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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Nye's FLA Neighbor
Dear Todd,

Can't be bothered since I have to fly West tonight for some depostions. Sorry, but will call you in next few days for the time change. If you like. feel free to post this ruling on the site that some of our lawyers in Ohio forwarded to me. Remember, this was one of the FIRST things I told you to argue and everyone I counsel that so many overlook and don't do anything with.

However, in the rush to get cases that were back logged in Cayahoga Co in Ohio for years, the crooks started to try the pearly gates of the Federal Courts so they could foreclose faster. Well, it looks like all my work in Ohio th past few years has proven to be on target. read the footnotes at the end on comement 3. it's priceless. Tell those on the site I shall return in the days and weeks to come, but to much travel, the holidays and a couple hotties this weekend will keep me away.


Nye

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE FORECLOSURE CASES ) CASE NO. NO.1:07CV2282
) 07CV2532
) 07CV2560
) 07CV2602
) 07CV2631
) 07CV2638
) 07CV2681
) 07CV2695
) 07CV2920
) 07CV2930
) 07CV2949
) 07CV2950
) 07CV3000
) 07CV3029
))
JUDGE CHRISTOPHER A. BOYKO
))))
OPINION AND ORDER
))
CHRISTOPHER A. BOYKO, J.:
On October 10, 2007, this Court issued an Order requiring Plaintiff-Lenders in a
number of pending foreclosure cases to file a copy of the executed Assignment demonstrating
Plaintiff was the holder and owner of the Note and Mortgage as of the date the Complaint
was filed, or the Court would enter a dismissal. After considering the submissions, along
with all the documents filed of record, the Court dismisses the captioned cases without
prejudice. The Court has reached today’s determination after a thorough review of all the
relevant law and the briefs and arguments recently presented by the parties, including oral
Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 1 of 6
-2-
arguments heard on Plaintiff Deutsche Bank’s Motion for Reconsideration. The decision,
therefore, is applicable from this date forward, and shall not have retroactive effect.
LAW AND ANALYSIS
A party seeking to bring a case into federal court on grounds of diversity carries the
burden of establishing diversity jurisdiction. Coyne v. American Tobacco Company, 183 F.
3d 488 (6th Cir. 1999). Further, the plaintiff “bears the burden of demonstrating standing and
must plead its components with specificity.” Coyne, 183 F. 3d at 494; Valley Forge Christian
College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982).
The minimum constitutional requirements for standing are: proof of injury in fact, causation,
and redressability. Valley Forge, 454 U.S. at 472. In addition, “the plaintiff must be a proper
proponent, and the action a proper vehicle, to vindicate the rights asserted.” Coyne, 183 F. 3d
at 494 (quoting Pestrak v. Ohio Elections Comm’n, 926 F. 2d 573, 576 (6th Cir. 1991)). To
satisfy the requirements of Article III of the United States Constitution, the plaintiff must
show he has personally suffered some actual injury as a result of the illegal conduct of the
defendant. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
In each of the above-captioned Complaints, the named Plaintiff alleges it is the holder
and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the
mortgagee and promisee as the original lending institution — one other than the named
Plaintiff. Further, the Preliminary Judicial Report attached as an exhibit to the Complaint
makes no reference to the named Plaintiff in the recorded chain of title/interest. The Court’s
Amended General Order No. 2006-16 requires Plaintiff to submit an affidavit along with the
Complaint, which identifies Plaintiff either as the original mortgage holder, or as an assignee,
Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 2 of 6
-3-
trustee or successor-in-interest. Once again, the affidavits submitted in all these cases recite
the averment that Plaintiff is the owner of the Note and Mortgage, without any mention of an
assignment or trust or successor interest. Consequently, the very filings and submissions of
the Plaintiff create a conflict. In every instance, then, Plaintiff has not satisfied its burden of
demonstrating standing at the time of the filing of the Complaint.
Understandably, the Court requested clarification by requiring each Plaintiff to submit
a copy of the Assignment of the Note and Mortgage, executed as of the date of the
Foreclosure Complaint. In the above-captioned cases, none of the Assignments show the
named Plaintiff to be the owner of the rights, title and interest under the Mortgage at issue as
of the date of the Foreclosure Complaint. The Assignments, in every instance, express a
present intent to convey all rights, title and interest in the Mortgage and the accompanying
Note to the Plaintiff named in the caption of the Foreclosure Complaint upon receipt of
sufficient consideration on the date the Assignment was signed and notarized. Further, the
Assignment documents are all prepared by counsel for the named Plaintiffs. These proffered
documents belie Plaintiffs’ assertion they own the Note and Mortgage by means of a purchase
which pre-dated the Complaint by days, months or years.
Plaintiff-Lenders shall take note, furthermore, that prior to the issuance of its October
10, 2007 Order, the Court considered the principles of “real party in interest,” and examined
Fed. R. Civ. P. 17 — “Parties Plaintiff and Defendant; Capacity” and its associated
Commentary. The Rule is not apropos to the situation raised by these Foreclosure
Complaints. The Rule’s Commentary offers this explanation: “The provision should not be
misunderstood or distorted. It is intended to prevent forfeiture when determination of the
Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 3 of 6
1 Astoundingly, counsel at oral argument stated that his client, the purchaser from the original mortgagee,
acquired complete legal and equitable interest in land when money changed hands, even before the
purchase agreement, let alone a proper assignment, made its way into his client’s possession.
-4-
proper party to sue is difficult or when an understandable mistake has been made. ... It is, in
cases of this sort, intended to insure against forfeiture and injustice ...” Plaintiff-Lenders do
not allege mistake or that a party cannot be identified. Nor will Plaintiff-Lenders suffer
forfeiture or injustice by the dismissal of these defective complaints otherwise than on the
merits.
Moreover, this Court is obligated to carefully scrutinize all filings and pleadings in
foreclosure actions, since the unique nature of real property requires contracts and
transactions concerning real property to be in writing. R.C. § 1335.04. Ohio law holds that
when a mortgage is assigned, moreover, the assignment is subject to the recording
requirements of R.C. § 5301.25. Creager v. Anderson (1934), 16 Ohio Law Abs. 400
(interpreting the former statute, G.C. § 8543). “Thus, with regards to real property, before an
entity assigned an interest in that property would be entitled to receive a distribution from the
sale of the property, their interest therein must have been recorded in accordance with Ohio
law.” In re Ochmanek, 266 B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v.
Merchants’ National Bank of Defiance, 71 Ohio St. 173, 177 (1904).1
This Court acknowledges the right of banks, holding valid mortgages, to receive
timely payments. And, if they do not receive timely payments, banks have the right to
properly file actions on the defaulted notes — seeking foreclosure on the property securing
the notes. Yet, this Court possesses the independent obligations to preserve the judicial
integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of
Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 4 of 6
2
Plaintiff’s reliance on Ohio’s “real party in interest rule” (ORCP 17) and on any Ohio case citations is
misplaced. Although Ohio law guides federal courts on substantive issues, state procedural law cannot be
used to explain, modify or contradict a federal rule of procedure, which purpose is clearly spelled out in
the Commentary. “In federal diversity actions, state law governs substantive issues and federal law
governs procedural issues.” Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F. 3d
286, 289 (6th Cir. 2002); Gafford v. General Electric Company, 997 F. 2d 150, 165-6 (6th Cir. 1993).
3
Plaintiff’s, “Judge, you just don’t understand how things work,” argument reveals a condescending
mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still
control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits,
fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state
or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I
save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a
default judgment and then sit on the deed, avoiding responsibility for maintaining the property while
reaping the financial benefits of interest running on a judgment. The financial institutions know the law
charges the one with title (still the homeowner) with maintaining the property.
There is no doubt every decision made by a financial institution in the foreclosure process is
driven by money. And the legal work which flows from winning the financial institution’s favor is highly
lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit —
to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged
by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about
maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers,
assuring that only those who meet diversity and standing requirements are allowed to pass through.
Counsel for the institutions are not without legal argument to support their position, but their
arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing
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the secondary mortgage market, nor monetary or economic considerations of the parties, nor
the convenience of the litigants supersede those obligations.
Despite Plaintiffs’ counsel’s belief that “there appears to be some level of
disagreement and/or misunderstanding amongst professionals, borrowers, attorneys and
members of the judiciary,” the Court does not require instruction and is not operating under
any misapprehension. The “real party in interest” rule, to which the Plaintiff-Lenders
continually refer in their responses or motions, is clearly comprehended by the Court and is
not intended to assist banks in avoiding traditional federal diversity requirements.2 Unlike
Ohio State law and procedure, as Plaintiffs perceive it, the federal judicial system need not,
and will not, be “forgiving in this regard.”3
Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 5 of 6
and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this
for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak
legal arguments compel the Court to stop them at the gate.
The Court will illustrate in simple terms its decision: “Fluidity of the market” — “X” dollars,
“contractual arrangements between institutions and counsel” — “X” dollars, “purchasing mortgages in
bulk and securitizing” — “X” dollars, “rush to file, slow to record after judgment” — “X” dollars,
“the jurisdictional integrity of United States District Court” — “Priceless.”
-6-
CONCLUSION
For all the foregoing reasons, the above-captioned Foreclosure Complaints are
dismissed without prejudice.
IT IS SO ORDERED.
DATE: October 31, 2007
S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Case 1:07-cv-02282-CAB Document 11 Filed 10/31/2007 Page 6 of 6
Quote 0 0
Hope you all read this one.

This is a real judge.

This is the opposite of Kangaroo Court that borrowers languish in.

This is one to put in your litigation folder.

Not only do they not have standing to foreclose and can't prove that they
do, he also notices they don't record properly after the foreclosure and therefore cannot be forced to spend the money necessary to keep up the property.

He doesn't like what he is seeing, reading or hearing ....
Ah!

Dee
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This is what has been so un-nerving to me about our situation!!! I know that HomEq cannot prove who holds our note! They have already given me 3 different names!  On top of the fact that no assigns has ever been recorded at our county recorders office.

We our meeting with a new attorney today, can't wait to share this information!

Our first attorney cannot move on our loan doc as our 2 year statute has expired. So thanks for the posting!!!

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Joe B
Help-

     Here's what you need to tell the attorney. He needs to compel HomeEq or whoever is foreclosing that they must produce the original note and deed of trust for your inspection. They must do it, and they must prove they are the note holder. Incidentally, if it is proven that HomeEq is not the holder in due course, you may be able to have the whole f/c thrown out, depending on your state law. In other words, only the note holder can commence f/c action. So, depending on how the notice of default was worded, and depending on who it says the note holder is, and who actually IS the note holder, the whole thing can be improper...

     But I warn you that this may only postpone the inevitable if you are unable to cure whatever default exists...

     However, it is a good first start in your conversation with counsel.

JB
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arkygirl
Here is a little clearer analysis of these cases

2007-11-12

by Moe Bedard and Aaron Krowne

Judge Christopher A. Boyko of the Eastern Ohio United States District Court, on October 31, 2007 dismissed 14 Deutsche Bank-filed foreclosures in a ruling based on lack of standing for not owning/holding the mortgage loan at the time the lawsuits were filed.

Judge Boyko issued an order requiring the Plaintiffs in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff (Deutsche Bank) was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the court would enter a dismissal.

The Court's amended General Order No. 2006-16 requires Plaintiff (Deutsche Bank) to submit an affidavit along with the complaint, which identifies Plaintiff as the original mortgage holder, or as an assignee, trustee or successor-interest.

Apparently Deutsche bank submitted several affidavits that claim that Deutsche was in fact the owner of the mortgage note, but none of these affidavits mention assignment or trust or successor interest.

Thus, the Judge ruled that in every instance, these submissions create a "conflict" and they "do not satisfy" the burden of demonstrating at the time of filing the complaint, that Deutsche Bank was in fact the "legal" note holder.

While the decision is great for homeowners in distress (due to providing a new escape hatch out of foreclosure), it is a big blow to the cause of sorting out the high-finance side of the mortgage mess.

Jacksonville Area Legal Aid Attorney, April Charney, broke this news to us via email and made these comments in regards to the Ohio Federal Court ruling (emphasis ours):

This court order is what I have been saying in my cases. This is rampant fraud on every court in America or nonjudicial foreclosure fraud where the securitized trusts are filing foreclosures when they never own/hold the mortgage loan at the commencement of the foreclosure.

That means that the loans are clearly in default at the time of any eventual transfer of the ownership of the mortgage loans to the trusts. This means that the loans are being held by the originating lenders after the alleged "sale" to the trust despite what it says per the pooling and servicing agreements and despite what the securities laws require.

This also means that many securitized trusts don't really, legally own these bad loans.

In my cases, many of the trusts try to argue equitable assignment that predates the filing of the foreclosure, but a securitized trust cannot take an equitable assignment of a mortgage loan. It also means that the securitized trusts own nothing.

So with this decision, it appears confirmed that investors in the mortgage debacle may in fact own nothing---not even the bad loans they funded! It seems their right to the cash flow from the underlying properties does not extend to ownership of the properties themselves; thus clouding the recovery picture considerably.

Charney further remarked to us:

This opinion, once circulated and adopted by state and Federal courts across the country, will stop the progress of foreclosures, at first in judicial foreclosure states, across America, dead in their tracks.

We agree with additional remarks Charney made pointing out that this decision has major adverse implications for the prospects of an amicable financial workout for the various investor contingents in mortgage-backed securities (MBSes). Doubt is cast on where the full write-downs will eventually land, and this uncertainty can only be expected to further harm the market value of MBS and MBS-based synthetic securities, already in shambles purely due to rising underlying delinquencies. Investors in these securities might have assumed---wrongly, it turns out---that they actually owned some "real estate" in these deals.

To paraphrase Jim Cramer, "They own nothing!"

http://iamfacingforeclosure.com/article/20071113_Boyko/01.html
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Nye's FLA Neighbor
Nye copied me on an e-mail he sent to the site's owner. Some of you may not know that Nye and April work together and communicate often. They have been the two only people here in the State of Florida to be saying all of these thigns and who get it.

First they took on MERS and are still going after MERS and now the banks and attorneys. Thier all crooks!

This is our first attack of defense and offense. Now its our turn.
Quote 0 0
Joe B
Folks-

     Before you all go rushing to your lawyers to have your f/c canceled and loans rescinded, I think there is more to this story.

     If I read this article clearly, and I think perhaps I did, this refers only to these cases in Ohio, and similar cases where the f/c was initiated before the actual trust "owned" or possessed the note.

     In other words, it looks like in these cases that DB started f/c. At some point the actual ownership of the note came into question, either by the opposing counsel, or by the judge. The judge ordered a clear trail of ownership which DB failed to do. Therefore, the judge stopped f/c.

     In my opinion, it doesn't mean that the trusts own nothing. All it means that in this case, the trust took bad loans, on loans in which f/c process had already started on their behalf before they had the right to do so. In fact, I suspect that DB's next action will be to "clean-up" the trail of ownership and re-start the f/c cycle.

     If anything these property owners simply got a stay of execution, not a get out of jail free card.

     While I would consider this a victory of sorts, anyone claiming that this puts all trusts on notice that they own nothing is a bit misguided...

    However, it is clearly going to put them on notice to have their ducks in a row before commencing f/c, or risk the whole action being dismissed! I think that is all this ruling really does.

     Maybe Nye or Nye's neighbor by proxy can clear up what he thinks this really means.

     However, can anybody disagree with my assessment?

JB
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If you have a lawyer, have them contact me and I can explain. My email is above.
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Moose
JB - you're correct.  The cases were dismissed without prejudice on procedural grounds.  The validity of the defaults was not addressed and as soon as DB et al is done yelling at their attorneys for losing the case, they'll file the appropriate docs and start in again.

It is important in the sense that there is a clear statement from a Federal District Court that if they are going to use the Courts to foreclose, they at least won't get away with the business-as-usual processes that have been the norm.

This is why the industry is fighting so hard to get judicial foreclosure done away with.

Moose

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Joe B
Nye-

     I have a lawyer. However, how about you just explain it? I have read it, and stand by my earlier assesment. This ruling looks pretty straightforward to me. If it is something else, just tell the board. I think we could all use your expert advice! From the sounds of things, this was all your doing, so how about bringing the rest of us up to speed. We may be outside your circle, but that doesn't mean we don't need your help! I am sure we will all look forward to your insight.

     If you are concerned about being in an open forum, I can provide you with an e-mail address to send whatever you think might need to be off-line.

JB
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Joe B
Moose-

     Yeah, that's what I think too. I think Nye has some additional information that he has not yet shared. Hopefully, he will be able to let us in, because if there's more, I sure could use it.

     However, I really think that they (DB) will simply clean up the paper trail and restart the entire process. It's a stay that may afford a few of those people to straighten out the situation they are in, and that must certainly be a good thing for them.

     However, I don't see how this helps me. Any judicial f/c MUST have proof that the entity that is initiating f/c has the authority to do so. I am not sure that this is big news, other than how you said Moose. It does serve notice that their shenanigans won't be tolerated.

     Nye, how does this help the rest of us?

JB
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Nye
I have just landed.  I am not posting ANY info on here since it can be used to show what our next tactics are.  Sorry, unless I speak with a lawyer and ascertain what side he or she is on, no more secrets of help posted on here.

I think you can understand that the enemy is on here and if I gave details of strategies and attacks then they will be able to cover up.

However, I can tell you that FEW lawyers get it and you are not reading between the lines and the significance is much greater than any weight you think you are giving or not giving it.  Got to go, will be in and out as I can get wireless.
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srsd

Go get them NYE and best of luck.....I wish I was a fly on the wall but the shite will problalby hit there also...I wish I could help you is some way....just let me know. I can`t wait until you get to post what is happening.

Quote 0 0
Update.......We are meeting with our new Attorney Thurs. I hope she will go to bat for us!!!! Not only does the court paper work show original lender(who is no longer in service w/o any assigns on it.
We have discovered 2 errors on the Deed, One may have been a scriveners error, but the 2nd one wasn't
I believe it was whited out!!!!!
What are your thoughts?????
Given this new posting?
Quote 0 0
OHIO
Did MERS lie when they claimed to this Ohio appellate court that they were the OWNERS and holders of both the note and mortgage????

Unless challenged, lies are truths!

What "expert" would research Chase's interest in the property and ignore MERS' alleged interest??

http://www.supremecourtofohio.gov/rod/newpdf/1/2007/2007-ohio-5874.pdf

I hope you all read this and comment....Did the attorney for the homeowners fall short here??

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Joe B
Folks-

Here is another person's take on the "they own nothing" argument... The language is similar to an earlier post, so I apologize if it is redundant!! It also references the first article that was posted on this subject.

For what it is worth...

JB



http://reggiemiddleton.typepad.com/reggie_middletons_perpetu/2007/11/deutsche-bank-f.html

Deutsche Bank Foreclosures Tossed Out of Ohio Federal Court - "They Own Nothing!"

This story has not been verified, and I am not vouching for it, but it does bring up an interesting point.

The Eastern Ohio United States District Court, on October 31, 2007 dismissed 14 Deutsche Bank-filed foreclosures in a ruling based on lack of standing for not owning/holding the mortgage loan at the time the lawsuits were filed.

Judge Boyko issued an order requiring the Plaintiffs in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff (Deutsche Bank) was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the court would enter a dismissal.

The Court's amended General Order No. 2006-16 requires Plaintiff (Deutsche Bank) to submit an affidavit along with the complaint, which identifies Plaintiff as the original mortgage holder, or as an assignee, trustee or successor-interest.

Apparently Deutsche bank submitted several affidavits that claim that Deutsche was in fact the owner of the mortgage note, but none of these affidavits mention assignment or trust or successor interest.

Thus, the Judge ruled that in every instance, these submissions create a "conflict" and they "do not satisfy" the burden of demonstrating at the time of filing the complaint, that Deutsche Bank was in fact the "legal" note holder.

While the decision is great for homeowners in distress (due to providing a new escape hatch out of foreclosure), it is a big blow to the cause of sorting out the high-finance side of the mortgage mess.

Jacksonville Area Legal Aid Attorney, April Charney, broke this news to us via email and made these comments in regards to the Ohio Federal Court ruling (emphasis ours):

This court order is what I have been saying in my cases. This is rampant fraud on every court in America or nonjudicial foreclosure fraud where the securitized trusts are filing foreclosures when they never own/hold the mortgage loan at the commencement of the foreclosure.

That means that the loans are clearly in default at the time of any eventual transfer of the ownership of the mortgage loans to the trusts. This means that the loans are being held by the originating lenders after the alleged "sale" to the trust despite what it says per the pooling and servicing agreements and despite what the securities laws require.

This also means that many securitized trusts don't really, legally own these bad loans.

In my cases, many of the trusts try to argue equitable assignment that predates the filing of the foreclosure, but a securitized trust cannot take an equitable assignment of a mortgage loan. It also means that the securitized trusts own nothing.

So with this decision, it appears confirmed that investors in the mortgage debacle may in fact own nothing---not even the bad loans they funded! It seems their right to the cash flow from the underlying properties does not extend to ownership of the properties themselves; thus clouding the recovery picture considerably.

Charney further remarked to us:

This opinion, once circulated and adopted by state and Federal courts across the country, will stop the progress of foreclosures, at first in judicial foreclosure states, across America, dead in their tracks.

See http://iamfacingforeclosure.com/article/20071113_Boyko/01.html for the full article.

Quote 0 0
arkygirl
Chase and MERS both brought the original foreclosure action against the Smiths. MERS was a constant presence throughout the case. MERS did not hide its interest in the properties. I see no evidence that MERS hid or lied about anything in this one. Why do YOU think MERS lied, OHIO?

The homeowners fell short in this one. They are poster children for the lie that all of us are deadbeats! They buy four houses in one year from a crooked criminal broker. The houses they bought were owned by the crooked brokers wife. DUH!

Then they mount a tenuous defense that they were victims of "predatory lending", that the broker did not disclose his criminality and his wife's ownership interests in the properties that the Smiths bought, that the loans were set up to fail, blah, blah, blah. DUH!

Then the Smiths wait two years to file an appeal. DOUBLE DUH!

The Smiths were defrauded by their own greed and the people they chose to deal with, the Henrys. The Smiths were not dragged to the closing table and threatened at gunpoint if they didn't sign the closing papers. They were willing participants. The Smiths should sue the Henrys for fraud as the Henrys seem to be the only ones who made good in these transactions!

These kinds of cases only serve to make our job here much harder and there are a lot of them out there just like it. Retards who fell for the line that they could get rich fast by flipping properties. The Smiths must have studied Casey Serin's techniques closely. They went the way of Casey Serin, too, as they well deserved to do.

The Smiths are exactly the kind of folks who let bloggers and newscasters label everyone with a mortgage problem as "greedy deadbeats". I hate to see this kind of crap posted here.


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Nye Lavalle
A class of 20 are given the exact book to read.  The teacher asks that they all write a book report on the story.  The kids read the book and then write 20 reports with different "INTERPRETATIONS."  Are any of them wrong or all of them right?

The bottom line here is what YOU read, Your lawyer reads or JUDGES and even the Supreme Court reads is subject to THEIR interpretation.  THUS, its YOUR job or your lawyer's job to demonstate and PROVE a good argument and CONVINCE a jury or judge.

It's how OJ got off.  If you are so NARROW focused and not expansive, then you may not see with the blinders on.  You just have to have a GOOD argument and have someone that KNOWS how to precisely and concisely put forth that argument!

It's not the law or justice, it's the REALITY!

Also, how many hands are you playing?
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Ohio
First of all Arkygirl...I did not post that to get your beehive in a bunch.

Do you really think I was condoning anything the smiths did in that case???? Do you think my posting this and pointing out MERS alleged interest in the property as having anything to do with the default being invalid??? Did I portray the smiths as victims????

Did I ask anyone to interpret the actual merits of the case and find the smiths not at fault???

No, so before you jump down my throat madam maybe you ought to first consider the real reason I posted it.

It has EVERYTHING to do with what the Judge in the case above was referring to!!  Did you miss that? were you caught up in the story and not the message?? I don't give two hoots for the smiths or their stupid business deals
But I DO take great issue at the fact that NOBODY CHALLENGED MERS!!!!
And because of that the smiths whether right or wrong.....were let down by their attorneys failure to challenge MERS "RIGHT" to foreclose.

Would you feel differently if the smiths were elderly and scammed??? Would that make them more deserving of an adequate defense??
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arkygirl
No one is taking offense at anything you posted..the Smiths are what got me riled up, not you. If an elderly couple bought four houses in the same year, yeah, I'd feel the same. No one said you "condoned" or "cared" about anything.

There doe not appear to be any reason to challenge MERS in this action. Aegis Funding transferred the note to MERS and it was duly recorded according to the documents. MERS won the right to be considered as a legal noteholder in FL and that is where the law stands now as far as I am aware. There seems to be no problems with chain of title in this case.

As for adequate legal defense, the world is crawling with lackadaisical lawyers. It is up to the Smiths, the fictitious elderly couple and anyone else to determine if their lawyer is adequate. However I see absolutely no reason to challenge MERS in this particular case and THIS case is the one you invited the discussion to be about. Again, WHY do YOU think the attorney, Ms. Fleming, should have challenged MERS in this particular case that you chose for discussion? Just for general principles? Because it seems like the "in" thing to do? To challenge for no reason certainly would have invited the wrath of the judge.

You seem to feel that everyone should now automatically challenge every noteholder in every case for any reason or no reason at all. The challenge should NOT be presented unless research shows that there is a cloud. The Smith case did not appear to have multiple servicers and noteholders, just the one assignment- MERS with Chase as servicer. Challenges should only be mounted when there is doubt about the noteholder. This case does not present that doubt.

Everyone should take their case on an individual basis and speak to their attorney as to whether there are doubts about the noteholder. I do not think the Smiths suffered from inadequate counsel in this case. They were not "let down"; the need for challenge did not appear to exist in the documents presented. Period.




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Ohio
Okay....I think no matter how many times I say pink it will come out yellow....

rather than keep this in a tail spin I will point out that you feel there was no need to challenge anything regarding MERS.

They challenged Chase...it got them nowhere...they didn't even attempt to challenge MERS...you say there was no need...okay I disagree as I do not have a crystal ball to assure me 100% of that fact.

I did not "pick" that case for any other reason than MERS' statement to the court that they owned the note and owned the mortgage...not as nominees....not as trustees....not as successors in interest etc.

They held themselves out to be the owners AND the holders of both the note and mortgage....I don't believe that for one minute.

The federal Judge in the court decision above knows full well of an ugly Ohio State Court truth....all it takes in most cases is an affidavit and unless challenged whatever exists in the affidavit is considered true....didn't attach the note to the complaint??? doesn't matter....even though it is required....it is only an issue if the defense makes it an issue. If not...oh well.

The Judge above knows the game...and his challenging the bank for proof of ownership is not a customary process in the state courts here in Ohio and he was right to point it out.

To NOT challenge that averment in ANY foreclosure with ANY bank/servicer/lender or whoever seems foolish and lazy to me.

If there are those who feel there to not be any need...well I guess need is like beauty....it's all in the eye of the beholder.
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arkygirl
As long as the current law allows MERS to present in court itself as a legal noteholder/owner/and all things powerful, this will continue to happen. MERS is not a bank but an amorphous entity that is not required to prove anything as the law stands. If MERS says it, it must be assumed that it is true. It was a huge blow when Florida gave MERS this ultimate power. I did not agree with the decision then and I certainly don't now.

I think that MERS lies, servicers lie, banks lie they ALL lie. I don't trust any of them, so don't twist my opinion to being one of "they should never be challenged". They should all be challenged if there is reason to do so in any individual case, but all lawyers have to work within the current framework of existing laws. The laws are very skewed in favor of MERS. I loathe MERS but that is what we get for allowing the bankers to write the law of the land for so long.

I wonder just how the challenge could be mounted...MERS does not appear to be too forthcoming about anything. MERS rarely will reveal whom they are fronting for, and there doesn't appear to be any mechanism in law to force MERS  to prove anything, so how could it be done? Challenging MERS is not like challenging a bank who has to be able to produce documentation of their claim. That is exactly why the banks gave birth to MERS in the first place; MERS is a strawman in court for them. You can bet that Deutsche Bank heartily wishes that they had used MERS for these cases. And you can bet that there will be a stampede to get behind MERS now for questionable cases in the future. The crooks are wily and learn from their mistakes.

Hopefully some really sharp lawyer will soon figure it out. How to force disclosure from MERS has been a problem all along. Thus far, it is like trying to bottle the wind or hold a handful of smoke. We are not in disagreement at all except that I feel that the lawyer in the Smith case was not remiss with the current laws.

Well, maybe Judge Boyko will be presented a case dealing with MERS  rather than an individual bank in the future. We can wait to see how the judge handles that case; if he demands the proof as he did in this case it might get us somewhere. As far as I am aware no judge has yet truly challenged MERS since the Florida ruling so it could be quite interesting. It is unfortunate that Ohio has such a poor legal record and it would be nice to see a landmark case against MERS issuing from that state.

So, are we green yet?

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Ohio
I agree 100% about MERS and their "real" purpose.

But I don't accept there's nothing to be gained by trying. Looking for and challenging any procedural error is something I would hope EVERY attorney would automatically do.

I don't want anyone to misunderstand...challenging the right to foreclose is not beating them in court. It will not save a home.....it will only buy some time until the proper party can refile in their name and that is all.


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While I agree with both of you this problem also causes other problems. As my 2nd servicer has proven in court they have no idea who actually owns the debt. However, the other problem this brings into play besides them trying to foreclose without merit.
 
It brings the problem that there's a lien still on county records to people who don't know who actually owns this note. And in my case if my 1st tries to foreclose they'll notify someone whose been shown not to own note or having any clue to who owns note. Mo state law requires in a foreclosure sale to notify all parties on title. But if someone has no right to be there their notifying the wrong person. So therefore who do they give notice to? How can they foreclose without giving 2nd lender notice?
 
So now I'm fighting this battle with HOMEQ. As not only is the servicer involved so are the foreclosing attorneys, title people and such. Since they filed illegal papers. And NO ONE SEEMS TO WANT TO HELP.
 
SORRY if I keep putting my 2cents in but seriously. It gets ridiculous! As if I pay them a dime on anything or try quiet title and put money into escrow if I was to sell why am I doing such if they don't have a clue who owns the debt and they've been found to have no right to enforce anything. Only the real lienholder could which obviously doesn't know they own the debt currently or else they would of acted I'm sure by now if they had proper documentation.
 

 
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arkygirl
This is "Insanity" with a capital "I"!

It is my understanding that servicers are paid by the true noteholder....so HomEq is effectively saying it doesn't know who writes it's own paycheck??!! Malarkey, BS, and all the other epithets.....This is one that I would push. HomEq knows who is paying it to disservice your note and there is no reason that any judge should not demand that they cough up the name.

I really need to get in the servicing game so I can draw money without even knowing who is sending it or what its for, lol. Sounds like a good line of work for the criminal-minded.

The title problems are another issue. I suppose your title company is out of business now? No recourse there? Yeah, baby. I am beginning to think that there were a lot of fly-by-night title company startups whose main purpose was to work for these scammy lenders and then disappear into the void when the heat got turned up. Is there any way you can make contact with whoever is showing on the title?

This is nuts because whoever is on the title is liable for taxes, etc. I cannot see how any county can conduct business this way. The entities on the title may find a tax foreclosure on their credit reports in the future....it would be to their great benefit to get their names off the title. Will they work with you? They should be worried about this.

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Arky,
Not sure if it'll help but I guess I may have someone's attention now at HOMEQ. As I actually called the notary who signed their fraudelent document the other day.
 
See this is why I don't understand why nothing more was judged in court with banko judge. Because they filed for the foreclosure with the succsr trustee thing. And it was found in court that they don't own. So the document they filed shouldn't be there either. Land America or 3 Arch is involved as well. It goes so deep...So attorneys, notaries, title companies, trustees, judges are all in the wrap if you ask me.
 
But I guess I'm grateful in a couple of aspects. We did 3 way calls with 3 arch prior to foreclosure sale with rep there to verify anyone I was told who owns doesn't. Hence the 4/clsre sale was stopped. But nothing has changed on title. Which needs to be rectified asap. Or else if their notified as a lienholder by 1st it'll be even a bigger suit against everyone of their illegal practices.
 
And they can't dispute what has already been proven.
1.)Fact they filed fraudelent foeclsoure notice
2.) They filed Proof of Claims to be paid in a banko ct twice. Each fraudelent document carries a $500,000 penalty. As it was known prior to judge shutting them down that they didn't know who owns note.
3.) Fraudelent paperwork is still on title. So judge to me didn't rectify completely either.
 
Just gets better! Now I look and they pulled my credit today...What for? It doesn't change what they have to own up to....
 

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Joe B
Kathy-

     You said that each fraudulent document comes with a $500K fine? How do you know this? What statute covers this? I would sure like to know how this applies! Thanks!

JB
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Joe,
 
If someone provides a proof of claim in a bankruptcy court that isn't in fact true it's fraudelent. This is what they did with mine. It says so on the proof of claim that they file at the bottom of it. It woudn't copy as well as I had hoped. But trustee/judge don't want to go after this apparently from what I was told.
FORM B10 (Official Form 10) (10/05)

UNITED STATES BANKRUPTCY COURT Eastern District of Missouri PROOF OF CLAIM

Name of Debtor:

Chapter: 13

NOTE: This form should not be used to make a claim for an administrative expense arising after the commencement of the

case. A "request" for payment of an administrative expense may be filed pursuant to 11 U.S.C. § 503.

Name of Creditor (The person or other entity to whom the debtor owes

money or property): Homeq Servicing Corporation

�� Check box if you are aware that anyone else

has filed a proof of claim relating to your

claim. Attach copy of statement giving

particulars.

�� Check box if you have never

received any notices from the

bankruptcy court in this case.

Name and address where notices should be sent:

Homeq Servicing Corporation

4837 Watt Ave

Attn: Default Cash Dept

Mailcode: CA3355

North Highlands, CA 95660

Telephone number: (877) 867-7378

�� Check box if the address differs from the

address on the envelope sent to you by the

court.

THIS SPACE IS FOR COURT USE ONLY

Account or other number by which creditor identifies debtor: �� replaces

XXX-XX-8566 / XXXXXX8614 / POC-0114131

Check here

if this claim

�� amends

a previously filed claim, dated:

1. Basis for Claim

Goods sold

Services performed

Money loaned

Personal Injury/wrongful death

Taxes

Other _______________

Retiree benefits as defined in 11 U.S.C. § 1114(a)

Wages, salaries, and compensation (Fill out below)

Last four digits of SS#:

Unpaid compensation for services performed

from to

(date) (date)

2. Date debt was incurred:

 3. If court judgment, date obtained:

4. Classification of Claim. Check the appropriate box or boxes that best describe your claim and state the amount of the claim at the time case filed

See reverse side for important explanations.

Unsecured Nonpriority Claim $ Secured Claim

�� Check this box if: a) there is no collateral or lien securing your claim,

or b) your claim exceeds the value of the property securing it, or if c) none or

only part of your claim is entitled to priority.

�� Check this box if your claim is secured by collateral (including a right of

setoff).

Brief Description of Collateral:

�� Real Estate �� Motor Vehicle �� Other

Value of Collateral:

Unsecured Priority Claim

�� Check this box if you have an unsecured priority claim, all or part of

which is entitled to priority

Amount entitled to priority $______________

Amount of arrearage and other charges at time case filed included in secured

claim, if any: $ 3,357.72

Specify the priority of the claim:

�� Domestic support obligations under 11 U.S.C. § 507(a)(1)(A) or

(a)(1)(B)

�� Wages, salaries, or commissions (up to $10,000),* earned within 180

days before filing of the bankruptcy petition or cessation of the debtor’s

business, whichever is earlier – 11 U.S.C.§ 507(a)(4).

�� Contributions to an employee benefit plan - 11 U.S.C.§ 507(a)(5).

�� Up to $2,225* of deposits toward purchase, lease, or rental of property or

services for personal, family, or household use - 11 U.S.C.§ 507(a)(7).

�� Taxes or penalties owed to a governmental units - 11 U.S.C.§ 507(a)(8).

�� Other – Specify applicable paragraph of 11 U.S.C.§ 507(a)().

*Amounts are subject to adjustment of 4/1/07 and every 3 years thereafter with respect to cases

commenced on or after the date of adjustment.

5. Total Amount of Claim at Time Case Filed: $ 29,623.32 29,623.32

(unsecured) (secured) (priority) (Total)

Check this box if claim includes interest or other charges in addition to the principal amount of the claim. Attach itemized statement of all interest or

additional charges.

CREDITS: The amount of all payments on this claim has been credited and deducted for the purpose of making this

proof of claim.

Supporting Documents: Attach copies of supporting documents, such as promissory notes, purchase orders,

invoices, itemized statements of running accounts, contracts, court judgments, mortgages, security agreements, and

evidence of perfection of lien. DO NOT SEND ORIGINAL DOCUMENTS. If the documents are not available,

explain. If the documents are voluminous, attach a summary.

Date-Stamped Copy: To receive an acknowledgement of the filing of your claim, enclose a stamped, self-addressed

envelope and copy of this proof of claim.

Sign and print the name and title, if any, of the creditor or other person authorized to file this

claim (attach copy of power of attorney, if any):

Date:

12/13/2006

/s/ Gene R. Clark Miller & Clark, PC, As agents for creditors

THIS SPACE IS FOR COURT USE ONLY

Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S.C. §§ 152 and 3571.

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O -

That's a HUGE number!!! > $ 29,623.32 29,623.32

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.

The statute for fraudulent filing is a crminal statute and the BK judge would have to drag a prosecutor in kicking and screaming to go after the party filing it.  They have a really simple good-faith error defense that's as good as a "get out of jail free" card in Monopoly.

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~beenawhile
. wrote:

The statute for fraudulent filing is a crminal statute and the BK judge would have to drag a prosecutor in kicking and screaming to go after the party filing it.  They have a really simple good-faith error defense that's as good as a "get out of jail free" card in Monopoly.


alright, but here's the question.

If a bankruptcy court could get the Prosecutors office into the court room, to have a look at the fraudulent documents; Who WOULD THAT $500K GO TO?

THE COURTS, THE D.A.'S OFFICE OR THE BORROWER?
THANKS.

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I seriously doubt it'll be me. Remember I'm the one whose fallen behind. This I realize. It's not something I go about practicing usually in life. But apparently there's answers somewhere yet I'm unaware of them currently. Probably I'll be the one in trouble for wanting answers as to how they all can get by with it.
 
But welcome to America here I am! I almost wish I hadn't found out how bad it is. But like the song goes I'll Survive. And if someone goes and commits murder they'll be prosecuted.  Why not them for not doing proper paperwork to begin with. You should only sign your signature to the truth. That would mean they had seen proper documents which they knew were in fact in hand. Not just pushed over and a signature put on it and notarized....But it must happen more than any of us know!
 
I dont say I'm faultless. That I don't have my own issues that've led up to this though. Not occurences one can predict entirely in life hence always trying to do right regardless of what stares u in the face....
 
Then when it was heard what the outcome should of been as to non payment to them then it should of been rectified instead of to hold it over our heads is crazy. Tell me who it goes to and have them show me valid info and I'll pay. But I'd be crazy to pay if they can't tell me who owns it. Cause anyone could pop up out of the woodwork to say I owe them later. Plus if they have no ownership of debt and don't know who does how can they do anyththing with it? Its not a lost note in which you could do a lost note affidavit...But I'm sure I wont be surprised at what I get told next....
 
 
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