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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I've been doing some research and I'm hoping that I'm misunderstanding but here goes.

Can an Assignment of Mortgage also assign the Note without endorsing the note as long as the assignment of mortgage states that both the mortgage and note are being transferred?

A endorses Note to B - this is not a blank endorsement btw
A assigns mortgage to B
B assigns mortgage to C
C assigns mortgage to D

The note carries no other endorsements besides the A to B.  From what I see, The note is in the name of B and the mortgage is in the name of D.

So how can D foreclose when they don't own the note?

Please help me understand this!!

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t

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I've been doing some research and I'm hoping that I'm misunderstanding but here goes.

Can an Assignment of Mortgage also assign the Note without endorsing the note as long as the assignment of mortgage states that both the mortgage and note are being transferred?

A endorses Note to B - this is not a blank endorsement btw
A assigns mortgage to B
B assigns mortgage to C
C assigns mortgage to D

The note carries no other endorsements besides the A to B. From what I see, The note is in the name of B and the mortgage is in the name of D.

So how can D foreclose when they don't own the note?

Please help me understand this!!
 

You need to carefully study the wealth of expository posts here on the Forum about this issue, particularly posts by Mr. Roper, a leading national authority on foreclosure defense.

 

In short, you also need to appreciate that ownership and holdership of a negotiable instrument are distinguishable concepts.

 

An owner might or might not be a holder.  A holder is the person or entity with a right of enforcement over a note.  (There a some exceptions to this within the UCC, such as a provision allowing the last holder to enforce a lost note and for a transferee who is not a holder to enforce the note under certain circumstances.)

 

An owner who is not also the holder is not entitled to enforce the instrument (except in those special circumstances set forth within the UCC).

 

Mr. Roper has discussed this repeatedly.  Permit me to give you a very simple explanation and analogy.  First, realize that the UCC, which covers negotiable instruments such as promissory notes, also covers ordinary bank checks.

 

Suppose that A makes out a check for $500 drawn upon First Bank of Metropolis in favor of B as payee.  Further suppose that B desires to cash and collect this check, but that B is very busy and unable to visit the bank (or perhaps B is disabled, etc.).  One choice would be for B to deposit the check and then to draw upon the funds.  Another choice would be to indorse the check to someone else who would cash the check for B and then that other person would collect the check.

 

But let us suppose that B is both in urgent need of the funds and also mildly suspicious that A (known for poor financial management) might spend the funds leaving the check noncollectable.

 

B wants to cash the check right away.

 

So B indorses the check in blank and gives the check to B's trusty friend, relative or employee C, asking C to present the check at A's bank and to collect the $500.

 

The indorsement in blank and delivery of the check from B to C is a negotiation of the instrument under the UCC.  C thereby becomes the holder of the check with a right to enforce the check.  But note that B is still the owner of the check.  C hasn't paid B for the check or advanced any money to B.  C is not at risk as to non-payment.  If First Bank pays C the funds upon presentation of the check, the money belongs to B.  If First Bank refuses payment (because A is overdrawn, etc.), then B is at risk.

 

C doesn't really have any ownership position in respect of this check and isn't really entitled to keep the proceeds.

 

But under the UCC, in respect of being the holder of a bearer instrument, C is entitled to enforce the instrument and can lawfully present this check to A's bank for payment.

 

By contrast, suppose that B indorsed the check to C (either in blank or specifically to C) and C immediately gave B the $500.  In this case, C seems to not only become holder, but also becomes owner of the check, entitled to both enforce the check and to keep the proceeds. 

 

*

 

Returning to your question, a written assignment of a mortgage or deed of trust which also includes a transfer of the note, might constitute a valid conveyance of an ownership interest in the note, but could never constitute a negotiation under the UCC, since negotiation is by indorsement and delivery.

 

You must also realize that for years foreclosure mill law firms and servicers have been forging assignments which purport to convey not only the mortgage or deed of trust, but also the note, and then using these forgeries as false evidence in judicial foreclosure cases. 

 

Mr. Roper has been sounding the alarm about this for more than four years!

 

Enforcement of the note is ALWAYS about indorsement and delivery.  The written assignments are simply part of the slight of hand used (with great success) by the foreclosure mills and servicers to obtain judgment over ignorant borrowers!

 

See also Mr. Roper's discussions about absence of indorsement and embracing the forged assignment!

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mcz1970,

As long as they come into Court with the Note and say it is the original, the assignments won't matter.

When you contest them, sooner or later they will just come to Court and say here is the original and we are in possession of the blank endorsed Note and then it's over. 
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Thank you.

I will search....

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Sean

I found these threads to be helpful:

 

The Folly of Attacking Rather Than Embracing the Assignment Forgery: Harvey v. Deutsche Bank National Trust Company

http://ssgoldstar.websitetoolbox.com/post/The-Folly-of-Attacking-Rather-Than-Embracing-the-Assignment-Forgery-Harvey-v.-Deutsche-Bank-National-5374903

 

Judicial Admissions -- Exhibits Control Over Allegations In Pleadings: Khan v. Bank of America

http://ssgoldstar.websitetoolbox.com/post/Judicial-Admissions-Exhibits-Control-Over-Allegations-In-Pleadings-Khan-v.-Bank-of-America-5179188

 

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q
Date of possession is important:

In re Ruest, Case No. 08-10512, Adv. Proc. No. 09-1035 (Bankr. D. Vt., August 23, 2011): Even though it was undisputed that loan servicer was in possession of the note and the note was endorsed in blank, the date that the bank came into possession of the note was a genuine issue of material fact sufficient to deny motion for summary judgment.

In re Parker, 445 B.R. 301 (Bankr. D.Vt., March 18, 2011): The creditor needed to show that it was the holder of the note on the date of the debtor's bankruptcy petition, and, since the endorsement was not dated, the court would hold a hearing to receive evidence on the issue.



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The answer to the OP's specific question is :

NO.

And it does not matter what the assignment states. The reason it is NO is that MERS holds only derivative authority. It is a nominee of the Lender (and arguably not even an agent, although some courts make the leap of faith to agency).

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t

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The answer to the OP's specific question is :

NO.

And it does not matter what the assignment states. The reason it is NO is that MERS holds only derivative authority. It is a nominee of the Lender (and arguably not even an agent, although some courts make the leap of faith to agency).

 

As seems often to be the case, Vermont Trotter is always certain, but only occasionally correct.

 

Vermont overly simplifies and distorts the law.

 

Anyone reading and assessing Vermont's posts needs to understand and appreciate that this is not a person who has succeeded in foreclosure related litigation, but rather a disreputable person of questionable judgment and intelligence who has offered vacuous arguments suggested by swindlers and these arguments have been repudiated by the Idaho Supreme Court.

 

In short, Vermont is a loser.

 

There is no shame in losing foreclosure litigation.  But to encourage others to use vacuous or legally erroneous arguments which will surely result in the loss of one's home is irresponsible.  So whenever this person posts, bear in mind that Vermont is teaching you to lose, not teaching you to WIN.

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Unregistered
2nd DCA Appeal Court -

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/April/April%2020,%202012/2D10-5561.pdf

Elena Gonzalez challenges the trial court's final order denying her motion

for relief from judgment in which she challenged the final summary judgment of

mortgage foreclosure that the court had entered against her and in favor of Deutsche

Bank National Trust Company.1 Because a genuine issue of material fact remains with

regard to when Deutsche Bank took possession of the note, we reverse and remand for

further proceedings.

On January 16, 2009, Deutsche Bank filed a two-count complaint against

Gonzalez seeking to foreclose her mortgage and to reestablish the note. In its

complaint, Deutsche Bank specifically alleged that "[t]he subject promissory note has

been lost or destroyed and is not in the custody or control of the Plaintiff who is the

owner and holder of the subject Note and mortgage and its whereabouts cannot be

determined."

However, on March 27, 2009, Deutsche Bank filed a Notice of Filing

Original Note and Original Mortgage, attaching those documents and voluntarily

dismissing count two of its complaint to reestablish the note. The last page of the

attached note is a signature page signed by Gonzalez as the borrower. No other

signatures appear on the page, but it is stamped "pay to the order of ___________

without recourse by: American Home Mortgage Acceptance, Inc. Rosa Montella Asst.

Secretary." "Deutsche Bank National Trust Company CS Indenture Trustee" is

1The remaining appellees made no appearance in this appeal but were

named defendants in the foreclosure action below and thus are included as appellees

pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).

- 3 -

handwritten in the blank, and it appears that Rosa Montella has initialed the notation.

Neither is dated, however.

On August 4, 2009, Deutsche Bank filed a notice of filing the assignment

of mortgage by which Mortgage Electronic Registration Systems, Inc., assigned the

instant mortgage to Deutsche Bank effective December 27, 2009—nearly a year after

the foreclosure complaint was filed.

Gonzalez then filed her answer and affirmative defenses, alleging among

other things that "the complaint fails to adequately show the chain of the title

demonstrating that Plaintiff is in fact the real party in interest with standing to bring this

action."

Deutsche Bank ultimately moved for final summary judgment of

foreclosure, and in opposition, Gonzalez argued that summary judgment is improper

because the pleadings raise a question of material fact as to whether Deutsche Bank

was the real party in interest at the time of the filing of the foreclosure action.

Following a hearing,2 the trial court entered its final judgment of mortgage

foreclosure. Gonzalez then filed a motion entitled "Motion from Relief From Final

Judgment," in which she cited Florida Rules of Civil Procedure 1.540 and 1.530. With

respect to rule 1.530, Gonzalez argued that she was entitled to rehearing because

the exhibits attached to Plaintiff's complaint and filed in support of its motion for summary judgment are inconsistent with Plaintiff's allegations as to ownership of the subjectpromissory note and mortgage, Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. When exhibits are inconsistent with  The record before us does not include a transcript of this hearing. the plaintiff's allegations of material fact as to whom the real party in interest is, such allegations cancel each other out. The trial court denied Gonzalez's motion.

On appeal, Gonzalez argues that the trial court erred because the December 27, 2009, mortgage assignment that Deutsche Bank relied on to establish its standing to maintain the foreclosure action was insufficient in that it did not take effect until well after the foreclosure action was initiated. She also argues that a genuine issue of material fact remains as to when the special endorsement assigning the note to Deutsche Bank was signed.

Deutsche Bank responds that the mortgage assignment is irrelevant and that when it filed the original promissory note on March 27, 2009, it perfected its status as the real party in interest because the last page of the note included an assignment of the note from American Home Mortgage Acceptance to Deutsche Bank.

We start with the basic premise that "[t]he holder of a note has standing to

seek enforcement of the note." Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d

151, 153 (Fla. 2d DCA 2007). And we do agree with Deutsche Bank that the fact that

the assignment of the mortgage is not effective until December 27, 2009, is irrelevant

and that the true issue is whether Deutsche Bank is the holder of the note. See WM

Specialty Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004) (" 'If the

note or other debt secured by a mortgage [is] transferred without any formal assignment

of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to

the debt, unless there [is] some plain and clear agreement to the contrary . . . .' "

(quoting Johns v. Gillian, 184 So. 140, 143 (Fla. 1938))).

- 5 -

However, we also agree with Gonzalez that the trial court erred in granting

Deutsche Bank's motion for summary judgment because a genuine issue of material fact existed.

The standard of review on a summary judgment is de novo.[3] Estate of Githens ex rel. Seaman v. Bon Secours- Maria Manor Nursing Care Ctr., 928 So. 2d 1272, 1274 (Fla.2d DCA 2006). . . . The movant has the burden to prove the absence of a genuine issue of material fact, and "this court must view 'every possible inference in favor of the party against whom summary judgment has been entered.' " Id. (quoting Maynard v. Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003)). And, "if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied." Nard, Inc. v. DeVito Contracting& Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000).

Furthermore, . . . [a plaintiff seeking summary judgment] "must either factually refute the affirmative defenses or establish that they are legally insufficient." Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011).Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1116-17 (Fla. 2d DCA 2011).

Here, a genuine issue of material fact remains as to whether the note was assigned prior to Deutsche Bank instituting the foreclosure suit. Gonzalez placed the standing issue before the trial court by raising it in her affirmative defenses. Deutsche Bank then filed with the trial court the original note with the stamped assignment on the last page. The first page of the note does indicate a date of October 5, 2005, and presumably that is the date on which Gonzalez signed the note and closed on her

 

Deutsche Bank argues that the standard of review is abuse of discretionbecause Gonzalez is appealing the denial of her Motion for Relief from Final Judgment, which she filed pursuant to rule 1.540. See Leach v. Salehpour, 19 So. 3d 342, 344 (Fla. 2d DCA 2009). However, regardless of how Gonzalez titled her postjudgment motion, in the text of the motion, she also cited rule 1.530 and argued that the trial courtshould not have granted summary judgment where a genuine issue of material fact

remained.  The problem is that the additional stamp and handwritten notation transferring the note from American Home Mortgage to Deutsche Bank is not dated. Accordingly,Deutsche Bank failed to establish its standing by showing that it possessed the note when it filed the lawsuit. See Country Place Cmty. Ass'n v. J.P. Morgan Mortg.Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) ("Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action."). As a result, Deutsche Bank has not refuted Gonzalez's affirmative defense, and a genuine issue of material fact exists that should have precluded the entry of summary judgment.

Accordingly we must reverse and remand for further proceedings.

SILBERMAN, C.J., and CASANUEVA, J., Concur

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Unregistered
An interesting foreclosure trial transcript discussing mortgage notes, assignment, who is actual owner of the note, PSA and witness examination.
Case was dismissed.

The Court :
 : Then the testimony that I hear is that  Deutsche Bank is actually the owner -- I  don't -- and then there's additionally,  there's something, this two-page document that  is titleless. Although, in reference to the  two pages on one page it says, this assignment is not subject to the requirements and refers  to this piece of paper. It has language in  it, words in it that seem to be some kind of  an assignment, which is blank and attached to  a second piece of paper that has the word,  assignment of mortgage. But here, again, is  suspect and not -- does not appear to be part  of an actual assignment. It's different from  the assignment that's filed to the court file.
 So it's for that reason that I am  dismissing the case at this point.
http://mattweidnerlaw.com/blog/wp-content/uploads/2012/04/03222012AmericanHomeMortgage1.pdf

 
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t

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An interesting foreclosure trial transcript discussing mortgage notes, assignment, who is actual owner of the note, PSA and witness examination.
Case was dismissed.

The Court :
: Then the testimony that I hear is that Deutsche Bank is actually the owner -- I don't -- and then there's additionally, there's something, this two-page document that is titleless. Although, in reference to the two pages on one page it says, this assignment is not subject to the requirements and refers to this piece of paper. It has language in it, words in it that seem to be some kind of an assignment, which is blank and attached to a second piece of paper that has the word, assignment of mortgage. But here, again, is suspect and not -- does not appear to be part of an actual assignment. It's different from the assignment that's filed to the court file.
So it's for that reason that I am dismissing the case at this point.
http://mattweidnerlaw.com/blog/wp-content/uploads/2012/04/03222012AmericanHomeMortgage1.pdf

 

More garbage SPAM from SPAM low-life Anh = Ann = "Unregistered".

 

Everyone needs to IGNORE the SPAM posts from this ignorant and disturbed person.

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HungarianProse
Unregistered wrote:
2nd DCA Appeal Court -

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/April/April%2020,%202012/2D10-5561.pdf

 


 The problem is that the additional stamp and handwritten notation transferring the note from American Home Mortgage to Deutsche Bank is not dated. Accordingly,Deutsche Bank failed to establish its standing by showing that it possessed the note when it filed the lawsuit. See Country Place Cmty. Ass'n v. J.P. Morgan Mortg.Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) ("Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action."). As a result, Deutsche Bank has not refuted Gonzalez's affirmative defense, and a genuine issue of material fact exists that should have precluded the entry of summary judgment.

Accordingly we must reverse and remand for further proceedings.

SILBERMAN, C.J., and CASANUEVA, J., Concur



EVERYONE, THIS IS THE MOST IMPORTANT ASPECT OF THIS RULING! PAY ATTENTION! If it stands after the time for rehearing expires, this could be used as a case law in lots of cases. 
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HungarianProse
t wrote:

Quote:
An interesting foreclosure trial transcript discussing mortgage notes, assignment, who is actual owner of the note, PSA and witness examination.
Case was dismissed.


http://mattweidnerlaw.com/blog/wp-content/uploads/2012/04/03222012AmericanHomeMortgage1.pdf

 

More garbage SPAM from SPAM low-life Anh = Ann = "Unregistered".

 

Everyone needs to IGNORE the SPAM posts from this ignorant and disturbed person.


 MR " T " Please stop this non-sense. Stop the fighting....lets work together and help each-other...OK??
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Morris
t gave a very helpful explanation of the difference between owner and holder:

Quote:
You need to carefully study the wealth of expository posts here on the Forum about this issue, particularly posts by Mr. Roper, a leading national authority on foreclosure defense.



In short, you also need to appreciate that ownership and holdership of a negotiable instrument are distinguishable concepts.



An owner might or might not be a holder. A holder is the person or entity with a right of enforcement over a note. (There a some exceptions to this within the UCC, such as a provision allowing the last holder to enforce a lost note and for a transferee who is not a holder to enforce the note under certain circumstances.)



An owner who is not also the holder is not entitled to enforce the instrument (except in those special circumstances set forth within the UCC).



Mr. Roper has discussed this repeatedly. Permit me to give you a very simple explanation and analogy. First, realize that the UCC, which covers negotiable instruments such as promissory notes, also covers ordinary bank checks.



Suppose that A makes out a check for $500 drawn upon First Bank of Metropolis in favor of B as payee. Further suppose that B desires to cash and collect this check, but that B is very busy and unable to visit the bank (or perhaps B is disabled, etc.). One choice would be for B to deposit the check and then to draw upon the funds. Another choice would be to indorse the check to someone else who would cash the check for B and then that other person would collect the check.



But let us suppose that B is both in urgent need of the funds and also mildly suspicious that A (known for poor financial management) might spend the funds leaving the check noncollectable.



B wants to cash the check right away.



So B indorses the check in blank and gives the check to B's trusty friend, relative or employee C, asking C to present the check at A's bank and to collect the $500.



The indorsement in blank and delivery of the check from B to C is a negotiation of the instrument under the UCC. C thereby becomes the holder of the check with a right to enforce the check. But note that B is still the owner of the check. C hasn't paid B for the check or advanced any money to B. C is not at risk as to non-payment. If First Bank pays C the funds upon presentation of the check, the money belongs to B. If First Bank refuses payment (because A is overdrawn, etc.), then B is at risk.



C doesn't really have any ownership position in respect of this check and isn't really entitled to keep the proceeds.



But under the UCC, in respect of being the holder of a bearer instrument, C is entitled to enforce the instrument and can lawfully present this check to A's bank for payment.



By contrast, suppose that B indorsed the check to C (either in blank or specifically to C) and C immediately gave B the $500. In this case, C seems to not only become holder, but also becomes owner of the check, entitled to both enforce the check and to keep the proceeds.



*



Returning to your question, a written assignment of a mortgage or deed of trust which also includes a transfer of the note, might constitute a valid conveyance of an ownership interest in the note, but could never constitute a negotiation under the UCC, since negotiation is by indorsement and delivery.



You must also realize that for years foreclosure mill law firms and servicers have been forging assignments which purport to convey not only the mortgage or deed of trust, but also the note, and then using these forgeries as false evidence in judicial foreclosure cases.



Mr. Roper has been sounding the alarm about this for more than four years!



Enforcement of the note is ALWAYS about indorsement and delivery. The written assignments are simply part of the slight of hand used (with great success) by the foreclosure mills and servicers to obtain judgment over ignorant borrowers!



See also Mr. Roper's discussions about absence of indorsement and embracing the forged assignment!
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