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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in a foreclosure action-does the "keeper of the document" have the authority to begin foreclosure action if the plaintiff is out of business? i thought it had to be "keeper of the record" and that the company that went out of business had to provide written authorization that-like a POA to the keeper of the record..any thoughts would be welcome
regards
kelly
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arkygirl
I assume your note was securitized, digitized and sold. The Trustee is never the owner in that case, but they are supposed to hold the original documents for the investors.

REMICS were newly invented in 1987 as a tax avoidance measure by Investment Banks. To file as a REMIC, and in order to avoid one hundred percent (100%) taxation by the IRS and the Kentucky Revenue Cabinet, an MBS REMIC could not engage in any prohibited action. The "Trustee" can not own the assets of the REMIC. A REMIC Trustee could never claim it owned a mortgage loan. Hence, it can never be the owner of a mortgage loan.

Additionally, and important to the issues presented with this particular action, is the fact that in order to keep its tax status and to fund the "Trust" and legally collect money from investors, who bought into the REMIC, the "Trustee" or the more properly named, Custodian of the REMIC, had to have possession of ALL the original blue ink Promissory Notes and original allonges and assignments of the Notes, showing a complete paper chain of title.

Read this post and the accompanying case:

http://ssgoldstar.websitetoolbox.com/post?id=4915230






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William A. Roper, Jr.

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kelly said
in a foreclosure action-does the "keeper of the document" have the authority to begin foreclosure action if the plaintiff is out of business? i thought it had to be "keeper of the record" and that the company that went out of business had to provide written authorization that-like a POA to the keeper of the record..any thoughts would be welcome
regards
kelly

 
kelly:
 
First, let me preface my remarks by pointing out that I am NOT an attorney and this is NOT legal advice, but rather a discussion amongst fellow pro se
litigants.  You are encouraged to critically investigate my post, to do independent research and to consult with a licensed attorney.
 
You are muddling two different legal concepts.  One of these pertains to the holder
of a mortgage.  The other pertains to evidentiary matters, an exception to the hearsay rule, pertaining to a custodian of business records.
 
Owner or Holder
Generally, the commerical law which controls a suit on a promissory note derives from something called the Uniform Commerical Code (UCC).  The UCC is state rather than Federal law.  It is called the Uniform Commercial Code because state legislatures throughout the country have adopted most elements of the UCC in a fairly uniform way throughout the country, but this is not universally the case.  That is, some states have some minor variations of the UCC.  The existence of the UCC helps to promote commerce by giving our country a uniform commercial framework for certain types of transactions.
 
Under the UCC, usually either an owner or a holder
has the right to enforce an instrument.  Often, both ownership and holdership are vested in the same entity.  But there are a variety of common situations where this is not the case.
 
For example, at the very inception of a mortgage loan, the loan proceeds actually usually derive from (are funded by) a so called warehousing lender.  The warehousing lender offers mortgage companies a credit line, not at all unlike a home equity credit line which can be drawn down and paid back by the mortgage lender.  In the case of a warehousing credit line, the mortgage lender faces restrictive covenants in the loan which restrict borrowing to the purpose of funding loans.  And the mortgage lender pledges these mortgage loans, once actually made, as collateral for the warehousing loan.  Covenants of the warehousing line require the indorsement and delivery
of the newly executed promissory note to the warehousing lender often within 72 hours of closing.
 
Note that the loan is NOT being sold to the warehousing lender.  It is simply security for the warehousing loan.
 
In this instance, the originating Lender is and remains the owner of the loan.  The warehousing lender, through negotiation, becomes the holder
of the loan.  Under the facts described, each would have an independent right of enforcement under the UCC.
 
This is further muddled though through the use of so-called instiutional custodians
.  The institutional custodians specialize in safeguarding and protecting mortgage instruments.  Very often, both the warehousing lender and the instiutional mortgage investor use instituional custodians.  This can cloud holdership, though clarity can be restored by obtianing the promissory note -- the negotiable instrument -- from the vaults of the institutional custodian.
 
*

The Business Records Exception To the Hearsay Rule
The hearsay rule is a rule of evidence, again adopted and separately implemented by statute or Rules of court in most states.  The principle underlying the hearsay rule is that only those persons with actual personal knowledge of a matter are permitted to testify as to the truth of a matter.
 
That is, if I know something because I personally witnessed it and perceived it through my own senses, this is different than if I know something because someone else told me that it was the case.  Even if the person who told me is generally trustworthy and reliable, one problem presented by hearsay testimony is that the hearsay witness cannot really be effectively cross-examined as to details of the event.  I simply didn't see it or personally witness it.
 
The business records exception to the hearsay rule basically says that business records, created contempoaneously to the event, and in the ordinary course of business can be directly admitted into evidence, as long as these are authenticated by some foundation witness who is a custodian of that firm's business records.
 
However, I should note here that the mortgage foreclosure mills have been riding roughshod over the evidentiary standards and routinely obtain perjured evidence from various corporate affiants -- contract perjrers in many cases -- by having those who lack any personal knowledge make sworn statements avering that they do have such knowledge.  This is simply illegal and creates perjured evidence through false affidavits.
 
*

When a Lender Goes Out of Business and Becomes Extinct
The situation you present with an originating Lender which went out of business provides a variety of issues which require application of each rule.  And there are a LOT of factual details which will control the outcome.
 
Most of the original Lenders have sold the mortgage loan within about sixty to ninety days of origination.  And when the loan is properly sold and negotiated through indorsement and delivery, the buyer becomes both the owner and the holder
of the mortgage indebtedness and would have a right of enfocement.
 
But there is a proof problem here.  That is to say, simply because a plaintiff shows up and claims that it is the owner and the holder, this does not make it so.  As you are seeing from the news, affidavits are being falsely created by robo-signers, being perjured, and presented as evidence.  Often, a mortgage servicer, an agent of the mortgage investor, is alleging that it is the owner or the holder
, when it is usually neither.
 
A servicer might become the holder
by obtaining the promissory note from the institutional custodian for the mortgage investor.  But this would usually need to be done in advance of the suit, and very often this has not been properly done.
 
Separately, the facts about which business records have been properly authenticated and admitted into evidence can be clouded by a Lender which fails and goes out of business.
 
If the originating Lender has gone Bankrupt, gone out of business, surrendered its corporate charter and become extinct, this also presents some legal issues and factual questions pertaining to the validity of the negotiation
of the promissory note -- the indorsement and delivery thereof.

One addiitonal cautionary note is in order.  Servicers and the contract forgers and perjurers they employ very often forge an assignment which makes it appear as if the plaintiff is the owner or holder.  One key CLUE that a document is a forgery is when the grantor is an entity which went out of business -- became extinct -- before the date of excution of the forged instrument.  Taking special note of the date that an entity went out of business can help you prove the fact of the forgery!

*
 

Quote:
arkygirl said
I assume your note was securitized, digitized and sold.  The Trustee is never the owner in that case, but they are supposed to hold the original documents for the investors.  [emphasis added]


Arkygirl is an ardent and passionate participnt of this Forum.  But very often she posts legally erroneous information.  She is always certain, but only sometimes right.

Her assertion that the trustee of a mortgage trust is never the owner of mortgage loans is simply absurd.  This sort of incoherent drivel is the kind of nonsense, which, when repeated in court by an unsophisticated pro se
litigant, will eviscerate your credibility with the judge and cause the loss of your home.  BEWARE.

A trustee of a trust IS usually the legal owner of that trust's assets.  In the case of an institutional mortgage trust, the trustee would typically be the owner and the institutional custodian would typically be the holder
of the mortgage loans, though the trusts assert that the loans are being held for their benefit.

This is NOT to say that one should simply ASSUME that a particular trust is the owner or the holder.  This needs to be PROVEN by valid admissible evidence.

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arkygirl
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Her assertion that the trustee of a mortgage trust is never the owner of mortgage loans is simply absurd.  This sort of incoherent drivel is the kind of nonsense, which, when repeated in court by an unsophisticated pro se litigant, will eviscerate your credibility with the judge and cause the loss of your home.  BEWARE.


What's absurd is WAR using 10,000 legalese-type words of his own incoherent drivel to explain this when they are confusing and unnecessary.

Your post said that the "Keeper of the Document" is trying to initiate a foreclosure action against you. If the plaintiff is out of business, the only party who could authorize the Mortgage Assignment for a bankrupt lender would be the Bankruptcy Trustee. In these cases where a MERS mortgage has been assigned on behalf of a bankrupt entity, a criminal violation of the bankruptcy code had occurred.

The "Trustee" can not own the assets of the REMIC. A REMIC Trustee could never claim it owned a mortgage loan. Hence, it can never be the owner of a mortgage loan. The Trustee is the "Custodian of the REMIC".  The Trustee is the "Keeper of the Documents"; as such, the Trustee cannot claim ownership of anything. The "Trustee" can not own the assets of the REMIC. A REMIC Trustee could never claim it owned a mortgage loan. Hence, it can never be the owner of a mortgage loan. No one can foreclose on something that they DO NOT OWN.

If you don't believe me, you can check it out with  Karl Denninger who did this case analysis. Maybe he is "absurd" too? But neither of us has any way of knowing if you are even dealing with a REMIC Trust. In that case, both WAR and myself are "absurd", aren't we? You really didn't provide enough info (nor would I ask you to) for either of us to know if this is your situation.

You will have to sift through all this and figure out which scenario fits your particular problem.

http://market-ticker.org/akcs-www?singlepost=2196166


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loan was with IMC mortgage-they discontinued doing business-did not file bankruptcy. they allegedly sold my mortgage as a bundled trust. terms of sale was that an assignment of mortgage by imc or trustee had to be filed within 60 days of sale-they never did that. loan servicer is acting as if they were the plaintiff IMC mortgage but address is loan servicer and they list themselves as "keeper of the documents" in court papers. however, no supporting affadavit with court filing from IMC appointing them in any capacity nor do they have POA with IMC.

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arkygirl
Looks like IMC did a merger: TAMPA, Fla.--(BUSINESS WIRE)--Feb. 22, 1999--IMC Mortgage Company (Nasdaq:IMCC) announced today that it has entered into an Agreement and Plan of Merger (the "Merger Agreement") with Greenwich Street Capital Partners II, L.P. and certain of its affiliates ("Greenwich").

Not bankrupt, but defunct and swallowed up.

Servicer hanky-panky is rife. At the link below this excerpt you can access the documents. It is not exactly like your case, but maybe it will give you something to go on.

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Feeling confused and  suspicious,  they turned  to  the  Indiana Attorney General, who directed  them  to  file a  complaint with  the Comptroller of the Currency.  The Comptroller's investigation revealed that Chase Bank, the  ostensible  plaintiff  herein,  is  entirely  unaware  of  the  foreclosure  proceeding. 

Moreover,  Chase's  records  show  that  the mortgage was  paid  in  full  in  2001.    Chase, therefore,  executed  and  recorded  a  satisfaction  of  mortgage.    Notwithstanding  the satisfaction  of mortgage, Chase's  loan  servicer—Ocwen Bank—continued  to  prosecute this  action  in  Chase's  name,  attempting  to  force  the  Elliotts  out  of  their  home  even though  there has never been a  trial and  the  lending bank has declared  that  the mortgage was paid in full. 


http://4closurefraud.org/2010/02/05/loan-servicer-ocwen-forces-foreclosure-after-the-lending-bank-declared-mortgage-was-paid-in-full/
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