request under paragraph (1) and, if applicable, before taking any action with respect to the inquiry of the borrower, the servicer shall—
(A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);
(B) after conducting an investigation, provide the borrower with a written explanation or clarification that includes—
(i) to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; or
(C) after conducting an investigation, provide the borrower with a written explanation or clarification that includes—
(i) information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.
(3) Protection of credit rating
During the 60-day period beginning on the date of the servicer’s receipt from any borrower of a qualified written request relating to a dispute regarding the borrower’s payments, a servicer may not provide information regarding any overdue payment, owed by such borrower and relating to such period or qualified written request, to any consumer reporting agency (as such term is defined under section 1681a of title 15).
(f) Damages and costs
Whoever fails to comply with any provision of this section shall be liable to the borrower for each such failure in the following amounts:
(1) Individuals
In the case of any action by an individual, an amount equal to the sum of—
(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.
(2) Class actions
In the case of a class action, an amount equal to the sum of—
(A) any actual damages to each of the borrowers in the class as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not greater than $1,000 for each member of the class, except that the total amount of damages under this subparagraph in any class action may not exceed the lesser of—
(i) $500,000; or
(ii) 1 percent of the net worth of the servicer.
(3) Costs
In addition to the amounts under paragraph (1) or (2), in the case of any successful action under this section, the costs of the action, together with any attorneys fees incurred in connection with such action as the court may determine to be reasonable under the circumstances.
(4) Nonliability
A transferor or transferee servicer shall not be liable under this subsection for any failure to comply with any requirement under this section if, within 60 days after discovering an error (whether pursuant to a final written examination report or the servicer’s own procedures) and before the commencement of an action under this subsection and the receipt of written notice of the error from the borrower, the servicer notifies the person concerned of the error and makes whatever adjustments are necessary in the appropriate account to ensure that the person will not be required to pay an amount in excess of any amount that the person otherwise would have paid.
(g) Administration of escrow accounts
If the terms of any federally related mortgage loan require the borrower to make payments to the servicer of the loan for deposit into an escrow account for the purpose of assuring payment of taxes, insurance premiums, and other charges with respect to the property, the servicer shall make payments from the escrow account for such taxes, insurance premiums, and other charges in a timely manner as such payments become due.
(h) Preemption of conflicting State laws
Notwithstanding any provision of any law or regulation of any State, a person who makes a federally related mortgage loan or a servicer shall be considered to have complied with the provisions of any such State law or regulation requiring notice to a borrower at the time of application for a loan or transfer of the servicing of a loan if such person or servicer complies with the requirements under this section regarding timing, content, and procedures for notification of the borrower.
(i) Definitions
For purposes of this section:
(1) Effective date of transfer
The term “effective date of transfer” means the date on which the mortgage payment of a borrower is first due to the transferee servicer of a mortgage loan pursuant to the assignment, sale, or transfer of the servicing of the mortgage loan.
(2) Servicer
The term “servicer” means the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan). The term does not include—
(A) the Federal Deposit Insurance Corporation or the Resolution Trust Corporation, in connection with assets acquired, assigned, sold, or transferred pursuant to section 1823 (c) of this title or as receiver or conservator of an insured depository institution; and
(B) the Government National Mortgage Association, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Resolution Trust Corporation, or the Federal Deposit Insurance Corporation, in any case in which the assignment, sale, or transfer of the servicing of the mortgage loan is preceded by—
(i) termination of the contract for servicing the loan for cause;
(ii) commencement of proceedings for bankruptcy of the servicer; or
(iii) commencement of proceedings by the Federal Deposit Insurance Corporation or the Resolution Trust Corporation for conservatorship or receivership of the servicer (or an entity by which the servicer is owned or controlled).
(3) Servicing
The term “servicing” means receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.
(j) Transition
(1) Originator liability
A person who makes a federally related mortgage loan shall not be liable to a borrower because of a failure of such person to comply with subsection (a) of this section with respect to an application for a loan made by the borrower before the regulations referred to in paragraph (3) take effect.
(2) Servicer liability
A servicer of a federally related mortgage loan shall not be liable to a borrower because of a failure of the servicer to perform any duty under subsection (b), (c), (d), or (e) of this section that arises before the regulations referred to in paragraph (3) take effect.
(3) Regulations and effective date
The Secretary shall, by regulations that shall take effect not later than April 20, 1991, establish any requirements necessary to carry out this section. Such regulations shall include the model disclosure statement required under subsection (a)(2) of this section.

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This remark here:That is TILA violations follow the negotiation of the negotiable instrument and the assignment of the mortgage.  I do NOT believe that other originator fraud would follow the instrument as well.

It does or else the real party in interest wouldn't need to be brought out. The original chain of origination. I'm trying to remember what I read recently that said if they refuse to bring out the real party in interest then the person whom the note has been assigned assumes the responsibility for the fraud in the creation. Seriously...

I've been in this game since 1994. Always protecting someone's best interest.

Best of Luck!
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The Equitable One
KSU,

I'd appreciate it if you could develop your last post here a bit further.

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to KAA, Thanks for that explanation, it makes a great deal of sense.
   Here is another thought on the matter. A mortgage foreclosure is an equitable action, in other words, the plaintiff is claiming "equity" in the
property based on the "mortgage". The "Note" is a separate issue and the
plaintiff could pursue that matter in a court of "Law" instead of "Equity".
   If it turns out that the "originator" obtained the "mortgage" by fraudulantly
overstating the value of the property and the income of the borrower, than
that "mortgage" would be unenforceable in a court of "Equity", ie foreclosure
Court. Once the assignee is put on notice that the "mortgage" was obtained
by "fraud", and the evidence is overwhelming that such is the case, any further attempt by the assignee to foreclose on the "mortgage" would make
that "assignee" a partner in the original "tort" or "crime" and expose the assignee to the same sanctions that the "originator" could have faced if it
still existed.
   This would leave the plaintiff with the option of sueing on the "Note" in a
court of "law" (if it had a lawful assignment of the Note). If it obtained a judgement, it could then place a lein against the property but not be able to do a forced sale if the property were homesteaded. Plaintiff would have to wait until the property was voluntarily sold before collecting the judgement.
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Knows About Assignments
Quote:

Originally Posted by Mike H
If it turns out that the "originator" obtained the "mortgage" by fraudulantly overstating the value of the property and the income of the borrower, than that "mortgage" would be unenforceable in a court of "Equity", ie foreclosure Court.  Once the assignee is put on notice that the "mortgage" was obtained by "fraud", and the evidence is overwhelming that such is the case, any further attempt by the assignee to foreclose on the "mortgage" would make that "assignee" a partner in the original "tort" or "crime" and expose the assignee to the same sanctions that the "originator" could have faced if it still existed.


Mike H.:  I think that you are generally on the right track here, but things are not quite as simple as you suggest.  The subsequent holder's culpability is going to be assessed by a court as a matter of degree.

Suppose that the subsequent holder had actual knowledge of the originator fraud and had in some clear way participated in teh original fraud.  Under such circumstances, the defendant and rather directly name the subsequent holder in a counterclaim based upon this unlawful and/or tortuous behavior.  The originator might also be named, served and brought in by a third party complaint.  But the direct participation -- conspiracy -- in the fraud would give a defendant a pretty good affirmative defense, including equitable defenses.  Unfortunately, defendants have a proof problem.  Even if fraud occured, it must be proven.  And this is very often no small matter, particularly because the plaintiff and/or originators and intermediate parties tend to be holding the evidence.  While some evidence may be obtained through discovery, unscrupulous servicers will conceal, destroy, or fabricate evidence to absolve themselves of liability. 

By contrast, suppose that the subsequent holder did NOT actually participate in the fraud directly, but might have discovered it through greater inquiry or due diligence.  One of the problems is the standard of care and the duty of inquiry may be unclear as a matter of law.  Each subsequent purchaser and holder will point to its quality control mechansims and will argue that they exercised due diligence, but were deceived by the originator.  They will deny culpability.  Again, the defendant has a proof problem.  But this is compunded by (a) the laundering of the promissory note and mortgage through multiple entities, (b) the same soncealment, evidence destruction and evidence fabrication problems described above, and (c) rather dubious law as to their actual duty of inquiry.

A study, for example, of the accounting and auditing field is instructive.  Many people fail to appreciate that even a licensed and paid certified public accountant has no duty to discover all collusive management fraud if the auditor follows generally accepted auditing standards.

There are a variety of things that each originator is required to do by institutional mortgage purchasers.  These include obtaining the borrower's application, verifying income, obligations, credit history, and value of the subject property.  The credit report is always contracted out to a major credit reporting agency.  Similarly, the appraisal is contracted out, usually to a licensed professional apprasier.  Income verifications are sent to employers.  Separate credit verifications as to large outstanding obligations are sometimes sent out to select creditors.  The mortgage originator typically also contracts out the title search and examination, the attorney's opinion of title, and title insurance.  Sometimes, an engineer/surveyor gives a survey opinion and plot plan.  Sometimes, all of this is reviewed by a separate mortgage insurer granting private mortgage insurance on high ratio loans.  Some originators even contract out the underwriting to another professional entity, such as a mortgage insurance concern specializing in credit underwriting.  In the case of publicly traded entities, all of this is subject to to audit by an independant auditor.  And in the case of supervised depository institutions, everything is subject to regulatory supervision and inspection.

In short, the subsequent purchaser can and will point to its own due diligence in reviewing all of this paperwork.  When the paperwork is all in order and appears to be regular on its face, the subsequent purchaser has a pretty strong defense against arguments that it should have detected the fraud, which went undetected by all of these others.

It would be a very tough case to make by a well informed defendant with access to good capable counsel and the resources to mount a defense.  As is readily evidence from posts throughout this web site, most defendants lack either the knowledge, resources or access to effective counsel to succeed under the very best of circumstances in making such a case.

Finally, we come to the case where the subsequent purchaser and holder couldn't have possibly know, learned or discovered under any circumstances.  Suppose, for example, that all of the other apparently reputable entities are conspiring together, but without the knowledge or participation of the subsequnt holder, in a collusive fraud.  In such a case, no amount of discovery or of good representation is going to uncover evidence of wrongdoing by the actually innocent purchaser.

Some would argue that there are no innocent subsequent purchasers.  But this is really a cop out.  Our system of justice does NOT work this way.  PROOF is required.  And instances of the second circumstance are very difficult to distinguish from the third.

In your post, you mention overwhelming evidence of wrongdoing.  I haven't seem very many cases where such overwhelming evidence of fraud by the subsequent holder has been demonstrated.  In fact, I am aware of NONE.

Please note that I am distinguishing cases where the mortgage investor has been shown to have colluded in wrongdoing by the originator.

I have seen some rather eggregious cases of servicer fraud and of false swearing and evidence fabrication by servicers, foreclosure mills and their contract forgers and perjurers.

*

Quote:
Originally Posted by Mike H
This would leave the plaintiff with the option of sueing on the "Note" in a court of "law" (if it had a lawful assignment of the Note). If it obtained a judgement, it could then place a lein against the property but not be able to do a forced sale if the property were homesteaded. Plaintiff would have to wait until the property was voluntarily sold before collecting the judgement.


Notwithstanding contrary indications often included in fabricated assignments, promissory notes are negotiated (under the UCC) by indorsement and delivery, NOT assigned.  No assignment is required in order to transfer the interest in the promissory note.  This is well established law in all jurisdictions for several hundred years.

You are correct that an entity owning or holding a valid promissory note can and probably will pursue its rights under the note even if it is denied the equitable right to proceed under the mortgage security instrument.  But separate from homestead rights, unsecured creditors can very often be defeated in bankruptcy.

IF a defendant is able to succcessfully defend against a judicial foreclosure, the greatest peril has been overcome.

There are only a handful of cases nationally where a defendant has successfully avoided foreclosure. Most of these are in Kings County (Brooklyn), NY.  And most of these cases have been sua sponte decisions by a very attentive Kings County Supreme bench, based upon readily identifiable defects in the plaintiff's case readily apparent from the record.

One thing that no one seems to be tracking is that vitually ALL foreclosure activity in Kings County ended more than a year ago!  Plaintiffs rarely can obtain a foreclosure in Kings County, because the judges there have caught on to plaintiff misconduct and are going over every filing with a fine toothed comb!  A great deal of information about these Kings County decisions was posted by several sharp participants at this site.  Those looking for successful strategies should be reading these cases!     

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