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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CWW
This is a very well thought out decision by the Idaho Judge.  
                     In Re: MICHAEL E. RINEHART, and SHARON S. RINEHART, Debtors. MICHAEL E. RINEHART, and SHARON S. RINEHART, Plaintiffs, vs. FEDERAL NATIONAL MORTGAGE ASSOCIATES; SETERUS, INC.; FIRST TENNESSEE BANK, NA d/b/a FIRST HORIZON HOME LOANS, Defendants.
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CWW
The Judge ruled the way he did because of one missing assignment.  What if this argument was used citing missing assignments from a MERS loan ?  There are many missing assignments.
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David
In Re Rinehart is an interesting case:


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Hank
Quote:
 
In Re Rinehart is an interesting case:




There is an overlooked nugget in this case for those who want to attack the signature of an endorsement.  Note the quoted language from the Official Comment to 3-308 of the UCC:

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"`Presumed' is defined in Section [7-]1-201[3] and means that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid. The presumption rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon, and normally any evidence is within the control of, or more accessible to, the defendant. The defendant is therefore required to make some sufficient showing of the grounds for the denial before the plaintiff is required to introduce evidence. The defendant's evidence need not be sufficient to require a directed verdict, but it must be enough to support the denial by permitting a finding in the defendant's favor. Until introduction of such evidence the presumption requires a finding for the plaintiff. Once such evidence is introduced the burden of establishing the signature by a preponderance of the total evidence is on the plaintiff."


Borrowers and lazy foreclosure defense lawyers often overlook the Official Comments to the UCC.

If borrowers actually attack the signature purporting to be an endorsement, the burden shifts to the plaintiff (or proponent of the instrument and negotiation) to prove the validity of the signature and the endorsement.

Some time ago, Mr. Roper encouraged me to focus on understanding the UCC and also emphasized the importance of the Official Comments.  This has been very helpful advice!

Unlike the speculative arguments suggested by Prof. Levitin, Mr. Roper's arguments seem to be fully embraced by the courts.
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CWW
  The Judge says this about Idaho Statute  45-1505(1)  :    Thus, under Idaho law, the trustee of a trust deed may initiate a nonjudicial foreclosure when the borrower is in default, but only if all the assignments of the deed of trust, and any appointment of successor trustees are properly recorded. [*12]By requiring that any assignments be recorded prior to foreclosure, the Idaho Legislature highlights the importance of a proper and transparent chain of title: "The primary purpose of the recording statutes is to give notice to others that an interest is claimed in real property and thus give protection against bona fide third parties who may be dealing in the same property." Farm Bureau Fin. Co., Inc. v. Carney, 605 P.2d 509, 513 (Idaho 1980) (quoting Matheson v. Harris, 572 P.2d 861, 864 (Idaho 1977)). Idaho courts have required strict compliance with Idaho's trust deed statute. See Security Pac. Fin. Corp. v. Bishop, 704 P.2d 357, 360 (Idaho App. 1985) (notice requirements not met and trustee's sale held invalid).                  

And since the the one missing Assignment made the trustee's sale invalid , does the many missing Assignments of MERS Trust Deeds , make those trustee's sales invalid ?
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T_Bill
I think the proper case is: In re CHASE LAWRENCE VACCARO ROBIN ELAINE VACCARO, Debtors.
ANN MOSTOLLER, TRUSTEE, Plaintiff,
v.
BEAZER MORTGAGE CORPORATION, GMAC MORTGAGE, LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants

http://scholar.google.com/scholar_case?case=10968459512102314519&q=IN+RE+VACCARO&hl=en&as_sdt=2,10&as_ylo=2012&scilh=0
 
if I am incorrect my apology....

[Quote Hank]
"There is an overlooked nugget in this case for those who want to attack the signature of an endorsement. Note the quoted language from the Official Comment to 3-308 of the UCC:

Quote:
"`Presumed' is defined in Section [7-]1-201[3] and means that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid. The presumption rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon, and normally any evidence is within the control of, or more accessible to, the defendant. The defendant is therefore required to make some sufficient showing of the grounds for the denial before the plaintiff is required to introduce evidence. The defendant's evidence need not be sufficient to require a directed verdict, but it must be enough to support the denial by permitting a finding in the defendant's favor. Until introduction of such evidence the presumption requires a finding for the plaintiff. Once such evidence is introduced the burden of establishing the signature by a preponderance of the total evidence is on the plaintiff."

However, the Court Ruled:

"As the court held in Hunter, "unsupported averments" in a complaint questioning the authority of a representative to execute documents or "mere allegations" that a signature is invalid, without more, are insufficient to establish that a signor was not authorized or to overcome the presumption that a signature is valid. Hunter, 466 B.R. at 451-52; see also Gullion, 2012 WL 260040, at *4, 2012 U.S. Dist. LEXIS 47996, at *12-13 ("The complaint alleges that the documents at issue `show irregularities consistent with robo-signing, including no evidence of the signatory's authority['] . . .[; however, t]hese allegations do not state with particularity the circumstances constituting the alleged fraud.").[5]"

http://scholar.google.com/scholar_case?case=10968459512102314519&q=IN+RE+VACCARO&hl=en&as_sdt=2,10&as_ylo=2012&scilh=0
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T-Bill
Add'l the Court Stated:

"FLA. STAT. § 673.3081 OFFICIAL CMTS. at 1. The Plaintiff's vague and nonspecific allegations concerning the indorsements do not overcome the presumption of their validity under Florida Statute § 673.3081."

http://scholar.google.com/scholar_case?case=10968459512102314519&q=IN+RE+VACCARO&hl=en&as_sdt=2,10&as_ylo=2012&scilh=0
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T-Bill
Ok, so the question then becomes how does one meet the threshold "[to presenting clear and raise specific] allegations concerning the indorsements [so as to meet] the presumption of their validity under FS 673.3081?? 

Any suggestions?
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CWW
And since the the one missing Assignment made the trustee's sale invalid , in this case, does the many missing Assignments of MERS Trust Deeds , make those trustee's sales invalid ?
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T-Bill
T-Bill can no longer post to this board -- the fraud forum administrator has 'banned' my ip address --- this forum is the fraud  -- ps print this post out then wait and c if it is still there tomorrow --
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CWW
  And since the the one missing Assignment made the trustee's sale invalid  in this case, ( then at least in Idaho ) does the many missing Assignments of MERS Trust Deeds , make those trustee's sales invalid in non-judicial foreclosures ?
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Angelo
Thats a great question T-Bill, What if the note has Bank A as the lender, but the note is endorsed by an alleged agent of Bank A.  By just making a general denial of the signature with particularity.  Does the burden now shift to the plaintiff to prove such an agency relationship or does the court take the plaintiffs word from the four corners of the complaint?
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CWW
You have again changed the subject of my post.   The subject was the judge ruling on the lack of assignments , he says " As a result , the chain of assignments concerning the DOT was corrupted "   Could someone please answer my question of whether most all MERS loans would have the same corrupted chain of assignments , and make them not able to be foreclosed non-judicially when all assignments are required to have been recorded ?
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Texas

CWW, you are asking a question that is currently before the Texas Supreme Court.

http://www.search.txcourts.gov/Case.aspx?cn=12-0534

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CWW
Thanks for your reply Texas.  I think the Oregon and Washington State Supreme Courts are also considering the same.  It seems so plain and simple, they do not record or even execute the required assignments.  Then record many false and improper assignments to try to foreclose.  But obviously , like the story says , only taxpayers go to jail for that type of thing.
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Factman
the washington case is: Bain v Metropolitan Mortgage Group.

do a google search and you will find links to all of the case pleadings both the civil and supreme court ----- interesting read and might help you layout a foundation for your particular argument.

ps the case is cite here on the msfraudform -- i jsut cant seem to locate it -- has some pretty good comments if my memory is correct-

if you can't locate it then post here and i will find it for you -- good luck!
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Factman
here is the msfraud link:

http://ssgoldstar.websitetoolbox.com/post/Washington-State-Supreme-Court-to-rule-on-legality-of-mortgage-recording-system-5754268?trail=35

the thread has links to most of the briefs.
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CWW
The Bain decision by the Washington State Supreme court was perfect common sense.    MERS is not the Beneficiary !  The Oregon Supreme Court will directly deal with the issue I have raised here,  The lack of recorded assignments.  This article talks about it :     
http://www.oregonlive.com/business/index.ssf/2012/07/in_victory_for_homeowners_oreg.html
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Jeff
What can a judicial defendant take away from the Bain decision to use in his foreclosure fight?
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