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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Angelo

Another game changer from NY's Appellate Division 2nd. Dept., might help other states as well!  I feelthat the landscape of judicial foreclosures with MERS involved in NY has now changed, finally some smart judges are not accepting the banks and foreclosure mills take on MERS.  And the best is this was done by a defendant, PRO SE!!

Excerpts:

"Although the mortgage instrument identified MERS as the nominee, and purported to grant MERS the authority to foreclose on the subject property, the mere presence of such language in the mortgage instrument itself "cannot overcome the requirement that the foreclosing party be both the holder or assignee of the subject mortgage, and the holder of the underlying note, at the time the action is commenced"

"Moreover, although there was evidence that MERS assigned the mortgage instrument to the plaintiff during the course of the action, such an assignment would not render the plaintiff the holder of the note, since MERS could not transfer that which it did not hold......", that statement in conjuction with MERS' own words, in the appellates brief, MERS v. Nebraska Dept. of banking, might just render MERS void in NY.

Homecomings Fin., LLC v Guldi, 2013 NY Slip Op 05048
http://www.nycourts.gov/reporter/3dseries/2013/2013_05048.htm

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Veal
Angelo --- we would have had this issue resolved many many years ago eg. the Taylor Decision!

?Do you know the procedure to obtain the docket entry for the case cited above, and, do you have the contact info to request briefs etc?

Thanks 
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Angelo
@Veal

Here is the link for the docket entries:
https://iapps.courts.state.ny.us/webcivil/FCASCaseInfo?parm=CaseInfo&index=5dz5C6uW7gr8aOf%2FmlgEnA%3D%3D&county=yVnVYbHgoB3ZvzZgsIn1%2FA%3D%3D&motion=M&docs=D&adate=02/08/2013

This is a Suffolk county case, they don't e-file, so the only way to get copies of the records is to pull the file from the county courthouse!
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Veal
Thanks Angelo and glad to hear ur "still in your house"!  limitation around the corner?
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Nicky
Speaking of limitations, when is the actual date that the court will go by?  I know every jurisdiction might be different, but in general terms.

Lets say the NOD/intent to accelerate letter was dated 6/1/09 and the letter stated you had 45 day to cure or the plaintiff/servicer will accelerate the debt, and the limitations on the note is 5 years in your jurisdiction, and there was no tolling of the debt, would the limitations date be 6/1/2014 or 45 days thereafter?
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Hello @veal....
I got a question for you

In order to get a file in Suffolk NY , I will need to go to riverhead?

And also, can I search and copy several cases related foreclosure decisions there?
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Angelo
@charly

Yes the courthouse is in riverhead, you need go to the records room and pull the file, there are copy machines there to make copies.  Its a bit of a pain because there are only 2 copy machines.  Make sure you have index numbers before you go, it will make your life easier!!
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Rocky
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Speaking of limitations, when is the actual date that the court will go by? I know every jurisdiction might be different, but in general terms.

Lets say the NOD/intent to accelerate letter was dated 6/1/09 and the letter stated you had 45 day to cure or the plaintiff/servicer will accelerate the debt, and the limitations on the note is 5 years in your jurisdiction, and there was no tolling of the debt, would the limitations date be 6/1/2014 or 45 days thereafter?

Even thinking in these terms is a mistake. When you get PAST LIMITATIONS, then what you next want to do is KEEP A LOW PROFILE and get five or ten more years behind you.

Bear in mind that you will NEVER be entitled to have the lien extinguished even after getting past limitations. Mr. Roper has discussed this is several very insightful posts.

So your goal needs to first get past limitations to protect yourself defensively. Then to put more time between you and the limitations date. Ultimately, there may come a time when the Lender has written off the debt, deleted the files off their computers and even been merged out of existence. In such an instance, you might be able to get the lien extinguished by bringing an action in which you are able to get a default. But the ONLY way to get such a judgment is by default. You can never, ever win on the merits in court, because limitations does not extinguish the debt. Instead, it merely bars the remedy.

There are two possible ways to get a clean(er) title sooner. One is to die and have a new deed issued through probate. Since the Lender cannot enforce the note in probate after limitations, they cannot really resist the transfer and the conveyance to a new person by judicial order is going to mostly seem to leave the lien behind.

The other way is to wait out the full original term of the note, usually thirty years. This works NOT because the borrower is entitled to have the lien released after thirty years, but rather because anyone is entitled to ASSUME that the lien has been extinguished after its maturity date.

So just stop thinking in terms of whether limitations ends one date or anther 45 days later. Usually, those thinking in these terms are being set up by debt elimination scam artists to file a specious quiet title suit as part of the one of the many scams. You SUE and you LOSE. If you keep quiet and get past limitations, you KEEP THE HOUSE. You wont be able to SELL IT, but you can live in it, have quiet enjoyment, rent it out and ultimately will get a pretty clean title after a LONG TIME without filing any further suit!
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