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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William A. Roper, Jr.
As noted by Forum contributor "A NY Observer", the rationale underlying the Weisblum decision has been floating around at the trial court level for a while:

"Suffolk NY Supreme Court Justice Trims MERS Sails Some More"

Note that these were Suffolk County Supreme Court decisions in 2009.

Weisblum not only is in accord with these other trial court decisions, it also is binding authority throughout the 2nd Department and probably applies statewide.
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William A. Roper, Jr.
Any assessment of the MERS meltdown in respect of Weisblum is probably incomplete without noting the rather prescient concurring opinion of Justice CIPARICK in the decision of the New York Court of Appeals in the Romaine case.  Note this language from Justice CIPARICK's concurrence:
"I concur with the majority that the Clerk's role is merely ministerial in nature and that since the documents sought to be recorded appear, for the most part, to comply with the recording statutes, MERS is entitled to an order directing the Clerk to accept and record the subject documents.  I wish to note, however, that to the extent that the County and various amici argue that MERS has violated the clear prohibition against separating a lien from its debt and that MERS does not have standing to bring foreclosure actions, those issues remain for another day (see e.g. Merritt v Bartholick, 36 NY 44, 45 [1867] ["a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it"]).  [emphasis added]"  Merscorp, Inc. v. Romaine, 8 N.Y.3d 90, 99-100, 861 N.E.2d 81, 828 N.Y.S.2d 266 (N.Y. 2006).
Basically, in its ruling in the Romaine case, the New York Court of Appeals put MERSCorp ON NOTICE that the Court was NOT holding that MERS mortgages were VALID and enforceable in New York.  Nor did the Court hold that MERS mortgages were assignable by MERS or that MERS had ANY rights of enforcement.  To the contrary, MERS was WARNED that their scheme was possibly INVALID under New York law and that the ruling solely was a finding that MERS would be PERMITTED to record its instruments EVEN IF INVALID.

Given all of the subsequent misconduct and criminal behavior by MERS and its members, it seems almost certain that when presented with a case on MERS' rights in the mortgage that the New York Court of Appeals will find rather precisely that the MERS enterprise and business model was NEVER lawful in New York State!
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Can we agree that it is either a note or a security? It can't be both.

Inclusio unis est exclusio alterius. That is a maxim of statutory construction. If it is included in the definition of a security, it is excluded from the definition of a note. In the B5 prospectus they treat it as a mortgage backed security.

3-104(e) An instrument is a "note" if it is a promise and is a "draft" if it is an order. If an instrument falls within the definition of both "note" and "draft," a person entitled to enforce the instrument may treat it as either.


If they put pay to order on it, that's a material alteration, it is now an order to pay, not a promise. They treat it as a draft, deposit it and pay the seller with the proceeds and never give us the cash receipt. Then they turn around and screw the investors, insurers, everybody they can. You have to make a claim for the abandoned property and you have to know what you are doing. 

Title 12 § 1813 Definitions (l) Deposit

The term “deposit” means—

(1)the unpaid balance of money or its equivalent received or held by a bank or savings association in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a commercial, checking, savings, time, or thrift account, or which is evidenced by its certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar name, or a check or draft drawn against a deposit account and certified by the bank or savings association, or a letter of credit or a traveler’s check on which the bank or savings association is primarily liable: Provided, That, without limiting the generality of the term “money or its equivalent”, any such account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any such credit or instrument is primarily or secondarily liable, or for a charge against a deposit account, or in settlement of checks, drafts, or other instruments forwarded to such bank or savings association for collection.

Statement of

Financial Accounting

Standards No. 95

FAS95 Status Page

FAS95 Summary

Statement of Cash Flows

pg 63


FAS95, Footnote 1--Consistent with common usage, cash includes not only currency on hand but demand deposits with banks or other financial institutions. Cash also includes other kinds of accounts that have the general characteristics of demand deposits in that the customer may deposit additional funds at any time and also effectively may withdraw funds at any time without prior notice or penalty. All charges and credits to those accounts are cash receipts or payments to both the entity owning the account and the bank holding it. For example, a bank's granting of a loan by crediting the proceeds to a customer's demand deposit account is a cash payment by the bank and a cash receipt of the customer when the entry is made.

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William A. Roper, Jr.
christopherjoseph said:
Can we agree that it is either a note or a security?  It can't be both.

No.  What you have been posting in this regard is utter NONSENSE and has no foundation whatsoever in the law.
You are confusing the use of the word "security" as it applies to the the security interest of a mortgage, deed of trust or other mortgage security instrument, with the use of the word "security" as an instrument of investment.
Webster gives us these definitions of security:
2.  a: something given, deposited, or pledged to make certain the fullfillment of an obligation.
3. : an instrument of investment in the form of a docuemnt (as a stock certificate or bond) providing evidence of its ownership.
It is common for both bonds and notes to also be accurately described as fixed income securities.  Very often a note is a security.
Suggesting that somehow these are mutually exclusive seems only to demonstrate you faulty grasp of this area.
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If it is utter nonsense, then why did you post Websters definition of a security that fits what i have been talking about and why don't people get the notes back after they lose their house? The Government, Banks, and BAR are screwing people every which way imaginable. Which one do you work for?

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INSINUATION, civil law. The transcription of an act on the public registers, like our recording of deeds. It was not necessary in any other alienation, but that appropriated to the purpose of donation. Inst. 2, 7, 2; Poth. Traite des Donations, entre vifs, sect. 2, art. 3, Sec. 3; Encyclopedie; 8 Toull. n. 198.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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When have you ever seen a person get sued on a note that was foreclosed on......NEVER.  So why would you the note back?  If what your claiming is true, there would be deficiency judgments after foreclosure for the full amount, not just the difference!
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William A. Roper, Jr.

christopherjoseph said:

If it is utter nonsense, then why did you post Websters definition of a security that fits what i have been talking about and why don't people get the notes back after they lose their house?  The Government, Banks, and BAR are screwing people every which way imaginable.  Which one do you work for?


If you think that my post supports your position, then you have a very serious reading comprehension problem.

Courts almost everywhere are required by law to insist upon the presentation to the court of the original promissory note in support of foreclosure and the destruction or other voiding of the note, if not in support of the complaint, at least upon judgment.  Most borrowers do not answer or interpose any defense at all.  And the discipline to insist upon production of the note seems to have very much fallen by the wayside in many jurisdictions.

If your appearance at the Forum is to question my commitment to the foreclosure defense movement, you are barking up the wrong tree and you are simply evidcerating your own credibility.

There exist a number of viable and robust defenses to mortgage foreclosure.  ANd then there are wingnut theories that will simply get a borrower laughed out of court and will accelerate the loss of the borrower's home.

I would encourage you to spend more than a few hours reading the posts here at the Forum going back several years and learning before appearing and pretending to have anything useful to teach.

WHY might you suppose or imagine that you have more knowledge, understanding and experience than others at the Forum who have been involved in the fight for years?
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William A. Roper, Jr.
Google Scholar has posted the Court's decision in the case Aurora Loan Services v. Weisblum.  This version has links to other cited cases:
Aurora Loan Services v. Weisblum, Nos. 2010-03065, 2010-05864, 2011 NY Slip Op 4184; 2011 N.Y. App. Div. LEXIS 4108 (NY App. 2nd Dept., 2011)

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William A. Roper, Jr.
HousingWire reporter Kerri Panchuk gives us an excellent discussion of the Weisblum decision in her article:

HousingWire: "NY appellate court scrutinizes the MERS standing issue", by Kerri Panchuk (May 27, 2011)

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William A. Roper, Jr.
I previously posted links to the three key cases cited by Weisblum in its critical MERS holding.  Today, I uploaded the assignments decribed in those decisions to Scribd.  The cases, with their associated assignments are:
Bank of N.Y. v Alderazi, 28 Misc 3d 376, 2010 NY Slip Op 20167 (NY Sup. Ct. Kings 2010), Justice Wayne Saitta

OneWest Bank, F.S.B. v Drayton, 29 Misc 3d 1021, 1038-1041, 2010 NY Slip Op 20429 (NY Sup. Ct. Kings 2010), Justice Arthue Schack

LPP Mtge. Ltd. v Sabine Props, LLC, Index No. 2010-103648, 2010 NY Slip Op 32367[U] (NY Sup. Ct. New York Co. 2010), Justice Joan Madden

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William A. Roper, Jr.
I posted the official version of the Weisblum decision from the Second Department at my Scribd site:

This version lacks the hyperlinks from the New York Reporter web site, but is probably a cleaner copy to print and present in Court in support of a brief or argument.

I would use the NY Reporter version or the Google Scholar version for research and use this version to print and use in court.
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William A. Roper, Jr.
Appellate Briefs from the Weisblum Case

A dedicated Forum participant recently forwarded me copies of the appellate briefs of the parties in the Weisblum Case.  It strikes me that these serve two very useful functions. 

First, the briefs further elaborate on the arguments presented by each side in their own words, adding additional insight into the Court's decision.

Second, these briefs serve as examples of effective and professional appellate briefs in a New York State appeal.

Perhaps these might be useful in framing arguments either in the trial court or in an appeal, particularly in New York State:

Appellant's Brief (Weisblum) [August 18, 2010]


Respondent's Brief (Aurora Loan Services) [October 22, 2010]


Appellant's Reply Brief (Weisblum) [November 1, 2010]

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