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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William A. Roper, Jr.
Several media outlets, and particularly the Huffington Post and CNBC are to be complemented on covering the devious Trojan Horse conjured up by the corrupt financial institutions and snuck through the Senate on September 29, 2010.  I would particularly recommend to you:

Little-Noticed Bill Could Make It Harder To Challenge Foreclosures

http://www.huffingtonpost.com/2010/10/07/challenging-foreclosures_n_753818.html

 

and

 

Bank foreclosure cover seen in bill at Obama's desk

http://www.cnbc.com/id/39546531


A LOT of media outlets are talking about this issue this afternoon, but only a handful, including the above moved the issue by this morning.

*

A couple of quick notes are in order.  While many are already calling this the "DODD-REID Digital Robo-Signer Act", I personally prefer the "DODD-REID Digital Robo-Signer and Perjury Immunity Act".

The CNBC story identifies Democratic Sen. Patrick LEAHY as the source of this legislation, but others believe that retiring Sen. Christopher DODD and (hopefully) soon to be defeated Sen. Harry REID of Nevada cooked up this affront to ordinary citizens and homeowners as a gift for their cozy friends in the financial services industry.

Hopefully the voters will take a cue from the unanimous passage of this bill at Senator Bob CASEY's suggestion and will vote the incumbents out of office!

*

What I most wanted to cover in this post though is a very arcane detail.  If one does a seach of this Forum using keywords "certificate and conformity", you will find some abstracts of a few old NY decisions I posted in 2008.

These include threads "Orders By Judge Jack M. BATTAGLIA, of Kings County, NY" and "Orders By Judge Sylvia O. HINDS-RADIX, of Suffolk County, NY".

I have reposted the abstracts below for your reference and convenience:

Fremont Invesment and Loan v ABADAN, Justice Jack M. BATTAGLIA, Kings, Index No. 36478/2006 (14 Feb 2008)
In Fremont Invesment and Loan v ABADAN, Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  Justice BATTAGLIA notes that an order of reference was previously denied by his order dated May 31, 2007 (Note: this was WELL BEFORE the BOYKO ruling), and that the identified defects has NOT been since cured. Justice BATTAGLIA otes that the affidavit of service of the summons and complaint was executed and notarized in Georgia, but was NOT accomonied by a certificate of conformity.  (There is no indication whether the defendant is acually IN Georgia or whether this is just another perjured affidavit by someone clearly LACKING personal knowledge.)  Next Justice BATTAGLIA notes that the promissory note lacks an authentication and he states that this lack of acknowledgement renders it inadmissible as evidence.  Justice BATTAGLIA notes the absence of any evidence of service of the contracutally required notice of default (conditions precident), citing appellate case authority.  .Finally, he notes the absence of a valid non-military affidavit.  Justice BATTAGLIA therefore denied the application with leave to renew.

Bayview Loan Services Inc v THEISSEN, Justice Sylvia HINDS-RADIX, Kings, Index No. 41164/2007 (12 May 2008)
In Bayview Loan Services Inc v THEISSEN, Justice HINDS-RADIX denies an unopposed application for an order of reference based upon the plaintiff's failure to have a certificate of conformity accompany the out of state authentication of the affidavit of merit.  She also points out that the non-military affidavit was premature (the affidavit needed to show a lack of military service at the time of the application for default rather than merely at the date of filing of the suit).  Justice HINDS-RADIX therefore denied the application with leave to renew.
Deutsche Bank v VICTORIA, Justice Sylvia HINDS-RADIX, Kings, Index No. 15265/2007 (22 Feb 2008)

In Deutsche Bank v VICTORIA, Justice HINDS-RADIX denies an unopposed application for a default and an order of reference based upon the plaintiff's failure to have a certificate of conformity accompany the out of state authentication of the affidavit of merit.  She also points out that this case was commenced with the filing of the complaint on May 2, 2007, and service shown to have taken palce on May 7, 2007, while the assignment from Legacy Mortgage, Inc. to Deutsche Bank NA was dated May 21, 2007 (lack of plaintiff standing).  Justice HINDS-RADIX therefore denied the application.
MERS v GOODEN, Justice Sylvia HINDS-RADIX, Kings, Index No. 27935/2005 (13 May 2008)

In MERS v GOODEN, Justice HINDS-RADIX denies an unopposed application for a default and an order of reference based upon the plaintiff's failure to have a certificate of conformity accompany the out of state authentication of the affidavit of merit by John ANDERSON.  She also points out that the non-military affidavit was premature.  In addition, she cites a failure to provide an affidavit of mailing pursuant to CPLR 3215.  Justice HINDS-RADIX therefore denied the application with leave to renew.  NOT noted is the rather fundamental fact that MERS never owns the promissory note and absolutely lacks requisite standing to institute suit.
 
National City Mortgage v CATALDO, Justice Sylvia HINDS-RADIX, Kings, Index No. 37855/2004 (13 May 2008)
In National City Mortgage v CATALDO, Justice HINDS-RADIX denies an unopposed application for judgment of foreclosure based upon the plaintiff's failure to have a certificate of conformity accompany the out of state authentication of the affidavit of merit.  She also points out that the non-military affidavit was premature (this affidavit was dated Dec 2004 and was more than three years old).  Justice HINDS-RADIX therefore denied the requested relief.
 
US Bank NA v FERRA, Justice Sylvia HINDS-RADIX, Kings, Index No. 15341/2007 (20 Mar 2008)
In US Bank NA v FERRA, Justice HINDS-RADIX denies an unopposed application for an order of reference based upon the plaintiff's failure to have a certificate of conformity accompany the out of state authentication of the affidavit of merit by John SHELLEY of Utah.  She also points out that this case was commenced prior to the excution of the August 6, 2007, assignment to the plaintiff (the fabricated assignment had a purported effective date of March 30, 2007).  She also points out that the non-military affidavit was premature.  Justice HINDS-RADIX therefore denied the application.

* * *

These are exemplary of Kings County decisions in which the absence of a certificate of conformity was noted.

Other such cases may be found by a search of the New York Reporter.  See:

http://iapps.courts.state.ny.us/lawReporting/Search


A more recent case is IndyMac v. Hamilton, which may be found at:

http://www.nycourts.gov/reporter/pdfs/2009/2009_32510.pdf


*

CPLR §2309
So what precisely does CPLR say?  Well first, "CPLR" stands for Civil Practice Law and Rules.  The full text of this provision can be found at http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@PLCVP0A23+&LIST=SEA15+&BROWSER=EXPLORER+&TOKEN=54612662+&TARGET=VIEW (IF the link works for you). 

It reads:

§  2309. Oaths and affirmations.

     (a) Persons authorized to administer.
  Unless otherwise provided, an oath or affirmation may be administered by
  any person authorized to take  acknowledgments  of  deeds  by  the  real
  property law. Any person authorized by the laws of this state to receive
  evidence  may  administer  an  oath or affirmation for that purpose.  An
  oath to a juror or jurors may be administered by a clerk  of  court  and
  his deputies. This section shall not apply to an oath of office.
    (b)  Form.  An  oath  or  affirmation  shall be administered in a form
  calculated to awaken the conscience and impress the mind of  the  person
  taking it in accordance with his religious or ethical beliefs.

(c)  Oaths  and  affirmations  taken  without  the state.   An oath or affirmation taken without the state shall be treated as if taken  within the  state  if  it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before  the officer who administered the oath or affirmation.

    (d) Form of certificate of oath or affirmation administered by officer
  of the armed forces of the United States.  The certificate of an oath or
  affirmation  administered  within  or  without  the  state or the United
  States, by  an  officer  of  the  armed  forces  of  the  United  States
  authorized  by  the  real  property law to take acknowledgment of deeds,
  shall state:
    1. the rank and serial number of the officer before whom the  oath  or
  affirmation is taken and the command to which he is attached;
    2.  that the person taking the oath or affirmation was, at the time of
  taking it, a person enlisted or commissioned in or serving  in  or  with
  the armed forces of the United States or the dependent of such a person,
  or  a  person attached to or accompanying the armed forces of the United
  States; and
    3. the serial number of the person who takes, or whose dependent takes
  the oath or affirmation, if such person is enlisted or  commissioned  in
  the  armed  forces  of  the  United States. The place where such oath or
  affidavit is taken need not be disclosed.

*

NY Real Property Law (RPP) §299
OK, so far, so good.  The oath for out of state service must conform to the reuqirements of the New York Real Property Law respecting acknowledgement of DEEDS.  So what does THAT say?

Well this provision seems to be New York Real Property Law (RPP) §299, which reads:

NY RPP §299.  Acknowledgments and proofs without the state, but within the United States or any territory, possession, or dependency thereof.

    §  299.  Acknowledgments  and proofs without the state, but within the
  United States or any territory, possession, or dependency thereof.   The
  acknowledgment or proof of a conveyance of real property situate in this
  state,  if  made (a) without the state but within the United States, (b)
  within any territory, possession, or dependency of the United States, or
  (c) within any place over which the United States, at the time when such
  acknowledgment  or  proof  is  taken,  has  or  exercises  jurisdiction,
  sovereignty,  control,  or a protectorate, may be made before any of the
  following officers acting within his territorial jurisdiction or  within
  that  of  the  court  of  which  he  is  an officer: 1. A judge or other
  presiding officer of any court having a seal,  or  the  clerk  or  other
  certifying officer thereof.
    2. A mayor or other chief civil officer of any city or other political
  subdivision.
    3. A notary public.
    4.  A  commissioner  of  deeds  appointed pursuant to the laws of this
  state to take acknowledgments or proofs without this state.
    5. Any person authorized, by  the  laws  of  the  state,  District  of
  Columbia,  territory,  possession,  dependency, or other place where the
  acknowledgment or proof is made, to take the acknowledgment or proof  of
  deeds to be recorded therein.

*

NY RPP §299-a  Certificate of ConformitySo it us OK to use an out of state notary.  And now we know the requirements for both out of state affidavits of service, as well as the requirements for the acknowledgement of deeds (which will also apply to assignments).  So where does the certifcate of conformity come in?  It is found in the immediately following section §  299-a.  This section reads:

NY RPP §299-a.  Acknowledgment to conform to law of New York or of place where taken; certificate of conformity.

    §  299-a.  Acknowledgment  to  conform  to law of New York or of place
  where taken; certificate of conformity. 1. An  acknowledgment  or  proof
  made  pursuant  to  the provisions of section two hundred ninety-nine of
  this chapter may be taken in the manner prescribed either by the laws of
  the state of New York or by the laws of the state, District of Columbia,
  territory,  possession,   dependency,   or   other   place   where   the
  acknowledgment  or proof is taken. The acknowledgment or proof, if taken
  in the manner prescribed by such state, District of Columbia, territory,
  possession, dependency,  or  other  place,  must  be  accompanied  by  a
  certificate  to  the  effect  that  it  conforms  with  such  laws. Such
  certificate may be made by
    (a) An attorney-at-law admitted to practice in the state of New  York,
  resident in the place where the acknowledgment or proof is taken, or by
    (b)  An attorney-at-law admitted to practice in the state, District of
  Columbia, territory, possession, dependency, or other  place  where  the
  acknowledgment or proof is taken, or by
    (c) Any other person deemed qualified by any court of the state of New
  York, if, in any action, proceeding, or other matter pending before such
  court,  it  be  necessary to determine that such acknowledgment or proof
  conforms with the laws of such state, District of  Columbia,  territory,
  possession,  dependency,  or other place; or by the supreme court of the
  state of New York, on application for such determination.  The  justice,
  judge,  surrogate,  or  other presiding judicial officer shall append to
  the instrument so acknowledged or proved his signed  statement  that  he
  deemed such person qualified to make such certificate.
    2.  (a)  The  signature  to  such a certificate of conformity shall be
  presumptively genuine, and the qualification of the person whose name is
  so signed as a person authorized  to  make  such  certificate  shall  be
  presumptively established by the recital thereof in the certificate.
    (b)  The  statement  of  a judicial officer appended to the instrument
  that he deemed  the  person  making  such  certificate  qualified  shall
  establish  the  qualification  of  the person designated therein to make
  such certificate; and the  recording,  filing,  registering  or  use  as
  evidence of the instrument shall not depend on the power of the court to
  make  the  statement  and  proof  shall  not  be required of any action,
  proceeding, matter or application in which or in connection  with  which
  the statement is made.
    (c) When an instrument so acknowledged or proved is accompanied by the
  certificate  of  conformity  and the statement of a judicial officer, if
  any be required, the acknowledgment or proof of the instrument, for  the
  purpose  of  recording, filing or registering in any recording or filing
  office in this state or for use as evidence, shall be equivalent to  one
  taken  or  made in the form prescribed by law for use in this state; and
  if  the  acknowledgment  or  proof  is  properly  authenticated,   where
  authentication  is  required  by law, and if the instrument be otherwise
  entitled to record, filing or  registering,  such  instrument,  together
  with  the acknowledgment or proof, the certificate of conformity and any
  certificate of authentication or statement of a judicial officer, may be
  recorded, filed or registered in any recording or filing office in  this
  state,  and  shall  be  so recorded, filed or registered upon payment or
  tender of lawful fees therefor. In  fixing  the  fees  of  a  recording,
  filing  or  registering  officer,  the certificate of conformity and the
  statement of a judicial officer appended, if any, shall  be  treated  as
  certificates  of  authentication  required  by  other provisions of this
  chapter.

* * *

WHOOPS!  So in order for an instrument executed out of state to be admitted into evidence in a NY courtroom, a LAWYER IS SUPPOSED TO GIVE A CERTIFICATE OF CONFORMITY.  A CERTIFICATE TO THE COURT STATING THAT THOSE JEFFREY STEPHANS AFFIDAVITS AND THOSE CHERLY SAMMONS AFFIDAVITS AND ASSIGNMENTS ARE ACTUALLY COMPLIANT WITH NY STATE LAW.

In other words, the lawyer gets to BET HIS LAW LICENSE on the processes revealed in today's rather revealing disclosure of the deposition of Tammie Lou KAPUSTA (David STERN LAW FIRM) before the Florida Attorney General's Office.

This NY statute seems like a pretty GOOD LAW.  No wonder Sen. Harry REID and his corrupt posse wanted to enact the "DODD-REID Digital Robo-Signer and Perjury Immunity Act" and pre-empt it!

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William A. Roper, Jr.

Uggh.  I must have been crosseyed when I was first reading this legislation.  The CORRECT bill reference of the "DODD-REID Digital Robo-Signer and Perjury Immunity Act" is H.R. 3808  NOT H.R. 3838, as I have erroneously posted.  Apologies to all!

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Bill

So does that mean that the federal Law(dodd bill) would have superseded the RPL 299a? And I will be taking you up on your offer soon.
Thanks again. 
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William A. Roper, Jr.
Angelo:

My reading of the bill is YES.  But as other Forum participants have observed, the President has pocket vetoed this bill.

Frankly, it is going to be TOXIC NOW.  No one is going to want to touch it or take credit for it.

If you carefully read the news stories, we have Sen. LEAHY taking responsibility and then thanking the President for vetoing the bill that he accepted responsibility for initiating.

But we hear that he fell on the sword for Sen. REID (who is up for re-election).  He probably had NO IDEA the firestorm he was creating.  There are hardly ANY foreclosures in Vermont!

By contrast, Nevada is in a foreclosure meltdown.  Sen. REID was already trailing narrowly, despite his position as Majority Leader.  If his constituents found out that he was responsible, well, it would be GAME OVER.

Hopefully, a Special Prosecutor will be appointed to investigate how the financial services industry pulled off this Trojan Horse. 

We can also wait until after the election to see which big banks hire DODD and REID.
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The Equitable One
Is there anyone still living under the illusion that our elected representatives are representing the people?

Who's interests would this bill have served? Clearly not ours.

I fear that voting out the incumbents will not be enough. Though it is usually presented as some variation of an "Us v Them" choice I no longer believe the proper "us" or the proper "them" is being identified.

Draw your own conclusions.
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anon
Subprising how few mainstream media outlets carried the story. Even PBS did not mention it. Of course bofA is a sponsor. Off to the courthouse to set a date for the motion for rehearing. The fight goes on.

I think the October suprise is for the voters not the government. How many years and the banks just figured out they were forging their own fraudenlent docs.
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Mr. Roper,

I love reading your posts.  However, my understanding is that this bill was sponsored by Sen. Aderholt (R-AL). 

here is a link to the bill:

http://www.govtrack.us/congress/bill.xpd?bill=h111-3808
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William A. Roper, Jr.
Alina:

Rep. Aderholt (R-AL) unquestionably was the original sponsor of the bill.  There were several co-sponsors in the House.

But CNBC was reporting on Thursday, I believe that it was Sen. Bob CASEY (D-PA) who had actually stood up in the Senate and sought unanimous consent for the measure.  Thereafter, but before the full mastrom elupted, Sen. Patrick LEAHY apparently came forward and took responsibility, essentially saying that he had put Sen. CASEY up to it. 

Others claim that Sen. DODD and Sen. REID are really behind this bill.

Now Sen. LEAHY claims to be AGAINST the bill.  But as Sen. Kerry would rather famously tell us, he was FOR IT before he was AGAINT IT. 

It is hard to know the truth as with unanimous consent, there is NO ONE who is recorded as having voted for the measure.  But bills are rarely brought up and voted on in this way without first arranging it through the causus.

It is also noteworthy that this bill was suddenly brought up in this way on the final day of the pre-election regular calender.  This is the time when folks are paying the very least attention.  This was no accident.

If your point is that there is some bi-partisan responsibility, then I heartily AGREE.  BOTH PARTIES ARE TO BLAME!  And the voters should be throwing out as many incumbents as possible!

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