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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Margaret
Five and a half months later??

A couple I know are about five months ahead of us in their foreclosure....OneWest is withdrawing their lost note claim. They are saying it has been found & is available for inspection. Any tips on what could be going on? Or what they should look for?

They have an attorney who they feel is qualified, but I did not go with him; did not feel he was the one for me. Just curious what your thoughts are.
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Margaret,

Is this in Florida? Did they do a notice of filing with the original note in the court records? If so, he can go to the county and inspect the note to see if it's bogus (Just like all of our famous assignments).

I am going through this right now. I am trying to prove that the note was indorsed by a ghost.

cmc
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Margaret

Yes, it is in Florida....not sure the specifics of it all, but I know at first they said they did not have the original note, they filed a lost note affidavit. Then months later they say they found the ORIGINAL and they can inspect it if they wish...something smells fishy to me.

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It could be a fraudulent note. Check the note agaisnt the recorded copy filed at the court house when you buy your house. Check the original note for the owner real signature or fake signature. Check to see the notary seal on the note is valid at the signature date, if the notarry commission is not expired at the signature date . Check if the owner of the note is the Plaintiff who files the lawsuit (no standing to foreclose) . Ask for assignment copy if the owner of the note and the plaintiff is not the same.

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William A. Roper, Jr.
Ann:

In most jurisdictions, promissory notes are not recorded.  Neither are they typically notarized.  The promissory note is considered to be a negotiable instrument under the UCC and notarization is not required to give effect to this instrument.

By contrast, the mortgage, deed of trust or other mortgage security instrument is a contract relating to interests in real estate.  Under the statute of frauds in most states, contracts for the sale of interests in real estate must be in writing.  Under the recording acts in most states, recording is necessary to perfect one's interest in the conveyance shown in the written instrument.  And notarization is a prerequisite for recording in most of these jurisdictions.

So the mortgage, deed of trust or other mortgage security instrument would almost always be notarized and recorded.  The promissory note is almost never recorded.  I believe that New York is an exception in requiring the recording of promissory notes.  I am unaware of other exceptions, though there may very well be several.

*

Margaret:

Although there are many who believe that many promissory notes might have been actually lost or destroyed, I am not a subscriber of this view.  I believe that the promissory notes are almost universally held in the vaults of the institutional custodian acting on behalf of the mortgage trust which owns the mortgage indebtedness.

I believe that in virtually every case that foreclosure mills execute a "lost note affidavit" that the lost note affidavit is perjured as a matter of convenience.  Rather than awaiting receipt of the original promissory note from the institutional custodian (which might slightly delay the institution of suit), the servicers and their contract forgers and perjurers prefer to simply create false evidence in support of their foreclosure complaint and proceed immediately.

This is a matter that if explored thoroughly and effectively through discovery could show a pattern of misconduct that could give rise to a strong equitable defense.

By contrast, while interesting, pursuing the theory that the promissory note itself is forged is, in my view, unlikely to be productive.  This is not to say that you shouldn't demand to see the promissory note and to verify its authenticity.  You should do this and verify the evidence.  But attacking the actual real misconduct -- the false lost note affidavit -- is more likely to be fruitful.

Get some discovery going and ask some tough questions about the efforts to locate the promissory note in advance of the filing of the lost note affidavit. Also ask questions about the law firm's history of filing "lost note affidavits" in other cases.  I think that with a little thoughtful effort and perseverence you could show a real pattern of deceit by the plaintiffs and their sleezy foreclosure mill attorneys!

Also, when inspecting the promissory note, pay particular attention to the indorsementIf there is a problem with the actual promissory note it is more likely to relate to the authenticity of the indorsement.  It is very common for plaintiffs to initiate foreclosure using an unendorsed copy of the promissory note!  There may be a real indorsement on the original instrument, but if the plaintiff comes to court pleading an unendorsed copy, you need to get them to certify it as a true copy and then obtain a dismissal based upon the plaintiff's lack of standing.  Negotiation of a promissory note requires indorsement and delivery.  An unendorsed promissory note cannot be enforced by any entity other than the named Lender (payee).
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Listen to Mr. Roper. I am living proof of what he is saying.

cmc
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Welcome back Mr. Roper.  It is so good to read your insightful comments. 

Although I agree with your comments regarding promissory notes, there is one item for which I take exception.  Until recently, there was only spculation regarding why "lost note" affidavits were filed.  As you stated, the common theory was that the foreclosure mills did not want to wait to receive the original from the vault.  Another common theory, espoused by those called "conspiracy theorists" was that the notes were destroyed.

Well, in Spetember 2009 in response to the Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases' request, the Florida Bankers' Association actually confirmed that the notes were, in deed, destroyed.  Their comments are as follows:

"It is a reality of commerce that virtually all paper documents related to a note and mortgage are converted to electronic files almost immediately after the loan is closed. Individual loans, as electronic data, are compiled into portfolios which are transferred to the secondary market, frequently as mortgage-backed securities. 

The reason "many firms file lost note counts as a standard alternative pleading in the complaint" is because the physical document was deliberately eliminated to avoid confusion immediately upon its conversion to an electronic file. Electronic storage is almost universally acknowledged as safer, more efficient and less expensive than maintaining the originals in hard copy, which bears the concomitant costs of physical indexing, archiving and maintaining security. It is a standard in the industry and becoming the benchmark of modern efficiency across the spectrum of commerce—including the court system." [Emphasis Added]

As you can see, the FBA put to rest the question of whether the originals are kept safely in a vault or whether they were destroyed.

 

As you very well know, under the UCC, the intentional destruction of the note cancels the debt. 

 

The FBA put its foot in its mouth and now wants to convert the State of Florida from a judicial foreclosure state to a nonjudicial foreclosure state in order to bypass judicial oversight.  So far, no one has addressed the issue that this, in effect, is an admission by the FBA that the foreclosing entities do not and cannot have standing to pursue a foreclosure. 

 

Even still, the foreclosing entities are showing up months after the fact with what they puport to be the "original" note.  It is very easy, in today's technological age, to print out a scanned copy and claim it is the original.

 

If you would like, I can email a copy of the FBA's comments to you for your review. 

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A.R.
We went to the county clerk's office yesterday to get a copy of the assignment of mortgage.  It was not filed in a book like the mortgage was.  It was a scanned image and we were able to get a copy.  My question is this....  The lender's attorney signed the assignment and underneath his signature it says Assistant Secretary and Vice President . 

below it says...

this person signed, sealed and delivered the attached document as Assistant Secretary and Vice President of Mortgage Electronic Registration Services, inc. As nominee for National Bank of Kansas City. 

Is the lender's attorney acting as an employee of MERS ?

It also says..

this document was signed and made by the corporation as its voluntary act and deed by virtue of authority from it's Board of Directors.

The copy says it is notarized but I do not see a seal.  It's stamped Lilian Diaz Notary Public of New Jersey.  Now I know it's a copy but wouldn't we see a faint hint of the raised seal of the notary ?

How can they (lender's attorney) sign the assignment of mortgage ?  Isn't this a conflict of interest at best !!
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A.R.
Mr. Roper,

Could you speak a little bit about the note and mortgage having to remain together ?  From what I've been reading if the mortgage is separated from the note then it becomes null.  I'm referencing Carpenter vs. Longan.

I'm not understanding it fully and if you could put it in simpler terms.

Thank You
A.
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The Equitable One
Alina,

We've spoken of this before. In brief, it is my understanding that the Uniform Electronic Transfer Act (UETA) excludes with specificity promissory notes from being transferred electronically. Other negotiable instruments, however, are included and can be transferred electronically.

The section of the UCC that you referred to is UCC 3-604, which states, in relevant part:

(1) A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument:
(a) By an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party's signature, or the addition of words to the instrument indicating discharge

I am not aware of any case that has pressed this argument, though there may be, or have been, some. If you know of any please, please inform me. I find it to be quite intriguing.

AR,

I'm far from an expert in the question you raise. Probably not even a good scholar or student of such, but allow me a ham fisted attempt.

A promissory note is a financial instrument, or debt instrument (negotiable instrument as defined in UCC 3-104). It evidences a promise to pay a fixed amount of money, with or without interest or other charges.

A mortgage, or deed of trust, is a security  instrument that offers security, or collateral, for the financial instrument.

Fail to live up to the promise and the holder of the p-note and owner of the mortgage can take possession of the collateral. These two work in tandem and makes the assumption the owner and holder are the same party.

But...

Only the party with rights to enforce the p-note can experience a default. Only the party that owns the mortgage can take possession of the collateral.

A party that holds only a p-note, while experiencing a default, has no rights to possession of the collateral.

A party that owns only a mortgage cannot experience a default and acceleration covenants in the mortgage are not triggered.


I welcome the more knowledgeable here commenting and ripping my simplistic explanation asunder. To quote the bank robber in the Clint Eastwood 70's classic Dirty Harry, "I gots to know."

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Thank you for that explanation.  Could that problem be remedied by simply adding MERS to the notes ?  I'm surprised they didn't think of that way before this mess started.  

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Equitable One,

Actually, UETA does not exclude promissory notes from being transferred electronically. Section 16 defines a transferable record as a note under Article 3 of the UCC or a document under Article 7 of the UCC if the electronic record were in writing and the maker expressly has agreed if a transferable record.  there are provisions for "control" of the authoritative copy.  Additionally, 16(d) provides that all UCC provisions apply.

However, the definition of transferable record is limited in 2 ways: 1) only the equivalent of paper promissory notes and paper documents of title can be created as transferable records, and 2) the issuer of the electronic record must expressly agree that it is a transferable record.  This means that conversion of a paper note is not possible since the issuer (homeowner in this example) would not be the issuer (seller to secondary market) of the electronic record. 

You are absolutely right that there is no case law with regard to these issues.  The reason is probably because no one ever imagined that paper promissory notes would be converted to electronic format and deliberately destroyed as the Florida Banker's Association has stated.  However, as we speak, there are pending in a couple of Florida appellate courts cases based on this. 

I would be more than happy to send a copy of the Florida Banker's Association comments to you. 

There is case law regarding the intention destructin of the note.  following is from AmJu:

§ 913  By loss or destruction of instrument  [11 Am Jur 2d BILLS AND NOTES]

 

If the holder of an instrument intentionally destroys it he thereby forgives and discharges the debt and he may not maintain an action based upon the instrument.  The instrument is discharged by cancellation and it is immaterial that there is no consideration and a gift is involved and that there is no written renunciation of rights or delivery of the instrument. District of Columbia v Cornell,  130 US 655,  32 L ed 1041,  9 S Ct 694; State Street Trust Co. v Muskogee Electric Traction Co. (CA10 Okla) 204 F2d 920; Darland v Taylor, 52 Iowa 503, 3 NW 510; Norton v Smith, 130 Me 58, 153 A 886; McDonald v Loomis, 233 Mich 174, 206 NW 348; Wilkins v Skoglund, 127 Neb 589, 256 NW 31; Vanauken v Hornbeck, 14 NJL 178; Henson v Henson, 151 Tenn 137, 268 SW 378,  37 ALR 1131.  It has been said that there can be no higher evidence than this of an intention to discharge and cancel the debt created or represented by the instrument destroyed.  State Street Trust Co. v Muskogee Electric Traction Co. (CA10 Okla) 204 F2d 920; Larkin v Hardenbrook, 90 NY 333. 

 

The purpose or intent of the holder beyond the intent to destroy his evidence of indebtedness is immaterial.  State Street Trust Co. v Muskogee Electric Traction Co. (CA10 Okla) 204 F2d 920 (applying Oklahoma law). 

 

Thus, the intentional destruction of negotiable instruments by the holder, believing them to be valueless, works a cancellation and discharge of the debt evidenced thereby.  State Street Trust Co. v Muskogee Electric Traction Co., supra. 

 

The destruction of a promissory note by a third person by command of the payee or holder is equivalent to its destruction by his own act.  Henson v Henson, 151 Tenn 137, 268 SW 378,  37 ALR 1131. 

 

But a mere intent to destroy the instrument or unfulfilled instructions to another to do so are ineffectual to discharge the obligation.  Re Campbell, 7 Pa 100. 

 

A statute providing that a lost instrument may be supplied by an affidavit stating that such instrument has been unintentionally lost or mislaid and is still the property of the person claiming it, unpaid and unsatisfied, has no application to an instrument which has been intentionally destroyed.  Henson v Henson, 151 Tenn 137, 268 SW 378,  37 ALR 1131.


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Margaret
Thanks for all the replies!

I guess it is safe to assume there are different theories regarding why they fail to produce the note from the start. I just think if you are going to foreclose on someone's home & file suit, they should have all information at the beginning of the case. To say no we don't have it....wait now we do....seems wrong to me. If they have so much time to file these suits why do they not have the time to bring all paperwork to the table from the start.

A.R. I am a little confused with your input...are you asking about the lost note...or the assignment of mortgage. They are two seperate things I believe. The note is what I was referring too....

My mortgage is on file at the clerk of courts, signature and all & they state they do not have my note either....they also stated they are only the servicer, so they could not modify my loan.
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The Equitable One
Alina,

Outstanding.

I am appreciative, and humbled.

I've seen the Florida Bankers Association Comments. A bit of hoisting on their own pitard(sp) it seems.



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William A. Roper, Jr.
Alina:

While I find the articulated position of the FBA to be interesting, I do not believe it to be either authoritative nor even correct.  So when you say "As you can see, the FBA put to rest the question of whether the originals are kept safely in a vault or whether they were destroyed", I do not find this determinative at all!

I would be interested in receiving an e-mailed copy of the FBA comments, but whatever they say, I do not believe that these should supercede what we separately know from warehousing line of credit agreements, from mortgage trust indentures, from pooling and sale agreements and from SEC registration statements.

Nor are these FBA assertions consistent with my own prior experience as a mortgage banker.

I suspect that there is an explanation which harmonizes the FBA comments with reality.

The original promissory note is going to be endorsed and delivered to the custodial institution working on behalf of the warehousing lender within 72 hours of the closing, plain and simple.  No exceptions.  That is what happens to the original.  But the originator will also make a copy of the promissory note after execution by the borrower.  The copy goes in the loan file.  The loan file is typically retained by the originator and may be subsequently transferred to the servicer upon sale of the mortgage servicing.

The loan file is subject to subsequent inspection by the mortgage investor as part of a post sale audit.  It also may be a source of evidence in a dispute about a required repurchase due to breaches of the seller representations and warranties. 

There is no compelling reason that the originals or copies within this laon file need to be maintained in paper.  And I would find it unsurprising if originators and/or servicers scanned images of these documents and then destroyed the paper originals and copies within that loan file.

This would not include the promissory note, mortgage, deed of trust, or other mortgage security instrument, which are required to be delivered to the mortgage investor upon sale of the loan.  Consult the provisions of any PSA and you will find that these contractual provisions require delivery of the originals of these instruments as part of the securitization trust closing.

By contrast, other critical originals, such as the borrowers executed mortgage applicatioin, the credit report, the appraisal, the verifications of employment and deposit, the engineer's survey opinion/plot plan, the Lender's Good Faith Estimate, the loan closing documents to include the Truth-In-Lending statement, the HUD-1 Settlement statement, copies of checks furnished or exchanged at closing, and COPIES of the promissory note and mortgage, deed of trust or other mortgage security instrument would be in the loan file.

So I would expect that the often unendorsed copy of the promissory note made at closing would be amongst documents scanned, archived and destroyed.  The original instrument would NOT be destroyed in this way.

As I mentioned, the loan would go to the custodial institution of the warehosuing lender after closing.  The loan would then be typically sold to a mortgage investor, either to a GSE -- FNMA or FHLMC -- or to a mortgage trust through securitization, usually about 30 to 90 days after closing.  Upon sale, the custodial institution would deliver the promissory note to the institutional custodian designated by the GSE or mortgage investor.

When the servicer's sleezy foreclosure mill law firm is pleading an unendorsed promissory note, it is probably a reproduction from the copy in the loan file or from the servicer's document imaging system.

The original promissory note typically remains in the vaults of the institutional custodian except in the few jurisdictions where the courts are requiring production of the original or where an astute pro se or well represented defendant demands the production of the original.

The foreclosure mills have been getting away with foreclosures based upon (unchallenged) evidence -- (a) no promissory note, (b) an unendorsed promissory note, (c) a lost note affidavit -- for years.

I can show you literally hundreds of PSAs that reflect the facts outlined above.  I can show you warehousing agreements, too.  The person preparing the comments on behalf of the FBA for the Florida courts was at best poorly informed and may have been purposefully furnishing information which was untrue.
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DyingTruth
Alright Everyone Has to know the TRUTH. Many will very soon come to this conclusion on their own terms as the facts slowly reveal themselves, some(few) will try to deny these facts and "warn" against arguing of such claims in pleadings(only to try & cover their @$$).
 
 
Promissory Notes are Cash Equivalent Value of whatever their Face Amount is, Just Like Dollar Bills & Nobody is going to Destroy money for no reason(they are Deposited in a Bank FDIC insured). How else would CDs accrue Interest? Interest Bearing Notes(Promissory Notes). Think about it, if you sign a Deed of Trust/Mortgage putting up your House as Collateral Security for a loan, then what the Hell do they need a Promissory Note for? What do you think is used as the minimum bid by the Beneficiary, Servicer or whoever at the Auction? All Bidders have to be able to post Bond(Binding Agreement/Contract), the Beneficiary uses Your Promissory Note as the opening bid.  
 
                             I'm just finding this out Myself!
                                                               DyingTruth
  
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Mr. Roper,

As I have lost your email address, here is a link to the Florida Banker's Association's comments to the Florida Supreme Court Task Force on Mortgage Foreclosures: http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-1460/Filed_09-30-2009_Comment_Bankers_Association.pdf

I have missed your intellectual discourses and welcome your opinions.
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I have a really important question I hope somebody can help me out with.  Here's the backround, I hope you can follow.  I filed a chap. 13, in 2005 to get out of a foreclosure, mers filed the foreclosure papers and litton was the servicer.  I just finished paying off the chap.13 plan and will be getting a discharge soon.  I fell behind in post-partition payments with my 1st mortgage in 2008 and they filed for relief of stay and they then modified my mortgage and note in the name of BNY mellon.  I am now back in foreclosure with the 1st mortgage BNY mellon as trustee for a trust 2002-BC3 is the plaintiff.  Through this long process, i found out some info. that I'm hoping somebody might be able to help me with. 
Since my loan is in a trust with a cutoff date in 8/2002, and right before they filed the summons and complaint on 12/10/2009, they claimed that they(BNY) were assigned the mortgage on 12/7/2009.
My main question is if they possessed the note in 2002, but were assigned the mortgage in 2009, They split the Mortgage from the note, so was the claim for a secured mortgage in 2005 for the bankruptcy really unsecured? and can I go back to  BK court and claim that it (1st mort) should be discharged along with all the other unsecured debts.
Thanks for any and all info.
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William A. Roper, Jr.
An Afterthought About Institutional Custodians

As an afterthought to my remarks above, I wanted to additionally point out that the rights and obligations of various parties to the securitization are set forth in the trust indentures and the pooling and sale agreements (PSA) which establish each trust.  Amongst these parties are the institutional trustee, the servicer and the institutional custodian.

When you carefully read the trust indentures and PSAs (and when you understand what it means to be in the institutoinal custody business) you must reach the inescapable conclusion that the central and only thing that the institutional custodian actually does is receive the identified instruments on behalf of the institutional trustee and safeguard these during the continued existence of the mortgage indebtedness.  The institutional custodian is compensated for this institutional custodial responsibility and acts in a fiduciary relationship to the trust to protect these instruments.

If the institutional custodians actually lost or destroyed the promissory notes prior to the payment in full of the mortgage indebtedness, the institutional custodian would be liable to the trust for such loss.  The promissory notes are never actually lost in a securitization setting and in virtually every case a lost note affidavit represents a false statement under oath to the court.

There might be cases, as with mortgage loans portfolioed (owned by a depository institution), where the financial institution failed (and employees were discharged resulting in some confusion) where the promissory notes could have been misplaced.  This would be highly unusual and the exception rather than the rule. 

And I am not describing lost instruments where a mortgage servicer fails.  Most of the mortgages serviced by institutional servicers are owned by institutional mortgage investors, usually trusts, and the trust indenture requires that the promissory notes be held by a custodial institution.  When the promissory note is held within the vaults of the institutional custodian it is never going to be lost or misplaced.  The custodial relationship and responsibility is intended to guard against just such a possibility!   
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As usual Mr. Bill Roper your spot on! However, they really are catching on to what I've been saying for a while. Their playing PRETENDER LENDER! Neil Garfield does an excellent job of explaining this as does alphabet soup by Max Gardner on the creditslips.org site. 

Tomorrow, I hope for another phone call back from the SEC...To me they can say what they want...I know their lying and if they check my proof heads should roll...slowly their getting its THEFT OF HOMES!

I'm not sure if you read any of my recent postings (Mr. Roper) but back in Dec I figured out that the collection agency NARS that continually ENCOURAGED ME TO BREAK THE LAW IN AN ATTEMPT TO COLLECT AN HONEST DOLLAR the Sec of State of MO has the Board of Directors down as TWO OF THE TOP MORTGAGE FORECLOSURE TRUSTEES NATIONALLY.

The group that side with them are "Corrupt" people. I ended up after having a TRO Denied within like 9 days, my MTV took two months to Summarily Deny anything I put into the Mtv, then two months later I received a Letter of Disqualifcation and a Recusal. Then she passed on to another judge who Recused as well...Then well it went thru 3-4 more before it ended up with another corrupt judge.

Mind you prior to this I've spent 15 years inside as one most hate. But I did try to be HONEST AND FAIR AND EXPECT AND DESERVE THE SAME. If you end up making yourself aware of how things are supposed to be done you realize their stealing homes...I thought maybe I was crazy at 1st....for thinking this...

But its the only thing that makes sense to me...I'm 42 and had a way and still possibly do to have everything I owe or own paid for...And shoulda and could have a whole lot  more in an account somewhere but THANKS TO THEM DONT...But even though some make this business a shambles there are some people who beleive there can be honest banking...

Do some research on my former bosses their over 24 of the top law firms nationally. They do have people within the court houses to remove COMPLETE ADVERSARIES AND PAGES OUT OF COUNTER CLAIMS...But with whose in my complaint I can understand why now... I just don't enjoy being made out to be a "Frivolous Litigant". Boy if they had listened to ALL OF US WE COULD OF MADE A WONDERFUL LIFE INSTEAD OF A FRIGHTFUL LIFE....

I NEVER did Appeal after the Recusals. But from what I've found their not good news! All I tried to do is tell the "TRUTH" ABOUT what I know...Now I'm a FRIVOLOUS LITIGANT...MY GOD!!!! If I tell you for 2.5 years you have the right to sell mortgage notes for one of the LARGEST BANKS IN THE WORLD then find out they LIED what would you do?

The link from the sec of state of MO opened my eyes to more recent things with their lawfirms getting nailed for putting in false evidence like in my own case...My own atty has done nothing but attempt to Sell me DOWN THE RIVER...Like I couldn't know what I know and who I know....

To the other subscriber that posted about the bk...Your in a tough area. These attorneys and judges are tough as nails to get info out of. Much less an honest shot at getting justice.
 
Your in a very tough place. Even knowing what I know I couldn't get "HONEST HELP". There are alot of WANNABE people in this COUNTRY. Having never been exposed to such poor business ethics prior to all this I'm quite boggled...
 
The best advice I have though is this...You don't say what's brought on the most recent financial hardship. I'm glad you've been able to make it thru the repayment of the chp 13. However, now your in a tough situation since you did fall behind previously, u said they received a "LIFT OF STAY" then modified it...And u currently have a "Notice of Sale" what do you feel your options are?
 
If you were to file another chp 13 to keep your home do you have an income to maintain the being behind part and payments again? Is your bk atty worth a darn? Have you discussed this with him? Most attorney's don't understand or want to understand this crap enough to give "HONEST HELP". They will protect the bankers to NO END! As far as the SPLIT NOTE THEORY check out Livinglies.wordpress.com...Neil Garfield has a few recent topics on this...
 
But please consider what your options are? Do you have a way to get caught up without bk? Because attorneys are not cheap. It's like I told them in my complaint not everyone is an ATTORNEY. At this rate EVERYONE SHOULD BE! You can LEGALLY STEAL!  THEN GET BY WITH IT...THEY ALL HAVE THEIR IMMUNITY! To Me UNFORTUANTELY FOR ME I'M NOT CRAZY! THE RECORDS ALREADY MADE PROVE MY POINTS PERCISELY! Their all in on it!

 

1st American Title
 
Fidelity National Informations Serices
 
Logs.com( Gerald Shapiro and David Kriesman)(Subsidary of 1st American Title)
 
NARS
 
Chase Manhattan Mortgage Corporation
now known as Chase Home Finance
 
Argent/Ameriquest
 
Homeq
 
Wells Fargo
 
Citi or any of their ENTITIES UNDER THEIR UMBRELLA
 
Wells Fargo Trustee
 
Land America
 
and I'm sure I forgot some!
 
Good 2 have u back MR ROPER!!! U GAVE ME A CHUCKLE THINKING OF MR. ROPER FROM 3'S COMPANY! He was a FUNNY GUY! Glad to have your KNOWLEDGE BACK!

BEST OF LUCK 2 EVERYONE!
 
TOPGUN




 


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DyingTruth

angelo I don't know bk too well, but I do know how scandalous Litton is(any lawyers too), so whatever you do, DO NOT LET them talk you into signing anything not even a service of process, just refuse it  and tell them "look, I don't know who you are & I don't talk to strangers". Trust me no good can come from these creatures nor from their troll masters in the courts.    

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Mr. Roper

If I understand you correctly, there is a Trustee and Co-Trustee? and the Co-Trustee is the custodial trustee, who holds all of the notes for safe keeping?
In my case;

CWABS Inc. is the depositor
Countrywide Home loans is the seller
Countrywide Hole Loan Servicing is the servicer
Bank of New York is the Trustee
BNY Western Trust Co. is the co-trustee

So is it safe to assume that the custodial is BNY western trust Co?




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Moose
angelo wrote:
I have a really important question I hope somebody can help me out with.  Here's the backround, I hope you can follow.  I filed a chap. 13, in 2005 to get out of a foreclosure, mers filed the foreclosure papers and litton was the servicer.  I just finished paying off the chap.13 plan and will be getting a discharge soon.  I fell behind in post-partition payments with my 1st mortgage in 2008 and they filed for relief of stay and they then modified my mortgage and note in the name of BNY mellon.  I am now back in foreclosure with the 1st mortgage BNY mellon as trustee for a trust 2002-BC3 is the plaintiff.  Through this long process, i found out some info. that I'm hoping somebody might be able to help me with. 
Since my loan is in a trust with a cutoff date in 8/2002, and right before they filed the summons and complaint on 12/10/2009, they claimed that they(BNY) were assigned the mortgage on 12/7/2009.
My main question is if they possessed the note in 2002, but were assigned the mortgage in 2009, They split the Mortgage from the note, so was the claim for a secured mortgage in 2005 for the bankruptcy really unsecured? and can I go back to  BK court and claim that it (1st mort) should be discharged along with all the other unsecured debts.
Thanks for any and all info.


You should talk to your bankruptcy attorney before you do anything.

Moose

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William A. Roper, Jr.

Angelo:

The mortgage trust you describe seems to be that shown within Securities and Exchange Commission records as "CWABS INC ASSET BACK CERT SERIES 2002-BC3" with Central Index Key "0001184259".  The SEC filings for this mortgage trust are generally available from this link:

http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=1184259

If you take a look at the Prospectus Supplement for this trust filed on August 29, 2002, you will find a discussion of the role played by the institutional custodian.  See:

http://www.sec.gov/Archives/edgar/data/1021913/000112528202002628/b319414_424b5.txt

This text appears on pages 48 and 49 of the Prospectus Supplement:

"The trustee (or the custodian) will

review such loan documents within the time period specified in the related prospectus supplement after receipt thereof, and the trustee will hold such documents in trust for the benefit of the related securityholders. Generally, if the document is found to be missing or defective in any material respect, the trustee (or the custodian) will notify the master servicer and the depositor, and the master servicer will notify the related seller. If the seller cannot cure the omission or defect within the time period specified in the related prospectus supplement after receipt of such notice, the seller will be obligated to either purchase the related loan from the trust fund at the Purchase Price or if so specified in the related prospectus supplement, remove such loan from the trust fund and substitute in its place one or more other loans that meets certain requirements set forth therein. There can be no assurance that a seller will fulfill this purchase or substitution obligation. Although the master servicer may be obligated to enforce such obligation to the extent described above under "Loan Program --Representations by Sellers; Repurchases," neither the master servicer nor the depositor will be obligated to purchase or replace such loan if the seller defaults on its obligation, unless such breach also constitutes a breach of the representations or warranties of the master servicer or the depositor, as the case may be. The applicable prospectus supplement may provide other remedies, but if it does not, this obligation to cure, purchase or substitute constitutes the sole remedy available to the securityholders or the trustee for omission of, or a material defect in, a constituent document.

The trustee will be authorized to appoint a custodian pursuant to a
custodial agreement to maintain possession of and, if applicable, to review the documents relating to the loans as agent of the trustee."

In most Residential Mortgage Backed Securities (RMBS) prospectuses, the custodian is actually identified by name.  The Countrywide trusts seem to be an exception.  The institutional custodian is unnamed.

*

The prospectus contains this additional language at page 48*:

"In addition, the depositor will also deliver or cause to be delivered to the trustee (or to the custodian) for each single family loan, multifamily loan or home equity loan,

o the mortgage note or contract endorsed without recourse in blank or to the order of the trustee,

o the mortgage, deed of trust or similar instrument (a "Mortgage") with evidence of recording indicated thereon (except for any Mortgage not returned from the public recording office, in which case the depositor will deliver or cause to be delivered a copy of such Mortgage together with a certificate that the original of such Mortgage was delivered to such recording office),

o an assignment of the Mortgage to the trustee, which assignment will be in recordable form in the case of a Mortgage assignment, and

o any other security documents, including those relating to any senior interests in the Property, as may be specified in the related prospectus supplement or the related Agreement.

The applicable prospectus supplement may provide other arrangements for assuring the priority of assignments, but if it does not, the depositor will promptly cause the assignments of the related loans to be recorded in the appropriate public office for real property records, except in states in which, in the opinion of counsel acceptable to the trustee, such recording is not required to protect the trustee's interest in such loans against the claim of any subsequent transferee or any successor to or creditor of the depositor or the originator of such loans."

 

* Note that this SEC file contains both the Prospectus and the Prospectus Supplement, so there are two page 48s.  The Prospectus Supplement comes first.

 

As you can see, the prospectus tells us rather precisely what is supposed to happen to the instruments.

 

In most SEC filings, you will find the custodian expressly identified and the custodial duties expressly assigned to the institutional custodian rather than the trustee.

 

Sometimes the same institution serves in more than one capacity. 

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Thanks for the answer Mr. Roper, are you a lawyer in the tri-state area(NY)?  Also, if my loan is in this trust, it had to be purchased sometime in 2002, right?  Is it at all possible to place a defaulted loan into this trust in 2009, since thats when they assigned the mortgage, but not the note.

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Also, if the trust stopped filing 8-k's or 10-k's does that mean the trust no longer exsists or was purchased by another, etc.?

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William A. Roper Jr.

Angelo:

First, I want to clarify that I am NOT an attorney in the tri-state area or otherwise.  Rather, I am a reasonably well informed pro se litigant with prior experience working in a senior position in the mortgage banking industry some time ago.  Accordingly, please understand that I am not qualified to give you legal advice and you should seek qualified counsel from persons with formal legal training licensed to practice law in your jurisdiction.

My posts are not legal advice, but rather simply a discussion of legal points relating to mortgage servicing and foreclosure between persons of varying experience and expertise.  Some of the information I post may reflect my own untrained views or understanding of the law, but the information also relates to the mechanics of how the industry actually works.  You should take care to assess my viewpoints and verify their validity and applicability to the laws of your jurisdiction and the facts of your case by your own due diligence and, preferebly, through consultations with an experienced attorney practicing in the consumer debt/bankruptcy area.

*

As to your question as to how a loan might find its way into your trust, there are several considerations to bear in mind.  Start with the trust indenture and pooling and servicing agreement itself, as well as the representations of the SEC registration statements.  In most instances, these set forth both the timeline and circumstances under which a loan is going to be placed in the trust.

You should also read these in conjunction with the U.S. tax code, which limits tax treatment and excludes the trust from tax liability as long as the trust meets certainly eligibility rules.

Generally, substantially all of the whole loan mortgage collateral for a trust will find its way into the trust in one (or at most several) transaction(s) near the inception of the trust and identified as taking place upon the trust closing date(s).  The trust is therefore relatively static as to collateral except for several special situations. 

First, as mortgage loans are prematurely paid in full -- prepaid -- prior to the scheduled maturity of each loan, usually as a consequence of the sale of the subject property or the refinancing of a mortgage loan within the trust, these loans would be removed from the mortgage collateral and the prepaid funds distributed to the certificate holders as set forth within the trust indenture.  Loans are coming out of the trust after closing, but mostly not going back in except as discussed below.

Second, if and when a loan is identified as having not been actually eligible for inclusion within the mortgage trust, that is, the mortgage didn't actually meet the conditions set forth in the pooling and sale agreement, such a loan is often subject to required substitution or repurchase by the originator, sponsor and/or depositor.

Such substitutions and required repurchases would tend to arise in one of two ways.  First, at or near the inception of the trust, as the various parties are performing their due diligence in conformance with the pooling and sale agreement, it might be found that an otherwise performing loan was actually ineligible for inclusion.  For example, suppose that the loan was represented to be on an owner occupied primary residence property, when in fact the loan was for a second home or investor property (vacation homes and investor loans are usually higher risk), or the loan type was different than represented (e.g. the loan was an interest only loan, but was represented to be a fully amortizing mortgage).  Or the loan might have already been in default at closing.  This might be discovered upon inspection of the loan documents or accounting records proximate to the loan closing.

Alternatively, if a loan ceases to be performing -- the borrower ceases making payments -- falling into default then this loan would tend to get even greater scrutiny, particularly if many similar loans unexpectedly began to sour at the same time.  The mortgage servicer might look at the loan collateral more closely to ascertain whether there were some undisclosed defects in these loans might have made them ineligible for inclusion in the original loan pool in the first place.

In the former instance, the required repurchase or substituions would tend to be a very few outliers and would tend to be clustered near the clsoing of the original trust.

In the latter instance, the required repurchase or substitution would be associated with the delinquency, default or foreclosure of the properties, probably later in the loan's life, usually peaking in years three to five after mortgage origination. 

These latter instances merit some additional elaboration.  In terms of the alignment of the interests of the servicer in identifying inelgibility of a loan for inclusion, you should bear in mind that in many instances the servicer is (or was) the very same entity as the originator.  Though the servicer is the agent of the trust, acting on the trustee's behalf, if the servicer identifies an ineligible loan that the originator is required to repurchase, the servicer is often, in effect, instructing itself to repurchase the loan from the trust protecting the trust and its certificate holders from losses, but shifting those losses to the corporate parent of the servicer.  As you might well imagine, this would be rare, except under such exceptional circumstances that the servicer's failure to require repurchase might be so eggregious as to imperil its relationship with the trustee and to expose the servicer to even greater liability.

Accordingly, the servicer would tend to identify loans for required repurchase most often in instances where actions by a third party make such an identification an impossibility to ignore.  The most common of such situations would be where the original mortgage was subject to primary mortgage insurance either paid by the borrower from loan closing or paid by the mortgage investor as part of a bulk mortgage insurance purchase a credit enhancement from the outset of the trust and where the mortgage insurer subsequently rescinds the mortgage insurance policy due to fraud or some other ineligibility for insurance.  Since insurance may very often have been a condition of loan eligibility, the rescission of the mortgage insurance coverage makes the loan instantly ineligible for inclusion in the pool, triggering reuquired repurchase.

So insurance rescissions, which are now happening in record numbers, very often trigger the required repurchase of the mortgage.  Such rescissions tend to occur only after an MI claim is filed and this usually happens only after a foreclosure is completed.  So the required repurchase acts to shift the loss from the foreclosure back to the mortgage originator.

It should also be noted that very few originators tend to portfolio loans which are eligible for sale or exchange for Residential Mortgage Backed Securities (RMBS), so the likelihood that the originator would have a similar eligible mortgage (a mortgage with similar financial and risk characteristics) well after the original closing of the trust would be very small.  The originator simply will not have a loan to substitute, so repuschase is the only available remedy.

The substitutions would take place near the inception of the trust when original collateral was found to be defective.  Once the trust had been seasoned, even for a few quarters, substitutions would be rare and required repurchase for cash would be the specified remedy.

It is singularly important to note also that a substitution of a loan which met the trust requirements for a loan which did not would also universally involve the substitution of a performing loan.  A non-performing loan -- a loan already in default -- would almost never be accepted as a substitute unless the trust itself was designed to contain and consisted from the outset of non-performing loan collateral.

Here is the bottom line.  Substantially all of the mortgage collateral finds its way into the trust at the inception of the trust at or proximate to the trust closing.  There may be a few substitutions of performing loans substantially similar to loans found to be ineligible very near the closing.  Thereafter, almost no new loans find their way into mortgage trusts and belated discovery of loan ineligibility is mostly related to serious delinquency or default (and most often arises when the mortgage investor rescinds the MI policy) with the defect resolved through required repurchase rather than substitution.

IT IS EXTREMELY UNLIKELY THAT ANY MORTGAGE TRUST IS NEWLY PURCHASING NON-PERFORMING LOANS AT ANY POINT AFTER THE TRUST CLOSING AND WOULDN'T BE WILLINGLY PURCHASING NON-PERFORMING LOANS AT TRUST CLOSING.

You may be assured that the belated assignment proximate to foreclosure is a forgery.

*

In answer to your other question, the trust most often ceases to file 8-Ks or 10-Ks when the ownership of the trust certificates is reconsolidated into such a small number of entities that continued reporting is no longer required.

This might happen, for example, when a CDO trust purchases all of a trust's trust certificates.  For example, GS is much in the news recently relating to CDOs it set up on behalf of John Paulson for which GS is now accused of fraud.  Suppose that your trust was amongst one of the trusts for which a shrewd investor such as Paulson identified as having excessive risk well beyond that shown by the credit ratings of the certificates.

If a CDO bought up ALL of the trust certificates from a particular issuer, then the trustee's need to report to the SEC would be minimal.  The trustee could simply report to the trustee of the CDO purchasing the certificates.

Bear in mind that while this reduces trust transparency, the duty to report to the SEC is for the protection of the investors -- the certificate purchasers -- not for the mortgage debtors obligated under the collateral finding its way into these trusts.  While it is convenient to have access to the SEC filings and these may constitute some pretty good proof of servicer fraud, these filings do not exist for the protection of the mortgage debtors.
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Mr. Roper,
I am eternally grateful to you for your insight and patience with this great forum.  I must say you should go to law school, because you have more knowledge and information than 95% of the foreclosure lawyers out there.  Thanks again!!

I know you said that you feel my assignment is a forgery, is it at all possible to take possession of the note, but not the security of the mortgage/deed of trust?  My loan was a MERS loan, so would assignment not be necessary because the trustee is a member of MERS.

Did they split the mortgage from the note or does the mortgage follow the note without assignment?

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William A. Roper, Jr.
Angelo:

MERS assignments are a special case.  And I would need to withdraw my assertion that this was a forgery given your elaboration that MERS is involved.

Most non-MERS assignments made in contemplation of foreclosure litigation are forgeries.

There are typically some other problems with MERS assignments, but these are very often not actually forgeries as that term might be most commonly understood.

The most common defect in most of the MERS assignments that I have seen is that these have been specifically crafted to be used as false evidence in foreclosure cases and the MERS assignments very often purport to convey not only the mortgage, deed of trust and/or other mortgage security instrument, but the promissory note and mortgage indebtedness, as well.

The trouble with this, is that MERS never is the owner of the mortgage indebtedness and never has any economic interest whatsoever in the promissory note.  Moreover, promissory notes are not "assigned", they are negotiated.  Negotiation is by indorsement and delivery.

Because the indorsement of a promissory note is typically undated and the servicer usually doesn't have ready access to a delivery receipt showing precisely when the promissory note was negotiated, the foreclosure mills have altered the wording of what might otherwise be a valid assignment (or they have used what might be correct boilerplate which might reflect an assignment which coincides with the negotiation and sale of a promissory note) and are using the assignment they create as false evidence to purportedly prove the ownership of the promissory note.

It is essential to understand precisely MERS role in the transaction.  This is rather particularly explained in MERS' appellate brief in the Nebraska case decided by the Nebraska Supreme Court.

Within the mortgage, deed of trust or other mortgage security instrument, MERS is identified as the "nominee" and "mortgagee", while the actual mortgage originator is shown as the payee of the promissory note and is identified as the Lender in both the promissory note and mortgage.  MERS claims that it is the holder of legal title to the mortgage, deed of trust or other mortgage security instrument, while the Lender is the beneificary or holder of the equitable title to the mortgage, deed of trust or other mortgage security instrument.

MERS maintains that by vesting legal title to the mortgage security instrument in MERS, that the interests in the mortgage are "bi-furcated" with the equitable title following the owner and/or holder of the promissory note and the legal title remaining with MERS.  Only when it becomes necessary to foreclose does MERS unify the legal title with the holder of the promissory note. 

This is done in one of two ways.  One way is through the assignment by MERS of the mortgage to the ultimate holder of the mortgage which is seeking to foreclose in the name of the servicer or the mortgage investor.

The other way is for the mortgage investor to physically deliver the promissory note to the servicer, which has nominated one or more of its employees as "officers" of MERS.  MERS appoints these servicer employees (or sometimes employees of the servicers' law firm) as MERS officers by corporate resolution. 

The servicer employees then execute the assignment out of MERS OR the promissory note is delivered to these servicer employees who then claim to be holders of the promissory note on MERS' behalf, supposedly entitling MERS to sue in its own name.

Suing in MERS' name is particularly sketchy.  This was totally shot down by several Florida district courts, but then overturned on appeal by Florida appellate courts.  But FNMA finds foreclosure in MERS' name to be so legally questionable that it was prohibited nationally almost three years ago.

If the suit is in MERS' name, there are a variety of strategies that could be employed to defeat MERS.

If the suit is in the name of the mortgage investor and relies upon the assignment out of MERS, I would encourage you to very carefully focus on the precise language of the purported assignment.  I think that you will find that it purports to transfer the debt and MERS' interest in the promissory note, as well as the mortgage!  But MERS has no interest in the promissory note whatsoever!

Even in those instances where MERS is suing in its own name under the pretext that it is the note holder, MERS' Rules expressly prohibit the servicer and/or mortgage investor from representing that MERS is the owner of the mortgage indebtedness, which allegation is always patently untrue!

Why don't you post the boilerplate language of your MERS assignment, leaving out the date, the property, and other identifying details.  I think that you will find and others will agree that the boilerplate language will misrepresent that MERS is transferring not only its interest in the mortgage, but also the mortgage debt itself.

If you havebn't already done so, I would encourage you to seach this Forum using keywords "MERS" and you will find a number of other useful posts by myself and others on this topic.  Most of my own posts are older, as I have been overseas for some time and unavailable to participate in this Forum.
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Mr. Roper (or anyone who might help),

Maybe it's too late to activate this thread again,  but I am confused about MERS in my case, so I would like to find out more. I'm expecting to be served at any time, and I am thinking I might need to file for quiet title before that happens. I didn't sign the note, but I did sign the mortgage. After my husband's death, the title passed to me as joint tenant with survivorship. I've not removed his name yet. (Just can't seem to bear doing it.)

The MERS online look-up tool identifies the investor as Fannie Mae. My foreclosure filing shows the plaintiff as BAC Home Loan Servicing fka Countrywide Home Loan Servicing, and the defendants are my deceased husband and me and MERS. Fannie Mae is not mentioned at all. According to the Fannie Mae site, the loan is a Fannie Mae loan.  The MERS ID tool at first listed the property as registered with MERS, but now it says no record is found. That record at one time had also showed Fannie Mae as the investor. MERS is the mortgagee/nominee on the mortgage.

The assignment, recorded just two days before the case was filed, is from MERS to the listed plaintiffs, but the case filing lists MERS as a defendant too.

Is this a conflict of interest that might help my case? Is it customary and acceptable that MERS assign the mortgage to BAC fka CW, instead of assigning to CW and CW to BAC? And can MERS assign a mortgage to allow a servicer to sue MERS? Can a foreclosure attorney represent a client with a MERS assignment and then sue MERS? The attorney signed the MERS assignment as "Certifying Officer."

Why do courts not ALWAYS require ORIGINAL notes in court since they are available in a vault somewhere? Wouldn't that easily and effectively remove the doubt about legal standing to foreclose in most cases?

I was thinking BAC might not have my note since the rumor was that CW destroyed notes. If that's so, do I understand correctly that you contend that any note CW destroyed would have been only the note in the copied loan file once it was scanned into MERS? A big deal is going on today about the fact a CW employee testified that CW NEVER transferred the note and mortgages to the trusts.

I sent BoA a QWR asking to view the original note, but BAC ignored the request, and it looks as if it sent me a copy of the note from the loan file, as some of the pages have a fax mark from the closing lender. A stamp was included on a separate page, but it might be a copy of the back of the note. This stamp, seemingly, is signed by someone for the closing "lender," in blank, without recourse. It is not dated nor does it refer to the note in any way.
 
If it is a copy of the back of the note (plenty of room is on the front below the signature), I am assuming it is legally acceptable as fixed to the note  Still, it could be stamped to the copy of the note, and the original note might be somewhere else with no stamp at all. Do I have reason and right to demand the original document presented in court?

I read your comments about the wording in the MERS assignment possibly including transferring the note to the servicer. The mortgage assignment recently recorded says MERS:

does hereby sell, assign, transfer, set over and convey unto  BAC/fka CW, [gives address], one certain mortgage dated December 1, 2006, executed by [my husband and me] to MERS, as Nominee for AS Mortgage, dba CW Mortgage, upon the following described property, situated in the [county, state] to wit:
 

Does the MERS assignment meet legal requirements by assigning the mortgage to BAC aka Countrywide, even though it was serviced by CW for a year of so? And how does Fannie Mae play into this? Shouldn't something show its part in this?

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I didn't mean to post before I added the last part of the MERS assignment.


After "to wit:" the document shows: 

[property description]

given to secure a certain promissory note dated December 1, 2006, in the amount of _________________, and said mortgage duly filed for record on December 15, 2006, Document #____, in the office of the County Clerk, [county, state] together with the covenants contained in said note and mortgage.


Does that last line mean MERS is trying to transfer the note to BAC/CW, or is it just adding reference to the "mortgage duly filed for record..."  I got completely lost after the umpteenth comma.

This assignment was recorded one day after the case was filed, but it was signed and notarized five days before.

I sincerely apologize for so many questions, but I am in a panic. I have never experienced anything like this in my life, and I'm 60 years old.

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Brewer
I have the original NOTE endorsed in Blank,” Pay To The Order of __________.”with out recourse, signed by the Senior VP of RBMG.

I have a sworn affidavit that states a written assignment of the note was never prepared, and the SELLER into the securities stated that they WARRANT AND REPRESENT IT HAS NEVER BEEN SOLD TO ANY OTHER ENTITY. EMC(seller) was to sell the note to Bear Stearns which was the depositor into the Bear Stearns Asset Backed Securities,inc. Asset Backed certificate series 2003-2.

Bear Stearns was to sell/ assign the Note to JP MORGAN CHASE as trustee of the Trust.

There has been a foreclosure started on the mortgage on March, 3 2009 by The Bank of New York Mellon as successor trustee for JP MORGAN CHASE who claims to be the owner and holder of the note, by way of an assignment which was recorded at the Record of Deeds on March 19, 2009, 16 days after the LIS-PENDENS , and the summons and complaint .

I have a letter dated July 13 2002 from MERS that states the loan has been removed from the MERS system and the MIN# deactivated.

MERS had no authority to do an assignment and the assignment was done by a known “robo-signor” and in the Corporate name of RBMG that not only deactivated the MIN # but also removed the loan from MERS.

RBMG was also defunct and has been since 2005 when it was aquired by NETBANK and subsequently shut down by the FDIC in 2007.

The BANK OF NEW YORK MELLON produced in discovery two allonges: the first was from RBMG to EMC and the second was an allonge directly to JP MORGAN CHASE from EMC.

First thing is the PSA ( pooling and service agreement) the governing document of the securities describes in detail the precise chain of title it also describes who is the seller ,the depositor ,the master servicer and the trust. Even though the sworn affidavit produced by the successor trustee stated no written assignment was ever prepared, so the allonges were a direct attempt to decieve the investors and knowingly a misrepresentation which is fraud.

BEAR STEARNS was the depositor into the securities.

First lets start with the allonges: both are undated and one is not even signed: according to the UCC, an allonge is only used when there is NO ROOM ON THE ORIGINAL NOTE FOR ENDORSEMENT and must be firmly attached as to become a part of the note. An ALLONGE cannot be used to transfer interest and is invalid if there is room on the note for endorsements and is invalid it not attached. A lost note was produced from EMC but not anywhere in the document is there a conveyance, it is not a valid assignment.

Here is an excerpt from the PSA:  BEAR STEARNS ASSET BACKED SECURITIES, INC., Depositor EMC MORTGAGE CORPORATION, Seller and Servicer WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, Master Servicer and Securities Administrator and JPMORGAN CHASE BANK Trustee
POOLING AND SERVICING AGREEMENT Dated as of June 1, 2003
BEAR STEARNS ASSET BACKED SECURITIES TRUST 2003-2 ASSET-BACKED CERTIFICATES, SERIES 2003-2
(DD) The assignment of Mortgage with respect to a Mortgage Loan is in recordable form and is acceptable for recording under the laws of the jurisdiction in which the Mortgaged Property is located.

Proper perfected chain of title:
Originator to seller:
RBMG to EMC
seller to depositor: EMC to Bear STEARNS
depositor to the trust:Bear Stearns to JP Morgan
trust to successor trustee: Jp Morgan to The Bank of New York Mellon

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anon

My two cents. I talked to a "certified fraud examiner" who told me that even what looks to be the original "wet" ink note is often fake.My loan shows up as being sold to fannie mae and also in an investor pool. She also told me what looks to be conflicting ownership is not, chances are both fannie mae and whomever have a beneficial interest. The paperwork was shoddy.

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