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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Timmy

This is a case in Florida we have an attorney but are looking for other thoughts.

Case involves a married couple with a homestead property.  They refinanced the home and only one spouse signed the note and mortgage.  When the documents were filed the other spouse initials and signature were on the mortgage.  The other spouse name was type in the borrowers section and hand written in where they were to sign along with a signature of that spouse and where it was notarized.  We have documentation showing the other spouse was out of town when the documents were signed and the copy of the documents are different that the ones given at closing.

Any ideas on having the second spouse removed as a defendant or other action which could be filed?  Or even a direction to go?

Thanks in advance.

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Any material alteration of an instrument after EXECUTION of the instrument usually VOIDS the instrument.

When more than one person are together co-owners of a property, a mortgage or deed of trust by only one person could only possilby bind the person agreeing to the mortgage or deed of trust.

It is NOT altogether uncommon for one of multiple co-owners to apply for a loan independent of other co-owners and then to be the sole maker of the promissory note, while co-owners all execute the mortgage or deed of trust.

A classic example of this might arise where a borrower originally requires additional credit support of a co-signer, who becomes a co-maker of the note and is also shown as a co-owner of the property.  Later, in a refinance, the primary borrower can support the loan on his or her own income and credit and the original co-signer is REMOVED from the new note, but remains on the mortgage because the co-signer is shown as a co-owner of the property.

(A cleaner approach would often be for the co-signer to execute a new deed reconveying his nominal interest in the property back to the primary owner and borrower.)

IF the Lender agreed to lend only on the strength of one co-owner, this would typically be OK as to the NOTE, but would be absolutely UNACCEPTIBLE as to the mortgage or deed of trust, as without the agreement of the co-owner, the Lender can ONLY foreclose the interest of the primary borrower.

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Note that in a case where there was an original purchase mortgage which was paid off through the refinance, the Lender is usually going to have a particularly strong case for equitable subrogation.  That is, the spouse benefited from the repayment and discharge of the original mortgage loan and would be unjustly enriched if the law failed to recognize the new mortgage as valid.

But equitable relief tends to only be available to those who come to court with clean hands.  Forgery and alteration of the original instruments would probably obstruct the Lender's entitlement to equitable relief.

Forgery is a crime.  Alteration of an instrument VOIDS the instrument.  You still have a PROOF PROBLEM.  The authentication of the notary that the spouse was present and signed is prima facia evidence of her signing.  So the Borrower defendant is going to need particularly strong evidence that the Lender never sought and the borrowers never AGREED to the signing by the spouse.

My GUT reaction is that the loan application was taken and processed by a loan broker or somewhat incompetent loan officer and processor.  Somehow, the necessity of getting the co-owner to sign was OVERLOOKED in closing.  Having the spouses signature was NECESSARY to SELL THIS LOAN in the secondary market.  So the originator's employees simply FORGED the missing signatures.

If the loan had been paid, as agreed, NO ONE WOULD HAVE EVER NOTICED.  When the loan went into default, the astute borrower LOOKED AT THE FILINGS and NOTICED the alteration and forgery.

GET A REALLY GOOD ATTORNEY and RUN SOME GOOD DISCOVERY.  You need to really dot the "i"s and cross the "t"s.  It isn't going to be enough to show that the spouse was elsewhere.  The husband COULD HAVE presented someone else AS THE SPOUSE intending to defraud the Lender.

And the notary authentication is going to create a strong presumption that the  signature was valid.

IF you are in a jurisdiction that REQUIRES the notary to keep a notary book, YOU SHOULD IMMEDIATELY SEEK COPIES OF PAGES OF THE NOTARY BOOK CORRESPONDING TO THE DATE OF EXECUTION OF THE INSTRUMENT.

Be sure to use SOMEONE ELSE unassociated with the transaction to make the inquiry.  ASK FOR PAGES FOR A DATE RANGE.  This makes it hard for the notary to simply FORGE the missing notary pages, because they DO NOT KNOW WHICH TRANSACTION IS QUESTIONED.  START EARLY.  Do NOT expect that the notary will voluntarily show you the book.  It will probably require a notary complaint AND, later, a subpaena.

I would think that the signing spouse is going to need to show by rather convincing evidence:
(a) That he applied for the loan WITHOUT the spouse's income or credit,
(b) That only HE signed the loan application,
(c) That he QUALIFIED for the loan without the spouse's income or credit,
(d) That ONLY he attended the closing,
(e) That the spouse was ELSEWHERE,
(f) That ONLY he signed,
(g) That he has a COPY of the UNALTERED instrument,
(h) That the instrument was altered after execution,
(i) That there are NO PAGES in the notary book showing the wife attending and signing,
(j) That the notary is untrustworthy and unreliable.
The borrower might win with less persuasive evidence.  But the borrowers really need to nail as many points as possible, because under equitable subrogation, the Lender WINS without PROVING the spouse signed.

The forgery has poisoned the well and makes a FREE HOUSE a possibility!

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Timmy,

What county are you in?
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Timmy

Mr. Roper,

Thank you for the in-depth and detailed answer.  It has provided additional information and insight on how to move forward.

Again thank you.

 

CMC

I am in Pasco County.

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Mr. Roper,
I don't think that a Florida Notary has to keep a book.

Timmy,
Does the other spouse's signature on the mortgage and note look like an authentic signature? Or is it a complete forge? Was there a notary present at closing? Is your spouse's signature on the TILA and Settlement Statements, etc.... And last, have you done a RESPA. If not, you need to. You need to ask them for copies of each and every document from the closing table. You will have to address this to the servicer.

cmc
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William A. Roper, Jr.
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Mr. Roper,
I don't think that a Florida Notary has to keep a book.

 
cmc:
 
My recollection is that you are correct about this.  And I think that I overlooked the mention in the original post that this was a Florida property.  So if the documents were authenticated in Florida, then the discussion about getting a look at the notary book would not apply.
 
But I would also observe that it is NOT necessarily the case that the loan documents would be executed in the jurisdiction where the subject property was located, particularly in the instance of a refinance.  Usually, the necessity and desirability of a borrower actually attending the SALE closing militates that the borrower attend the closing in person and very often in the very county where the property is located, particularly when a jurisdiction has a "race" type recording statute.
 
With a refinance transaction, there is less of a center of gravity as to the location of the closing, particularly in respect of a three day right of rescission before the transaction can be actually funded.  If a borrower lived elsewhere and was refinancing a property located in Florida, the documents MIGHT be executed elsewhere.
 
You are absolutely correct that in most Florida foreclosures the closing would take place in Florida and that would be the place one would expect to see ALL of the closing related documents executed.  By contrast, other authenticated documents used in a foreclosure, such as an assignment of mortgage or affidavit of merit would very often be executed elsewhere, usually a location where the servicer had major operations or the location of the contract forger or contract perjurer assisting in the fabrication of documents for the foreclosure.   

Getting a look at the notary book in respect of ANY suspect documents supporting a foreclosure is a GOOD IDEA any time that the jurisdiction of authentication has laws which make such notary books a requirement and where such notary books are treated as public records.

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Angelo

Does texas require a notary book?  For Litton loan servicing.

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William A. Roper, Jr.
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Angelo said:
Does texas require a notary book? For Litton loan servicing.


Angelo:

Texas absolutely DOES require notary books.  And the notary is required to allow the INSPECTION and copying of the notary book by ANY member of the public.  You NEED NOT tell the notary which TRANSACTION you are looking for and doing son is a BAD IDEA as this will faciliate the forgery of a purported book.

Ask to see a range of pages in respect of certain dates.  And get someone relaible who is NOT a party to the questionable transaction to make a request on your behalf.  This gets you two things.  First, it makes it essentially IMPOSSIBLE for them to FORGE the missing entry.  Second, IF the notary is robo-signing AND keeping a record book, then these pages will show the VOLUME of robosigning activity.

The notary will probably REFUSE to give up the pages of the book and you will need to file a formal sworn complaint with the Texas Secretary of State's Office.  The notary will be required file a sworn response.  This may include an admission that the book wasn't kept or that it has been lost, misplaced or stolen.  A missing book may result in notary discipline.  Start early and plan on doing this MORE THAN ONCE in respect of different date ranges and documents.  If you play your cards right, you will either have very useful evidence for use in a deposition and/or a disciplinary record showing that the notary has been found to be violating the notary laws.  
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Mr. Roper,
Your correct, especially in reference to the "race" type recording... After all, I learned from the "BEST".

So my next question would be; Is Timmy's originator the Plaintiff or is it another entity? If it's a different entity, than was there an assignment recorded? If so, was the assignment recorded before or after the complaint?

I still say that a RESPA should be sent. Because they will have to produce a copy of all of the loan docs as well as an accounting of where the monies have been disbursed. (If they answer the RESPA even though the law says they have to answer some don't.)

cmc
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Angelo
Bill

Do you have to contact the notary personally or do you go through the Sec. of states office.  How do you go about locating and contacting this person?  Do you just meet them somewhere or is there a specific process to follow?
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Timmy

CMC and Mr. Roper,

Not to provide too many details. Yes the documents were signed in Florida in my office with the title company and the mortgage broker present.  The title company left a copy of the documents but did not make a copy of the signed documents only a blank copy which I have.  From the time signed to the time it was filed with the county was many months.  The spouse’s signature does not match the original signature of the spouse.  The spouses name was added to the mortgage with a typewriter on the first page and hand written in on the signature page and on the notary page. 

The Plaintiff is another entity and an assignment was done at the original filing them months later a two amended assignment were done.

When sending a RESPA request should it be sent to the servicer or plaintiff’s attorney.

Again thank you all for your help.

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William A. Roper, Jr.
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Angelo said:
Do you have to contact the notary personally or do you go through the Sec. of States office.  How do you go about locating and contacting this person?  Do you just meet them somewhere or is there a specific process to follow?


Angelo:

The necessity of keeping a notary book, the accessibility and public character of the book and the process for obtaining a look at these records varies from state to state.

In Texas, notaries are regulated by the Secretary of State's Office.  You might want to begin by searching the Texas Secretary of State's notary database:

https://direct.sos.state.tx.us/notaries/NotarySearch.asp


The search should reveal the notary's address of record, as well as some other details as to the notary's commissioning.

The Texas Secretary of State's Office maintains a Frequently Asked Questions (FAQ) page which contains answers to many common questions:

http://www.sos.state.tx.us/statdoc/faqs2300.shtml


On that page, you will find links to Chapter 406 of the Texas Government Code as well as Chapter 121 of the Civil Practice and Remedies Code, as well as the state's administrative rules relating to notaries (1 Tex. Admin. Code Chapter 87).

If you were physically in Texas, you could appear in person and ask to inspect the notary book.

You will find that pursuant to Tex. Govt. Code 406.012, records relating to the appointment and qualification of notaries are public records.

Tex. Govt. Code §406.014 is the statutory section requiring the notary to keep a record book.  Tex. Govt. Code §406.014(b) provides that the record book is public information.  Pursuant to Tex. Govt. Code §406.024(a)(8), the notary is entitled to charge $0.50 per page for copies of pages.

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If you are seeking copies of notary pages from a robo-signer, you probably want to BEGIN by corresponding with the notary.  You probably want to make your request IN WRITING and by certified mail so that you have a record of the request.  It would be better to have a trustworthy person UNRELATED to the authentication of interest make the request.  There is some value in even having a person from a different jurisdiction ask on your behalf.

In my experience, the notary will very often either IGNORE the written request or REFUSE to comply.

When you have made a couple of polite written demands OR when the notary REFUSES to give you access, you might want to contact the Secretary of State's Office and file a formal complaint.  Again, the complaintant is probably going to be the person who made the request.  The complaint will need to be SWORN.

Read the Texas SOS's FAQs on notary complaints.

What typically happens NEXT is the SOS will forward the sworn complaint to the notary, giving the notary an opportunity to file a sworn, written response.  The response will be a public record and you are entitled to obtain a copy.

If the notary is refusing to comply, the SOS will probably clarify that you are ENTITLED to inspect the notary book and entitled to purchase copies.  If you inspect the notary book in person, you could presumably make your own copies using a digital camera at no charge.

If the notary claims that the notary book is lost, misplaced or stolen, this will probably result in a reprimand of sorts.  Usually the first reprimand is a slap on the wrist.  The notary will be cautioned and told to comply with the notary law in the future.

But bear in mind that the reprimand becomes a part of the notary's disciplinary record.  Moreover, if MORE THAN ONE person seeks copies and complains and/or if the notary engages in other misconduct AFTER the first reprimand, then the discipline will be progressively more severe.

The process in other state's varies.  Many states have online facilities for verifying a notary's status.  In many places, the notary's application can be obtained for a small fee as a public record.  Some jurisdictions, like Texas, require a notary book.  The procedures as to the public accessibility and availability of the book vary.  Notary complaint procedures vary.

IF EVEN 1% OF AGGRIEVED FORECLOSURE DEFENDANTS FOLLOWED THROUGH AND COMPLAINED, THE ROBO-SIGNERS WOULD BE ABSOLUTELY OUT OF BUSINESS.  THE FAILURE OF VICTIMS TO COMPLAIN NOT ONLY ENABLES CRIMINAL AND UNETHICAL BEHAVIOR, BUT ALLOWS THIS CRIMINALITY TO GO ON UNPUNISHED!
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Timmy,

I would send the RESPA to the Servicer and the Attorney. Make sure you send it certified mail return receipt. You never know, if they both answer you may find some differences in the docs.

Also, is the assignment recorded with one of the famous Robo Signers?? Was the assignment prepared by the attorney for the Plaintiff or the Servicer?

cmc
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Timmy

The assignments were prepared by the plaintiff’s attorney the first one was servicer to trust then they did one was from mers to servicer, and added the amended servicer to trust in the suit.  All three filed in the county records.

 

And yes there was a robo-signer on one of the documents.

Again thank you

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Timmy,

I don't know if you have an attorney or not. But it might be best (if you can) to retain one. But you have to make sure that attorney is well educated in reference to the securitization and all of the fraud going on.

Second; You need to find out if any on the signers of the assignments are in fact an attorney for the law firm for the Plaintiff. If so, than you need to file a complaint with the Florida Bar. I am an example of how that works. You will have to file a complaint upon the attorney, don't give them everything you have at first. For example; only give them a few examples of the fraudulant signatures. Make sure the signature came off of filed court papers. After the attorney answers your complaint, then you will rebuttle. You will give them the bomb!!!! You will show more examples (because the attorney will say that the first set of examples have nothing to do with your complaint because it may have been mentioned in court records.) the examples will have to be a copy of the attorney's signature from their very own mortgage as well as the many,many assignments that you will present to them showing that the signatures don't match. You will have to challenge the attorney and ask the Fl Bar to have this attorney show them their original application for notary. Due to the fact that a notary has to sign each and every time the same exact way the application is signed. That is one of the notary rules.

I don't know how far you are in your case. But I hope we can help you from our experience. There is a whole lot of very good and sound information on this forum.

If there is anything else you need, just ask and I know you will get real good info here. Good Luck!!! By the way I am in Fl also.
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