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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     In looking over many case filings, a thought came to me. Very often one
will see an assignment of the mortgage executed AFTER the filing date. Since
a mortgage is a lien, what this seems to mean is that the Note holder did not
own the mortgage lien at the time of filing even though they may have owned the Note.
     What this may mean is the Note was unsecured at the time of filing the
case. When the judgment is rendered it is an unsecured judgment which has
implications should the debtor decide to file Bankruptcy.
     Example: Lender A endorses Note to B which endorses Note to C. C files
a foreclosure action on the 1st of the month. MERS assigns the mortgage from lender A to creditor C on the 15 of the month and its gets recorded on
the 30th day of the month.
     Question: Did Creditor C own the mortgage lien on the 1st of the month when it filed for foreclosure?  I THINK NOT!
      THE WHOLE ACTION IS ON THE NOTE. THE JUDGMENT SHOULD BE UNSECURED BECAUSE CREDITOR C HAD NO LIEN AT THE INCEPTION OF THE
CASE! The fact it acquired the mortgage post filing does not give it standing
to enforce the mortgage lien. It should only have a money judgment, unsecured by the property. Chapter 7 should be able to wipe out the money
judgment leaving the property free and clear.
      Food for thought: examine the filing dates and assignment dates carefully. This information could save your home!
Quote 0 0
Mike H wrote:
Question: Did Creditor C own the mortgage lien on the 1st of the month when it filed for foreclosure?  I THINK NOT!


Yes.  Creditor C owned the mortgage the moment that note was delivered with a proper indorsement, either to C or in blank.   The mortgage lien follows the note with absolutely no requirement that it be recorded. 

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Bill

Quote:

 The mortgage lien follows the note with absolutely no requirement that it be recorded. 



This is a hard concept for a lot of people to grasp and has lead many people down the road to a short, fast, Summary Judgemnt in favor of the Plaintiff.  The roots of this go back to Carpenter v. Logan:

Quote:

The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity

http://supreme.justia.com/us/83/271/case.html

Once a valid Mortgage/lein is granted to the Mortgagee it is inseparable from the note.  Any NEGOATION of the note under the UCC will give an EQUTIBLE assignment of the mortgage. 

Upon a breif investigation most people will find their local jursdiction follows this rule.

In the case of MERS, while on many notes it lists MERS as the Mortgagee, a carefull reading of the language used, will show that MERS is a "NOMINEE" for the original lender.  The lender does receive the Note and Mortgage and MERS is an agent in regards to the mortgage.  The Mortgagee was always the original lender.   While there are problems with the authority given to MERS to act in certain ways, I have yet to see any case that has sucessfully argued that the note was "seperated" from the mortgage and is unenforcable, rather any assignment of the mortgage WITHOUT a negoation of the NOTE is a nullity, void, and transfers nothing.  These assignment raise a lot of other issues and large problems that are addressed in other posts.

Quote:

Black's Law Dictionary defines a nominee as "[a] person designated to act in place of another, usu. in a very limited way" and as "[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others." Black's Law Dictionary 1076 (8th ed.2004). This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.



There is a very indepth explnation of this in Landmark v. Kesler
http://scholar.google.com/scholar_case?case=7208887003475335230&q=landmark+v.+kesler&hl=en&as_sdt=2,15&as_vis=1

Mike H,

How is the "Death Gamble" argument comming along?

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Sandy
I am confused about when the servicer actually owns the note in a Fannie Mae loan. I have learned here that delivery of a note indorsed in blank transfers ownership, but what if the plaintiff's foreclosure firm files for foreclosure in October and in November answers a counterclaim about standing by saying it is waiting to receive the original note from the document custodian? (An appellate court in the involved state held that the plaintiff must have possession of the original note to have standing.)

Should one assume that the Fannie Mae document custodian would take longer to deliver the note to the servicer, but because of some agreement between Fannie Mae and the servicer, the servicer can prove it owned the note before possession?



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    The "death gamble " argument is doing quite well. So far it has stopped
many foreclosures "dead" in their tracks.(sic)
    I had one of my clients express it to the Judge this way: "ownership of
real estate is like a bundle of straws, the lender owns most of the straws
at the beginning lets say 8, and the borrower owns 2. It is similar to joint
owners with rights of survivorship and tenants in common. Either party
may transfer their straws to a third party but if either party dies or gets
dissolved, without having lawfully transferred their straws, then the surviving
party has the right to seize the other parties straws by an action to quiet
title.
    In other words, the borrower puts up the deed, the lender puts up the cash, whoever dies first, loses! That's a "mort" "gage" ie "death" "Gamble"!

     With regard to the issue of "bifurcation" of the Note and mortgage, I
would agree that if the Note holder C did nothing, the mortgage would
follow the Note. However, creditor C went on the record that it only acquired
the mortgage from MERS, AFTER filing the case, so that opens up an area of
attack by the defendant that "bifurcation" occurred and C did not own the
lien at the time of filing. I believe this argument has won in BK court but I
can't remember which case it was.
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FnDoomed
Sandy wrote:
I am confused about when the servicer actually owns the note in a Fannie Mae loan. I have learned here that delivery of a note indorsed in blank transfers ownership, but what if the plaintiff's foreclosure firm files for foreclosure in October and in November answers a counterclaim about standing by saying it is waiting to receive the original note from the document custodian? (An appellate court in the involved state held that the plaintiff must have possession of the original note to have standing.)


Fannie was a holder from the moment they negotiated the note.  If the document custodian is somehow an agent of Fannie then Fannie is still a holder.  If the custodian is not an agent of Fannie then Fannie is not a holder until they regain possession.
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FnDoomed
Bill wrote:
I have yet to see any case that has sucessfully argued that the note was "seperated" from the mortgage and is unenforcable, rather any assignment of the mortgage WITHOUT a negoation of the NOTE is a nullity, void, and transfers nothing.


Consider:   Maker makes a note and a mortgage to Lender.  Lender assigns and records "mortgage and note" to Banker.  Lender delivers note to Banker, but does not indorse it.   Banker then assigns and records "mortgage and note" to Investor.  Banker also indorses note in blank and delivers to Investor.

Investor has a note that is IMO unenforceable even though it has the mortgage allegedly assigned to it.

The only bifurcation you can have is when you bifurcate the ownership of the note from the holdership of the note.  Then nobody can enforce, regardless of the status of the mortgage.
Quote 0 0
Bill

Quote:

 The "death gamble " argument is doing quite well. So far it has stopped many foreclosures "dead" in their tracks.(sic)
    I had one of my clients express it to the Judge this way: "ownership of
real estate is like a bundle of straws, the lender owns most of the straws
at the beginning lets say 8, and the borrower owns 2. It is similar to joint
owners with rights of survivorship and tenants in common. Either party
may transfer their straws to a third party but if either party dies or gets
dissolved, without having lawfully transferred their straws, then the surviving
party has the right to seize the other parties straws by an action to quiet
title.
    In other words, the borrower puts up the deed, the lender puts up the cash, whoever dies first, loses! That's a "mort" "gage" ie "death" "Gamble"!

     With regard to the issue of "bifurcation" of the Note and mortgage, I
would agree that if the Note holder C did nothing, the mortgage would
follow the Note. However, creditor C went on the record that it only acquired
the mortgage from MERS, AFTER filing the case, so that opens up an area of
attack by the defendant that "bifurcation" occurred and C did not own the
lien at the time of filing. I believe this argument has won in BK court but I
can't remember which case it was
.



Mike H

As with all of your wing-nut theories, all the members of this forum would love to read ANY of the cases you are referencing.  I would further caution anyone new to the forum or unsure of a foreclosure issue to NOT to subscribe to any wing-nut theory proposed by Mike H without further investigation and some kind of documentation. 

Quote:
 The "death gamble " argument is doing quite well. So far it has stopped many foreclosures "dead" in their tracks
.

I do agree with you on one thing Mike H, the "death gamble" theory will stop foreclosures "dead" in their tracks.  Anyone making this argument will not have to worry about proceeding in a foreclosure action because as soon as the Plaintiff and Judge stop LAUGHING an order for foreclosure will be signed.


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Bill

Quote:

Consider:   Maker makes a note and a mortgage to Lender.  Lender assigns and records "mortgage and note" to Banker.  Lender delivers note to Banker, but does not endorse it.   Banker then assigns and records "mortgage and note" to Investor.  Banker also endorses note in blank and delivers to Investor.

Investor has a note that is IMO unenforceable even though it has the mortgage allegedly assigned to it.

The only bifurcation you can have is when you bifurcate the ownership of the note from the holdership of the note.  Then nobody can enforce, regardless of the status of the mortgage.



I think this is why you start to see an allonge appear out of nowhere.  To correct a problem like the situation you described. 

My guess is that a Servicer has thousands of mortgage files from a lender it is servicing for.  It wouldn't take much to pull an allonge from one note and add it to a different note.  With no date, notary, ect... this would be very difficult to prove.  I hate to speculate on things like that but I wouldn't put it past a Servicer.

William Roper who has extensive knowledge of the mortgage lending industry is adamant about MOST loans ACTUALLY being transferred into the trusts as required.  While they have a HUGE proof problem, they can prove this also if pushed far enough.  It is far EASIER to LIE and submit a FORGERY to the courts than actually go get the documents they need which would take an extensive amount of time.  Once these LIES and FORGERIES are submitted into evidence and PROVEN by the Defendant it is a little too late to go back and get the proper documents. 

A lot of the POSITIVE decisions regarding foreclosure are not because of a failure to transfer the note and mortgage as required.  They are because of the FRAUD that is exposed.


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FnDoomed
Quote:
I think this is why you start to see an allonge appear out of nowhere.  To correct a problem like the situation you described. 


I think my allonge appeared out of nowhere and misidentifies the note.  I posted what it looks like under William's allonge topic.


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     With regard to this "bifurcation issue" of the Note and the Mortgage, I
am working on several cases where the Note was endorsed to one entity
and the mortgage was assigned to a different entity.
     I'd like to hear the opinion of the forum on what the practical effect of
that would be. I have argued that the Note becomes unsecured. What do
you guys think?
Quote 0 0
t

Quote:
     With regard to this
"bifurcation issue" of the Note and the Mortgage, I
am working on several
cases where the Note was endorsed to one entity
and the mortgage was assigned
to a different entity.
     I'd like to hear the opinion of the forum on what
the practical effect of
that would be. I have argued that the Note becomes
unsecured. What do
you guys think?

 

I think that Mike H. is a swindler whose posts throughout the Forum exist solely to generate sales leads as to distressed borrowers, whom he intends to exploit and defraud through his various debt elimination scams.

 

Nothing Mike has to say is meritworthy of serious consideration by a distressed borrower.  If this swindler contact you, you should report his soliticitation to law enforcement authorities.

Quote 0 0
floridapathy
From personal observation, I feel that attraction to Mike H. (swindler or not) is that he does not critisize every single point of defense, as to leave visitors less hopeful than when they arrived. Yes, lets not fill the disadvataged up with false hope, but for crying out loud, can we at least offer a disclaimer that reads something like?--->

WARNING: We at MSFraud have only helpful advice that will direct you to what not to do. We can, in no way attempt to predict which of your merits would prvail in a court of law, or how a judge may find your claims utterly apprehensible on any given day. So if your day is not going too bad, than please refrain from seeking the truth at MSFraud!

LOL
Quote 0 0
ka

Quote:
From personal observation, I feel that attraction to Mike H. (swindler or not) is that he does not critisize every single point of defense, as to leave visitors less hopeful than when they arrived. 

 

Forum participants NEED TO BE WARNED and cautioned about EVERY false wingnut defense.

 

Distressed borrowers already have the deck stacked against them.  To further distract borrowers from the viable defenses by intoxicating them with wingnut nonsense is not only undesirable, it is truly destructive.

 

Mr. Roper gave up on this Forum when his efforts were betrayed by the site administrators who caved in to the swindlers.  Perhaps those of us who are actually contributing should simply go on strike and find another alternative venue.  Maybe it is better to leave the Forum to rot and simply be another venue for the swindlers to dominate.

 

What do others think?  Should we just take our traffic to another site and leave Mike H. to prey upon distressed borrowers?  It wouldn't take a lot to persuade me.

Quote 0 0
George Burns
It only makes sense to contribute to a Forum if you can see that a  sufficient number of deserving people are helped. Otherwise it is not worth the effort.

How many is "a sufficient number" is a personal decision.

How do you know that anyone has been helped? They would have to say so in a post or personal email.

The way things have been going for the last 3 months makes me think, and not kind thoughts.

I try my best to contribute as I am allowed by my disability because I found the Forum to be of great value and it has greatly increased my knowledge and awareness of the issues. I have passed some of this to others but have been greatly disappointed by their use of it. Some were hell bent to lose their cases as soon as they could, even those with lawyers. They were like some recent posters, wanting to do things their way and expose the wrongdoings by telling the court the whole truth as they think it is or should be.

The end result is that I too am questioning the use of my time and effort, especially since a growing number of people seem reluctant to help themselves by reading the Rules and Procedures of their jurisdiction even when advised. They will not (or cannot) even do a basic Search of previous Threads on this Forum.

How can you, or should you, try to help people who wil not help themself?
Quote 0 0
Concerned

It seems to me that the Forum has become moribund except for a handful of committed contributors.

 

I think that it draws traffic mostly from those finding the Forum through Google hits based upon some of the exceptionally good posts by several past contributors.

 

But rather than being a source of benefit for distressed borrowers, the swindlers trolling this site instead prey upon the very folks that ought to be beneficiaries.  The site administrators seem to be facilitating and supporting these swindles by the failure to take appropriate actions to help bring the perpetrators to justice.

 

I cannot help but wonder if those who are making positive contributions to the Forum are actually simply drawing the additional traffic that feeds these swindles.

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John Lewis

A Response:

“What do others think? Should we just take our traffic to another site and leave Mike H. to prey upon distressed borrowers? It wouldn't take a lot to persuade me.”

 

“What do others think?” – your post(s) ‘ka’ “t’ answers the question – NO! RIGHT ALWAYS ALWAYS OVERCOMES WRONG! Unless, of course, WRONG goes unchallenged.

Mr. Roper’s departure left ‘WRONG’ unchallenged, I don’t think we should go down that path again – do u?

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George Burns
You cannot win every battle, so in many cases you have to decide when it is worth the effort to fight.

I do not regard Mr. Roper's departure as leaving WRONG unchallenged, but rather as choosing to expend resources elsewhere. Somewhere or something else was probably more deserving or perhaps more rewarding, spiritually, of course.

I guess that each of will have to make our own decision.
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Many original notes and mtges have never been filed as I previously warned about BONY and/or the endorsement page(s) are missing. Especially from Countrywide/ Bank of America/ America’s Wholesale Lender! __________________________________ Q. Okay, as far as the copy of the note is concerned, to your knowledge do you know anybody who held the note whether [...]
Read more at
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CWW
MIKE H,   IN THE PAST I HAVE GIVEN YOU THE BENEFIT OF THE DOUBT, THINKING YOU HAVE THE PEOPLES BEST INTEREST IN MIND. BUT I AM GOING TO TELL YOU THE SAME THING I HAVE TOLD MY OWN LAWYER AND LEGISLATORS.   YOU SAY, "CASES I AM WORKING ON" , GIVING THE IMPRESSION THAT THESE ARE PEOPLE THAT YOU HAVE TAKEN MONEY FROM, WITH THE UNDERSTANDING THAT YOU WILL HELP THEM BECAUSE YOU KNOW WHAT YOU ARE DOING.  THEN YOU ASK THE FORUM,  WHAT DO YOU GUYS THINK?  YOU HAVE GOT TO BE KIDDING.  I FEEL SORRY FOR THE PEOPLE THAT ARE , YOUR CASES.  YOU , LIKE A LOT OF ATTORNEYS SHOULD NOT BE TAKING PEOPLES MONEY IF YOU DO NOT KNOW FOR CERTAIN WHAT YOU CAN DO FOR THOSE PEOPLE.    YOU  GIVE THE DISTINCT  IMPRESSION THAT YOU ARE NOT SURE WHEN YOU ASK THAT QUESTION.
Quote 0 0
John Lewis

George, I too agree with your assessment that Mr. Roper’s departure was “to expend resources elsewhere. Somewhere or something else was probably more deserving or perhaps more rewarding, spiritually, of course.” and not due to a dispute with this sites administrator.

 

My point was simply that Mr. Roper’s departure left a void, in many areas, because he was a fierce fighter against the swindlers aka Mike H and his cronies.  And that if “‘we just take our traffic to another site…” again the end result would “…leave Mike H. [unchallenged] to prey upon distressed borrowers?”.  Thus, creating another void.

Quote 0 0
George Burns
I do think that the alleged dispute with the site administrators contributed to his departure. It certainly would have been among the aggravations used to decide if staying was worth the effort.

What would the number of new visitors to this Forum if the current major posters left?

Major posters such as (to name a few) Ann, John Lewis, Floridapathy, FnDoomed, Bill,  ka, and t.
Quote 0 0
John Lewis
Yes, but the result would be the loss of all of the threads going back many many years! The wealth of info might never be available again if the site administrator chose to just pack it in.

And the trolls, and the likes of Mike H and his cronies, would simply re-pollute the new site, unless of course one would chose to limit free speech?

I think we stay and fight  - Good always overcomes Evil! 

Especially when we have the likes of 'ka' and 't' to fill the 'void'!
Quote 0 0
George Burns
Therein lies the problem.

IF. a dispute (or lack of support) etc was part of the cause for Mr. Roper's departure or even his loss of affection, what is there to prevent the same treatment to be meted out to anyone else?

What is there to guarantee the continuity of the site regardless of who is posting? We have no guarantees from the site owners. The site could be lost just because the owner woke up in a bad mood leaving us with Google's archives.

I have no idea who the site administrator is and I have not even bothered to find out who owns the site.
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    I would like to wish all a "Happy St. Patrick's Day" and urge all to go to WFUV, Ceol Na N'Gael, music of the Celts.
    Let's all remember the '45 (Scotland) and the rising of 1916 (Ireland) and
remember that fighting tyranny and Tories takes guts, but it is well worth
the fight! There will be casualties during the fight, but no one lives forever,
so Sinn Fein, Ourselves Alone! 
Quote 0 0
ka

Quote:
    I would like to wish all a "Happy St. Patrick's Day" and urge all to go to WFUV, Ceol Na N'Gael, music of the Celts.
Let's all remember the '45 (Scotland) and the rising of 1916 (Ireland) and
remember that fighting tyranny and Tories takes guts, but it is well worth
the fight! There will be casualties during the fight, but no one lives forever,
so Sinn Fein, Ourselves Alone!
 

 

The even greater fight than fighting tyranny is fighting criminal swindlers like Mike H., who prey upon distressed borrowers!  Hopefully, he will choke on his beer and never con another borrower our of his last $$.  YOU WILL BURN IN EVERLASTING HELL FOR WHAT YOU HAVE DONE, MIKE!

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texas
MikeH has returned.
Not sure of the message Mike H is trying to deliver.
Sinn Féin (English pronunciation: /ˌʃɪnˈfɛɪn/, shin-FAIN, Irish: [ʃɪnʲ fʲeːnʲ]) is a left wing, Irish republican political party in Ireland., http://en.wikipedia.org/wiki/Sinn_F%C3%A9in
Not sure what WFUV is - http://www.wfuv.org/.

The name is Irish for "ourselves" or "we ourselves",[3][4] although it is frequently mistranslated as "ourselves alone"

Precision and accuracy is lacking

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Unregistered Who Hates Te

I hate terrorists and those who support them, Islamic, Irish or otherwise! 

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Irish

Mike is just looking for some Irish fools to swindle.  To him St. Patrick's Day is merely a seasonal excuse for another scam to rip off distressed borrowers and take their last nickel.

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texas
With ancestry back to Ireland, I do not like green beer or grog.
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