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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Dayton
I remember that several years ago Mr. Roper responded to posts about defective acknowledgements of mortgages by indicating that a defective acknowledgement (notarization) would implicate only eligibility for recording, but wouldn't impair the validity of the instrument as against the grantor. He said that the validity of the mortgage was usually controlled by the Statute of Frauds.

There was a decision in Ohio last week that seems to show that he was right about this. The case is:

[i]Everbank v. Fleming, No. 2012-CA-10, 2013-Ohio-3030 (Ohio App. 2nd Dist., July 12, 2013)[/b]
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2013/2013-ohio-3030.pdf

Admittedly, this is kind of arcane and doesn't affect a lot of people. But I remember people attacking Mr. Roper over his position.

He basically was saying that there were other more robust defenses and that trying to attack the validity of the authentication on the instrument was a waste of time and energy. There were a bunch of the usual chorus of cheerleaders for scam artists that attacked Mr. Roper about this.

The Ohio Appellate Court seems to squarely agree with Mr. Roper.
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Nelson
Thanks for posting this Dayton!

I remember that old scam.  People were being told that some defects in the notarization of their mortgage would entitle them to a free house.  I know a couple of people that fell for the scam and it cost them several thousand dollars.

Mr. Roper exposed the scam and the scam artists began attacking him here at the Forum.
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In N.J., a defective acknowledgment on a mortgage  is not recordable, but in my pro se case, the acknowledgement(and a notarization on the mortgage) on the mortgage and note was signed by an attorney who is still in retired status. According to the State Bar and N.J. statutes, an attorney in retired status is not authorized to practice law while in retired status, which is a felony. To this day, this attorney is still acknowledging mortgage documents for different mortgage companies and servicers while not being an officer for those companies and no contracts with those companies. Although a notary my acknowledge a document an attorney who stamps a document as an Attorney-At-Law is practicing law, but is not authorized if in retired status. All this was obtained in a deposition by me and submitted in a motion. So, its not only my case in N.J., there maybe some cases in N.Y. where this attorney also practiced law. I would think that an attorney would know these simple rules and if this attorney practiced law while in RETIRED STATUS, it would constitute fraud on his part and the companies that hired him without any verification as to his status as an attorney or without any written contracts to perform the legal requirements on a mortgage would also constitute fraud. This attorney signed my documents in 2004. There's no statue of limitations when fraud is present.    
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Ken
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In N.J., a defective acknowledgment on a mortgage is not recordable, but in my pro se case, the acknowledgement(and a notarization on the mortgage) on the mortgage and note was signed by an attorney who is still in retired status. According to the State Bar and N.J. statutes, an attorney in retired status is not authorized to practice law while in retired status, which is a felony. To this day, this attorney is still acknowledging mortgage documents for different mortgage companies and servicers while not being an officer for those companies and no contracts with those companies. Although a notary my acknowledge a document an attorney who stamps a document as an Attorney-At-Law is practicing law, but is not authorized if in retired status. All this was obtained in a deposition by me and submitted in a motion. So, its not only my case in N.J., there maybe some cases in N.Y. where this attorney also practiced law. I would think that an attorney would know these simple rules and if this attorney practiced law while in RETIRED STATUS, it would constitute fraud on his part and the companies that hired him without any verification as to his status as an attorney or without any written contracts to perform the legal requirements on a mortgage would also constitute fraud. This attorney signed my documents in 2004. There's no statue of limitations when fraud is present.

Eugene:

Your observations about the legality of a retired attorney executing acknowledgements is an interesting one. However, as the case cited shows, and as Mr. Roper used to explain, acknowledgement is not necessary to the legal validity of an instrument. It only affects eligibility for recording. Mr. Roper was right about this.

It seems that the best possible result in the situation you describe would be to render the recording ineffective, but that wouldn't stop a foreclosure anywhere.

Your description of what the attorney did as fraud shows a complete misunderstanding about what fraud is and how it is proved. Fraud involves a false representation, reliance on the representation and harm.

It is unclear to me how you could prove any of these three in respect of the misconduct you describe. What was the representation the attorney made to YOU? In what way did you RELY UPON this misrepresentation in signing the instrument? How was the fact that he was retired an INELIGIBLE to authenticate harmful to you?

Unauthorized practice of law? Yes, certainly. Did he defraud the lender? Perhaps. Did he defraud you? No, not at all.

It is this kind of "loose talk" about and poorly informed assertion of fraud that destroys so many cases! You are not describing any kind of fraud and in characterizing this conduct as fraud you simply add to the chorus of misinformation.

A similar error is those who generally describe "robo-signing" as fraud. It never is. Forgery, yes. Fraud, no.

If a borrower pleads that he was victimized by fraud in respect of robo-signing, that borrower will LOSE 100% of the time. If the borrower pleads that an instrument like an assignment is a forgery, then this can be a very robust attack.
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Ken,
I'm sorry I missed a lot of Mr. Roper's good advice. Let's take fraud out of the equation. If I'm not mistaken, there has to be a recorded mortgage in order to file a foreclosure ? If there's no recordable mortgage due to a defective acknowledgement as the statue states, then the case should be dismissed ? N.J. statues have specific persons authorized to make acknowledgements, i.e.. an attorney , notary or an officer of the mortgage co.  etc..., but not an attorney who stamps a document as an "Attorney-At-Law" who is in retired status.
 Some of the things I forgot to include are the facts that the attorney(and myself) are almost positive that the attorney was not even at the closing. The other part is that under deposition, the attorney brought two notary commission certificates that covered the year in question, but the notary stamp "expiration date" on the mortgage didn't match the expiration periods on the two certificates. The attorney was not able to explain this mismatch. First, the judge and plaintiff's attorney kept saying that it didn't have to be an attorney who could sign the acknowledgement which is true, but that was not what I stated in my motions. Then, the judge stated that the "Attorney-At-Law" portion of the stamp was crossed out on the mortgage which was not true as the stamp on the note very clear.  
I believe that the moment this attorney acknowledged the mortgage documents, if in fact he did sign them, he clouded the title to our property. The other problem that bothers me is the fact that this attorney is still making mortgage acknowledgements in N.J. and maybe also in N.Y. as far back as 1999.         
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Julius
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If I'm not mistaken, there has to be a recorded mortgage in order to file a foreclosure ? If there's no recordable mortgage due to a defective acknowledgement as the statue states, then the case should be dismissed ?

You are mistaken. There is no necessity that a mortgage be recorded in order to conduct a judicial foreclosure in any state except Ohio. Even there, a defective acknowledgement wouldn't void a mortgage and I would think that upon a showing that a mortgage wasn't eligible for recording, that under equitable principles the plaintiff would probably be excused from recording.

This topic used to come up from time to time at the Forum and has been discussed many times before.

There are a number of scams associated with defective acknowledgements, including scams where shills get paid by attorneys to steer ignorant borrower's their way to make money from those foolish enough to buy into this variant on the debt elimination scam.

Here are some of the old threads:

POA on Assignment of Beneficiary
http://ssgoldstar.discussioncommunity.com/post/POA-on-Assignment-of-Beneficiary-5805748

Defective Mortgage Acknowledgement (N.J.)
http://ssgoldstar.discussioncommunity.com/post/Defective-Mortgage-Acknowledgement-(N.J.)-6181857

You are really barking up the wrong tree! This sort of defect in an acknowledgment isn't going to be at all effective as a foreclosure defense. You are wasting time, money and energy and totally eviscerating any credibility with the judge by focusing on this kind of specious issue.

If your attorney is encouraging you to pursue this, it would seem that this might be the basis for a legal malpractice action. But the attorney is going to say that this was YOUR wingnut idea and that he orally advised against it. How much did you pay this attorney to depose the witness? What a complete waste of energy!!
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Julius,
You're right about that mortgages are not required to be recorded, but they are required for priority and enforceability in N.J. ? I understand about assignments not having to be recorded, but if they are recorded by (a robo-signer) an "attorney-in-fact" in N.J., there HAS to be a Power of Attorney recorded, also.
I don't believe I stated, in my case, that the mortgage was invalid, I stated that the case should be dismissed.  
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Dayton
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You're right about that mortgages are not required to be recorded, but they are required for priority and enforceability in N.J. ?

Priority, yes. Enforceability, NO!

You seem not to get it. Mr. Roper explained this. The court decision explains it.

A defective acknowledgement does not implicate the enforceability of the mortgage!

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I understand about assignments not having to be recorded, but if they are recorded by (a robo-signer) an "attorney-in-fact" in N.J., there HAS to be a Power of Attorney recorded, also.

This is not true in most places. Under the Statute of Frauds, there would need to be a written power of attorney. The power of attorney need not be recorded in most places. Recording of the power of attorney is controlled by the Recording Acts, not the Statute of Frauds.

Check with Mr. Roper on this if you are in doubt.

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I don't believe I stated, in my case, that the mortgage was invalid, I stated that the case should be dismissed.

Failure of the acknowledgement or failure to record a power of attorney would NOT entitle a borrower to a dismissal in any state in the U.S., including Ohio where recording of the mortgage is required prior to foreclosure.

You seem to have seized upon a losing issue. Hopefully you have studied Mr. Roper's posts and have also found one or more winning issues. From what you posted, it sounds like you are completely on the wrong track.

I have seen a lot of others taken in by this same scam, which is promoted at some of the robo-signing sites.
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Randy
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Julius,
You're right about that mortgages are not required to be recorded, but they are required for priority and enforceability in N.J. ? I understand about assignments not having to be recorded, but if they are recorded by (a robo-signer) an "attorney-in-fact" in N.J., there HAS to be a Power of Attorney recorded, also.
I don't believe I stated, in my case, that the mortgage was invalid, I stated that the case should be dismissed.

I got taken in by that scam, too! I paid the "experts" $1,500 for proof that the notary was defective and then they referred me to a lawyer who demanded a $5,000 retainer. When I checked with another lawyer, he told me that this wasn't a valid defense, at least not in Indiana:

"It has always been the law that even if a mortgage is improperly recorded, or has not been recorded, it is valid between the parties. Perdue v. Aldridge, 19 Ind. 290 (1862); Kirkpatrick v. Caldwells Admir's, 32 Ind. 299 (1869); Blair v. Whitaker, 31 Ind.App. 664, 69 N.E. 182 (1903)." In re Dunn, 109 BR 865 (Bankr. Ind. 1988).

http://scholar.google.com/scholar_case?case=512831860954763032

I asked for my money back, but never got a reply. I later found out that the scammers were using a fake address, too. I think the lawyer was in on it, but cannot prove it.
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Randy, you are also right. My loan was immediately sold to a trust that the current plaintiff and judge are trying to conceal. As a pro se, I have been trying to fight my case as best I can. I avoid scammers, but I spent $99 in getting Bloomberg screenshots and a PSA on my loan that gave me the whole picture. When the Trust bought the loan, when the Trust sold the loan (to FannieMae ?). In between, FDIC took over the bank and the present bank claims they own the mortgage(actually the servicing rights according to the FDIC/FOIA). Instead of the mortgage servicers calling, now, FannieMae calls to inform use that they own the mortgage.
You're right about the parties, but the question is who is the real party in interest.        
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Boris
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I got taken in by that scam, too! I paid the "experts" $1,500 for proof that the notary was defective and then they referred me to a lawyer who demanded a $5,000 retainer. When I checked with another lawyer, he told me that this wasn't a valid defense, at least not in Indiana:

"It has always been the law that even if a mortgage is improperly recorded, or has not been recorded, it is valid between the parties. Perdue v. Aldridge, 19 Ind. 290 (1862); Kirkpatrick v. Caldwells Admir's, 32 Ind. 299 (1869); Blair v. Whitaker, 31 Ind.App. 664, 69 N.E. 182 (1903)." In re Dunn, 109 BR 865 (Bankr. Ind. 1988).

This is the rule in New Jersey, too, and always has been:

PEAR STREET, LLC v. 818 PEAR STREET, LLC, No. A-1494-09T2 (N.J. App. 2011)
http://scholar.google.com/scholar_case?case=489253837241702812

Friendship Manor, Inc. v. Greiman, 244 N.J. Super. 104, 581 A.2d 893 (App. Div. 1990), certif. denied, 126 N.J. 321, 598 A.2d 881 (1991).
http://scholar.google.com/scholar_case?case=4900770937723751280
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Boris
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Randy, you are also right. My loan was immediately sold to a trust that the current plaintiff and judge are trying to conceal. As a pro se, I have been trying to fight my case as best I can. I avoid scammers, but I spent $99 in getting Bloomberg screenshots and a PSA on my loan that gave me the whole picture. When the Trust bought the loan, when the Trust sold the loan (to FannieMae ?). In between, FDIC took over the bank and the present bank claims they own the mortgage(actually the servicing rights according to the FDIC/FOIA). Instead of the mortgage servicers calling, now, FannieMae calls to inform use that they own the mortgage.

You're right about the parties, but the question is who is the real party in interest.

Your lender seems to keep making mistakes. Maybe if you point out all the mistakes to them right away you can help them correct these to help speed along the foreclosure! Putting the PSA into evidence should be especially helpful to the plaintiff if they have made some serious mistakes.

Another strategy that has worked for others is not to tell the plaintiff about all of the mistakes and instead surprise the plaintiff with these when the plaintiff moves for summary judgment. But this might slow down the foreclosure and maybe you are in a hurry.
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Boris,
You're also right. You would think of all the ammo I have given them, they would use it against me. The facts are that they ignore them or the judge turns the facts around to no one's advantage. The other facts are that the judge has LIED in court and on the record and has denied everyone of my motions.
The Pear Street case you cited is what I have been talking about. New Jersey Statues- Title 46 Property 46:14-2.1, Acknowledgment and proof. There's no 14-2.2. 14-4.2 is about the signatures. 14-6.1 is about officers authorized to take acknowledgments.  
There has been five entities that have claimed ownership, it's still about real party in interest. None of these entities are the "holder."
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Darin
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The Pear Street case you cited is what I have been talking about. New Jersey Statues- Title 46 Property 46:14-2.1, Acknowledgment and proof. There's no 14-2.2. 14-4.2 is about the signatures. 14-6.1 is about officers authorized to take acknowledgments.

Do you have a reading comprehension problem?

What is it that you are reading that you think is helpful to your defense???

Notarization simply doesn't matter! If you signed the note and mortgage, you are going to be found liable. Whether the instrument is eligible for recording doesn't affect your liability and isn't even go to slow a plaintiff down for fifteen minutes.

What is it about this that you are not getting.

You persist in posting responses that suggest that you are either completely disconnected from reality or that you are merely trying to promote some scam based upon defective acknowledgement.

Everyone here seems to get it except for you. When people explain or correct you, you seem to just ignore what they are telling you and repost the same drivel.

Why not actually interpose a defense that might save your home instead of this mindless clinging to a certain path towards homelessness?
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Darin,
This topic got started with Dayton's post about defective acknowledgment(notarization). Acknowledgments. I wasn't talking about invalid mortgages or notarizations, scam artists or attorneys. I was only talking about my case in N.J. and how an attorney who was not authorized to practice law, which is a FELONY in N.J., acknowledged our note and mortgage and notarized his own signature, R.46:14-2.1. It only takes two or three minutes to read this N.J. rule. It's not a silver bullet to invalid a mortgage, but in MY case as a pro se litigant it was just adding a little powder to the casing.  
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DonJuan
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Darin,
This topic got started with Dayton's post about defective acknowledgment(notarization). Acknowledgments. I wasn't talking about invalid mortgages or notarizations, scam artists or attorneys. I was only talking about my case in N.J. and how an attorney who was not authorized to practice law, which is a FELONY in N.J., acknowledged our note and mortgage and notarized his own signature, R.46:14-2.1. It only takes two or three minutes to read this N.J. rule. It's not a silver bullet to invalid a mortgage, but in MY case as a pro se litigant it was just adding a little powder to the casing.

If you can help a person who ever worked as an attorney or for a bank get some jail time, I think that is something everyone on MS Fraud, even the scam artists, can agree would be a great thing. If you can help make one of the scam artists a cell mate for a bank attorney so that the bank attorney can have someone to sexually molest, that would be even better!
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