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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....."to properly acknowledge a deed or other intrument, such as a mortgage, the maker of such instrument must appear before an officer specified by the statue as permitted to take acknowledgements. See N.J.S.A. 46:14-2.1(a). Since your customer did not actually "appear before" the notary when the acknowledgement was taken on the mortgage, his attorney challenges your secured lien position on the real estate claiming that the defective acknowledgement should have precluded the mortgage from being recorded by the registrar's office. Therefore, since the mortgage should never been recorded, the lender failed to perfect its security interest in the real estate and should no longer de deemed a secured party." 
Judge Gindin analyzed the New Jersey Recording Statues, finding first that if an instrument is not properly acknowledged, it may not be recorded with the relevant county recordinging office unless the defect is cured. New Jersey Recording Statues are to be strictly construed. The court found that a defective acknowledgement was not constructive notice to a subsequent purchaser. New Jersey curative statue, N.J.S.A. 46:21-2, which cures all defects in deeds and other instruments that have been recorded for six years or more.
This case(Bucholz) was a bankruptcy and could be used outside of a bankruptcy and other states(?). My one question is, if an acknowledgement was made by an attorney who signed the mortgage documents on behalf of the bank  knowlingly signed the documents, but was not authorized to practice law in the state as his stamp on the documents indicate and six years have lapsed, can fraud still be pled ? 

See....In re David Bucholz, 224 B.R. 13(D. N.J.1998).
     ....N.J. Bank v. Azco Realty Co., 148 N.J. Super. 159(App. Div. 1997)



  
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Harry
[QUOT....."to properly acknowledge a deed or other intrument, such as a mortgage, the maker of such instrument must appear before an officer specified by the statue as permitted to take acknowledgements. See N.J.S.A. 46:14-2.1(a). Since your customer did not actually "appear before" the notary when the acknowledgement was taken on the mortgage, his attorney challenges your secured lien position on the real estate claiming that the defective acknowledgement should have precluded the mortgage from being recorded by the registrar's office. Therefore, since the mortgage should never been recorded, the lender failed to perfect its security interest in the real estate and should no longer de deemed a secured party."
Judge Gindin analyzed the New Jersey Recording Statues, finding first that if an instrument is not properly acknowledged, it may not be recorded with the relevant county recordinging office unless the defect is cured. New Jersey Recording Statues are to be strictly construed. The court found that a defective acknowledgement was not constructive notice to a subsequent purchaser. New Jersey curative statue, N.J.S.A. 46:21-2, which cures all defects in deeds and other instruments that have been recorded for six years or more.
This case(Bucholz) was a bankruptcy and could be used outside of a bankruptcy and other states(?). My one question is, if an acknowledgement was made by an attorney who signed the mortgage documents on behalf of the bank knowlingly signed the documents, but was not authorized to practice law in the state as his stamp on the documents indicate and six years have lapsed, can fraud still be pled ?

See....In re David Bucholz, 224 B.R. 13(D. N.J.1998).
....N.J. Bank v. Azco Realty Co., 148 N.J. Super. 159(App. Div. 1997)E]

You can plead anything. Whether you make out a valid claim is another matter.

You need to review the elements of fraud. I cannot see how you could possilby make out a valid fraud argument on the facts that you recite. But look to the elements of fraud as expressly set forth in the case law for your stte.

Separately, you need to appreciate just how fragile and even specious this particular line of defense actually is without regard to fraud.

Recording is NOT required to give an instrument effect in almost any state. An instrument can be perfectly legally effective almost everywhere under the statute of frauds without ever having been recorded. Mr. Roper has posted about this in years past and his posts are precisely correct legally (as usual). What recording does is perfect the interest against other competing claims.

One issue that can arise in a bankruptcy setting is whether other creditors have any valid claim to the assets of an estate. If the mortgage lien was not properly perfected, this might give the other creditors a possible claim on the secured asset or otherwise allow the asset to be treated as other than secured in respect of these creditors.

However, it would never, ever give the owner who had signed an otherwise legally valid mortgage under the statute of frauds a means of escpaing the lien. This is a question of priority not lien validity. This is the stuff of myth upon which various debt elimination scams are constructed.

So if you are interested in helping some other creditors get a better settlement on their claims at the expense of the bank, this is an interesting avenue. If, by contrast, you somehow believe the utter nonsense spewed by scam artists like Mike H. that somehow you can extinguish a lien because of some defect in the acknowledgement, then you obviously haven't been reading Mr. Roper's excellent older posts and you seem to have bought into the scam hook line and sinker!

This isn't an issue about which there is any legal question.
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A mortgage must be recorded prior to foreclosure ?
A defective acknowledgement invalids a recorded mortgage ?
An unrecorded mortgage is not considered to be perfected ?
Recording curative statues may cure deeds containing defective acknowledgements, but do not cure deeds containing no acknowledgements or void acknowledgements, in the absence of fraud, adverse possession or pending litigation ?

Curative Statues:
    Florida Statue Section 694.08,  Section 95.231(1)
    Maryland, Section 4-109
    Ohio, Section 5301.01
    New Jersey, N.J.S.A. 46:21-2
  

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Paul
Quote:
A mortgage must be recorded prior to foreclosure ?
A defective acknowledgement invalids a recorded mortgage ?
An unrecorded mortgage is not considered to be perfected ?
Recording curative statues may cure deeds containing defective acknowledgements, but do not cure deeds containing no acknowledgements or void acknowledgements, in the absence of fraud, adverse possession or pending litigation ?

Curative Statues:
Florida Statue Section 694.08, Section 95.231(1)
Maryland, Section 4-109
Ohio, Section 5301.01
New Jersey, N.J.S.A. 46:21-2


You seem to completely misunderstand the role of recording. Recording is not necessary to give a mortgage legal effect. In most places, recording is not necessary at all to go forward with foreclosure. Even where it seems to be required, a Lender can bring a foreclosure in respect of an equitable mortgage not only without recording, but even without the existence of any written mortgage instrument in respect of a particular mortgagor (admittedly this is much harder legally and requires the plaintiff to add an express count to the complaint seeking to establish an equitable mortgage).

As explained in the prior post, recording has to do with lien priority, not lien validity. Whether a mortgage is legally effective is usually determined not by the recording acts, but rather by the statute of frauds. Mr. Roper explained this in numerous posts. This is something that is frequently confused. It is explained in any basic class on the law of real property.

Citing various statutes without bothering to post the actual language and to read the cases relating to each statute is no argument at all. Moreover, each of those statutes applies only in the state in which enacted. You cannot apply that language in the other states.

You are barking up the wrong tree! There is nothing wrong with including some arguments on these issues in your pleadings. You might even confuse and befuddle some of the less competent foreclosure mill attorneys and the additional complexity might delay a determination of your case. But do not allow yourself to become confused by these issues, because they do not lead you anywhere.
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marco
t summarized some of Mr. Roper's posts on this subject:

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

See post No. 2 - Posted 04/19/12 at 07:36 PM
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