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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Texas
What MERS should have done:

1 A is the loan Originator (Fee Paid on the original filing of the security instrument)
2 A indorses to B and a recording fee should be applied in regards to the security instrument to be filed of record, sell effects real estate
3 B is the Seller/Securitizer of Trust
4 B fills in the blank in B's name as indorsee so they could further negotiate the note to C
5 B indorses to C and a recording fee should be applied in regards to the security instrument to be filed of record, sell effects real estate
6 C is the Depositor of Trust
7 C fills in the blank in C's name as indorsee so they could further negotiate the note to D
8 C indorses to D and a recording fee should be applied in regards to the security instrument to be filed of record, sell effects real estate
9 D is the Trustee of Trust
10 D fills in the blank in D's name as indorsee so they could further negotiate the note to E
11 D indorses to E and a recording fee should be applied in regards to the security instrument to be filed of record, sell effects real estate
12 E is the Trust (Certificate Holders)
13 E fills in the blank in E's name as indorsee (E is now Owner/Holder & Holder in Due Course
----Default----
Legal Actions Executed

What MERS did:

1 A is the loan Originator (Fee Paid on the original filing of the security instrument)
2 A indorses "in blank" and possession of note is transferred to Custodian (or destroyed if scanned) for B and the MERS registry is updated as to who has control of the Custodian and the Transferable Record
3 B is the Seller/Securitizer of Trust
4 B sells the Transferable Record to C and the MERS registry is updated as to who has control of the Custodian and the Transferable Record (no recording fees paid)
5 C is the Depositor of Trust
6 C sells the Transferable Record to D and the MERS registry is updated as to who has control of the Custodian and the Transferable Record (no recording fees paid)
7 D is the Trustee of Trust
8 D sells the Transferable Record to E and the MERS registry is updated as to who has control of the Custodian and the Transferable Record (no recording fees paid)
9 E is the Trust (Certificate Holders)
-----Default-----
Assignment of Mortgage from A to E is filed public record and fee is paid (Fraudulent Filing)
Illegal Foreclosure Action Commenced
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William A. Roper, Jr.
Texas:

Under the UCC, there is NO REQUIREMENT WHATSOEVER that an intermediate holder fill in and identify the identity of the intermediate holder by turning the blank indorsement into a restrictive indorsement.

When the indorsement is BLANK, negotiation is completed by delivery alone.

What  SHOULD HAVE HAPPENED at each intervening step is that a delivery receipt memorializing the fact of delivery should have been completed.

While it might be reasonable to believe that persons participating in the delivery of a single isolated promissory note negotiated to a non-institutional purchaser might remember the delivery transaction, it is patently UNREASONABLE to believe that persons participating in the delivery of negotiable instruments might remember a particular undifferentiated transaction when those persons are involved in hundreds or thousands of such transfers in the course of a business day.

The evidentiary weakness is NOT the failure to fill in the name of the intermediate holder.  It is the failure to produce and plead a delivery receipt showing the completion of the negotiation.
 
Conclusory hearsay statements by an affiant not participating in the delivery are not an adequate alternative under the Best Evidence Rule to the testimony of a witness with personal knowledge who REMEMBERS the transaction OR the production of a properly authenticated delivery receipt contemporaneously created within the ordinary course of business.
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William A. Roper, Jr.
Your description as to What MERS did is also erroneousNONE of the promissory notes is scanned and destroyed.  This is a myth, which only serves to confuse and befuddle defendants.

The originating Lender does NOT deliver the promissory note to the institutional custodian of the mortgage investor.  To the contrary, the promissory note is usually delivered to the institutional custodian working for the warehousing Lender and the Lender NEVER SEES the promissory note again.
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Texas
Professor Wray and others probably would argue against you.
William, I assure you, you are out of your league.


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Texas:  Perhaps you could share with us Professor Wray's first name so we can draw our own conclusions as to Mr. Roper's views.  A Google search is not conclusive.
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Texas
http://www.huffingtonpost.com/l-randall-wray/post_1440_b_797563.html
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Bill

I don't think a general statement about what MERS should have done could be accurate.  I think this is evident by all of the different court decisions in different locations.  What MERS should have done is FOLLOW THE LAW in the jursidiction where the property is located.   My state laws REQUIRE any interest,transfer,assignment,mortgage ect.. in land be recorded.  There is no exception in the requirements.   The assertion posted about what MERS should have done doesn't apply to my state.   They made true sales to get it to the trust.  It needs to be recorded.   This could be different in a different state.

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The professor’s views are not new, nor are they entirely true.  It is a shame that his views are somewhat clouded with conspiracy theories.  The most glaring is the notion that MERS has been systematically destroying notes since 1997.  This is simple not true.

In order to pull off such a stunt would require the work of legions of people getting rid of millions and millions of pieces of paper.  Did they burn them in the back woods, hire a document shredding company, or simply fill 55-gallon trash bags and put them in 30-yard dumpsters staged in the parking lot? 

If this were in deed the case one of these minimum wage earning soles, or their friends who knew what their job entailed, would discover they could make millions by partaking in a simple Qui tam action.

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William A. Roper, Jr.

Texas:

Professor WRAY is an economist.  And he is new to the issues and arguments pertaining to MERS.  I am certainly rooting for him.  And I am not unhappy or angry that he might be making some mistakes in his public case.  His heart is clearly in the right place.

I have been litigating with MERS and CitiMortgage for more than four years.  I ran some extensive discovery against MERS, and MERS has conspicuously backtracked from its original false allegations.  In fact, MERS judicially admitted that it had no valid claim and that its claim was extinguished by operation of law.  Unlike others, who have lost a property or are in appeals, I am doing just fine.

After you have spent four years litigating with these folks, come back to me and give me some lessons in the law.

Moreover, IF you have actual specific facts, law or cases to support any of your assertions or allegations, bring them forward and we can take a look.

I welcome various alternative points of view and encourage a thorough and full discussion of differing approaches.  I am most content to permit the jury of Forum participants decide for themselves.  But when someone's home is at risk, I try to take care to point out false arguments and false paradigms.  I certainly do NOT want anyone to lose a property in reliance on some misguided suggestion that they read here.

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Bill
William,
  In your case did MERS file the foreclosure?

What does "its claim was extinguished by operation of law" mean?  I know it means they don't have a claim, I was wondering about the operation of law part.  What made this happen. 

sorry if it sounds like stupid questions.  
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William A. Roper, Jr.
Bill:

My case is a singularly unusual one.  You have read how the mortgage servicers can epically screw up a rather ordinary case.

My case is a foreclosure in a probate setting in a non-judicial foreclosure state.  In some places, when an alleged debtor dies the alleged creditor cannot conduct a private sale under an alleged deed of trust.

The process for resolving claims arising out of an estate varies with the laws of the jurisdiction.

In Texas, when an estate is overseen by a court ordered administrator, purported creditors are required to file a sworn claim with the administrator.  The administrator then either "allows" or rejects this claim.  If the claim is allowed, it is presented to the probate court for approval.  If the claim is rejected, the claimant is required to sue on the rejected claim within ninety days or the claim is forever barred.

Under the Texas Probate Code, when a claim is presented, the administrator must act within thirty (30) days to either allow or reject the claim.  If the administrator fails or refuses to act, then the claim is deemed rejected by operation of law.

If a claim is rejected and the claimant fails to timely sue within ninety days, the debt is extinguished.  And the Texas Supreme Court has held that a discharge of the alleged debt under this section of the Probate Code operates to discharge the security -- the alleged deed of trust -- as well.

All of this is a matter of the probate code rather than commerical law or the law of real estate.

CitiMortgage presented at least two claims to the administrator in 2006.  In each case, the administrator failed to act upon the claim and each claim was therefore rejected by operation of law.  Then, CitiMortgage failed to institute suit on its claim within ninety (90) days.  That should have extinguished the alleged debt altogether.

When I pointed out in 2006 that the Probate Code operated to extinguish the alleged debt, CitiMortgage seems to have arranged to have the very same attorney who presented the two earlier claims, re-present this claim under the guise of MERS.  In a sworn claim, MERS claimed to be the owner and the holder of the alleged promissory note.

This third claim was also implicitly rejected by the administrator.  Thereafter, CitiMortgage instituted suit on the MERS claim.  There are already several perjured affidavits in this case, including sworn statements from different plaintiff witnesses that are contradictory.  There are also discovery responses which contradict the affidavits.

MERS judicially admitted in Court that its position is that it never sued on its claim and that the claim was extinguished by operation of law.  CitiMortgage still claims that it is entitled to sue on the MERS claim.  There is no legal basis for one entity to sue on another's claim.  Neither MERS not CitiMortgage ever had standing to sue.  MERS wasn't even registered as a foreign corporation in Texas at the date of its claim or the CItiMortgage suit.  There are a LOT of other issues in this case.  This is but a brief sketch.

As you can see from these facts, this is a matter of very limited interest or use to other foreclosure litigants.

I have several rather distinct advantages in the case. 

First, it is difficult to paint me as a "deadbeat", because I am not a maker of the alleged promissory note or the alleged deed of trust.  At best, the plaintiff can try to make out the decedant as a deadbeat, but he never defaulted on teh alleged loan.

Second, I have prior experience as the president of a mortgage banking concern.  I understand mortgage banking far better than the judge, the plaintiff's local counsel or the original foreclosure mill counsel representing the plaintiff. 

Third, I am actually pretty good at discovery and have quite a bit of useful discovery in hand.  The plaintiff has defaulted in discovery responses several times.

*

One of the truly remarkable things about the case is that the very WORST THING that could possibly happen to MERS is for CitiMortgage to WIN this case.  Because even if CitiMortgage WON, they absolutely will LOSE on appeal and this would totally destroy MERS' franchise in Texas and could destroy their franchise nationally.

MERS has won several cases where the fact record included FALSE facts.  This was the case in Florida where MERS successfully appeal sua sponte dismissals of unopposed cases.  MERS SETTLED with the well represented litigants and then appealed an undefended case.  There was NO DISCOVERY in this case and the unchallenged FALSE FACTS became the basis for the Florida appellate decision.  The appellee didn't even file a brief.

Elsewhere, when a defendant was well represented, as in Maine, and established a good trial record, MERS was absolutely eviscerated.

I doubt that there is any other case in the country where MERS is facing as daunting a record within the trial court showing criminal misconduct by filing a palpably false affidavit in support of its original claim, as well as discovery responses which show the nature of the various false representations in MERS' name to the court.  So I am either going to WIN AT TRIAL or I am going to WIN ON APPEAL.  But I AM going to win.  The only real question is whether CitiMortgage's ill conceived litigation also destroys MERS.

This litigation is in its fifth year and the estate still owns the house.
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Cindy
Mr. Roper, thank you so much for your excellent help. Your writing, chock-full of details, is exceptionally clear. I value the care you take in writing so that I can understand.

I have a question concerning a deed of trust compared to a mortgage. Are these two different in any way related to MERS or to standing or ownership proof in court? I read somewhere that the deed of trust was somewhat different concerning a third-party involvement, such as MERS. I meant to go back and read the article again, but I was never able to find it.
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William A. Roper, Jr.
Cindy:

Your question is an excellent one and I have to admit that I haven't laid various mortgages and deeds of trust from different jurisdictions side by side to carefully and critically examine the language as it pertains to MERS.  But overall, my impression is that the language pertaining to MERS is substantially identical, though the court decisions arising from courts in judicial versus non-judicial states are not.

The critical difference, generally, between a mortgage and a deed of trust is that a mortgage is judicially enforced, while a deed of trust typically includes a contractual private right of sale.  And the key difference between judicial foreclosure and non-judicial foreclosure states is that non-judicial foreclosure states allow parties to enter into mortgage finance arrangements which include private rights of sale, whereas judicial foreclosure states do not allow private enforcement of covenants in case of a breach.

Under both the U.S. Constitution and the state constitutions of most states, there are provisions enshrining and respecting the private contract rights of parties.

For example, Article I, Section 10 of the U.S. Constitution reads:

"No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."
But this doesn't mean that a State cannot constrain that which is legal and confine contracts to matters which are lawful.  That is to say, if you and I enter into a lawful contract our contract cannot be later dissolved by an act of the legislature, but the legislature can and does define the boundaries of those things that are lawful thereby constraining our latitude to privately contract.  We cannot enter into contracts for illegal sale of narcotics, prostitution, sale of stolen goods, sale of babies, etc.

In the judicial foreclosure states, the state Constitution, the legislature, and/or the courts has/have directed that provisions for the private remedy of contractual disputes through a private right of sale are an unlawful affront to public policy and are forbidden.  Everywhere that private rights of sale are permitted, Lenders have universally demanded and insisted that borrowers agree to such a private right of sale as a condition of the security instrument supporting the promissory note.

Interestingly, mortgages are generally permitted in essentially ALL states and deeds of trust, with a private right of sale, are permitted in many.  But in those states where the deed of trust IS permitted this is the security instrument which is universally used.  (There are a handful of states, such as Georgia, which use another variant such as a "security deed", which is mostly simply a deed of trust by another name.)

Mechanistically, with a deed of trust, the original deed of trust instrument names a "trustee", to whom the property is deeded in trust during the lifetime of the outstanding loan.  Unto this trustee is entrusted the private right of sale, subject to the conditions set forth within the deed of trust.  Provisions typically provide that upon some default in the promissory note or security instrument that this trustee is authorized to sell the property securing the loan by private sale after some notification to the borrower and the advertising of the private sale.

The deed of trust also typically contains some language providing for the appointment of a substitute or replacement trustee by the Lender, mortgagee and/or holder of the promissory note securing the loan.  Since the original trustee is usually an officer, attorney or other affiliate of the original Lender, once the loan is sold, particularly into securitization, it no longer makes sense for the original trustee to act on behalf of the new mortgage investor.

Given the failure of the mortgage trusts to timely record an assignment of the deed of trust, what typically happens in a deed of trust state is that (a) the mortgage is assigned to the mortgage investor, often by a forged assignment, (b) the new mortgagee then appoints a substitute trustee to act on the mortgagee's behalf, usually an attorney within the employ of the law firm managing the foreclosure, and (c) the new substitute trustee advertises and conducts the sale.

When MERS is named as the mortgagee in the deed of trust, an officer of MERS very often executes the appointment of substitute trustee on behalf of the mortgage investor and the trustee acts on the basis of this appointment.  Since MERS has ZERO employees, it appoints employees of the servicers to act on its behalf in executing various documents, to include assignments and appointment of substitute trustee.

This presents the question as to whether MERS actually has the power to appoint a substitute trustee or whether that authority expired with either (a) the negotiation of the underlying mortgage out of the originating Lender, for whom MERS is acting as nominee, and/or (b) upon the extinction through insolvency and/or surrender of the corporate charter of the principal upon whose behalf MERS purports to act.

For that matter, there is a rather substantial body of law going back a couple of centuries in most states holding that the assignment of a mortgage without the concommittent transfer by negotiation of the underlying debt is a nullity.  This would seem to possibly mean that any assignment by MERS, which lacks an ownership interest in the promissory note, may be totally void and a nullity.

The precise interpretation and understanding of MERS' role in the transaction continues to evolve with various new court decisions.  Most of these have been going against MERS, though MERS has generally faired better in non-judicial states than in judicial foreclosure states, EXCEPT in U.S. Bankruptcy Courts.  This post cannot possibly explain the variety of decisions which have emerged.  You need to carefully review the laws and court decisions of the jurisdiction where the property is located.  You should also look at the Bankruptcy Court decisions which might help to frame your rights should you elect to file for bankruptcy. 

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William A. Roper, Jr.
Cindy:

Also, as I have explained in some other posts over the past several years, standing is a Constitutional or prudential imperative to access to the Courts.  The necessity of standing is implicit in Article III of the U.S. Constitution as it applies to U.S. Courts.  Many states have similar restraints imposed within the open courts provisions of the state constitution.

In most places, a plaintiff must have standing in order to bring a suit.  In non-judicial foreclosure states, the plaintiff is enforcing its private right of sale contractually without involvement of the court, so there is usually NO STANDING requirement.

This is NOT to say that a stranger to the mortgage can enforce it by private right of sale.  To the contrary, if a stranger were to advertise the private sale of your property and to conduct a private sale, the stranger's deed would usually be found to be a nullity and to convey nothing.

So if a purported substitute trustee was never properly appointed or was appointed by a forged instrument or an instrument executed by a stranger to the deed of trust, the trustee's deed might be found to be a nullity.

But the mortgage investor or buyer at the trustee's sale is NOT going to be bringing a foreclosure action against you.  Rather, if you continue to occupy the property they will probably bring an unlawful detainer or other ejectment action against you (somewhat akin to an eviction).

You can oppose the ejectment by arguing the invalidity of the trustee's deed.  Or you can separately bring a quiet title action. 

In another thread, I suggested that it is possible that surrendering the possession of the property without legal action and bringing a quiet title action after the running of the limitations period for foreclosure by private right of sale might be a better strategy.  YOU SHOULD CONSULT WITH A GOOD REAL ESTATE LAWYER WITH FAMLIARITY WITH THE LAWS OF YOUR JURISDICTION!
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Cindy
Mr. Roper,

Thank you for taking so much time answering my question. I understand what you wrote...which is pretty amazing...but all due to your well-expressed critical analysis and only slightly to my ability to comprehend. I get so confused sometimes, as this is all so new and convoluted to me. But these issues with "what MERS should have done and did" does affect me, as I have two homes with MERS deeds of trust.

I'm looking for facts to help me in court, and sometimes that means I have to know things I'd rather not hear. Your voice of reason at times delivers such facts, but what good is it to travel in the misinformation all over the Internet that regurgitates the same incorrect slant on real court matters and gives false hope about what I will face in court? (I suspect that I would hear a hearty agreement from you on that. )

Along the topic of this thread...your information brought me to another question about the nullity issue. A week or two ago, a court of appeals held that the MERS assignment of mortgage in one of its foreclosure cases was simply "no effect." However, the Court first stated that it was "not possible to separate the note and the mortgage, as the mortgage always follows the note."

Could it be that some are interpreting the nullity to be the mortgage itself, when the case cited (1873 U.S. Supreme Court [Carpenter vs Longan]) actually might have meant that the assignment is a nullity? (One of Webster's definition of nullity is nothingness.)

This is splitting hairs, and it certainly opens other what-ifs, but if the act of the assignment is the nullity--no effect (or nothingness)--then it seems that the note indorsed in blank might automatically carry the mortgage with it, the two inextricably entwined at closing. Any MERS recorded assignments unnecessary, period.

I do realize much more of the full case is relevant in understanding this fully, and I haven't read the full case, but this is the quote I see most often from the U.S. Supreme Court case:

"The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity" (emphases, mine).

Would this be interpreted entirely different if the word nullity here refers to "an assignment," rather than "the latter," which, of course, by reference is the mortgage? If so, then where do we stand with MERS recorded assignments across 50 states? Would they be mere technicalities that could be ignored because they amount to "nothingness?"

That conclusion seems to be the appeals court's stated interpretation, and it did fully address the MERS assignment to the servicer, as the borrower brought MERS into it with the usual MERS defense strategy.

The borrower won the appeal, but only on a bank technicality (it failed to show that the note was indorsed in blank).



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William A. Roper, Jr.
Cindy:

I think that you have captured the essence of these complex issues and the questions you continue to ask show that you are grasping the concepts well.

So far, I have not yet seen any court reach a determination that a mortgage granted in favor of MERS is actually itself void or a nullity, nor would I expect a court to reach such a result.

*

It is probably appropriate to note that there are two ways that MERS can come to call itself the "mortgagee".  First, an originating Lender or a subsequent holder and assignee could grant a mortgage assignment in favor of MERS.  Second, MERS may be designated as the mortgagee in the original instrument.

In its infancy, most of its mortgages were the former, but as MERS matured, most of its new business came from mortgages naming MERS as the mortgagee in the original security instrument.  These latter types of loans are sometimes called "MOM" loans, standing for "MERS as Original Mortgagee".

Think of the recent Oklahoma appellate decision in BAC Home Loans v. White.  In that holding, the Oklahoma court stated:

". . . In Oklahoma, ownership of the note is controlling, and assignment of the note necessarily carries with it assignment of the mortgage. Gill v. First Nat. Bank & Trust Co. of Oklahoma City; 1945 OK 181, 159 P.2d 717, 719.  "The mortgage securing the payment of a negotiable note is merely an incident and accessory to the note, and partakes of its negotiability.  The indorsement and delivery of the note carries with it the mortgage without any formal assignment thereof."  Prudential Ins. Co. of America v. Ward, 1929 OK 71, 274 P. 648, 650.  Proof of ownership of the note is proof of ownership of the mortgage security. Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, 300 P.2d 997, 999.  Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note.  An assignment of the mortgage to one other than the holder of the note is of no effect."

The court then simply applied this rule to the facts of the instant case, reversing and remanding without elaborating in any way as to precisely HOW this would effect upwards of 100,000 other MERS mortgages.

 

If it is not possible to bi-furcate a loan in Oklahoma, then it would seem that all of the express assignments INTO MERS would be nullities absent the negotiation of the note to MERS.  And similarly assignments OUT of MERS would also seem to therefore be nullities.

 

The effects of the decision on the MERS "MOM" loans is a little less clear.  Does the decision mean that the original named Lender is the mortgagee and the designation of MERS in the MOM instrument is a nullity or does the MERS as Original Mortgagee language actually poison the original security instrument.

 

The Court tells us that the mortgage security instrument follows the note in Oklahoma, which has been the common law rule for several centuries.  If the mortgage is actually valid, as you propose then the proper negotiation would carry with it the mortgage lien.  But the negotiation needs to be proven.

 

*

 

You need to bear two thing in mind in assessing the implications of this particular ruling (which is authoritative ONLY in Oklahoma, though there are similar rulings elsewhere).

 

First, bear in mind that a principal purpose of the forged assignment is for use as fabricated evidence and false proof in judicial foreclosures or to create a false record in support of a trustee's deed in deed of trust states.  When you eviscerate the legal viability of this forgery, either by showing it to be a forgery or showing that such an assignment is a nullity as a matter of law, then a critical piece of the plaintiff's proof disappears.

 

The second critical thing to bear in mind is that the forgery of the assignment itself is good defensive evidence for use in either a clean hands equitable defense or in seeking sanctions.  The former is generally more potent than the latter.  I have discussed this before in other threads.

 

*

 

A challenge the borrower now faces is that the mortgage servicer will now seek to present other alternative evidence to the court in support of foreclosure.  Given the identity of the plaintiff and Countrywide/BAC's record of evidence fabrication and makig false statements under oath, the defendant WHITE has more than a little reason to be concerned.

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Cindy

The other part of the Oklahoma case that bothered me was the Court's holding that possession of the original note proves ownership. I guess here the vital point to defend against standing to sue in Oklahoma would be that the Court specified the original note, which the servicer might or might not have.


Quick questions concerning these:


"If it is not possible to bi-furcate a loan in Oklahoma, then it would seem that all of the express assignments INTO MERS would be nullities absent the negotiation of the note to MERS.  And similarly assignments OUT of MERS would also seem to therefore be nullities.


"The effects of the decision on the MERS "MOM" loans is a little less clear.  Does the decision mean that the original named Lender is the mortgagee and the designation of MERS in the MOM instrument is a nullity or does the MERS as Original Mortgagee language actually poison the original security instrument.

 

"The Court tells us that the mortgage security instrument follows the note in Oklahoma, which has been the common law rule for several centuries.  If the mortgage is actually valid, as you propose then the proper negotiation would carry with it the mortgage lien.  But the negotiation needs to be proven."

 ...


The second critical thing to bear in mind is that the forgery of the assignment itself is good defensive evidence for use in either a clean hands equitable defense or in seeking sanctions. 

 ...


How would the negotiation be proved? Would this go back to the original note's having to be negotiated to MERS? I think in most (all?) MOM cases, the note is not negotiated to MERS. The borrower authorizes the mortgage with the boilerplate language that MERS acts solely as nominee, but also names itself the mortgagee to assign the mortgage out of MERS for foreclosure. It would seem that, by inference, the Court deemed any assignment into MERS insignificant, and that any Oklahoma note indorsement in blank carries the mortgage with it, leaving no room or reason to address any MERS involvement. Otherwise, the Court would not have remanded the case because the bank did not show that the note was indorsed in blank.


I missed something on the forgery of the assignment. Are you referencing a point of defense in the Oklahoma case? I seem to remember the borrower did use that in their defense strategy.

Certainly wish I knew how to contact the Whites to pass on your discussion here. If I remember correctly they were in court pro se.



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William A. Roper, Jr.
Cindy:

Negotiation of a negotiable instrument (which covers both negotiable promissory notes and regular bank checks) is covered by UCC Section 3-201:

§ 3-201.  NEGOTIATION.
 
(a)  "Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

(b)  Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.  If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

See:  http://www.law.cornell.edu/ucc/3/article3.htm#s3-201

For Oklahoma, this is set forth within Title 12A of the Oklahoma statutes:

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=65147


*

How does one PROVE negotiation?  There are very few cases upon this point, but one must look to both the UCC and various other laws, including the Rules of Evidence.

The alleged holder is seeking to prove two things.  First, that the instrument was indorsed.

Second, that the negotiable instrument was delivered.

Indorsement is going to be proven by showing the indorsement on the original instrument or a copy of the original instrument.  Whether a copy is acceptable in lieu of the original is going to depend upon (a) the Rules of Evidence, (b) whether the copy is properly certified, (c) whether the defendent expressly OBJECTS to the introduction of the COPY, etc.

Another issue that can arise with the indorsement occurs when the indorsement is on an allonge rather than upon the face or back of the instrument itself.  Some jurisdictions, such as New York, have restrictions upon the use of allonges, limiting the use of an allonge to those circumstances where the space is filled up and no space is left for an additional indorsement.

The failure to firmly affix an allonge can also pose a problem.

These are all possible fact issues, but unless pleaded and argued are probably waived by the defendant.

Delivery can be even more problematic to the plaintiff.  Hearsay evidence is usually NOT admissible in most jurisdictions.  There are exceptions to the Hearsay Rule which tend to allow the admission of business records when properly authenticated by a proper business records affidavit.

It is common for plaintiff to use a perjured affidavit in which the affiant claims to have personal knowledge of the loan and which affiant makes a conclusory statement alleging that the affiant has personal knowledge that the plaintiff is the owner and/or the holder of the alleged promissory note.

Ownership or holdership is a legal conclusion, NOT a fact.  It subsumes all of the law of commerical transactions embodied in the UCC including all of the nuances related to allonges and substitutes the unlearned opinion of the robo-perjurer for the judge, jury and/or other fact finder.  It is the logical equivalent of allowing a single witness totally lacking in any personal interaction or contact with ANY of the underlying facts to simply testify as a conclusion that O.J. Simpson was guilty, since the witness had read all about the case in the newspaper and formed an opinion.

But the admission of the conclusory statement usually needs to be the subject of an express OBJECTION.  Otherwise the issue is usually waived and this false testimony comes in.

What is needed to prove delivery of the instrument is the testimony of a witness with personal knowledge of the delivery or the production of a contemporaneous delivery receipt kept in the ordinary course of business.

Usually, the plaintiff has difficulty producing either.  How is any single witness to recall the delivery of a single instrument amongst thousands delivered daily one or more years prior to the foreclosure suit.  Unless the maker was a Hollywood star or other public figure ("Oh, yes, I distinctly recall the delivery of this instrument.  It was a note signed by Tom CRUISE and it was delivered on my birthday.  I couldn't wait to tell my friends about it, so I posted a Status on my Facebook account, I was so excited!!"), it is quite UNLIKELY that ANY employee of the institutional custodian or trustee would recall the delivery years later.  

ONLY the contemporaneously created delivery receipt would tend to be valid proper evidence.

*

Some courts have held, and common sense supports the view, that possession of the original instrument is itself evidence of delivery.  This is not an unreasonable conclusion or holding, but it does NOT establish the date of delivery.  In particular, it fails to show that the delivery actually occured BEFORE the commencement of the suit, which is REQUIRED in most judicial foreclosure states (and under U.S. Bankruptcy law) to establish standing.

Here, the plainitff has sometimes tripped itself up by its incompetence and deceit.

It is not at all unusual for the plaintiff to initially plead an unindorsed copy of the promissory note at the commencement of the suit, certifying to the court that this is an exact copy of the original.  When the fact of indorsement is challenged, the plaintiff next either produces the indorsed copy OR a even simply forges an allonge and shows that to the court as further proof of indorsement.

Taken together, the two different copies, one unindorsed and the other indorsed, gives the reasonable inference that the indorsement occured AFTER commencement of the suit.  This alone may be sufficient to entitle the defendant to a dismissal (usually without prejudice).

As to delivery, those who are advocating "produce the note" defense strategies are very often substantially undermining a defendant's case.  Left to their own devices, very often the plaintiff in many places will FAIL to obtain the original collateral file, including the original instrument, which might then remain within the custody of the institutional custodian.  When the defendant DEMANDS the production of the note, very often the plaintiff's foreclosure mill counsel actually takes the necessary steps to OBTAIN THE ORIGINAL, which is then the best possible evidence that delivery has taken place.

If the plaintiff FAILS to obtain and show the court the original instrument, then proof of delivery can be very problematic.

*

In a summary judgment setting, the plainitff must usually put on ALL of its evidence well ahead of hearing.  Evidence must usually be by affidavit or admissible discovery materials.  Since the summary judgment proceeding is NOT an evidentiary hearing, production of additional evidence, even the original instrument, at the summary judgment hearing is usually inappropriate (and a basis for OBJECTION).

If the defendant raises a general standing challenge and DENIES the the plaintiff is the valid owner or holder, it is really incumbent upon the plaintiff to prove both indorsement and delivery.

If you press the "produce the note" strategy, then the plaintiff may very well obtain the original note which is going to be the best evidence of both indorsement and delivery.

If all the plaintiff has is a COPY of the note and a conclusory affidavit of an unqualified hearsay witness, then chances of prevailing OUGHT TO BE very good.  But even so, it would be wise to have one or more defensive affidavits from a qualified "expert" to show the falsity of the allegations appearing within the plaintiff's affidavit.

*

You have hit the nail on the head with respect to negotiation of the note to MERS.  Once you have read and understand the MERS Terms and Conditions, the MERSCorp Rules of Membership and the MERS Appellant's Brief in the Nebraska case, you are in a very strong position (with the pleading and proof of these items as evidence) that MERS is never the holder of a MOM promissory note.

*

As far as the forgery of the assignment goes, you need to ask yourself, what is the essence of what the purported assignment purports to represent.

IF the assignment contains language which purports to include a conveyance of the note, bond and indebtedness, which MERS does NOT OWN, then it seems to me that the language is deliberately MISLEADING as to what is purported to be conveyed.  Moreover, what does it mean to represent that MERS is conveying its interest in the mortgage or deed of trust, where the original conveyance to MERS is a nullity (absent conveyance of the note by negotiation to MERS)? 

Then ask yourself about the significance of the DATE shown on this assignment.  What actually HAPPENNED on the date shown?

Was there a transfer of consideration as between MERS and the mortgage investor?  That is, did any MONEY or other value change hands upon that date?  NO.

Did either MERS OR the mortgage investor use this purported transaction as the basis for an accounting journal entry?  NO.

Did MERS reflect the purported mortgage on its balance sheet before the purported transfer and remove this mortgage from its asset balances in respect of an accounting journal entry after the assignment?  NO.

Did the mortgage investor NOT show this mortgage on its balance sheet PRIOR to the purported assignment, and ADD this mortgage to its assets AFTER this purported assignment?  NO.

Did (or will) either MERS or the mortgage investor aggregate the value of this transaction in a report to the IRS?  NO.

Did MERS instruct its "officer" to execute this assignment of the mortgage or deed of trust?  NO.  The servicer unilaterally executes the assignment ITSELF through the actions of a servicer employee appointed as an officer of MERS.

Is the assignment prepared at MERS' behest?  NO.  The assignment is typically prepared by the law firm representing the mortgage servicer.  MERS has nothing to do with its preparation.

Does the MERS officer REPORT this assignment to MERSCorp and does MERSCorp archive the assignment as a part of its internal corporate records?  NO.  The transaction is essentially exogenous to MERS.  MERS doesn't really WANT or need to know about it EXCEPT that the mortgage is then supposed to be annoted as assigned out of MERS in its registry.

Are the MERS officers executing these purported assignments compensated or supervised by MERS?  NO. 

*

Suppose that I set up a business which produced what appeared to be valid taxicab fare receipts.  In fact, suppose that I obtained a single taxi license and then SOLD "preferred memberships" in my Taxi Cab Riders program.  As a benefit of membership, I would appoint each member as an officer -- Asst. Vice Presidnet and Secretary -- to my taxicab company where the sole authority of the appointed officers was to execute taxi cab fare receipts on behalf of the company.  Further suppose that I furnished each so appointed officer with a nice digital copy of our official fare receipt to print out and use.

My members could then SELL these fare receipts, at a discount of course, to ANYONE and everyone who desired or needed a taxi cab receipt to file with a corporate expense account OR to use as evidence in suport of claimed expenses on an income tax return.

What would you CALL these receipts?  I would call them forgeries or false business records, depending upon the statute of the state in which they were forged or uttered. 

If I used such a receipt to create an alibi, showing that I was in Brooklyn at the time of a murder taking place in Boston, what would this receipt be when presented as evidence in a court proceeding?  I would call this false evidence or fabricated evidence, which constitutes a fraud on the court.
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Bill
Some courts have held, and common sense supports the view, that possession of the original instrument is itself evidence of delivery.  This is not an unreasonable conclusion or holding, but it does NOT establish the date of delivery.  In particular, it fails to show that the delivery actually occured BEFORE the commencement of the suit, which is REQUIRED in most judicial foreclosure states (and under U.S. Bankruptcy law) to establish standing.


It was my impression that most places use a document costodian of some kind.  My original lender who wasn't a local bank most likely didn't have a huge vault that it stored all the notes it received at closing from customers.   Anyone that was the costodian could have access to the note.  This costodian could easily just give the original note to whom ever they wanted to.   I think this is even more important when the Originator is in bankruptcy or out of business.   Is possession of the original itself really that strong of an argument for delivery?  Wouldn't you still have to show the transfer of the note/mortgage before the originator went under?  If not looks like someone is trying to get a free lunch.  "The Originator is under and the note is just sitting.  Why not say we own it."

What are your thoughts on this?  Has this argument been made?

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Cindy
This is so very helpful. I think I must have spent a thousand hours trying to educate myself about my case, but nothing compares to your help, Mr. Roper. I could have saved myself countless days of research and misdirection if I had found this site first.

I think the misdirection has made it too late to succeed in any meaningful way with my case, as I can see a successful outcome takes a determined and knowledgeable attorney. None can be found in my area. At least, not at what I can afford. A few would take upfront money quickly, but only "to delay." I made that mistake and now I see that it delayed nothing. I realize now that the bank had plenty of incentive to delay, as Fannie Mae backs my loan. The judiciary committee hearing last week underscored something I knew, but hadn't connected, about government guaranteed loans. The banks get full mortgage amount due even if the house is now worth half that much. Banks have no incentive to work with any homeowner, in fact, quite the opposite. I was so ignorant of this mortgage mess when I first started my research, but I'm much more informed today.  Enough to speed up my plan to live somewhere else. It's good to know the truth, so I can face its effects.

I had hoped that the MERS bi-furcation was true, as my late husband signed the note without me. I didn't sign the sales contract, the loan app, or the note. I was required to sign the mortgage. Of course, if the debt had become unsecured and the mortgage unenforceable, I had hoped I could keep my house. However, with all of this excellent, thorough help, I now see I need to keep packing, just quicker. I have never been served, but my case is showing online since late Oct. Someone came yesterday beating on my door and they beat so hard that I expected the glass to break in the front door. I was so afraid they would come bursting into my living room, but I froze and just couldn't go to the door. I just couldn't deal with it. I'm sure they will be back. Clearly, I have to deal with it.

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William A. Roper, Jr.
Cindy:

Within the discussion of this thread, we have not spent very much time discussing MERS within the context of bankruptcy.  Due to some nuances in the bankruptcy law, there may be a different outcome with respect to defending against an MERS involved foreclosure in a bankruptcy setting than simply defending in court.

*

The decision to abandon and walk away from an underwater property is not an altogether irrational one, though you need to understand your prospects and rights within the context of the laws of your jurisdiction with respect to a deficiency judgment.

Defending against and fighting a foreclosure requires, time, energy and tenacity.  Defending with an attorney, which is certainly the recommended approach, also requires financial outlay.  Any default and foreclosure inherently has negative consequences as to your credit.  Bankruptcy can impose a further credit degradation, though when a debtor is under particularly severe economic stress, bankruptcy can also be a means of overcoming some of this economic stress, particularly as to unsecured debt, through bankruptcy discharge.

For some, putting up a spirited defense, if only to delay the inevitable, is a rational course of action.  For others, it may make the most sense to give a deed in lieu in exchange for a full release from any definicency judgment.  And for some, simply abandoning the property may make sense, particularly where employment prosects in their area of residence are so bleak that a relocation is probably necessary anyway.

I do not mean to seem to question your decisionmaking.  But I would highly encourage you to obtain the assistance of a competent attorney specializing in consumer debt, if only to verify that you fully understand the legal consequences of the course of action you are choosing.  It may be that even in consideration of a choice to deliberately abandon the property that there exists some alternative that includes a negotiated settlement to include a deed in lieu with a release that gives additional certainty to the outcome and assures you an opportunity to effect a fresh start unburdened by the threat of a future collection actions on a deficiency judgment.

*

In some judicial foreclosure states, such as New York, the time necessary to obtain a foreclosure was already in excess fo two years even before the mortgage foreclosure fraud meltdown precipitated by the GMAC robo-signing scandal.  And under the new Rule promulgated by the New York Court of Appeals, foreclosures there are essentially stalled by the unwillingness of any New York lawyer to certify to the verity of the documents already filed.

The implosion of the David Stern Law Offices in Florida and criminal investigations of the other leading foreclosure mill law firms assures that Florida's courts will be tied up sorting out foreclosures for years.

Ohio's appellate courts have been increaingly overturning improper foreclosure judgments.

Foreclosure mill law firms everywhere face the very real possibility that attorneys will be disciplined and/or prosecuted and these firms may face such extensive civil liabilities that many may implode and go out of business.

In my view, it is far from assured that any judicial foreclosure action will be completed in a timely way.  In non-judicial foreclosure states, foreclosures will continue to go much faster, but the continued reliance on forged assignments puts the legitimacy of title in doubt.

*

In closing, I want to emphasize that you should let self-interest be your guide.  If you are at all in doubt about the ethics of resisting a foreclosure, go to the  Comedy Central web site and find the Daily Show with Jon STEWART clip showing travails of the Mortgage Bankers Association of America, which strategically defaulted on its mortgage while admonishing consumers that strategic default was unethical. 
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William A. Roper, Jr.
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Bill said:
It was my impression that most places use a document costodian of some kind.  My original lender who wasn't a local bank most likely didn't have a huge vault that it stored all the notes it received at closing from customers.   Anyone that was the costodian could have access to the note.  This costodian could easily just give the original note to whom ever they wanted to.   I think this is even more important when the Originator is in bankruptcy or out of business.   Is possession of the original itself really that strong of an argument for delivery?  Wouldn't you still have to show the transfer of the note/mortgage before the originator went under?  If not looks like someone is trying to get a free lunch.  "The Originator is under and the note is just sitting.  Why not say we own it."

What are your thoughts on this?  Has this argument been made?


The legal effects and consequences of delivery to an entity other than the entity asserting a right as a holder, such as delivery to an institutional custodian, are unclear.  FNMA and FHLMC have altered their Seller's and Servicer's Guide within recent years to add language which purports to reflect that the institutional custodian is holding on behalf of these entities and that the physical possession by the custodian would inure to the benefit of the mortgage investor and/or servicer.  But the appearance of such language doesn't really alter the law as expressed by the statutes and cases of the several states.

I have never read a case on this which is directly on point.  My intuition tells me that this may be a legally ineffective argument.  That is, if one is arguing that the key to being a holder is physical possession, how can one reconcile this concept with the idea that the instrument is in the phycial possession of one and the constructive possession of another.  And how can their be more than one entity which can validly claim to be in physical possession of the instrument.

Since very few borrowers ever actually establish the FACTS as to the physical possession, this almost never gets called into question.  But I believe that the recently emerging decisions of the U.S. Bankruptcy Courts show that the courts are unpersuaded by these logical gymnastics.

First, you will need to establish the FACTS through discovery.  Then you need take apart the plaintiff's arguments through thorough research and cogent analysis.

*

As to your questions relating to the right of enforcement by a holder coming into possession of the original instrument by questionable means, I believe that you will find the UCC and the Official Notes to the UCC to unhelpful.  Consider these provisions: 

§ 3-202.  NEGOTIATION SUBJECT TO RESCISSION.
(a)  Negotiation is effective even if obtained (i) from an infant, a corporation exceeding its powers, or a person without capacity, (ii) by fraud, duress, or mistake, or (iii) in breach of duty or as part of an illegal transaction.
(b)  To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good faith and without knowledge of facts that are a basis for rescission or other remedy.

§ 3-203.  TRANSFER OF INSTRUMENT; RIGHTS ACQUIRED BY TRANSFER.
(a)  An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
(b)  Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
(c)  Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.
(d)  If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur.  The transferee obtains no rights under this Article and has only the rights of a partial assignee.
See: http://www.law.cornell.edu/ucc/3/article3.htm#s3-202
NOTE:  Be sure to compare the language of the UCC as applied in YOUR jurisdiction:

http://www.law.cornell.edu/uniform/ucc.html#a3


*

I think that any argument that the entity with a validly indorsed negotiable instrument and physical possession of that instrument isn't a holder is going to be unpersuasive.  By contrast, physical possession doesn't prove the date of acquisition to establish standing at commencement of the suit.

Those who advocate produce the note strategies are helping to coach the plaintiff to bring in the only evidence which is most assured to prove holdership.

If the original of the note is NOT produced in an action, then the plainitff has NO POINT OF REFERENCE to show the date of its acquisition for the purposes of holdership.

Through the pleading of false evidence, forgeries, perjured affidavits, and other fabricated documents, the plaintiff may very well posion its case.  Give them ample opportunity to do so!
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bill
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Since very few borrowers ever actually establish the FACTS as to the physical possession, this almost never gets called into question.  But I believe that the recently emerging decisions of the U.S. Bankruptcy Courts show that the courts are unpersuaded by these logical gymnastics
.


Why would this be the case?  Is this because so many foreclosures are by default?  Bad Lawyers?  Do people not ask for it? 


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 First, you will need to establish the FACTS through discovery.  Then you need take apart the plaintiff's arguments through thorough research and cogent analysis


Do you have an example or link to one of your previous posts that would give some examples of questions/documents that would help box in a plaintiff as to the chain that led to the plaintiff's possession of the note?


One last question.  I keep reading that if you defeat a motion to summary judgement you enter the discovery stage of litigation.  In my jurisdiction the rules allow for discovery 10 days after the complaint is filed.  Is this unusuall?
With all the problems defendants are having with the plaintiff refusing to produce documents I thought that would be one of the first things a defendant would do if defending his home.    
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Bill Said:
Why would this be the case?  Is this because so many foreclosures are by default?  Bad Lawyers?  Do people not ask for it?


Bill, in the Autumn of 2007 and Winter 2007/2008, I posted quite a lot of information about the Ohio Federal Cases, a series of dismissals of foreclosures brought in U.S. District Court in Ohio purportedly under diversity jurisdictions when the Ohio state courts became congested.  These cases exploded into the news when Judge Christopher BOYKO dismissed a number of cases in which Deutsche Bank National Trust Company (as trustee) was the plaintiff.

Search the Forum using keywords such as "Boyko", "Dowd", "Rose", "OMalley", and "Holschuh" to read more about these remarkable cases.

I pulled the pleadings in these cases and read the orders in about four hundred cases.  You will see amongst my posts to the Forum some scorekeeping as to the disposition of these cases.  Ultimately, the Federal Court in Ohio essentially cleared the docket of foreclosure cases through either dismissals due to lack of standing OR voluntary dismissals when the plaintiffs clearly understood that the Federal Court was serious about its evidentiary standards

Most of these dismissals were sua sponte by the Court.  In the vast majority of instances, the borrower was unrepresented by counsel.  And in the vast majority of these cases, the borrower failed to answer.

Although I didn't keep precise statistics on what portion of the borrowers were represented, my GUESS is that about 90% were without an attorney.  In those instances where a borrower retained an attorney, in most of these the attorney had interposed a bankruptcy filing as a means of slowing the foreclosure.  I noted a number of cases where the borrower's attorney had filed a bankruptcy petition within days AFTER a case had been dismissed sua sponte, probably because the lawyer failed to even check the dockets and discover that the case was already dismissed!

Amongst these four hundred or so cases, I am aware of only a single case where a borrower was both represented and filed a motion to dismiss due to lack of standing.

I have made a similar study of cases in state court in one Ohio County and the results are strikingly similar.

In most instances, the borrower never appears and answers.  In most instances, the borrower does NOT retain an attorney and when the borrower retains an attorney, the knee jerk has been to file a bankruptcy petition to slow down the foreclosure rather than to research and study defensive foreclosure law to interpose a valid and effective defense.

While you are now reading about a dozen or so foreclosure defense attorneys who are mounting effective and spirited defenses, three years ago there were probably half as many who were effectively litigating these cases.  (I am talking about the newsmakers as opposed to the larger group of attorney who are doing effective defense work but are not the groundbreakers.)

In randomly sampling foreclosure cases on the dockets in a number of jurisdictions, I have NEVER seen a case where a borrower filed ANY discovery responses in an opposition to summary judgment.  I have probably looked at over 1,000 cases and I have NEVER, EVER seen indications of defensive discovery.

This is NOT to say that the more effective foreclosure defense attorneys are not conducting discovery.  To the contrary, I have been pleased and delighted at the number of recent instances where excellent depositions of various affiants and robo-forgers and robo-perjurers have appeared.

But these cases are SO RARE that you are UNLIKELY to come across them by chance alone.  You will find these cases and the associated discovery by searching for cases with favorable outcomes and/or cases where a particularly effective attorney is representing the defendant.  Even these can be hard to find as many jurisdictions do not have search facilities that make it possible to find cases by attorney rather than by party.

Doing the math, in the 90% of the cases where the defendants fail to answer, no discovery is undertaken.  In the remaining 10% of the cases, perhaps half are represented by an attorney who simply goes the bankruptcy route.  Usually no discovery there either.  That leaves maybe 5% of defendants, answering and defending pro se.  Most of these fail to read and understand the rules and get steamrolled in the summary judgment proceeding.

If I were going to ESTIMATE, I would tend to guess that discovery is probably conducted in less that 0.2% of judicial foreclosure cases nationally.

Admittedly, this number surely must be rising rapidly or even exploding as a consequence of the foreclosure fraud noted in the national news.

In many cases, the defendant totally misunderstands the summary judgment and shows up thinking that they will be permitted to testify or to put on defensive evidence.  By failing to submit TIMELY evidence in admissible form, they have essentially waived their opposition and judgment is granted.  NO EVIDENCE IS USUALLY ADMITTED AT THE SUMMARY JUDGMENT HEARING OTHER THAN THAT IN AFFIDAVIT FORM ACCOMPANYING THE MOTION AND OPPOSITION (IF ANY).  If a defendant shows up for a summary judgment hearing without putting in a defensive affidavit and/or discovery responses IN ADVANCE OF HEARING, the defendant has probably already LOST and is mostly appearing to hear the judge rule against him!

*

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Bill Said:
Do you have an example or link to one of your previous posts that would give some examples of questions/documents that would help box in a plaintiff as to the chain that led to the plaintiff's possession of the note?


See my thread:


"Defensive Discovery: Starting Off On the Right Foot!" (09/19/10 at 08:40 PM)

http://ssgoldstar.websitetoolbox.com/post?id=4893757


The discovery questions suggested by Texas are generally probably better than NOT asking for ANY discovery, but in framing your questions, you also need to be careful to avoid either (a) prematurely telegraphing your level of sophistication and understanding and (b) taking the opposition to school about the other evidence that it might actually obtain and plead.

If you show the opposition that you understand their perjury, forgery and fraud, they will take far greater care in their responses.  It is probably better to first obtain some unguarded responses.

Your precise discovery strategy must necessarily depend upon THE RULES OF YOUR JURISDICTION, THE TEMPERAMENT AND DISPOSITION OF YOUR JUDGE AND THE UNIQUE FACTS OF YOUR CASE.

*

Bear in mind that Forum participant Texas' discovery is based upon what I believe will prove to be a FALSE PARADIGM and FALSE PREMISE.  Texas generally believes that he is going to prove that the negotiable instruments were never delivered to his trust.  I believe that he is going to find that he is MISTAKEN.  I think that they probably WERE delivered, but that the plaintiff is very likely to overlook the REAL PROOF.  But Texas wants to get in the plaintiff's face because Texas is overconfident.  What Texas is most likely to do is to energize the otherwise lazy, slothful and sloppy foreclosure mill he is litigating against and they will put someone somewhat competent on his case and eat his lunch.

My approach is based upon an alternative paradigm.  This is the paradigm that the mortgage collateral may have been properly delivered, but the the foreclosure mills and plaintiff regularly engage in perjury and forgery as a matter of laziness, arrogance and convenience.  If they are already LAZY, WHY would I want to challenge them to WORK?

I think that if you make a run at the plaintiff directly, the plaintiff will just go to the vaults of the instiutional custodian EARLIER and obtain the tuthful evidence to defeat you.  I would tend to give the plaintiff the rope to hang themselves!

I believe that most borrowers have enough of an uphill battle on their hands that TELEGRAPHING one's intentions and then seeking to PROVE SOMETHING which is actually UNTRUE, is a rather unlikely strategy upon which to hope for any success.

Drop me a note via e-mail and I will share some other discovery examples privately.

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Bill Said:
I keep reading that if you defeat a motion to summary judgement you enter the discovery stage of litigation.  In my jurisdiction the rules allow for discovery 10 days after the complaint is filed.  Is this unusual?


I do NOT pretend to be familiar with the laws and particularly with the Rules pertaining to discovery and summary judgment in ALL jurisdictions.  To the contrary, I have explained repeatedly that I am NOT AN ATTORNEY and CANNOT GIVE YOU LEGAL ADVICE.

I have personally litigated to include discovery only in two jurisdictions.

I believe that what you have been reading is probably mostly WRONG if it asserts that discovery is to FOLLOW summary judgment (this is NOT to say that discovery cannot continue beyond summary judgment but rather to reflect that you are entitled to discovery prior to summary judgment).  To the contrary, in many jurisdictions, the summary judgment rules expressly provide that discovery responses one of the two forms of admissible fact evidence in support of or opposition to summary judgment (the other being affidavits).

To the extent that the summary judgment responses are intended as summary judgment evidence, how can it be that discovery is supposed to come AFTER summary judgment?  READ THE RULES AND CASES FOR YOUR JURISIDCITON!

Some jurisdictions have express fixed discovery periods during which discovery must be conducted.  Other jurisdictions close discovery a certain number of days prior to trial.

In many places, the summary judgment rules expressly provide that an affidavit averring the necessity for additional discovery is a valid reason to continue a hearing on the summary judgment.

But if the defendant SITS ON HIS OR HER HANDS AND CONDUCTS NO DISCOVERY, the Judge is very likely to be UNSYMPATHETIC when you ask for additional time.  It is quite another matter when you show the court that discovery has been underway and that more discovery is still necessary OR where you can show that the plaintiff has FAILED TO PROPERLY ANSWER discovery already propounded.

You are probably therefore somewhat better off to ask a series of sometimes overlapping discovery questions and to keep the plaintiff on the defensive.  Whether this can be accomplished is going to somewhat depend upon the discovery Rules of your jurisdiction and the temperament of your judge.
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William A. Roper, Jr.
Bill:

See also some discussion of discovery questions in my prior post within the thread:

"Summary Judgement affidavit" (11/21/10 at 12:37 AM)

http://ssgoldstar.websitetoolbox.com/post?id=4980004&highlight=discovery+indorsement


In particular, take note of the posts at 11/23/10 at 01:37 AM and 11/23/10 at 11:06 PM.

Once again, though, I would reiterate that the questions need to be both prioritized and sequenced based upon some coherent litigation strategy which has been conceived in consideraton of the law of your jurisdiction and the facts of your case.

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t

This year old thread contains some useful information and also deserves to be revived.

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