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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State: NY

In mid 2009, plaintiff ("soup letter trustee")filed the suit, and at that time
my servicer was :"123"

They backdated for years the bogus assignment from mers to the trustee
(and yes, the assignment was before the suit)

In the year 2010, my servicer was acquired by other servicer:"456".

question: How to find out if plaintiff was the holder of the note "at commencement"?

In the complaint plaintiff failed to attach copy of the note,
that is a "Judicial admission that the note was not indorsed
at commencement"?,

or how to attack / handle this matter?


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Chuck

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question: How to find out if plaintiff was the holder of the note "at commencement"? 

 

This is very easy.  If the plaintiff is an institutional trust, then is was the owner and the holder at commencement, EXCEPT that the trust probably had the note in the vaults of an institutional custodian, which was really the holder.  The trustee will argue that it was the constructive holder.

 

If the plaintiff was a servicer, most likely the plaintiff was NOT the holder at commencement, because the servicer rarely obtains the note from the vaults of the institutional custodian before filing suit.

 

But WHY are you trying to prove whether the plaintiff was the holder?  You need to back off and let the plaintiff TRY to prove its case and then assail the plaintiff's proof.

 

DO NOT BECOME FIXATED WITH TRYING TO DISPROVE THOSE THINGS FOR WHICH THE PLAINTIFF HAS THE BURDEN OF PROOF.  ALSO DO NOT MAKE THE MISTAKE OF BELIEVING THE MYTH THAT THE NOTES WERE NOT ACTUALLY DELIVERED TO THE TRUSTEE AND IN THE VAULTS OF THE TRUSTEE'S CUSTODIAN. 

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Chuck

Quote:
In the complaint plaintiff failed to attach copy of the note,
that is a "Judicial admission that the note was not indorsed
at commencement"?, 

 

No.  But it also is suggestive that the plaintiff didn't have the note or implies that the plaintiff was not the holder at commencement.

 

In New York, you need to raise any standing defense in your first defensive pleading.  But this does NOT mean that you need to take the plaintiff to school as to the precise elements or facts which you think proves your defensive case.

 

If you call attention to the failure to attach the note, this MIGHT cause them to rush off and obtain a copy.

 

You might consider sending a RESPA QWR to the servicer asking for a copy of the note.  It is LIKELY that they will print off and UNINDORSED COPY from their imaging system and send it to you.  This might augment your defensive argument that the note is not properly negotiated.

 

I would probably do this first.

 

You definitely need to find a really sharp NY lawyer with experience in foreclosure defense.

 

If the NY Rules REQUIRE that the note be attached to the complaint, you MIGHT consider making a motion to dismiss on that basis and setting it for a hearing on an aggressive schedule.  THIS MIGHT STAMPEDE THEM INTO FILING AN AMENDED COMPLAINT AND ATTACHING AN UNINDORSED COPY OF THE NOTE.  I think this probably would have worked eighteen months ago, but wouldn't work today.

 

Then there is discovery.  SCROLL BACK THROUGH AND READ THE OLDER POSTS, ESPECIALLY THOSE BY MR. ROPER! 

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Unregistered
How many bank mobys do you think are posting on MSF?
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Thanks Chuck, for your unvaluable non legal advice

 

QUOTE CHUCK:

“If the plaintiff is an institutional trust, then is was the owner and the holder at commencement, EXCEPT that the trust probably had the note in the 

 

vaults of an institutional custodian, which was really the holder.  The trustee will argue that it was the constructive holder.

 

If the plaintiff was a servicer, most likely the plaintiff was NOT the holder at commencement, because the servicer rarely obtains the note from the 

 

vaults of the institutional custodian before filing suit.”

                                         END OF QUOTE

 

Well...the suit was in the name of the "soup letter trustee", but all my "investigations" points out that the servicer

is the one that is bring the lawsuit in the name of the the "soup letter trustee"

 

I think this is important: 

when they filed the suit, my loan was serviced for now a defunct servicer,

only after several months my loan was transferred to tha actual servicer

 

Along these lines, I saw somewhere that the borrower may contact the trustee that is foreclosing

because most of the times, the trustee even doesnt know that there is  a pending lawsuit in their name,

causing the plaintiff counsel a "lot to explain", because they bring the suit without the knowledge of the suing party

 

 

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Chuck

Quote:
Well...the suit was in the name of the "soup letter trustee", but all my "investigations" points out that the servicer is the one that is bring the lawsuit in the name of the the "soup letter trustee"
 

 

The servicer is ALWAYS the entity bringing the suit (retaining the foreclosure mill and managing the litigation).  It sometimes brings the suit in its own name and sometimes brings the suit in the name of the institutional trustee.

 

Quote:
Along these lines, I saw somewhere that the borrower may contact the trustee that is foreclosing because most of the times, the trustee even doesnt know that there is a pending lawsuit in their name, causing the plaintiff counsel a "lot to explain", because they bring the suit without the knowledge of the suing party
 

 

The trusts have delegated the responsibility for foreclosure/default management to the servicer under the terms of the servicer agreement.  Although the trust is never directly involved in the suit, there is little to be gained by contacting the servicer.

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Chuck

Quote:
How many bank mobys do you think are posting on MSF?
  

 

YOU are the troll, trying to drum up new business for swindlers operating debt elimiantion scams to steal money from distressed borrowers!

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Angelo
chuck

Does the Servicer or foreclosure mill need to prove that agency relationship, if the authority comes into question?  Do they need to provide the servicing agreement during litigation? and if no admissible evidence is provided of such relationship, can that be a material fact question that could preclude summary judgment?

The PSA's is set up with a specific master servicer, who is then allowed to contract out sub-servicers, but if the master servicer is now defunct and not servicing loans anymore, Is there then a new servicing agreement for every change of servicer.  Just looking for another viable angle to attack a summary judgment motion!
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Unregistered
Quote:
YOU are the troll, trying to drum up new business for swindlers operating debt elimiantion scams to steal money from distressed borrowers!


Now that there is funny!  You just automatically condemn a poster with
absolutely no proof.  And you do it on a website you have no ownership
in.  Me thinks you are the moby, along with a few others.
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Bill
Unregistered wrote:
Quote:
YOU are the troll, trying to drum up new business for swindlers operating debt elimiantion scams to steal money from distressed borrowers!


Now that there is funny!  You just automatically condemn a poster with
absolutely no proof.  And you do it on a website you have no ownership
in.  Me thinks you are the moby, along with a few others.

I actually find humor in your post.  I have been reading and posting here for YEARS.  I have NEVER felt that there was someone from a bank or servicer posting to mislead people.  To the contrary, this forum is a very anti-bank forum..  There are numerous post showing the FLAWS in their procedures, evidence, pleadings, ect. from people that have backgrounds in the banking industry as well as people that have litigated a foreclosure pro se for YEARS and still counting.  Anyone could easily read the threads here and form a VERY EFFECTIVE pro se defense.  

Why don't you direct us to post you think are made by a bank/servicer employee to mislead homeowners????????????????

The only time I have ever seen someone suggest that there is an individual working for the banks is when they are involved in some kind of swindle to draw in homeowners to purchase their services.  They have no defense except to claim the person(s) refuting their claims/expertise must work for the bank.  Such a cheap cop-out.  


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