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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Meg
There is a reason this is a topic that leaves many  people
 
Here is a discussion on AVVO, which has many Attorneys who will answer questions regarding different legal topics.
 
If you look at this question below, the person states they are in foreclosure, but they don't want to lose their home. If they file Bankruptcy can they take the home away.
 
http://www.avvo.com/legal-answers/will-they-take-my-house-away--9.html
 
As you can see there is four responses all differing from the other.
 
 
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check to see if your original lender might still be in bankruptcy and do feel stymied if they are...there are things you can do up in their bankruptcy.

listen to this radio podcast interview of somebody who has gotten a settlement of cash from the original lender who has been in bankruptcy since 2007

look for story lead in about a 'granny...

 http://www.blogtalkradio.com/attorneysteve
 



also both WAMU and New Century Mortgage/Home123 Corp victims can still
go after these originators

read this basic guide...even though it is targeted to New Century victims...it applies to WAMU victims...both are in Delaware courts in bankruptcy.

http://www.scribd.com/doc/31013021/FREE-Guide-on-Filing-AP-Against-New-Century-in-Their-Bankruptcy-Case-in-Delaware-or-any-other-lender-in-bankruptcy
 



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US investigates Deutsche Bank in foreclosure case

DEUTSCHE BANK AKTIENGESELLSCHAFT
DBKGn.DE
€43.57
+0.40+0.93%
6:39am CST

Fri Jan 28, 2011 7:04pm EST

* Allegations Deutsche Bank filed false documents

* Inquiry could affect foreclosures across United States

* Testimony demanded from Deutsche Bank officials

By Scot J. Paltrow

NEW YORK, Jan 28 (Reuters) - A branch of the U.S. Department of Justice is investigating whether Deutsche Bank (DBKGn.DE) filed false documents and attempted to mislead a bankruptcy judge in a foreclosure action.

Although the investigation involves the case of only one homeowner in Connecticut, a court document filed on Jan. 26 by the United States Trustee's Office said it wants to elicit information about Deutsche Bank's practices in general in foreclosure cases.

The inquiry involves Deutsche Bank National Trust Co, the Deutsche Bank unit that acts as trustee for thousands of trusts that invested in mortgage-backed securities. The U.S. Trustees' Office is a division of the Department of Justice responsible for overseeing administration of bankruptcy cases.

In recent months, the office has stepped up efforts around the United States to block banks and law firms from using false or fabricated documents in home foreclosure actions. The effort follows disclosures in October 2010 of large-scale "robo-signing", the mass signing of foreclosure affidavits containing "facts" that had never been checked, and wide production of false mortgage assignments.

The Jan. 26 court motion stated that "The United States Trustee has reviewed the documents filed by Deutsche in this case and has concerns about the integrity of those documents and the process utilized by Deutsche in" filing to foreclose.

Jane Limprecht, spokeswoman for the U.S. Trustee's office, confirmed that the examination was part of a nationwide effort begun by the office in recent months to investigate suspected improper actions by banks and other mortgage servicers in foreclosure cases.

She declined to comment on the specific examination of Deutsche Bank in the case.

POSSIBLE SANCTIONS

April Charney, a Florida legal aid attorney who represents homeowners in foreclosure cases and who is an expert on mortgage securitizations, said that aside from possible sanctions against Deutsche Bank in this foreclosure case, the results could have significant effect on Deutsche Bank's practices in general, and on its ability to foreclose on large numbers of homeowners in default.

Lawyers for homeowners in foreclosure have alleged similar practices by Deutsche Bank in cases around the country.

Charney said the evidence elicited in the inquiry could apply to many other Deutsche Bank foreclosures by putting the bank on notice that its practices have not been legal, and that it may lack the basic authority even to bring many of the foreclosure cases.

The document said that Deutsche Bank never presented evidence in the case that it was ever authorized to serve as trustee for the trusts.


 

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http://stopforeclosurefraud.com/2010/06/28/deutsche-bank-drops-foreclosure-case-on-two-florida-candidates/

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'Angel' of foreclosure defense bedevils lenders

Florida attorney trains hundreds of others to help troubled borrowers

Image: April Charney
Jon M. Fletcher for msnbc.com
"She's an angel," says one client of Jacksonville, Fla., foreclosure defense attorney April Charney.
By Mike Stuckey Senior news editor
msnbc.com msnbc.com
updated 12/19/2008 6:39:47 AM ET 2008-12-19T11:39:47

Talking about what she sees as one of America’s darkest hours, attorney April Charney uses some pretty colorful language.

“You ever look into a place where snakes hang out?” she asks in the middle of a conversation about the loan officers, appraisers, investment bankers, attorneys and others that she believes are responsible for the nation’s worsening financial crisis. “That’s what I see here. They’re writhing and oozing and morphing into creepy stuff with slime all over it.”

Then in her quiet, gentle drawl — the kind of voice that could get you invited to afternoon drinks on the finest porches in South Florida, where she grew up — she leans forward and says quite earnestly, “Not to discredit snakes or anything.”

Charney, a lawyer with the Jacksonville Area Legal Aid agency, is quickly developing a national reputation as a champion of homeowners facing foreclosure and a serious adversary for those attempting to take possession of those homes. Her encyclopedic knowledge of contract law, debt-collection practice, securitized mortgages, the trusts that hold them and the agreements that govern the trusts have put her at the forefront of the rapidly expanding specialty of foreclosure defense.

While carrying her own load of 70 to 100 foreclosure cases as a legal aid attorney, Charney, 51, also has become one of the nation’s top trainers of other lawyers eager to learn how to serve the growing clientele spawned by America’s mortgage meltdown.

About 1,500 lawyers have attended her daylong classes on foreclosure law so far, 80 to 200 at a time. She has taught in Ohio, California, Minnesota, South Carolina, Missouri and throughout Florida. She offers the classes at cost with the help of local bar associations and aid groups and requires that all students perform 20 hours of pro bono legal work in their communities.

A trail of trouble
Charney said her crusade was born out of experience. Over and over again, she said, in her cases and those of other attorneys she met, she found sloppiness, fraud and outright criminality in the nation’s mortgage lending industry. Regardless of why her clients have been unable to pay their mortgages, she maintains that nobody deserves to lose a home to the unethical and illegal foreclosure procedures that she claims are now being used by many banks and loan servicers.

Her work has earned her the enmity of many a lender and high praise from consumer advocates. “She is definitely a woman who walks the talk and carries a big stick that will crush those who defy consumer laws,” wrote Moe Bedard, president of Loan Safe Solutions, a company that tries to help homeowners prevent foreclosure.

The Mortgage Bankers Association, the trade group that represents 2,400 companies from all sectors of real estate finance, did not respond to msnbc.com’s invitation to comment about Charney and her sweeping indictment of the industry and its business practices. And the American Bankers Association, unfamiliar with her work, had no comment.

But clients like Vickie Lewis of Jacksonville , for whom Charney has staved off foreclosure for more than four years, adore her. “She’s an angel,” said Lewis. “Without Miss Charney, I would have been out a long time ago.”

Long days, even on 'vacation'
Charney pursues her calling with energy and enthusiasm. On a recent “vacation day,” she met for hours with a reporter, then saw clients until 8:30 p.m. in her downtown Jacksonville office, which is so crammed with case files, law books and other materials she hasn’t been able to shut the door or hold a meeting there for quite some time.

She has no sacred cows, and is currently taking on the Jacksonville area Habitat for Humanity, a darling of many liberal social activists, over construction quality and other issues.

Charney, separated from her husband, is often at her desk preparing briefs after midnight but manages to maintain close contact with a daughter, 25, a third-year law student, and a son, 23, who received a degree in anthropology last year and is now interning with the U.S. Park Service. She prefers sweaters and jeans to suits, and dreams about being able to spend more time running rivers and hiking wilderness trails.

A University of Miami law school graduate who spent years in private practice in Arkansas and worked in other legal aid offices before coming to Jacksonville four years ago, Charney said she became an expert on lending law when her caseload of foreclosures increased and she began to notice a number of disturbing trends that have yielded her key defense strategies.

First, because of the way mortgages have been securitized, it’s often unclear who actually owns the debt, she said. “What we see is that systematically, the originating lenders only pledged these loans and didn’t actually transfer them” to the trusts that are supposed to hold them and issue the securities, she explained.

But only the true debt owner has the legal standing to be a plaintiff in a foreclosure, she continued. “That’s first-year law school stuff. If you’re Joe and the debt doesn’t belong to you, it belongs to Marjorie, then Marjorie better be in court, not Joe. Don’t come in as Joe and tell me you have the right to be there when you know full well you don’t.”

Sketchy documentation
Yet, time and again, loan servicers and others have sought plaintiff status, often by using affidavits stating that the actual notes had been lost, she said. “I’ve seen paperwork filed by lawyers saying, ‘We anticipate assignment’” of the debt, she said with a scoff.

And the loan originators can’t appear in court and claim the right to foreclose because they would be in violation of securities laws for not transferring the loan to the trust when they were supposed to, she said.

Making an issue out of the actual ownership of the securitized title might strike some as a shameless stalling tactic aimed at abetting a debtor who, after all, owes the money. But Charney said that if such basic legalities aren’t adhered to, a homeowner could pay his or her way out of a foreclosure jam only to wind up in another when a new plaintiff emerges claiming to own the debt. She described cases in which homeowners have been sued for foreclosure by two different trusts, each claiming they owned their house, and cases where trusts have been sent documents on the same case by two different servicers.

Who's to blame?

Charney has a number of other defenses that focus on other sloppy and illegal practices by lenders and mortgage servicers. Some homeowners in foreclosure, such as those with FHA-insured loans like her client Vickie Lewis, were “entitled to very special default case management, and they didn’t get it,” she said. These people might not be in foreclosure if they had, she said.

Trouble is in the stock
The FHA loan program exists to enable low- and moderate-income Americans, including many with poor credit, to buy homes. FHA anticipates that borrowers in its programs will have more difficulty staying current on their loans than so-called prime borrowers, and therefore requires lenders to offer a range of options to troubled clients.

“I think that they are entitled to relief" because they didn't get the help they were supposed to, Charney said.

Still other clients wind up in foreclosure because they were the victims of predatory lending practices and outright fraud when they got their loans, Charney said. If that can be shown in court, the foreclosure may be tossed out.

Charney prefers to settle cases, often using the flaws she exposes in debt ownership and loan servicing to gain reworked, more manageable mortgages for her clients.

“Where we were settling cases at 7 percent interest, I’m now wanting to settle them at 4 percent interest or 3 percent interest,” she said. “I’m now settling for tenants where the lender, in lieu of rent, has them maintain the property. You have to adjust to the circumstances.”

Charney said that in a number of her cases, once there is no longer an ability for the loan servicer to profit, the foreclosure “just goes to sleep, and unless I’m going to pursue it, nobody’s setting hearings, nobody’s pursuing anything to get it to trial.”

After five years, which is the statute of limitations to enforce a contract in Florida, she can try to help her clients own their homes mortgage-free, Charney said. The first opportunity for her to help clients do that may arise next year.

Most cases remain in limbo
And that legal limbo is where the lion’s share of her cases stand now, Charney said. So far this year, she has achieved two “workouts” and lost two cases. “Many, many, many” of the rest are in sleep mode or getting a single filing each year by plaintiffs’ attorneys just to keep them alive.

Bert Ely, a longtime analyst of the financial services industry and a scholar at the conservative Cato Institute who was among the first to predict the S&L scandal of the 1980s, said lenders may detest tactics like the ones Charney employs, but “this is well-established in bankruptcy practice, that you have to properly perfect the security interest, and if you haven’t, you’re screwed. … Debtors’ lawyers immediately start looking for flaws in how the debt is protected. Creditor attorneys always worry about this.”

“It kind of boggles my mind that this is even an issue” in the nation’s current mortgage mess, he said. “I don’t understand how lawyers let this happen in the first place.” Mortgage-lending and servicing is “a matter of dotting the I’s and crossing the T’s. … That’s what puts the discipline in the process.”

© 2011 msnbc.com Reprints

Discuss: 'Angel' of foreclosure defense bedevils lenders

4 total comments

 

http://www.msnbc.msn.com/id/28277420/ns/business-real_estate/

Florida attorney trains hundreds of others to help troubled borrowers

 

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PSA…ARE YOU PSA LITERATE? APRIL CHARNEY

Are You PSA Literate?

Today, August 16, 2010, 3 hours ago | adminGo to full article

We are pleased to present this guest post by April Charney.

If you are an attorney trying to help people save their homes, you had better be PSA literate or you won’t even begin to scratch the surface of all you can do to save their homes. This is an open letter to all attorneys who aren’t PSA literate but show up in court to protect their client’s homes.

First off, what is a PSA? After the original loans are pooled and sold, a trust hires a servicer to service the loans and make distributions to investors. The agreement between depositor and the trust and the truste and the servicer is called the Pooling and Servicing Agreement (PSA).

According to UCC § 3-301 a “person entitled to enforce” the promissory note, if negotiable, is limited to:

(1) The holder of the instrument;

(2) A nonholder in possession of the instrument who has the rights of a holder; or

(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 3-309 or section 3-418(d).

A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Although “holder” is not defined in UCC § 3-301, it is defined in § 1-201 for our purposes to mean a person in possession of a negotiable note payable to bearer or to the person in possession of the note.

So we now know who can enforce the obligation to pay a debt evidenced by a negotiable note. We can debate whether a note is negotiable or not, but I won’t make that debate here.

Under § 1-302 persons can agree “otherwise” that where an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, that the transferee is granted a special right to enforce an “unqualified” indorsement by the transferor, but the code does not “create” negotiation until the indorsement is actually made.

So, that section allows a transferee to enforce a note without a qualifying endorsement only when the note is transferred for value.
 Then, under § 1-302 (a) the effect of provisions of the UCC may be varied by agreement. This provision includes the right and ability of persons to vary everything described above by agreement.

This is where you MUST get into the PSA. You cannot avoid it. You can get the judges to this point. I did it in an email. Show your judge this post.

If you can’t find the PSA for your case, use the PSA next door that you can find on at http://www.secinfo.com. The provisions of the PSA that concern transfer of loans (and servicing, good faith and almost everything else) are fairly boilerplate and so PSAs are fairly interchangeable for many purposes. You have to get the PSA and the mortgage loan purchase agreement and the hearsay bogus electronic list of loans before the court. You have to educate your judge about the lack of credibility or effect of the lifeless list of loans as the Uniform Electronic Transactions Act specifically exempts Residential Mortgage-Backed Securities from its application. Also, you have to get your judge to understand that the plaintiff has given up the power to accept the transfer of a note in default and under the conditions presented to the court (out of time, no delivery receipts, etc). Without the PSA you cannot do this.

Additionally the PSA becomes rich when you look at § 1-302 (b) which says that the obligations of good faith, diligence, reasonableness and care prescribed by the code may not be disclaimed by agreement, but may be enhanced or modified by an agreement which determine the standards by which the performance of the obligations of good faith, diligence reasonableness and care are to be measured. These agreed to standards of good faith, etc. are enforceable under the UCC if the standards are “not manifestly unreasonable.”

The PSA also has impact on when or what acts have to occur under the UCC because § 1-302 (c) allows parties to vary the “effect of other provisions” of the UCC by agreement.

Through the PSA, it is clear that the plaintiff cannot take an interest of any kind in the loan by way of an “A to D” assignment of a mortgage and certainly cannot take an interest in the note in this fashion.

Without the PSA and the limitations set up in it “by agreement of the parties”, there is no avoiding the mortgage following the note and where the UCC gives over the power to enforce the note, so goes the power to foreclose on the mortgage.

So, arguing that the Trustee could only sue on the note and not foreclose is not correct analysis without the PSA.
Likewise, you will not defeat the equitable interest “effective as of” assignment arguments without the PSA and the layering of the laws that control these securities (true sales required) and REMIC (no defaulted or nonconforming loans and must be timely bankruptcy remote transfers) and NY trust law and UCC law (as to no ultra vires acts allowed by trustee and no unaffixed allonges, etc.).

The PSA is part of the admissible evidence that the court MUST have under the exacting provisions of the summary judgment rule if the court is to accept any plaintiff affidavit or assignment.

If you have been successful in your cases thus far without the PSA, then you have far to go with your litigation model. It is not just you that has “the more considerable task of proving that New York law applies to this trust and that the PSA does not allow the plaintiff to be a “nonholder in possession with the rights of a holder.”

And I am not impressed by the argument “This is clearly something that most foreclosure defense lawyers are not prepared to do.”
Get over that quick or get out of this work! Ask yourself, are you PSA adverse? If your answer is yes, please get out of this line of work. Please.

I am not worried about the minds of the Circuit Court Judges unless and until we provide them with the education they deserve and which is necessary to result in good decisions in these cases.

It is correct that the PSA does not allow the Trustee to foreclose on the Note. But you only get there after looking at the PSA in the context of who has the power to foreclose under applicable law.

It is not correct that the Trustee has the power or right to sue on the note and PSA literacy makes this abundantly clear.

Are you PSA literate? If not, don’t expect your judge to be. But if you want to become literate, a good place to start is by attending Max Gardner’s Mortgage Servicing and Securitization Seminar.

April Carrie Charney

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I am so,so,so sick right now...... I just received my "MOTION TO DISMISS" from the Civil Court. The Plaintiff Dismissed their foreclosure complaint. I can't believe it.

It is up to the Judge now, Due to the fact that she is pretty tough on the Plaintiff's. She wants everything by the Law. She already Dismissed a couple of Foreclosures and also sent copies to the Fl Bar.

In my case she wasn't very happy at the pre-trial hearing because the new attorney is from GA and they are using a person here in Fl with their Bar No. No license in the Law firms name from the county the attorney is from either.

So either she will just grant the dismissal or she will want us at docket call to sanction the Plaintiff's attorneys. Either way I don't care. If she grants the motion to dismiss, I know that they can refile. But they can't fix what they broke. It's too late.

So I beat them in Bk as well as Civil.


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William A. Roper, Jr.
cmc:

See my recent posts within the message thread "Florida Appellate Court Affirms Award of Attorneys Fees When Case Dismissed Due To Lack of Standing", especially if you are litigating in Florida:

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http://www.dailyfinance.com/story/real-estate/mers-mortgage-mess-new-york-illegal-foreclosure/19844553/

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