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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Has anybody heard of a Book or journal called "Bergman on new york mortgage foreclosures"?

The law firm that is handling the motion for summary judgement for the plaintiff is consistenly quoting section 1605(1b)(a)

"a written assignment is not a prerequisite to the validity of an assignment of a mortgage because a mortgage can be assigned by mere delivery.....Succinclty summed up, title to a note and mortgage passes by delivery of those instruments and no formal written transfer is necessary."

My question is, is this proper evidence in a pleading?  Does anybody know if this is precedent in NY.

Also, I know that the mortgage follows the note, but if there isn't any evidence of the transfer of the note except for a copy that can be pulled from county records.  Can this effectuate a proper transfer?
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A written assignment is not necessary but if it is presented, it takes precedence and you cannot claim otherwise but what is stated in written assignment.  Mortgage follows note, but note does NOT follow note - in which case the mortgage becomes uncollateralized.  You can also argue bifurcation.
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From BONY vs. Beverly Branche: (recent Judge Schack decision)

Assignments of mortgages and notes are made by either written instrument or the assignor physically delivering the mortgage and note to the assignee.

“Our courts have repeatedly held that a bond and mortgage may be transferred by delivery without a written instrument of assignment.” (Flyer v Sullivan, 284 AD 697, 699 [1d Dept 1954]). The written October 7, 2007 assignment by MERS, as nominee for DECISION ONE, to BNY is clearly 61 days after the commencement of the action. Plaintiff’s BNY’s claim that the gobblygook computer printout it offered in exhibit G is evidence of physical delivery of the mortgage and note prior to commencement of the action is not only nonsensical, but flies in the face of the complaint and amended complaint, which both clearly state in ¶ 8 that “Plaintiff [BNY] is the holder of said note and mortgage. said mortgage was assigned to Plaintiff, by Assignment of Mortgage to be recorded in the Office of the County Clerk of Kings County [sic].” Plaintiff BNY did not own the mortgage and note when the instant action commenced on August 7, 2007.

[A] retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of an assignment.

(Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 210 [2d Dept 2009]). The Marchione Court relied uponLaSalle Bank Natl. Assoc. v Ahearn (59 AD3d 911 [3d Dept 2009], which instructed, at 912, “[n]otably, foreclosure of a mortgage may not be brought by one who has no title to it’ (Kluge v Fugazy, 145 AD2d 537 [2d Dept 1988]) and an assignee of such a mortgage does not have standing unless the assignment is complete at the time the action is commenced).” (See U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept 2009]; Citgroup Global Mkts. Realty Corp. v Randolph Bowling, 25 Misc 3d 1244 [A] [Sup Ct, Kings County 2009]; Deutsche Bank Nat. Trust Company v Abbate, 25 Misc 3d 1216 [A] [Sup Ct, Richmond County 2009]; Indymac Bank FSB v Boyd, 22 Misc 3d 1119 [A] [Sup Ct, Kings County 2009]; Credit-Based Asset Management and Securitization, LLC v Akitoye,22 Misc 3d 1110 [A] [Sup Ct, Kings County Jan. 20, 2009]; Deutsche Bank Trust Co. Americas v Peabody, 20 Misc 3d 1108 [A][Sup Ct, Saratoga County 2008]).

The Appellate Division, First Department, citing Kluge v Fugazy, in Katz v East-Ville Realty Co., (249 AD2d 243 [1d Dept 1998]), instructed that “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or [*8]fact.” Therefore, with plaintiff BNY not having standing, the Court lacks jurisdiction in this foreclosure action and the instant action is dismissed with prejudice.

MERS had no authority to assign the subject mortgage and note

Moreover, MERS lacked authority to assign the subject mortgage. The subject DECISION ONE mortgage, executed on October 28, 2005 by defendant MULLIGAN, clearly states on page 1 that “MERS is a separate corporation that is acting solely as a nominee for Lender [DECISION ONE] and LENDER’s successors and assigns . . . FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.”

The word “nominee” is defined as “[a] person designated to act in place of another, usu. in a very limited way” or “[a] party who holds bare legal title for the benefit of others.” (Black’s Law Dictionary 1076 [8th ed 2004]). “This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.” (Landmark National Bank v Kesler, 289 Kan 528, 538 [2009]). The Supreme Court of Kansas, in Landmark National Bank, 289 Kan at 539, observed that:

The legal status of a nominee, then, depends on the context of the relationship of the nominee to its principal. Various courts have interpreted the relationship of MERS and the lender as an agency relationship. See In re Sheridan, 2009 WL631355, at *4 (Bankr. D.

Idaho, March 12, 2009) (MERS “acts not on its own account. Its capacity is representative.”);Mortgage Elec. Registrations Systems, Inc. v Southwest, 2009 Ark. 152 ___, ___SW3d___, 2009 WL 723182 (March 19, 2009) (“MERS, by the terms of the deed of trust, and its own stated purposes, was the lender’s agent”); La Salle Nat. Bank v Lamy, 12 Misc 3d 1191 [A], at *2 [Sup Ct, Suffolk County 2006]) . . .

(“A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.”)

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New York UCC §3-202 (1) states, in pertinent part, that “[i]f the instrument is payable to order it is negotiated by delivery with any necessary indorsement” (emphasis added). In addition, UCC §3-202(2) requires that “[a]n indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof (emphasis added). Here, the purported indorsement is payable to order, but there is no evidence of delivery of the note prior to the action’s commencement. Furthermore, the alleged indorsement appears to be on a separate page, makes no specific reference to the subject note, and is, in any event, undated. As such, the so-called “indorsement” is, at best, unreliable and fails to support plaintiff’s claim that the “note and mortgage were assigned by a properly indorsed note prior to the commencement of this action” (see, Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208, 542 NYS2d 721 [2d Dept 1989]). This is particularly true where, as here, the plaintiff’s affidavit in support of the motion fails to affirmatively state that the plaintiff did, in fact, possess the note and mortgage at the time the action was commenced. Without either proof of a proper written assignment of the underlying note or proper proof of the physical delivery of the note prior to the commencement of the foreclosure action, the plaintiff has failed to sufficiently show either the proper transfer of the obligation, or that the mortgage passed as an inseparable incident to the debt (see, U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]).

A plaintiff has no foundation in law or fact to foreclose upon a mortgage, unless the plaintiff has shown it has legal or equitable interest in such mortgage (Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]; Katz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998]). A written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action would be sufficient to transfer the obligation, and have the mortgage pass as an inseparable incident to the debt (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]). With regard to a written assignment, the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated (see, Bankers Trust Co. v Hoovis, 263 AD2d 937, 938, 694 NYS2d 245 [1999]). A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]).

Applying this analysis to the case before this Court, a statement by the plaintiff merely indicating that the original note is in plaintiff’s possession as of the making of a motion for an order of reference is insufficient to show that the plaintiff had standing to bring the action in the first instance (Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]). Plaintiff’s failure to submit proper proof of a valid indorsement or assignment, and failure to otherwise prove that the plaintiff was the holder of the note and mortgage at the time the action was commenced, requires denial of the plaintiff’s motion for an order of reference.

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Sly
Thanks for your help, I will definetly use the some if not all of the cited cases from schack. But I am also concerned about the Bergman book that they use repeatedly in their motions for summary judgement.  I just want to be proactive and have a good defense for their offense.
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Moose
angelo wrote:
Sly
Thanks for your help, I will definetly use the some if not all of the cited cases from schack. But I am also concerned about the Bergman book that they use repeatedly in their motions for summary judgement.  I just want to be proactive and have a good defense for their offense.


This is not legal advice but generally speaking, a motion for summary judgment requires that there be no "material" questions of fact.

In other words, according to the filer of the MSJ the court has all the facts before it in the pleadings.

The response has to show that there are definite discrepancies that the court has to make a ruling on. You can't just plead that the plaintiff is in error - you have to present evidence that they are. Evidence that contradicts their pleading.

This evidence has to make a judge recognize there are genuinely disputed  issues of fact that the two sides have actual evidence for him or her to hear argument about and then rule on in the upcoming trial.

Moose






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The Equitable One
Right on Moose. Evidence of facts in dispute.

Another tack is to find the obvious discrepancies and defects in plaintiffs pleadings and evidence. This isn't as strong a position but does have some merit. Technically the burden is in plaintiff to prove its case (practically it is on a borrower to disprove).

The note names as payee Novastar but plaintiff is US Bank? Can't enforce a note unless you're a holder and you can't be a holder unless the note is indorsed and delivered. UCC 3-201

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1.  Strike Plaintiff's Affidavits - Hearsay affidavitts are not admissible. Check if they are signed by Robot Signor

2.   Go to http://www.sec.gov, look for the Pooling and Servicing Agreement (PSA) of your loan.  See who is the real owner of the Trust .

3.  Call the Sec to get the Mortgage Pooling Schedule showing your loan number.
4.   File the copy of  PSA and the Mortgage Pooling Schedule with the Court (Notice of Filing Documents) so they can be admitted as Evidence.

4.  Include in the Pleading that Evidence shows that your loan is already sold
to XXXX, Plaintiff is no longer own the note.
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Some Homeowners recheck the Service of the Summons. If the Service is indequate, they file Motion to Quash Service. Judge has to void the lawsuit.
Unadequate or deficient Summon Service void the Court jurisdiction thus void the lawsuit including judgment or sale.

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Thanks a lot ann
Just a quick question, in NY do they use "motion to quash service" and is that the correct process to proving up evidence, just by fileing the documents with the court.

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I don't know much about NY. I find it is helpful to go to the Court House, read as many foreclosure and BK cases to see how other people fight  and learn.
You can also download the Civil Practice rules ; Federal Civil Practice rules and the Summon Processs Rules to learn about the court rules.

In Florida, if there is no date and hours serviced on the Return of Service; if the date of the Summons is earlier than the date of the filing of the Complaint ; if you prove that you are not at home at the time of service, The Judge will void the lawsuit and all the judgment or Sale is void. Then you will be back at square 1, they will have to serve you again.

Read this
Pat Carter/AP

You may be able to find some NY and Florida  pleadings at http://www.scribd.com/4foreclosurefraud ; http://www.scribd.com/winstons2311, http://www.scribd.com/83jjmack . Upload one of your documents, they will give you free download.

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