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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FnDoomed
I have a chapter 13 BK case going.  The proof of claim submitted by SERVICER in NOVEMBER 2010 contained four documents.  1) A screenshot of numbers, 2) A mortgage in favor of LENDER, 3) A Mortgage assignment and 4) A promissory note in favor of LENDER.

The promissory note was a standard single family freddie mac note containing three pages.  The indorsement space on page 3 shows an indorsement in blank from MIDDLEMAN.   There is also an allonge containing an indorsment of the note from LENDER to MIDDLEMAN and with great specificity misidentifies the note to which it is purportedly attached.

Last month I was in court to float a few objections to the proof of claim past the judge.   Leaving out the formalities of the UCC I pointed out that
1) SERVICER didn't appear to be a person entitled to enforce because of the invalid allonge and the subsequent transfers.

2) In a JANUARY 2011 response to a QWR, another branch of SERVICER sent me a copy of my promissory note that had no allonge.

3) That the mortgage assignment had problems as described in Agard.  No agency to transfer mortgage, no instructions from principal to agent and no proof that the person executing the assignment was authorized to do so by agent.   I did not point out that the mortgage assignment was assigned and recorded and returned to employee attorneys of the same foreclosure mill law shop.  This also happens to be the same law shop representing SERVICER in court.
At the hearing in early June the judge ordered that SERVICER provide additional documentation and an affidavit from a competent witness who can testify in support of their proof of claim, or he would sustain my objection and deny their claim.  The judge gave them seven weeks. 

If they provide anything, I have five days to respond.  The judge indicated that almost any response would trigger an evidentiary hearing, starting with memorandums of law from each side. 

This is where I am today.   The deadline set by the judge is a couple of weeks away.

Two days ago there was an assignment/transfer of the claim from SERVICER HOME FINANCE LLC to it's parent corporation.    It strikes me as an odd move with a looming deadline.  I don't know what it means and that worries me.

If they motion for (a third) continuance due to the recent assignment of the claim then I will object that parent and subsidiary are essentially the same entity and that they shouldn't be able to buy more time by transferring the claim around.  I also expect I would get overruled, unless they irritate the judge somehow.

If they submit some evidence, I imagine it will be in the form of business records and affidavits.   My plan is to find whatever objections I can make to their submitted evidence and start objecting.   There is some great case guidance here on business records and affidavits, but until I actually see what gets submitted I can't do anything else but wait.

This is where I'm stuck.   I can't anticipate whether it will be time to simply move for a summary dismissal of their claim on the evidence, or whether to angle for an adversary proceeding with the associated memos of law and discovery.

Of course they could always miss the deadline entirely and have their claim denied, at which point I have time to think.


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Texas
Might want to look at Rule 3001 (d)

Was there compliance at the time the Proof of Claim was filed?

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William A. Roper, Jr.

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 FnDoomed said:

There is some great case guidance here on business records and affidavits, but until I actually see what gets submitted I can't do anything else but wait. 


FnDoomed:

I am hoping that by here you mean in the 1st Circuit.  While a U.S. Bankruptcy court must necessarily apply substantive law of the state whose laws govern the matters at question, when it comes to procedural law, the court is going to apply the Bankruptcy Rules, and, I believe the Federal Rules of Evidence and U.S. Court evidentiary decisions.

While holding of the New Hampshire courts may be interesting and informative, NH court holdings as to business records and affidavits are unlikely to be binding on the Bankruptcy Court, EXCEPT that laws regarding the requisites of valid New Hampshire affidavits and authentication of such affidavits (when executed in that state) might form the basis for some objection or issue.

Make sure to supplement your understanding of New Hampshire law relating to evidence with an understanding of the Federal evidentiary rules and the cases on those rules!

NOTE:  I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE!
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FnDoomed
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Texas:
Might want to look at Rule 3001 (d)
Was there compliance at the time the Proof of Claim was filed?


Rule 3001(d) is "evidence of a perfected security interest".  They can say they complied, because they had a recorded mortgage assignment submitted into evidence.  I have at least three arguments against that assignment as in Agard as well as conflict of interest arguments as in several Schack cases out of NY involving Baum.  For example here

Is that what you meant?    if I'm missing something critical based on the rule then I'd like to know about it please   And thank you.

Commentary on the rule and its effect are welcome.

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William:
Make sure to supplement your understanding of New Hampshire law relating to evidence with an understanding of the Federal evidentiary rules and the cases on those rules!


You bet I will, William.    I also want to say THANK YOU for all of the non legal advice that you provide.  Your non advice is higher quality, easier to understand and more complete than any legal advice I've received to date.

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FnDoomed

Just a quick update to cover the last year.  BANK sought several continuances to which I assented.  The judge seemed to have gotten a little irritated with them and ordered them to come in with the goods by 8/27/11 or have their claim denied.  I was given until 10/7/11 to respond.

Prior to that date I converted my chapter 13 BK to a chapter 7 BK and liquidated, which also meant that no further litigation as to the validity of BANK's claim was necessary.  A lot of time passed and my BK discharged on 1/12/2012.  A lot more time passed and my BK formally closed on 5/14/2012.  The delay was due to the trustee -- he wanted to fight BANK for my house and he wanted my BK attorney to do it on a contingency basis.  My attorney declined and the BK closed.

BANK is coming after me again and since I'm in NH, I had to initiate my own suit to stop it, which I did.  I also made a bunch of allegations going to unfair and deceptive trade practices.  My hearing was scheduled for 9AM this morning.  Last night I was contacted by a new law shop to inform me that my case had been transferred to them and removed to federal court.

As soon as I figure out how to do it I'm adding in the old law shop as defendants and adding some allegations just for them.

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