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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Detailed explanation of the Securization and Fraudulent Assignment

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William A. Roper, Jr.
While it is a GOOD IDEA to FIND your PSA, to read it and understand it, those of you who are urging that the PSA be entered into evidence by the defendant are absolutely INSANE!

This is a really HORRIBLE strategy.  If you carefully read decisions such as Ibanez, it becomes apparent that the introduction of a valid PSA is a means of possibly proving the ownership of the note by the plaintiff.

WHY would a defendant want to put into evidence a document which might PROVE the borrower's case?

The plaintiff in Ibanez was UNABLE to get a valid copy of the PSA into evidence, even though they sought to use this when other eivdence FAILED.  Had the defendant in Ibanez been FOOLISH ENOUGH to follow the idiotic recommendation of some foreclosure defense activists to put the PSA into evidence, then instead of Ibanez being a landmark turning point, Ibanez would just be another losing homeless defendant.

I can think of no surer, faster way to lose your house than to begin to help the plaintiff make out its case against you.

(I am aware of one Florida defendant whose attorney thought that putting the PSA into evidence would be a great idea when a matter came to trial several weeks ago.  The attorney will get paid.  But the defendant will soon be homeless.  This is a pity, because the defendant had an excellent and winning case!)
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Of course, in litigation a party usually file evidence that help his/her case. In some case filing of PSA helps, in some case it does not. I agree with Mr. Roper, careful consideration of each circumstance is a must.

Examing the PSA to research for the dates chain of title can  reveal fraudulent assignments fabricated by the foreclosure mills.

In some case, examination of the Loan Schedule in the PSA proves that the loan in question is not in that particular trust as the loan was signed AFTER the trust was closed therefore it is impossible that the loan was assigned into the trust. The Servicer just make it up , include the loan in the trust to foreclose.

In another case, the loan was resold to Freddie, the Trustee of the trust no longer has the right to foreclose. I have a friend whose case was dismissed after he show the Judge the PSA proving that Plaintiff is not the owner of the notes and the assignments are fraudulent.

I concur with Mr. Roper , attorneys don't know everything. We must discuss the strategy with our attorneys before deciding if filing the PSA is advantage to our case
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floridagal
I have had in my case the Plaintiff filed the PSA, which was a download from website. Nothing but intent of parties. But the seller, went into bankruptcy and when the purchaser could not shove the junk back, (due to a clause in purchase & sale @) it did not get the proper paper work to prove a legitimate purchase/sale. (If this was this situation) So where would they get the paperwork or authority. (The bankruptcy court-liquidating trustee)??

No signed PSA or any type of proof, such took place.

What if the purchaser made an agreement with the seller within the bankruptcy, knowingly that there was fraud in the origination and accepted the notes without recourse for a discounted price. What if that purchaser modifies the loan, full well knowing what took place just to induce the borrower into re-signing papers to make this note secure. Hiding the facts when borrower was complaining about the acts that took place at closing and thereafter, but chose to ignore and induce borrower into something to shut him up so they could keep collecting.

How can a party have an enforceable contract with borrower if they knowingly defrauded the borrower again. That seems to be very wrong in my opinion. There was recourse for the borrower and that fact was not made known to the borrower at the time, so who gets left holding the bag?
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floridagal
Oh yes, the Psa, (Trust no longer reporting to SEC) closing date was in middle of 2007. The alleged transfer/assignment took place in middle of 2009. Way past closing date , although there is section in psa, to insert loans within two years later. But this supposed assignment dated after such date, had an effective date of months prior to endorsement/notarization and not filed until three months after the alleged assignment. No authority attached to said assignment. Just trying to make a case of proper ownership of the note, in my opinion. And again, no actual evidential proof of the sale of loan to the supposed buyer. Just because this buyer had done business prior in good faith and it worked out, does not mean that was the case this time. The seller went under bankruptcy protection and I am sure the bankruptcy court should have been made aware of any such deals, (90) days prior to the entering of bankruptcy and had to have authorized any and all agreements by and between the seller (bankrupt entity) and the purchaser.
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http://www.mattweidnerlaw.com/blog
ATTACKING VIOLATIONS OF PSA

Matt Weidner Blog header image 1

Attacking Violations of the Pooling And Servicing Agreement

March 11th, 2011 · Foreclosure

The Massachusetts Ibanez decision highlighted for all of us the fact that judges are increasingly aware…and incredulous…that these big shot lenders with their $1,000 an hour lawyers would be so careless and sloppy with the documentation relating multi million dollar’s worth of assets….

US BANK v. IBANEZ, SJC 10694, MASS 1/2011

USbank-foreclosures

What is surprising about these cases is….the utter carelessness with which the plaintiff banks documented titles to their assets…

It’s just utter madness and sloppiness and arrogance.  These evil machines that are the titans of international finance were so busy shoving all of America’s money into their pockets that they didn’t bother to follow even the most basic terms of their own contracts.

That’s apparently been no real problem for them so far because courts have continued to let them slide, ignoring the fact that they have in fact ignored the basic documentation requirements of their own contracts.

But the fact that they are ignoring their own contracts should be used in our cases to attack their ability to proceed….

Affidavit-of-Professor-Ira-Bloom-for-US-Bank-v-Congress


http://mattweidnerlaw.com/blog/wp-content/uploads/2011/03/Affidavit-of-Professor-Ira-Bloom-for-US-Bank-v-Congress.pdf
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In my particular case witch is referred to above, the PSA was used to show many inconsistencies within there allegations.

 

First off there is the note and chain of custody, or lack there of. My PSA specifically states that the note must be indorsed in a certain manner, which it is not.  

 

Second, there was no prospectus, so they could not show my loan was in the so called trust they claimed it to be in.

 

Third, the plaintiff was unable to introduce anything into evidence except the note with the Allonge. The Allonge is what’s currently being challenged. The PSA gives us the ability to challenge the Allonge with regard to NY law. NY law is a useful tool to fight document execution.

 

Fourth, the PSA was not an official copy or a certified signed and sworn to copy.

Fifth, one could make the argument that the barrower is not a party to the PSA, but it is not the purpose of being a party that is important. It is the execution of documents and the lack of procedure that makes the note excluded from a trust by means of improper execution. Every aspect of a loan is spelled out in plain English, like a road map for the banks to adhere to. When they fail to execute documents in the proper manner that puts the so called transfers, assignment, endorsements and such in to question. We have the right to challenge everything.

 

Consequently, the bank was and is unable to foreclose. They did not meet conditions president, they did not show a default, they did not show a payment history, and in fact the witness they brought to trial was unable to testify to any facts of the case. The remaining issue is a matter of an equitable lien or an equitable mortgage. They moved to amend the complaint in the middle of trial when they were being told by the judge that he was NOT going to rule in their favor.  

 

The remaining issues are of subrogation and the right to lien me and circumvent the contract, “mortgage”. We are also challenging the signature on the Allonge as to its authenticity. The supposed Steve Nagy signed/stamped the Allonge over two years after he was no longer employed by New Century Bank. His stamp tied to the blank endorsement which is expressively NOT allowed by the PSA. Further more HE DID NOT work for New Century at the time he supposedly endorsed the Allonge. His employment ended in 2007 and the stamp showed up in 2009. See a problem here?

 

They have not proved to the court that they have one cent of equity in the property, so at this point I’m hopeful this will swing in our favor.

 

Our trial is in the hands of the judge and he is set to hand down a ruling of the equitable lien/mortgage within the month.

 

Below is the remaining issue in our case.   

 

“The substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he or she who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or Securities.

 

There are two types of subrogation: legal and conventional. Legal subrogation arises by operation of law, whereas conventional subrogation is a result of a contract.

 

The purpose of subrogation is to compel the ultimate payment of a debt by the party who, in Equity and good conscience, should pay it. This subrogation is an equitable device used to avoid injustice.

 

Legal subrogation takes place as a matter of equity, with or without an agreement. The right of legal subrogation can be either modified or extinguished through a contractual agreement. It cannot be used to displace a contract agreed upon by the parties.

 

Conventional subrogation arises when one individual satisfies the debt of another as a result of a contractual agreement that provides that any claims or liens that exist as security for the debt be kept alive for the benefit of the party who pays the debt. It is necessary that the agreement be supported by consideration; however, it does not have to be in writing and can be either express or implied.

 

The facts of each case determine the issue of whether or not subrogation is applicable. In general, the remedy is broad enough to include every instance in which one party, who is not a mere volunteer, pays a debt for which a second party is primarily liable and which, in equity and good conscience, should have been discharged by the second party.

 

Subrogation is a highly favored remedy that the courts are inclined to extend and apply liberally.

 

The ordinary equity maxims are applicable to subrogation, which is not permitted when there is an adequate legal remedy. The plaintiff must come into court with clean hands, and the person who seeks equity must do equity. The remedy is not available when there are equal or superior equities in other individuals who are in opposition to the party seeking subrogation. The remedy is denied when the person seeking subrogation has interfered with the rights of others, committed Fraud, or been negligent.

 

The right to subrogation accrues upon payment of the debt. The subrogee is generally entitled to all the creditor's rights, privileges, priorities, remedies, and judgments and is subject only to whatever limitations and conditions were binding on the creditor. He does not, however, have any more extensive rights than the creditor."

 

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Bill
I have always thought the PSA arguments are very interesting.  It is obvious they did not follow the contract. 

This is the "silver bullet" I personally like the best. 

The mortgage assignment shows it was transferred 3 years after the trust closed with only a blank endorsement.  I'm sure it's a can't lose case.

But..............................

1.  The Plaintiff argues I am not privy to the contract and can't enforce/complain about a 3rd party contract:

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As a general rule, “‘[t]he parties to a contract are the ones to complain of a breach, and if

they are satisfied with the disposition which has been made of it and of all claims under it, a third

party has no right to insist that it has been broken"


 

Quote:

therefore, “only the parties to a contract, those in

privity with the parties, and intended third-party beneficiaries under the contract may seek to

enforce the contract.” Id

 

2.  The Plaintiff states the Assignment was a honest paper work mistake.

 

3.  The Plaintiff produces the delivery receipts showing the Note did make it to the trust before the closing date.

 

4.  The Trustee has an equitable assignment of the mortgage because it follows the note.

 

The quote is from my local jurisdiction.  I'm sure with minimal research most people will find these facts are widely accepted. 

 

I just wanted to share my thoughts on why I have decided NOT to enter and argue the PSA.  I want them to prove the transfers WITHOUT the PSA.  Contrary to the PSA argument, I feel they are the ones (the servicer) trying to enforce a 3rd party contract.  They are not privy to my Mortgage and Note, they are not the original lender.  Put the Burden where it belongs.

 

 

 

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William A. Roper, Jr.
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Ann said:
Of course, in litigation a party usually file evidence that help his/her case.  In some case filing of PSA helps, in some case it does not.  I agree with Mr. Roper, careful consideration of each circumstance is a must.

 
Ann:
 
One useful approach when a defendant believes that the PSA could be helpful is to ask some discovery questions which selectively establish a few of these key points.
 
In most places, interrogatory responses can be used against the party answering the discovery, but cannot be used as affirmative evidence. 
 
Similarly, the defendant can request admissions of various key points within the PSA without actually putting the PSA into evidence.
 
I will endeavor to identify a few suggested discovery questions in another post.
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William A. Roper, Jr.
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floridagal said:
I have had in my case the Plaintiff filed the PSA, which was a download from website. Nothing but intent of parties.  But the seller, went into bankruptcy and when the purchaser could not shove the junk back, (due to a clause in purchase & sale @) it did not get the proper paper work to prove a legitimate purchase/sale.  (If this was this situation)  So where would they get the paperwork or authority.  (The bankruptcy court-liquidating trustee)??

No signed PSA or any type of proof, such took place.

There are three typical defects in the PSA that a plaintiff seeks to put into proof.  (These SAME defects are often present in copies of the PSA that the defendant foolishly seeks to put into evidence, but the plaintiff will rarely object because the defendant has usually handed them an easy and certain victory.)

The first defect is that the plaintiff will offer the court an UNSIGNED copy of the exhibit filed with an SEC filing.  Such a copy almost ALWAYS lacks the signatures of the parties.  It is NOT an exact copy and is inadmissible into evidence under the Rules of most places.  Of course, of the defendant is foolhardy enough to put the PSA into evidence, the plaintiff can then USE THE DOCUMENT AGAINST THE DEFENDANT.  No further proof of its authenticity is then necessary.
 
The second typical defect is that in many or even most cases the trust FAILS TO FILE A DIGITAL COPY OF THE EXHIBIT OR SCHEDULE SHOWING THE SPECIFIC LOANS SUBJECT TO THE PSA.  The trust may file a PAPER COPY of this scheduel which runs hundreds of pages.
 
The plaintiff will either NOT obtain the schedule of loans OR will seek to put in only a SINGLE PAGE showing the defendant's loan.
 
The trusts consider the identity of the loans in the pool to be a closely guearded trade secret and will do anything they can to keep the actual schedule from becoming more accessible.  The reasons for this are beyond the scope of this post.
 
Without the schedule of loans, the PSA is NO PROOF that a particular loan is within the pool or that the defendant's loan is subject to that PSA.
 
Of course, the attorneys and defendants who commit legal suicide by putting the PSA into evidence are essentially arguing that the loan IS included in this pool and subject to this PSA, so the plaintiff can benefit from this very helpful evidence WITHOUT furnishing the schedule when the defendant is the party putting the PSA into evidence.
 
The defendants shoot themselves in the head and then bleed out when it turns out that they cannot take back or impeach the evidence that they submitted.
 
The third common defect in the PSA is that very often the plaintiff's attorneys (and the ignorant defendant's attorneys) will seek to admit into evidence the copy of the PSA posted at the SECInfo.com website.  This is NOT the web site of the Securities and Exchange Commission, which is at domain sec.gov.  SECinfo is a private purveyor of the SEC data.
 
They simply package, index and republish government data.  But this site is COMPLETELY UNOFFICIAL.
 
While a certified copy of the document WITH SIGNATURES actually filed with the SEC would probably be admissible, the digital copy at the SEC official web  site is probably NOT admissible if the proper objections are raised.  The copy posted at the SECInfo web site would NEVER be admissible if a party raises a proper and timely objection citing the inherent defects of this source.
 
The SECInfo version is no more admissible than ANY secondary material found online at a random web site.  That is, if the SECInfo data was admissible, then I could simply create a website hanging ANY false information about a mortgage and argue that the documents I fabricate are admissible simply because they can be found on the Internet.
 


floridagal:

You are still preoccupied with trying to prove things that are the plaintiff's burden to prove.  You NEED NOT prove these things.  You need to simply point out that the plaintiff has FAILED TO PROVE THEM.
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William A. Roper, Jr.
From the Ibanez Decision:

The following language from Ibanez is instructive:
"According to U.S. Bank, the assignment of the Ibanez mortgage to U.S. Bank occurred pursuant to a December 1, 2006, trust agreement, which is not in the record. What is in the record is the private placement memorandum (PPM), dated December 26, 2006, a 273-page, unsigned offer of mortgage-backed securities to potential investors. The PPM describes the mortgage pools and the entities involved, and summarizes the provisions of the trust agreement, including the representation that mortgages "will be" assigned into the trust. According to the PPM, "[e]ach transfer of a Mortgage Loan from the Seller [Lehman Brothers Holdings Inc.] to the Depositor [Structured Asset Securities Corporation] and from the Depositor to the Trustee [U.S. Bank] will be intended to be a sale of that Mortgage Loan and will be reflected as such in the Sale and Assignment Agreement and the Trust Agreement, respectively." The PPM also specifies that "[e]ach Mortgage Loan will be identified in a schedule appearing as an exhibit to the Trust Agreement." However, U.S. Bank did not provide the judge with any mortgage schedule identifying the Ibanez loan as among the mortgages that were assigned in the trust agreement.

. . .

Wells Fargo did not provide the judge with a copy of the flow sale and servicing agreement, so there is no document in the record reflecting an assignment of the LaRace mortgage by Option One to Bank of America. The plaintiff did produce an unexecuted copy of the mortgage loan purchase agreement, which was an exhibit to the PSA. The mortgage loan purchase agreement provides that Bank of America, as seller, "does hereby agree to and does hereby sell, assign, set over, and otherwise convey to the Purchaser [ABFC], without recourse, on the Closing Date ... all of its right, title and interest in and to each Mortgage Loan." The agreement makes reference to a schedule listing the assigned mortgage loans, but this schedule is not in the record, so there was no document before the judge showing that the LaRace mortgage was among the mortgage loans assigned to the ABFC.

Wells Fargo did provide the judge with a copy of the PSA, which is an agreement between the ABFC (as depositor), Option One (as servicer), and Wells Fargo (as trustee), but this copy was downloaded from the Securities and Exchange Commission website and was not signed. The PSA provides that the depositor "does hereby transfer, assign, set over and otherwise convey to the Trustee, on behalf of the Trust ... all the right, title and interest of the Depositor ... in and to ... each Mortgage Loan identified on the Mortgage Loan Schedules," and "does hereby deliver" to the trustee the original mortgage note, an original mortgage assignment "in form and substance acceptable for recording," and other documents pertaining to each mortgage.

The copy of the PSA provided to the judge did not contain the loan schedules referenced in the agreement. Instead, Wells Fargo submitted a schedule that it represented identified the loans assigned in the PSA, which did not include property addresses, names of mortgagors, or any number that corresponds to the loan number or servicing number on the LaRace mortgage. Wells Fargo contends that a loan with the LaRace property's zip code and city is the LaRace mortgage loan because the payment history and loan amount matches the LaRace loan.

. . .

The plaintiffs claim that the securitization documents they submitted establish valid assignments that made them the holders of the Ibanez and LaRace mortgages before the notice of sale and the foreclosure sale. We turn, then, to the documentation submitted by the plaintiffs to determine whether it met the requirements of a valid assignment.

. . .

Focusing first on the Ibanez mortgage, U.S. Bank argues that it was assigned the mortgage under the trust agreement described in the PPM, but it did not submit a copy of this trust agreement to the judge. The PPM, however, described the trust agreement as an agreement to be executed in the future, so it only furnished evidence of an intent to assign mortgages to U.S. Bank, not proof of their actual assignment. Even if there were an executed trust agreement with language of present assignment, U.S. Bank did not produce the schedule of loans and mortgages that was an exhibit to that agreement, so it failed to show that the Ibanez mortgage was among the mortgages to be assigned by that agreement. Finally, even if there were an executed trust agreement with the required schedule, U.S. Bank failed to furnish any evidence that the entity assigning the mortgage--Structured Asset Securities Corporation--ever held the mortgage to be assigned. The last assignment of the mortgage on record was from Rose Mortgage to Option One; nothing was submitted to the judge indicating that Option One ever assigned the mortgage to anyone before the foreclosure sale. [FN19] Thus, based on the documents submitted to the judge, Option One, not U.S. Bank, was the mortgage holder at the time of the foreclosure, and U.S. Bank did not have the authority to foreclose the mortgage.

Turning to the LaRace mortgage, Wells Fargo claims that, before it issued the foreclosure notice, it was assigned the LaRace mortgage under the PSA. The PSA, in contrast with U.S. Bank's PPM, uses the language of a present assignment ("does hereby ... assign" and "does hereby deliver") rather than an intent to assign in the future. But the mortgage loan schedule Wells Fargo submitted failed to identify with adequate specificity the LaRace mortgage as one of the mortgages assigned in the PSA. Moreover, Wells Fargo provided the judge with no document that reflected that the ABFC (depositor) held the LaRace mortgage that it was purportedly assigning in the PSA. As with the Ibanez loan, the record holder of the LaRace loan was Option One, and nothing was submitted to the judge which demonstrated that the LaRace loan was ever assigned by Option One to another entity before the publication of the notice and the sale."
See the prior thread "Massachusetts Supreme Court -- Ibanez won!" (01/07/11 at 12:49 PM) initiated by Sandy:

http://ssgoldstar.websitetoolbox.com/post?id=5039113


Also see the Ibanez decision with hyperlinks:
United States Bank Nat'l Ass'n v. Ibanez, SJC-10694, SUPREME JUDICIAL COURT OF MASSACHUSETTS, 458 Mass. 637; 2011 Mass. LEXIS 5, October 7, 2010, Argued, January 7, 2011, Decided
http://scholar.google.com/scholar_case?case=4569784280786262124
*

In Ibanez, the plaintiff sought to cure the defects in its evidence by putting SEC documents from the securitization into evidence.  The plaintiff lost, in part, because of the evidentiary deficiencies of its filings.

Those who counsel the defendant to put the PSA into evidence would have the defendant commit legal suicide filling in the gaps for the plaintiff and giving the plaintiff the subject property as a gift despite the legal insufficiency of the plaintiff's case.

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William A. Roper, Jr.
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Easterbunny said:
First off there is the note and chain of custody, or lack there of.  My PSA specifically states that the note must be indorsed in a certain manner, which it is not.

 
This argument is probably specious and reflects a complete misreading and misunderstanding of the plain language employed within the PSA.  The language requires inclusion of all indorsements actually made.  When a note is indorsed in blank, it is expressly permissible to negotiate the note by delivery alone without indorsement.  The language almost certainly does NOT require the indorsements be made when these are not necessary.
 
I certainly  wouldn't bet MY HOUSE on it nor would I encourage anyone else to do so.
 
Bringing the PSA in to make this argument is worse than idiotic.

Best of luck and success to you!
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floridagal
I did not file the PSA, the Plaintiff did. Like I said there is no proof my loan was sold and/or assigned other than a bogus assignment made 2 years and 1 month after the closing date of the pool. The alleged original note was filed almost 2 years after commencing the foreclosure action.

Plaintiff plead a very vague complaint, lost note count and owner/holder count. No one thing was specific in their claim. The assignment filed with county records was recorded 2 months after suit was served. The complaint attached only a COPY of mortgage and note which shows another entity as lender. This lender/originator under bankruptcy protection since 2007 and still is under bankruptcy protection. The assignment is the only assignment made regarding my property since the refinance. It was done by servicer, as a mers officer as nominee for this bankrupt originator. No proof of authority and I am assuming that any asset leaving the bankrupt party would have to be done with the apporval of the bankruptcy court. No such proof. There has been fraud in the inducement from the inception of the loan through fraud in the modification of the loan, (no right to re-negotiate) no proof of same. The alleged original note has only one lone endorsement of a party who is claimed to have been an employee of the said bankrupt entity, which has not been proven to date either. There has been no proof of when that alleged authorized endorsement took place and if it was placed into said pool, where are the rest of the endorsements???

The assignment was not followed according to thirty day rule and certainly has been made to facilitate the would be Plaintiff being a party authorized.

There is still many other issues and the biggest with me is how can a note be sold/assigned to another without the bankruptcy court approval. I have an ap against this said bankrupt entity and the judge is going through paperwork. Could be violations in the bankruptcy itself???

Lots for all the judges to consider and it is not right for one judge to ignore what is going on in the state court knowing all of this
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William A. Roper, Jr.

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Easterbunny said:

Second, there was no prospectus, so they could not show my loan was in the so called trust they claimed it to be in.

 

. . .

 

Fourth, the PSA was not an official copy or a certified signed and sworn to copy.

 

I presume you mean in respect of the third point that the PSA lacked a schedule of loans subject to the agreement.  This defeats the PSA as affirmative evidence for the plaintiff when the plaintiff seeks to put the PSA into evidence absent the required schedule.

 

Depending upon precisely HOW the defendent seeks to admit the PSA, the defendant may be CONCEEDING that the PSA reflects the subject loan.  If the Defendant asks for the admission of the PSA into evidence, but EXCLUDES the PSA, the Defedant is hardly in a position to DENY that the loan is within the schedule, while arguing that the provisions of this PSA apply.

 

There are ways of making alternative arguments.  IT WOULD BE SAFEST TO ATTEMPT THIS ON THE STRENGTH OF DISCOVERY ADMISSIONS WITHOUT TRYING TO PUT THE PSA INTO EVIDENCE.

 

Where the plaintiff puts the PSA in, as aforesaid in my prior post, the defect in lack of signatures, etc. are a valid objection to this evidence.  When the defendant is foolish enough to seek to put the PSA into evidence, the Defendant CANNOT object to the defects in the evidence IT presents to the Court.  Rather, the proffer of the document usually would constitute a judicial admission of its authenticity.

 

The Defendant thereby hands the plaintiff the necessary argument to HELP THE PLAINTIFF WIN ITS CASE.  And the Defendant has also WAIVED any defects in this evidence and cannot argue for exclusion on appeal.

 

Basically, the defendant wagers his house on the speculative theories of a lawyer of marginal competence!

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Bill
Easterbunny said:
First off there is the note and chain of custody, or lack there of.  My PSA specifically states that the note must be indorsed in a certain manner, which it is not.

Quote:

This argument is probably specious and reflects a complete misreading and misunderstanding of the plain language employed within the PSA.  The language requires inclusion of all indorsements actually made.  When a note is indorsed in blank, it is expressly permissible to negotiate the note by delivery alone without indorsement.  The language almost certainly does NOT require the indorsements be made when these are not necessary

 

My PSA says the same thing.  It needs to be endorsed by each member of the chain. 

 

If you search Mr. Roper and I had this discussion in a recent thread where he gives an indebth explnation and oppinion which may be helpfull.

 

http://ssgoldstar.websitetoolbox.com/post?id=5014665&highlight=bill

 

 

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floridagal
So how does a loan get put into a securitized pool, that had a closing date of March 1, 2007 and the alleged transfer (assignment) of a note, which was lost on June 09, get into a pool at that particular time? The transfer allegedly occurred in June 09, or if the court would permit a backdated (effective date) of February 09, how do they attempt to pull this off???
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William A. Roper, Jr.
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floridagal said:
So how does a loan get put into a securitized pool, that had a closing date of March 1, 2007 and the alleged transfer (assignment) of a note, which was lost on June 09, get into a pool at that particular time? The transfer allegedly occurred in June 09, or if the court would permit a backdated (effective date) of February 09, how do they attempt to pull this off???

 
floridagal:
 
You are NOT paying attention and you are REFUSING to accept what I have been persistently telling you THROUGHOUT.
 
The loan probably WAS properly transfered on March 1, 2007, precisely as the PSA relates.
 
The assignment is a forgery.  NOTHING HAPPENED as to the transfer in June 2009.  But the plaintiff has created a proof problem by its forgery, evidence fabrication and misconduct.
 
IF YOU FOCUS ON THE ASSIGNMENT, THE PLAINTIFF WILL SIMPLY PRODUCE THE NEGOTIABLE INSTRUMENT IN COURT AND TELL THE COURT TO IGNORE THE ASSIGNMENT.
 
You are fixated on trying to show that the grantor of the assignment lacked authority.  This is really rather irrelevant.  More importantly, IT HAD NOTHING TO CONVEY.  The assignment is a COMPLETE FABRICATION and CONVEYS NOTHING.  NOTHING HAPPENED in June 2009 OTHER THAN THE FORGERY.
 
The note was NOT assigned then.  No money changed hands then.  There will be NO ACCOUNTING journal entries or transactions subject to tax treatment that happened then.  The note was NEVER LOST.
 
ALL OF THESE ALLEGATIONS ARE LIES.  Believe them at YOUR PERIL!
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Mr. Roper,

I gotta get your take on this one:

I had a person with a similar name like mine declare BK in another region of my non-judicial state.  All of a sudden, the Trustee of the Trust moves for a motion for relief from stay.  They submitted all of the docs associated with my property AND they created 1 final assignment AFTER this person with a similar name declared BK, and assigned the note & deed to themselves.  They recorded it in the WRONG recorders office ( in that person's recorder's office) Not only that, the declaration in there from the movant's servicing agent declares that they have personal knowledge of this person?

Of course, all of the other previous assignments recorded in my jurisdiction were all bogus to, as you previously stated. How would you attack theses thieves?  Let me know if you would like more info
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floridagal
I understand about the assignment. But there is no proof of any legal equitable transfer of the alleged original note to date.

They have not proved such, that the transfer of the note took place. Only an intent of a PSA was filed. Not even signed, certified, or signatures. The alleged signature on the alleged note is a stamp and there has been no proof of when and whom place that stamped signature on the alleged original. The originating lender under bankruptcy protection since 2007 and ordered cease and desist. There must be some documented evidence to support the right to enforce.
Many judges have pointed out, just because one is in possession of original note, (bearer paper)does not give the right to enforce it. Insufficient.
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William A. Roper, Jr.
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floridagal said:
They have not proved such, that the transfer of the note took place.  Only an intent of a PSA was filed.  Not even signed, certified, or signatures.  The alleged signature on the alleged note is a stamp and there has been no proof of when and whom place that stamped signature on the alleged original.  The originating lender under bankruptcy protection since 2007 and ordered cease and desist.  There must be some documented evidence to support the right to enforce.


floridagal:

You are moving deeper and deeper into legal quicksand!

As far as the failure to prove the details regarding the transfer of the note, this is something that you need to be exploring through discovery.  You need to demand within an interrogatory that they explain the facts associated with each prior transfer.  Moreover and more importantly, you need to be askiing the identity of persons with knowledge of the facts of the case generally and more specifically with knowledge of the facts of any negotiation or transfer.

You build your defensive case through thoughtful discovery.  And you do NOT ASSUME facts.  You ASK GOOD QUESTIONS.

There is absolutley NO PROHIBITION on use of stamps rather than original signatures on an indorsement.  That dog wont hunt!  When you go into court and argue that one, make sure it isn't before a judge whose clerk STAMPS the Judge's name on his decisions!

The law has recognized for hundreds of years that there are circumstances wherein someone might not be able to sign their name.  In olden days when literacy was far less prevalent, it was common for those executing instruments to make their "mark".  There are persons who have lost one or more limb or who are in some way paralized and cannot sign.  These are entitled to assent in other ways.  If someone finds it convenient to delegate the signing to another OR to use a mechanical or other devise such as a rubber stamp to sign, this is perfectly acceptable almost everywhere.

In fact, the earliest English conveyances tended to rely more on the SEAL than the signature.  Documents were SEALED with a signet ring and sealing wax.  Signatures CAME LATER.

The key is a person's willful manifestation of assent.

(It should be here noted that there are two exceptions to the above, which do NOT apply to the circumstances you describe in terms of indorsement.  First, it would be absolutely FORBIDDEN for someone OTHER THAN the person swearing to an oath on personal knowledge, as in an affidavit, to permit another to sign on their behalf UNLESS the person swearing was actually present and personally attesting to it and directing the other person to sign.  That is, one can appoint another person their agent and give them authority, but this does NOT extend to swearing to personal knowledge on another person's behalf.  Second, while one could authorize others to sign one's name, a notary should NEVER authenticate a document representing that the person has signed when he has not.  This is a false authentication.)

The indorsement needn't be dated and it needn't be signed with a real wet ink signature.  It isn't necessary to authenticate the indorsement.

You continue to ASSUME that the transfer took place AFTER the bankruptcy.  You seem rather rabid about this point.  You need to be approaching your case dispassionately rather than emotionally.

The plaintiff is LYING and deciving the court.  But SOME of the plaintiff's false representations can really HURT THEM.  It may NOT BE IN YOUR INTERESTS to show ALL of the various lies and defects.

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Where are you in this proceeding?  Has a summary judgment motion been filed?  Has the summary judgment motion been heard and decided?  Is the matter scheduled for trial?  Are you conducting discovery?

Frankly, if you are NOT conducting discovery, you are probably going to LOSE.  Effective discovery is going to be the only means of winning.  I am NOT talking of DELAY.  I am talking of WINNING.

If, instead of discovery, you simply gather up various arguments of uneven and dubious quality from various corners of the Internet and slap these together using a false paradigm of the case, then you WILL LOSE, because the judge is going to rapidly tire of the various unproductive straying into legal fantasy.
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William A. Roper, Jr.
floridagal:

You mentioned that the assignment was recorded after commencement of the suit.

The recording date is NOT the critical question.

Was the forged assignment executed before or after the suit was filed?
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floridagal
The LP was on May 26, 2009. I was served in June 18, 2009.

The alleged assignment was allegedly signed on June 4, 09 and notarized on June 4, 09. With an effective (retro date) of 2/22/209. The party signing was loan serviceras a mers officer as nominee for bankrupt lender, (07) still pending.

Discovery has been ongoing since late 09, whereby they keep extending and when they file it is un-verified and nothing is answes, just objections for many reasons. Do not have protection of the court. Compel order 12/09 and still nothing. Case went on a lull for nearly 7 months. I filed second requests, then extended and answered same, objections. I was granted leave to amend answers and affirmative defenses. They noticed the court to take my depos and overly broad documents, etc. I motioned for protection order. now we have status conference hearing coming up.

I filed a request for judicial notice of file, pleadings answers, cease and desist orders of originator, their bankruptcy and case law. I have objected to the stamped signatures authenticity. As well as my own. So that is where I am at
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I think that was me who mentioned about the forged assignment.  It was made 3 months after the person with my same name declared bankruptcy.  They made the assignment and then roughly 8 days later went for the motion for relief.

Had this person with the same name as I, NOT declared BK, they would not have made this assignment because they recorded it by accident in that person's county recorder's office instead of my county recorder's office and then went for the motion for relief and used that forged assignment as part of their exhibits to show standing.

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ooops! never mind
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floridagal
Ps the assignment was recorded 8/09. Complaint was vague and plead both counts. Lost and owner/holder
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floridagal
They should produce delivery receipt. If they can.
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William A. Roper, Jr.
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They should produce delivery receipt.  If they can.

 
Why do you want to coach the plaintiff into how it can improve and WIN its case??
 
Because you start from the false premise that the transfer NEVER TOOK PLACE at the trust closing, you are proceeding as if the plaintiff CANNOT produce such a delivery receipt.
 
The FACT is that the foreclosure mill lawyers are mostly careless, lazy, overworked idiots with minimal actual understanding of the mortgage business!  But there probably IS a delivery receipt which CAN BE PRODUCED if they ask the servicer and the mortgage investor the RIGHT QUESTIONS and they spend enough time looking for it.
 
So while it is interesting to include a request for any such delivery receipt in a request for production, you really want to bury that in there with a long laundry list of other items and NOT CALL ATTENTION TO IT.
 
If you taunt the plaintiff and challenge them to produce a delivery receipt, they will either FIND IT or FORGE ONE.  And you will probably find it very difficult to prove the forgery!
 
You need to keep firmly in mind that the delivery receipt can WIN THE CASE FOR THEM.  So I would make this the very LAST mention of the matter, unless you haven't included that in a request for production yet.
 
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It appears that you are operating under the classic misconception as to WHY the plaintiff is stonewalling on the discovery.  You imagine this is because they do NOT have the necessary documents.
 
But that isn't the problem AT ALL.  The actual problem is that the production of the REAL documents will show the assignment to be a forgery.
 
They are NOT worrried so much about proviong their case.  That is actually pretty trivial.  Instead, their big concern is how to prove the case without showing their criminal activity in the forgery, evidence fabrication and perjury.
 
When you can get your head around that and design effective discovery to really box them in as to their criminal behavior, you can WIN.  If you are focused on proving something that simply ISN'T TRUE -- that the transfer into the trust didn't take place at the trust closing -- then you will ultimately lose like most other pro se and represented litigants.
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floridagal
Yes, but if it is not brought up anytime soon, the judge in the foreclosure suit may award plaintiff summary judgment. Then I'll have to appeal and if not in the record that I have been asking I will be waived.

You see I am also in pending a[ against this bankrupt entity and the judge there is now looking into this claim I make so one way or another the truth will come out in either case and one of them will be found lying.

Kind of a catch 22 for them, since they filed an assignment which is bogus in the foreclosure case.

In any event they have avoided to submit proper discovery in the state level but in the federal it is just beginning.
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Hector said:
I had a person with a similar name like mine declare BK in another region of my non-judicial state.  All of a sudden, the Trustee of the Trust moves for a motion for relief from stay.  They submitted all of the docs associated with my property AND they created 1 final assignment AFTER this person with a similar name declared BK, and assigned the note & deed to themselves.  They recorded it in the WRONG recorders office ( in that person's recorder's office) Not only that, the declaration in there from the movant's servicing agent declares that they have personal knowledge of this person?

Of course, all of the other previous assignments recorded in my jurisdiction were all bogus to, as you previously stated. How would you attack theses thieves?  Let me know if you would like more info

 
. . .
 
I think that was me who mentioned about the forged assignment.  It was made 3 months after the person with my same name declared bankruptcy.  They made the assignment and then roughly 8 days later went for the motion for relief.

Had this person with the same name as I, NOT declared BK, they would not have made this assignment because they recorded it by accident in that person's county recorder's office instead of my county recorder's office and then went for the motion for relief and used that forged assignment as part of their exhibits to show standing.

Well, that certainly IS an interesting fact situation, Hector!  I will have to meditate on that one a little bit.

In which state are you located?  Are you already in foreclosure?  Or did they assign your note even though you weren't in default?

I wonder if they assigned it into the correct trust or if they screwed that up too?  Have you checked the registration statement and PSA of the trust which is shown on the assignment as the mortgage investor?

Are you willing to send me a copy of this assignment?  I would be happy to take a look and share some private comments!

My gut feeling is that you have a very nice little booby trap to spring on them at some point in the case.  I would definitely keep this under wraps until a strategic moment and use this to eviscerate the case.  Seems like you might be able to get one dismissal out of this if played well!
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Yeah, you REALLY need to see this. I'm going to send you a private email with the details (don't want to give to much out in the open here, especially with what I've got)
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Bill
William,

   I think floridagal has the same misconceptions I did when we first started discussing my situation.  If you read back through the post it's uncanny how simular the facts are with the forged assignment, lender in bankruptcy, PSA questions, misconceptions about discovery.

My advice to Flordiagal is to start with a clean slate, read the last 12 months of posts, and reevaluate the proper arguments that will result in a positive decision for her/his case.  We have covered in great detail most of these problems/issues because it took me quite a while to "GET IT". 

I search through the forum on a daily basis to reread posts and find ones I missed on different subjects. 


 
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Bill

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Discovery has been ongoing since late 09, whereby they keep extending and when they file it is un-verified and nothing is answes, just objections for many reasons. Do not have protection of the court. Compel order 12/09 and still nothing. Case went on a lull for nearly 7 months. I filed second requests, then extended and answered same, objections. I was granted leave to amend answers and affirmative defenses. They noticed the court to take my depos and overly broad documents, etc. I motioned for protection order. now we have status conference hearing coming up.



When you were granted a motion to compel and the Plaintiff did not comply in 2009 why wouldn't you bring another motion to FORCE the Plaintiff to answer the discovery or face sanctions?  My first thought would have been to ask for a dismissal without predijuce with a condition that they answer the court ordered discovery in order to refile. 
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floridagal
I had an attorney at that time and they were not representing me to the best of their ability. Why I don't know, in any event when I took the case over, I had a heart attack in February 2010. They were not responding and I really didn't have a clue what to do next and was not well enough to continue. So it just went in a lull. When I became well enough I submitted second requests which came back the same way. I have been to one hearing and that matter was brought up, judge let it go over his head. But at that point I asked the judge for leave to amend answers and affirmative defenses. Also sent the Plaintiff 2nd attorney letter stating I did not get discovery as per order and prior to that sent Plaintiff first attorney same letter. They all ignore.

So recently I filed a request for judicial notice of filings, pleadings, exhibits, etc., and a summary of facts regarding all of these issues. Plaintiffs attorney is looking to have me sanctioned now for not following fl.r.civ.p. and briefing first, well I did, they just tend to walk all over me and not respond.

So now there is a status conference hearing initiated by the court.

So that is where I am at in the foreclosure case
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Floridagal,
Click on my name and drop me an e-mail. I have some documents that may be helpful to you.
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While i Have read the above and have a fairly good handle on it.  My case is a little different, we are the plaintiff.  Does the above pertain to us or could we introduce the PSA without the negative effects.  My loan could have never been transferred to the trust because it was in foreclosure when before during and after the trust closed.  Specifically according to the loan purchase agreement referenced in my PSA no loan that was 30days late could have been transferred in.  A little insight from anyone would be helpful. 

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