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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Ann Holden
Judge halts foreclosures
Says banks must prove they hold mortgages

Until she and her husband, Ellsworth, won.

Last week, a Hamilton County Common Pleas Court judge ruled that Wells Fargo Bank couldn't foreclose on the Byrds' North College Hill home because its lawyers didn't prove that Wells Fargo was the legal owner of the mortgage.

Foreclosure's Fallout

The judge said the foreclosure lawsuit was filed before Wells Fargo owned the mortgage - thus, the suit was premature.

The ruling - the first of its kind by a state court judge in Ohio since the subprime mortgage crisis erupted this year - could have profound implications on how foreclosures are handled in Ohio, which leads the nation in the percentage of mortgages in foreclosure. The local ruling comes as three federal court judges - in Cleveland, Dayton and Columbus - have issued similar opinions in foreclosure cases in the last month.

In one opinion, a federal judge in Cleveland sought to reverse what he called "a quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process."

Ohio Attorney General Marc Dann has already seized on that decision in an effort to slow foreclosure filings throughout the state.

He filed motions Friday in seven Hamilton County cases - and several more in Butler, Montgomery, Franklin and Delaware counties - asking judges to scrutinize each foreclosure case.

The issue is known as the "real party in interest" rule, which says that a plaintiff must prove that it has a stake in a lawsuit in order to file it.

As millions of subprime mortgages are sold and resold on Wall Street, the real "party in interest" isn't always obvious. Often, the holder of the mortgage note - the legal document that gives a lender the right to take someone's home for not making loan payments - is different from the servicing company, or the bank that takes the mortgage payments.

It's unclear how far-reaching the effect of the orders will be. But a recent analysis by University of Iowa law professor Katherine M. Porter found that 40 percent of the 1,733 foreclosures she studied did not contain proof that the plaintiff owned the mortgage.

Kevin R. Flynn, a lawyer who teaches real estate law at the University of Cincinnati College of Law, said, "If I were a defendant in a foreclosure action, that's the first thing I'd raise."

Though the banks might be guilty of taking shortcuts, in most cases, it's not hard to prove that they own the mortgage, he said.

"As a practical matter, the people aren't paying on their notes. I really do think this is a paperwork issue. It's going to delay things. And it's going to make the lawsuit more expensive. What I've seen recently is with these out-of-town lenders - these trustees of trusts who are so far removed from the original mortgage - they're not interested in making that deal to renegotiate the mortgage. So I'm glad the attorney general's office is forcing the issue."

Take Byrd's case. She said she didn't even know Wells Fargo had bought her mortgage until it filed the foreclosure action in January. Her original mortgage was with Countrywide.

"If Countrywide had told me that my mortgage was sold to Wells Fargo, I would have known who to call to straighten this out," she said.

Byrd's story is not uncommon: She got an adjustable-rate loan when she bought her $67,000 house in 2005. The interest rate started at 9.5 percent, or $487 a month -- Byrd admits that she did not have good credit - and reset this year. Her payment is now $842 a month, at 12.287 percent.

But the real trouble came when she had a plumbing problem last year and had to spend $2,000 in repairs.

She said in a sworn statement that she had agreed to repayment terms with Countrywide and was following the plan even as Wells Fargo filed suit.

The vast majority of homeowners in foreclosure do not contest it - moving out of the property even before the proceedings are completed. Not Byrd.

"When Wells Fargo did this, I said: 'Wait a minute. I can't always be the one in the wrong. There's something stinking here.'

"I thought to myself, 'I've got to fight this. I've got to fight this for all those who are afraid and stand up with this,' " said Byrd, who lives on $1,400 a month in Social Security and a small pension. "I couldn't lose this house. It was the only thing we had. It's small. It's not a big place. We don't live on steak and champagne."

Byrd's legal aid lawyer, Noel Morgan, demanded that Wells Fargo prove that it owned the mortgage. The bank did - two months after filing the lawsuit.

"It is troubling that the plaintiff has filed this case before it had any interest in it," Hamilton County Common Pleas Judge Steven E. Martin said in a letter to Wells Fargo's lawyer.

Martin then took the unusual step of ordering that the bank's law firm must file proof that its clients actually own the mortgages before filing any new foreclosure actions in Hamilton County.

That firm, the Law Offices of John D. Clunk, based in Hudson, Ohio - is the third-largest filer of foreclosure actions in Hamilton County, with 48 properties scheduled for foreclosure sales in the next six weeks.

The Ohio Attorney General has now put this same issue before a number of other judges.

"We're hoping that judges will stop and take a closer look at these pleadings," said Nadine Ballard, the chief of the attorney general's Consumer Protection Section.

The issue is more than just a technicality, she said. Some of the same financial institutions rushing to the courthouse to seize mortgaged property are also claiming that they don't own those abandoned buildings when served with a tax bill or building-code violations.

"They can't have it both ways here," Ballard said.

source
http://news.enquirer.com/apps/pbcs.dll/article?AID=/20071208/BIZ01/712080349
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Ann:

Thank you very much for sharing that article with us!!

It appears as though the ripples from Judge Christopher BOYKO's decision continue to spread!

EVERYONE SHOULD BE DEMANDING PROOF OF OWNERSHIP BY ANY FORECLOSING ENTITY. 

This should take the form of pleas to the jurisdiction based upon standing, pleas in abatement relating to capacity and standing, equitable "clean hands" defenses and motions to strike and/or for sanctions based upon sham pleadings where other than the real party in interest files a complaint/petition or a claim in federal bankruptcy court.

NOT LEGAL ADVICE -- Just a suggestion as to a checklist of things for YOUR capable attorney to be doing!

And, more importantly, it should take the form of IMMEDIATE and well prepared DISCOVERY REQUESTS.
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Stephen

Yes.  The more of this I read, the more I am assured that the world is waking up to what the real estate industry is.

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Me 2

Great find Ann
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Way To Go

OK, ponder this concept.  If a judge ruled in favor of the servicer/lender in a past foreclosure, and if it could be proven (post foreclosure) that the “Real Party in Interest” was not the party bringing the foreclosure action, then would that foreclosure not have been illegal.  And, if it was illegal,   wouldn’t the judge granting summary judgment in favor of the lender/servicer have no other option but to reverse the previous ruling?  Of course, this would only be applicable in judicial foreclosure states.  I am not sure what would or could happen in non-judicial jurisdictions.

If the property was sold to a third party and title had passed the new owners, then would the original borrower not be entitled to damages? Wouldn’t the subsequent damage amount not clearly be the value of the property at the time of foreclosure?

Now, if the subject property was still in the servicer’s/lender’s REO inventory, then the damages would be the return of the property, plus monetary damages equal to the amount owed on the loan at the time of foreclosure.

Clearly, the Real Party in Interest issue could have a profound effect on past illegal foreclosures.  However, I don’t think it will do much to help cases that are currently on the docket.  If the Real Party in Interest defense is raised, then the servicer/lender only has to go back and fix the problem.  Even if a smart judge dismisses the case it will be refilled very quickly with the correct Real Party in Interest and the borrower has only bought a few extra weeks.

Issues such as this are what this Forum and site are about - not who the real Mr. Ed is.

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O -

You are right WTG, That is a GREAT question. 

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Originally posted by Way To Go
If a judge ruled in favor of the servicer/lender in a past foreclosure, and if it could be proven (post foreclosure) that the “Real Party in Interest” was not the party bringing the foreclosure action, then would that foreclosure not have been illegal.  And, if it was illegal, wouldn’t the judge granting summary judgment in favor of the lender/servicer have no other option but to reverse the previous ruling?


No.

The means and alternatives of setting aside erroneous judgments vary widely from state to state.  But generally, a party losing in litigation is given an opportunity to make some sort of motion for a new trial and to appeal.  Some states have additional provisions for restricted appeals and in certain instances wrroneous judgments may be set aside by bill of review.

But the circumstances under which new trials, appeals and similar re-examinations of rulings are permitted is limited.  Our judicial system and the public at large also has a rather keen interest in judicial finality.  At some point, litigation must end.

Once the period to move for a new trial passes, the trial court tends to LOSE its statutory jurisdiction.  Similiarly, once the statutory appeals period passes, the appellate courts tend to lose jurisdiction.

In jurisdictions where a bill of review is later permitted, this tends to be reserved for circumstances where there has been extrinsic fraud and/or official mistake.

Extrinsic fraud is to be distinguished from intrinsic fraud.  The defendant is given civil process for discovery and a right to confront witnesses IN THE COURTROOM so that intrinsic fraud can be discovered.  Extrinsic fraud -- such as concealing the suit from the defendant, obtaining a default judgment by false allegations of service or otherwise keeping the defendant from the courtroom -- can sometimes get a matter later re-opened.  But intrinsic fraud such as misrepresentation of the parties or ownership of the interests in the cause of action, or fabrication of evidence needs to be identified AT TRIAL.

Sadly, many, if not most foreclosure defendants never obtain representation of an attorney, never file a defensive pleading and never engage in discovery.  Of course, by the time the matter is in foreclosure, they are broke and desperate.  They flail around and ask various attorneys, most often told that the bank always wins and lack the resources to engage an attorney even IF they could find an attorney well-schooled in debt / consumer / bankruptcy / mortgage foreclosure law.

When represented, too often attoneys tend to BELIEVE the pleadings and evidence presented by the plaintiffs and thier attorneys.  After all, bar disciplinary rules in most states preclude the plaintiff's attorney from knowingly making false statements to other attorneys.

The bottom line is that res judicata and the failure to time move for a new trial and to appeal will preclude most from disturbing a judicial foreclosure ruling, even where fraud was involved.

In fact, I think you have it rather precisely backward!  Those facing a non-judicial foreclosure may be in the BEST position where there was some misrepresentation or fraud on the part of the foreclosing entity, as for example where an appointment of substitute trustee was executed by the wrong entity.  Here, with a private power of sale, everything depends upon the regularity and correctness of the private sale.  If the sale was irregular, it MIGHT be possible to set it aside through litigation!  That is UNLESS this was already litigated (res judicata again).

This is NOT to say that defendants who are defrauded are without a remedy or that there will be no justice.  While most jurisdictions require that ALL counterclaims arising out of a single cause of action be pled and adjudicated together, most recognize some sort of discovery rule for torts.  That is, with respect to limitations periods, limitations tend to toll during a period the fraud is concealed or unknown to the victim.  I have NOT studied the law on the matter (and of course I CANNOT give ANYONE legal advice, as I am NOT an attorney), but it seems to me that it would be fundamentally UNJUST to require the pleading of causes of action unknown or concealed.

So it is POSSIBLE that those who have been DEFRAUDED within a foreclosure by the incorrect party OR victimized by fabrication of documents MIGHT still later have a valid cause of action.  THIS IS A QUESTION THAT VICTIMS NEED TO ASK A COMPETENT ATTORNEY WITH EXPERIENCE IN THE LAW OF THEIR JURISDICTION.  Since this may very well be a tort action, rather than a matter of real estate, debt or consumer protection law, victims might want to consult a good personal injury lawyer!

Also, while the foreclosure verdict may be unassailable after failure to appeal, forgery, perjury and fabrication of evidence are still CRIMES in most states.

Anyone who believes that they have been a VICTIM of a foreclosure by the WRONG ENTITY or by an entity which used FABRICATED EVIDENCE would do well to at least investigate their rights in a timely way by consulting a COMPETENT, QUALIFIED ATTORNEY.

But let's NOT get carried away by elation that these new successes are going to resolve injustices of prior foreclosures!

Finally, I want to remind everybody one theme I have been sounding over and over and over again:  DISCOVERY!  You need to ask the questions!

When you are a defendant in a foreclosure action and you fail to answer the complaint / petition, you are GOING TO LOSE.  If you FAIL TO ENGAGE IN DISCOVERY, you are giving the plaintiff a "bye".  They simply make ambiguous allegations in their pleadings and you NEVER PIN THEM DOWN AND LEARN THE TRUE FACTS IN YOUR CASE.  It is ONLY through DISCOVERY that you are going to obtain the evidence that you need to PREVAIL.

In Professor Katherine PORTER's study she found outrageous and persistent errors in the plaintiff's representations to the bankruptcy court.  And she found a persistent failure of plaintiffs to plead and prove ownership of the mortgage loan.  YOU GET THE PLAINTIFF ON RECORD THROUGH DISCOVERY.  The Plaintiffs are going to talk their way around any defects you find in their pleadings UNLESS YOU PIN THEM DOWN.

Those properly served who did NOT answer, or who ANSWERED but failed to make a plea to the jurisdiction citing standing or to challenge the capacity of the plaintiff, OR who did NO discovery and failed to get even rudimentary evidence have lost and probably are NOT going to prevail on appeal, even IF an appeal can be timely made (EXCEPTION: because jursidiction and standing are Constitutional in many states, jurisdiction can often be raised for the FIRST TIME on appeal).  Defendant's need to be PROACTIVE and get out front!

AS ALWAYS, EVERYONE IS REMINDED THAT I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE, BUT RATHER SOME MUSINGS ABOUT THE CONSEQUENCES OF RECENT PUBLIC EVENTS!  Those facing ACTUAL legal problems rather than desiring to simply DISCUSS these issues need to seek competent legal counsel elsewhere!         
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Originally posted by Way To Go
Clearly, the Real Party in Interest issue could have a profound effect on past illegal foreclosures.  However, I don’t think it will do much to help cases that are currently on the docket.  If the Real Party in Interest defense is raised, then the servicer/lender only has to go back and fix the problem.  Even if a smart judge dismisses the case it will be refilled very quickly with the correct Real Party in Interest and the borrower has only bought a few extra weeks.

 
I don't mean to come across as negative Way To Go, but I believe that you have this precisely backwards, too.
 
A KEY question when the plaintiff is MISIDENTIFIED is precisely WHAT the pleadings SAY and the evidence tendered in support of those allegations.  In my own case, MERS SWORE that it was the OWNER and the HOLDER.  It is NEITHER.  CitiMortgage ALSO has SWORN that it is the OWNER and the HOLDER.  This was also UNTRUE.  Discovery responses are all over the board.  I expect to WIN on several other points, so these FALSE STATEMENTS may prove to be only marginally important in my own litigation.
 
But there are several considerations that an astute defendant needs to bear in mind.  First, there is a legal doctrine called judicial estoppel.  A plaintiff is sometimes estopped from alleging and arguing a position in direct contravention of a prior position it took in previous litigation.
 
When the plaintiff SUES alleging that ABC owns the mortgage and this action is DISMISSED, the plaintiff may be ESTOPPED in some jurisdcitions from suing and alleging that XYZ owns the mortgage (UNLESS it can be proven that XYZ came into ownership from ABC).
 
Second, what everyone seems to still be MISSING is that BOYKO is NOT merely about failure to PRESENT evidence.  It is about presenting FABRICATED evidence, which evidence was then shown to indicate on its face that the plaintiff did NOT own the mortgages at the date of the commencement of the action (standing).  The FABRICATION has NOT yet been proven. 
 
Now the plaintiff has a problem!  They can REFILE and use the SAME FABRICATED EVIDENCE.  OR they can seek to use OTHER evidence in support of standing.  But the OTHER evidence is going to tend to PROVE the fabrication.  This gives rise to an "unclean hands" defense in equity.
 
Anybody in Cleveland that needs a good expert witness is welcome to CONTACT ME.  If they get in touch with me in a timely way, I can help them PROVE the fabrication.  Proving the fabrication is problematic because it also calls into question ALL of the plaintiff's OTHER evidence (IF ANY).
 
EVERY Defendant in the BOYKO Cases ought to at least be able to obtain a very FAVORABLE SETTLEMENT!  Deutshce Bank and its attorneys will NOT want these casses to come to trial again.  If tehy DO bring these cases to trial, they DESERVE to be severely SPANKED!
 
This brings me back to that RECURRING THEME -- DISCOVERY -- AFTER the plaintiff has LIED in sworn pleadings, it is very hard to put that genie back into the bottle!  EVERYONE NEEDS TO USE DISCOVERY TO SMOKE OUT THE PLAINTIFF!  
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Way To Go

OK Mr. Roper, well said, now try this on for size – What if one could show a pattern and practice of foreclosing in the name of a Non Real Party in Interest?  Sure, a mistake or two can be made when a foreclosure mill is pushing through thousands of foreclosures.  However, I am willing to bet this happens routinely.  Why should a mill waste time tracking down and verifying the correct Real Party when they know they will prevail even if they type in The OJ Simpson Trust Company as the Real Party?

Class Actions normally offer no real benefit to borrowers.  But what about a class action based on a pattern and practice of picking the name of the Real Party in Interest from a hat and then typing it into the Complaint.

As I said at the conclusion of my last offering, all this challenge will do in most cases is cause a re-filing (not refilling as I said previously, damn spell-check).  Then we have the issue of – Did the Plaintiff write a check so the Defendant could purchase a home?  The answer to that question is always YES.  That is a huge hurdle to clear.

We are currently in a ripe environment to take advantage of some significant judicial decisions that offer some possibility of righting past wrongs.  Yes, you only get one bite of the apple, but a second bite may not be too much to ask when one’s home was lost.  It is a little more compelling then a soft tissue PI and a year later someone says it still hurts and I want to sue again.

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Quote:
Originally posted by Way To Go
What if one could show a pattern and practice of foreclosing in the name of a Non Real Party in Interest?  Sure, a mistake or two can be made when a foreclosure mill is pushing through thousands of foreclosures.  However, I am willing to bet this happens routinely.  Why should a mill waste time tracking down and verifying the correct Real Party when they know they will prevail even if they type in The OJ Simpson Trust Company as the Real Party?

 
Way To Go, I DO believe that a VERY COMPELLING class action law suit could be put together relating to fraudulent foreclosure!  I can ASSURE YOU, that false identification of the plaintiff and FABRICATION OF EVIDENCE DOES OCCUR ROUTINELY in foreclosure actions.  I have CONCLUSIVE EVIDENCE of this!  (And if you are in doubt, read Professor Katherine PORTER's study, which hints at it... but she is NOT quite there yet!)
 
But ALL of the attorneys I am acqauinted with are either NOT class action attorneys -- a specialty -- OR they are all very certain that they are a LOT smarter than I am and that therefore they DON'T NEED MY HELP.  In several instances, I have offered to HELP attorneys WIN CASES pro bono.  These folks are mostly so arrogant that they assure me that they need NO HELP.  In a couple of instances, they have encouraged me to HIRE a lawyer right away.
 
I am WINNING my own case pro se and do NOT need any help.  Despite encouraging OTHERS to obtain good legal representation, I am NOT looking for a lawyer in my own case, which I WILL WIN.
 
I do NOT need or desire to hire a lawyer to litigate OTHER PEOPLE's problems, even if I was PERMITTED to do so.  Nor am I even eligible to be a member of the prospective class.  The mortgage servicers have NOT succeeded in defrauding ME.
 
I have become BORED with offering to help lawyers for FREE.  If a lawyer desires to engage my services as an expert witness, I can lead them to a wealth of valuable information showing fraud and ongoing, systematic fabrication of evidence!  It is NOT hard to find.  It is a matter of UNDERSTANDING the evidence! 
 
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Originally posted by Way To Go
 Then we have the issue of – Did the Plaintiff write a check so the Defendant could purchase a home?  The answer to that question is always YES.  That is a huge hurdle to clear.

 
Frankly, this is NOT an issue AT ALL!  The Plaintiff is rarely the mortgage originator.  The plaintiff is usually a servicer or a trustee of a mortgage trust.  When the servicer is the plaintiff, this is usually a MISIDENTIFICATION of the plaintiff.  When the trustee of a mortgage trust is involved, the critical proof is the chain of custody of the promissory note and the chain of title as to the mortgage or deed of trust evidenced by the mortgage assignments.
 
Due to laziness, incompetence, arrogance and dishonesty, it seems to actually be QUITE EASY to successfully discredit the evidence that the plaintiff tenders as to the chain of ownership of the promissory note and/or mortgage/deed of trust.  More often than not, the plaintiff has in mind to give NO EVIDENCE AT ALL as to chain of ownership!
 
Plaintiffs are winning because the defensive arguments are NOT being made AND because of failure of defendants to engage in useful, effective DISCOVERY.  They are NOT losing on the strength of evidence submitted by the plaintiffs.  Such evidence is very often non-existent and WHEN offered is very often FABRICATED and/or PERJURED.
 
Those UNFAMLIAR with mortgage markets can rarely spot the fabrications and perjury.  But they are readily apparent to the trained eye and EASILY PROVEN in many cases!   
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Clearly, the Real Party in Interest issue could have a profound effect on past illegal foreclosures.  However, I don’t think it will do much to help cases that are currently on the docket.  If the Real Party in Interest defense is raised, then the servicer/lender only has to go back and fix the problem.  Even if a smart judge dismisses the case it will be refilled very quickly with the correct Real Party in Interest and the borrower has only bought a few extra weeks.
 
Here's the kicker...
 
The judge wants to know if the entity that filed the foreclosure action is indeed the entity that has the right to do so AT THE TIME OF THE FORECLOSURE ACTION.
 
Even if the entity goes back, and tries to, "fix" their paperwork, can they PROVE that they were entitled to do so to begin with?
 
 
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Rules relating to standing differ in state and federal courts and differ widely amongst the states.  Where standing is Constitutional, the plaintiff typically needs to show standing at the commencement of the suit.

Typically, when a client lacks standing, the suit it dismissed without prejudice.  But this is not always necessarily the case.  Many jurisdictions have specific rule relating to the filing of false or sham pleadings.  If a court finds misconduct, a suit might be dismissed WITH PREJUDICE.  If a Court believed that a plaintiff WILLFULLY FILED fully KNOWING that it was NOT the correct plaintiff OR fully knowing that the plaintiff lacked standing, the court MIGHT deal with the matter more harshly.

When a suit is dismissed without prejudice, that suit GOES AWAY.  The plaintiff is welcome to REFILE the action in state or federal court (as long as other jurisdictional requirements are met).  When the suit is REFILED, everything starts over.  There is new service.  The defendant is entitled to a new answer.  There is a new discovery period.  It is a new suit!

In the re-filed suit, the plaintiff need only prove its interest prior to the commencement of the NEW suit.  So standing and real party at interest might NOT seem to be a difficult threshold.  But that really depends upon the PRIOR PLEADINGS and the PROOF already submitted.

The old suit might have been dismissed, but the record does NOT necessarily go away.  (If there are USEFUL items appearing within the transcript of a hearing a defendant MIGHT want to obtain a timely transcript while court reporter's recording and notes are fresh and available.  There is also some value in obtaining a certified RECORD of the prior suit!)

Suppose that XYZ Mortgage originates a mortgage and in foreclosure the plaintiff originally pleads that ABC mortgage is the owner and holder and furnishes sworn evidence to the court (in the form of an affidavit) to this effect.  Later, it emerges that ABC is the servicer and NOT the owner and holder after all.  Next suppose that the pleadings are amended and an affidavit is offered saying that the DFE Trust is the owner, but misnaming the trust.  Now suppose that the Judge demands proof of ownership and an assignment assigning the mortgage from XYZ Mortgage to DEF Mortgage, dated after the commencement of the suit, is FABRICATED and submitted to the court.

The Judge dismisses the cause of action without prejudice based upon defective standing / real party at interest at the commencement of the action (the fabricated assignment postdates the filing of the suit).

Can DEF refile??  Sure they CAN.  But now they have a problem!  Several problems actually.  The CALENDAR starts all over again and the defendant is entitled to DISCOVERY.  Moreover, the defendant now has pleadings and sworn affidavits from the PLAINTIFF alleging two other sets of facts as to ownership (ABC was the owner and DFE was the owner)!  And there is the matter of the FABRICATED assignment.

Can the plaintiff clean things up??  I really do NOT readily see HOW!  When the assignment is shown to be a fabrication, DEF is without good valid evidence to show ownership.  And the two earlier affidavits seem to not only create reasonable doubt they also give rise to a nice equitable "clean hands" defense.  Other evidence offered in support of ownership will only help to PROVE the prior FABRICATION.  If the attorney AGAIN offers the FABRICATED assignment after being SHOWN that it is a fabrication, the attorney will very likely be subject to disciplinary action.

When there is a PATTERN SHOWN of ONGOING FABRICATION by the plaintiff, the case is hopelessly lost.  How can ANY of the plaintiff's evidence be believed?

Does this sound fanciful?  I do NOT think so!  I think that this is rather precisely the sort of situation which is emerging in several instances now being litigated in one jurisdiction!

The ONLY HOPE for the plaintiffs is that the defendants remain UNREPRESENTED.  Otherwise the plaintiff's best hope is to SETTLE.  I really can't sketch it out much more starkly than that!

I will add one other cryptic cautionary elaboration.  I generally KNOW what is in the servicer's and investor's files.  The REAL EVIDENCE in the file probably WOULD HAVE PROVEN trustee ownership and standing IF produced.  But due to misconduct, arrogance and stonewalling, the servicer chose to FABRICATE rather than to DISCLOSE.  They have POISONED their own case.  The DOCUMENTS proving ownership ARE THERE.  But these also PROVE THE FABRICATION.  That seems to me to be little relief!  I would NOT want to be betting my bar license on the patience and understanding of the judge to whom I re-submitted fabricated evidence (IF I was an attorney).  That's how I see!

Is that clear enough? 

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   One of you brought up the issue of the defendant
who defaulted after being served with a complaint
where the note and mortgage said one thing, but
the complaint said something different (ie with
nothing to show the assignment) . In Ginsberg vs
Lennar 645So.2nd 490,494<Fla 3rd DCA 1994>
it was decided "default judgement will be set aside
where complaint upon which default was granted
fails on its face to set forth viable cause of action"
further "exhibits attached to complaint are part of
pleading" and" exhibits attached to complaint are
controlling and thus where allegations of complaint
are contradicted by exhibits, plain meaning of ex-
hibits control." Thus it appears there would be hope
in Florida of getting a default judgement vacated
if the defendant used this case law before the sale
was finalized.ie Motion to vacate default judgement.
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O -

Thanks Mike H  We are always glad for any helpful info.

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Ed Cage

Way to go wrote:

"Class Actions normally offer no real benefit to borrowers.” 

 

Dear Way to go:

Here I must respectfully disagree. While I am leaning toward an individual lawsuit against Town & Country et al., class actions normally do offer at least some benefit to borrowers.. That’s especially true within the immediate confines of MSF. 

 

Based on what I have observed most in here do not have the $2,500 to $5,000 retainer fee to put down for their own private attorney nor do most have the estimated $12,000 to $25,000 or more it takes to see the case through to fruition.

 

In spite of shortcomings class actions normally (not always):

 

1) Offer more competent and broader in depth support from mortgage fraud specialists.

 

2) Little or no cash expenditure to implement. Conversely individual lawsuits are quite expensive to initiate and sustain.

 

3) In general class actions offer a better chance to ultimately prevail.  

 

4) The $300 million class action judgment against Ameriquest is being paid as we speak. It says here just a *WIN* over the bad guys is a big deal in and of itself to many mortgage fraud victims. 

 

5) On the other hand if you go the individual lawsuit route your chances of ultimately prevailing are less than the class action remedy.

 

6) If you lose an individual lawsuit you lose all of the legal fees and attorney’s fees you pumped into your lawsuit.  You lose everything. Conversely if you were to lose a class action, you lose no money.  

 

Ed Cage
1804 Cross Bend, Plano Texas 75023
972-596-4363
ecagetx@tx.rr.com

 
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Hi Folks,
 
Hope all of you are well...So what happens when a lender does this and clouds title to one's home? Can the 1st still foreclose since the originator screwed up the title?
 
The justice system here in St.Louis sucks beyond any means if you ask me.
Thanks to Smurf last week I found an attorney that can't benefit me because he's in MA. But he's going after Wells Fargo...Trial should be here I think at end of Dec...
 
If I was to go shoot someone I'd be sitting in jail right now...Let them screw you over royally and the judge will allow them to get away with it...I think its rather pathetic that someone gets forced into a banko from this crap then you have no recourse what so ever....As the judge here did dismiss without predjudice...But now I'll have to take it to state court if I want any justice on the SOB's. Live in MA found a really nice atty to work for u...Who understands everything...It's just to mindboggling...If someone gets forced into bankruptcy REMEMBER THIS...YOUR ATTORNEY AND JUDGE WILL BE ON THE SIDE OF THE BANK REGARDLESS AND WON'T GIVE THEM ANY SLAP OR PENALTY!!!!
 
SORRY! IT'S NOW BEEN A YR AND A HALF AND THEY STILL CAN'T TELL ME ANYTHING!!! SO much for being a good person and good will towards others!
 
But god bless anyways!
 
Kathy
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Forgot! Maybe all attorney's aren't so bad. In the case of Sima Schwartz the atty from MA is nice and would of loved to help! Just can't because he don't practice law here in MO...SUCKS 2 Be Me...But he is a Banko Attorney...So I did want to give him some CREDO"s for standing up for what's right!
 
My attorney thinks its ok just to give a copy of DEED OF TRust....Think I'll be making a Attorney General Complaint next week...Tired of the CRAPOLA...
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Kathy, the term you are looking for is pro hac vice. Attorneys can practice law anywhere as long as they are accompanied or "chaperoned" by an attorney licensed to practice in whatever state the litigation is brought. Now, whether an attorney is willing to go through the process in order to handle a case out of state is another question.
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Mortgage servicing companies and their agents have been accused of a cornucopia of dirty tricks including: ignoring payments, falsely crediting payments, denying receiving payments-even when the borrower produces a sack full of cancelled checks. The companies have allegedly released homeowners' credit information to unauthorized recipients, even allegedly engaged in economic sabotage, all the while judges continue to rule in favor of foreclosing banks.

A federal judge in Ohio has thrown a gauntlet down, forcing banks and alleged lien holders to prove ownership of properties before a foreclosure can be completed. His decision has been followed by another Ohio judge, and both judges have attracted the ire of many in the banking industry who say the banks bought the securitized mortgages in good faith and proof of their ownership-is in some warehouse, somewhere.
 
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Gumshoe
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This is an EXCELLENT article!
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Thanks GUM! I'm glad to see they are getting IT! Finely!

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This Ohio Common Pleas case, by the way is:

Wells Fargo Bank NA Certificates Series WMC Vs. Gloria Byrd (Case No. A 0700643)
Hamilton County [Ohio] Court of Comon Pleas, Judge Steven E. MARTIN, Presiding

Judge MARTIN seems to have filed findings of fact and conclusions of law on December 12, 2007.  Wells Fargo NA filed a notice of appeal on December 20, 2007.

THIS CASE BEARS WATCHING!

Please note that Ann HOLDEN has also posted the new discussion thread "County may ask mortgage proof" [ http://www.websitetoolbox.com/tool/post/ssgoldstar/vpost?id=2372484 ] which includes a follow-up article by Cincinnati Enquirer reporter Gred KORTE.  That article relates that Judge Steven E. MARTIN is pressing the Hamilton County Court of Common Pleas to implement mortgage foreclosure evidentiary rules similar to those adopted in Ohio Federal Courts.  

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Sleuth

In the post-Boyko euphoria, like the post-robo-signing euphoria, some seemed to think that some real breakthroughs were just around the corner and also believed that existing cases, including defaults, might be reopened.

 

Contrast the thoughtful posts by Mr. Roper with the emerging disinformation posted by Mike H., who seemed to have already become full of himself and may have already had in mind to embark upon a new career in a life of crime.

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Dear Sleuth,
    I don't know where you get your information about me, but you are 100% wrong. Since I wrote that article in 2007, I have helped pro ses get many
default judgments reversed using that case law.
    If you are looking for crime, look at how the "fly by night originators" who
worked for the big banks, inflated appraisals and then sold the same Notes multiple times to different gullible investors in the mortgage backed securities
and then went bankrupt, leaving no one for the investors to sue. They were
banking on the 5 year Statute of Limitations to avoid criminal fraud charges.
    The fact is, most of the "original Notes" were destroyed to hide the crime
of "counterfeiting". Most of the Notes being presented in foreclosure cases
are counterfeit, color photocopies. I was one of the first to point this out
based on my research.
     So why not focus your energy on the "real criminals" where there are lots
of "corpus delicti" and alot of "mens rhea". You won't find any of that with the people I've helped and the homes I've helped save.
     I know you tin badges enjoy spraying young girls with Mace at the Occupy demonstrations, but once in awhile, you should look for real criminals
and stop trying to collar those who are exposing the biggest fraud in US
history.
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Foley
Mike H wrote:
Dear Sleuth,
I have helped pro ses get many default judgments reversed using that case law.  


Sounds like you are practicing law. Notes destroyed? What are you talking about? 
Theories don't work in court dude.
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Angelo
Mike H

Please do tell us what cases you have presented this information to a court of law.  I would love to know how you came about this extensive research,  did you get a peek in the vaults of the custodian of records? 


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Bill

Mike H wrote:
Dear Sleuth,
    I don't know where you get your information about me, but you are 100% wrong. Since I wrote that article in 2007, I have helped pro ses get many
default judgments reversed using that case law.
    If you are looking for crime, look at how the "fly by night originators" who
worked for the big banks, inflated appraisals and then sold the same Notes multiple times to different gullible investors in the mortgage backed securities
and then went bankrupt, leaving no one for the investors to sue. They were
banking on the 5 year Statute of Limitations to avoid criminal fraud charges.
    The fact is, most of the "original Notes" were destroyed to hide the crime
of "counterfeiting". Most of the Notes being presented in foreclosure cases
are counterfeit, color photocopies. I was one of the first to point this out
based on my research.
     So why not focus your energy on the "real criminals" where there are lots
of "corpus delicti" and alot of "". You won't find any of that with the people I've helped and the homes I've helped save.
     I know you tin badges enjoy spraying young girls with Mace at the Occupy demonstrations, but once in awhile, you should look for real criminals
and stop trying to collar those who are exposing the biggest fraud in US
history.

Yeah, Yeah, Yeah, we've heard it all before Mike.  Post the cases of all the homeowners you've "helped".  Post your qualifications as an "expert" and the facts that lead you to believe in your "expert" opinion that notes are
Quote:
 counterfeit, color photocopies. I was one of the first to point this out based on my research.
and
Quote:
   The fact is, most of the "original Notes" were destroyed to hide the crime
of "counterfeiting
You continue to post a bunch of garbage NOW just as you did in 2007.  


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Linda

Quote:
    The fact is, most of the "original Notes" were destroyed to
hide the crime of "counterfeiting".  Most of the Notes being presented in
foreclosure cases are counterfeit, color photocopies. I was one of the first
to point this out based on my research. 

 

Mr. Roper refuted this myth several years ago.

 

Your post doesn't even make any sense at all.  You argue that the notes are forgeries.  And the originals were destroyed to cover up the crime of counterfeiting.  Huh? 

 

So to conceal that notes were counterfeit, the originals were destroyed?  And then notes were counterfeited to replace the original notes which were destroyed to cover up the counterfeiting.  What?

 

It is really amazing that there exist people who are so stupid that they would give you any money, Mike.  You must prey upon some total idiots, people even stupider than you.

 

This is the result of your "research"?  You must be quite the scholar.

 

This thread once again shows you for the fraud that you are Mike H.

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