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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Tomorrow I get to float a simple argument past a BK judge in NH.  I am seeking to deny bank's proof of claim as holder of a note because their chain of ownership is flawed.  My argument is pure UCC article 3.

BANK1 allegedly sold note to BANK2 but failed to indorse it properly, as the allonge that was used in 2003 referenced a note that was not the note being negotiated.  The reference was in boldface all caps ALLONGE TO THAT CERTAIN NOTE and then got the year of the note wrong.   That made BANK2 a transferee with an explicit right to collect only.

BANK2 then negotiated the note to BANK3, which was an action they had no right to take since a transferee may not transfer, negotiate or discharge a note.  Yet that's what happened.  Since BANK2 was not a holder, then BANK3 can't become a holder, because holder-ship derives from makers or holders only.

BANK3 is not a person entitled to enforce.  The UCC official comments say a transferee "is nevertheless a person entitled to enforce under section 3-301 if the tranferor was a holder at the time of transfer".

We'll see what NH thinks about it tomorrow.


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Bill
Doomed,

I wish you the best of luck.  Please let us know how you felt the hearing went.
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We will be thinking of you... I wish you "LUCK".. Hope all goes well...

cmc
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FnDoomed
Well...

I got a call from my attorney yesterday and we did some strategizing for an hour or so and got off the phone.  Ten minutes later he called me back.  

Attorney for bank emailed him requesting a continuance.  Email states that attorney for bank has twice requested additional information from his client, servicer for BANK3, and received a "non response".  Attorney would like a continuance to pursue that information as he was out of the country for the last nine days.

After asking some questions, I agreed to the continuance.  The new date is in June.

In the meantime I'll be trying to imagine every possible scenario that attorney for bank will use to prove they are a person entitled to enforce.  Then I'll try to imagine a response.  For example:

1. Pull the "real" note from the vault and hope the problem has already been solved.

2. Pull the "real" note from the vault and hand carry it to BANK1 for re-indorsement.

3. Get an affidavit from VP of BANK1 saying that they really meant to write the terms of "that certain note" to match the note in controversy.

4. A separate affidavit or included in #2 "and its ok with BANK1 if judge just reforms the allonge".

5. Get all the receipts and proof required to prove that BANK3 actually really truly bought the note from BANK2 and argue "ignore BANK1's obvious error" and ask the judge to reform the allonge sua sponte.

6. Fabricate fraudulent evidence of any of the above.

7.  Join BANK1 into an adversary proceeding to force them to indorse or win a reformation argument.

8. Not fight very hard after all, allow their claim to be denied and then come after me in state court via the in rem liability that remains with me via the mortgage.

That's all I have so far.  Additional thoughts and strategies are welcome.

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FnDoomed
Some encouraging words came out of NH this morning.  I was up at bat on a hearing of my objection to proof of claim by BANK.

You may recall that this is the BK court where one does not talk about securitization, standing or MERS without a very short hearing, and a boot to the curb with instructions to fight it out in state court.

The first words from opposing counsel were "This is a standing and MERS objection your honor" at which point the judge interrupted him and asked him what was taking so long to respond to my objection. 

Opposing counsel stated that he asked BANK for additional information twice, then continued the case, then escalated.  The judge interrupted him again and asked if he was "talking to CEO's name" yet.  The lawyer said no, but he did escalate, and that BANK had sent him the very same evidence to which debtor already objected.  Opposing counsel then asked for more time.

I'm paraphrasing what the judge said, but I'm not far off, said:

"I've looked at the debtor's arguments and I've read Agard and I agree with Judge Grossman's analysis regarding MERS.  BANK needs to come in with some documentation and supporting affidavits that fill in all the holes pointed out by the debtor.  They need to come in with the goods by July 27, or I'm going to dismiss their claim."

I find this encouraging in that:

1. Opposing counsel failed to have me booted out to state court
2. Judge agrees with Grossman in re agard about MERS
3. Judge put a stake in the dirt to "come in with the goods"

Now comes the part where I sweat for seven weeks wondering what the goods will be and how I will oppose them.

Go team FnDoomed
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arkygirl
Hopefully your judge will dismiss with prejudice...

Fingers crossed.

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FnDoomed
Thanks ArkyGirl...

Denial of their claim is almost the same as being dismissed with prejudice.  If they can't prove their claim, they have no claim.  There also comes a day when the claims period closes and nobody else can submit a claim, either.

Until that time passes, the only thing I know for sure is that I have lived to fight for a another few months...

If I do manage to get their claim shot down, and avoid any new claims, I could continue to execute my "hide in the weeds while I think of a cunning plan" strategy for as long as another 4 years. 

The smart money is saying that there is no other documentation, and that nobody at BANK will want to sign an affidavit, and risk getting yanked into court by my attorney or the judge for a full evidentiary hearing...

So ... seven weeks of nightmares while I think of all the odd things that can happen to convert their version of "proof" into "good evidence", and what I can do about it if/when that time comes...
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Sandy
FnDoomed, you are in my prayers. I wish you success, and it sounds as if you are headed that way. I think you are going to give us much insight when this is finished. Thanks for hanging in there and fighting. Every time one wins even a tiny step, many gain a little hope.

Try to relax and allow yourself to feel glad that you have come so far. I will pray for your peace as you wait.


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FnDoomed
Thank you Sandy. You're right about the tiny steps.  This was a good one.

Those in New Hampshire now have at least one testimonial that this BK judge accepts and agrees with Agard and had no trouble ordering BANK to come up with more.

It helps that I also have some good objections to a certain allonge.  I'm not certain Agard would protect me for long in the face of an unbeatable note.



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George Burns
Was there a court reporter? Is there a transcript?

If not, there will be no record of what was said etc, so you will have to try and get him to expound in his Order etc.
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Moose
Pardon if you've already covered this, but is this a chapter 7 or 13 case?

How much equity is at stake?

Moose




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George Burns
FnDoomed

I am not quite understanding some things.

This is a BK case which has been confirmed, yet there is no Trustee.

You have a lawyer, yet you state that "Tomorrow I get to float a simple argument past a BK judge in NH. How come the Judge is letting you plead?
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