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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Does anyone know of any case law where foreclosure dismissed because original "bank"/loan company went out of business and they failed to file assignment of mortgage when the loan was allegedly "sold" to the trustee. No assignment on file with the county clerk for the property from any company but who originally financed the mortgage.
thanks!
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   Glad you asked. Bill will like this. I just stopped a foreclosure for exactly this reason. Hillsborough County Florida, case # 08-ca-008983.
   In this case, lender A assigned the mortgage and the Note to lender B.
Lender B never assigned anything before going out of business. Servicer
C sued for foreclosure and the defendants defaulted so servicer (pretender
lender) C got a default judgment even though the mortgage was not assigned and the Note was never endorsed over to Servicer C.
   Actually I have to back up a minute, servicer C recorded a phony assignment from B to itself, a year after B went out of business.
   The defendants came to me wanting to do a Ch 7 BK because they had the Homestead Exemption. However, noting the fraud, I prepared and they
filed an EMERGENCY MOTION TO VACATE THE JUDGEMENT AND CANCEL THE
sALE BASED ON FRAUD.
    The Judge looked over the case and agreed. He vacated the judgment and cancelled the sale. So it does happen, but you must research the case
carefully and mention the rule of procedure which would allow the Judge to
vacate the Judgment. In this case it was a fraudulent assignment and no
endorsement of the Note from B to C. (Also the Note was not a negotiable
instrument so it required a valid assignment and endorsement to be transferred to the servicer. In this case, as in many others, that never happened) Many people have lost their homes in this exact scenario, even
with a lawyer representing them, because the lawyer was too lazy to research the case. It happens frequently. Never believe that just because
you have a lawyer, he/she will properly represent you. You need to look over
their shoulder and MAKE SURE they do everything correctly. Research it yourself and double check every thing they file.
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William A. Roper, Jr.
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Mike H. said:
However, noting the fraud, I prepared and they filed an EMERGENCY MOTION TO VACATE THE JUDGEMENT AND CANCEL THE sALE BASED ON FRAUD.


Mike H:

It is my recollection that you have mentioned in prior posts that you are NOT an attorney.  (Based on the bizzare wingnut theories you have espoused in prior posts, IF you ARE an attorney, it is baffling to me how you could have EVER passed the bar!)

While it is admirable that you are taking an interest in the legal troubles of others, it is also VERY CLEAR that your understanding of these matters is both marginal and deficient.  Moreover, in most jurisdictions, practice of law by persons not licensed members of the bar is prohibited by law.  In many instances, this is both a criminal and a civil matter.

As I recall, you have suggested on more than one occasion that you are acting on behalf of clients.  That is, you have alluded to being PAID for your efforts.

*

Based upon your posts, it would seem that you are probably engaged in unlawful activity.  I would think that it is undesirable for the MS Fraud Forum to countenance this.  IF YOU ARE USING THIS MESSAGE BOARD AS A VENUE TO SOLICIT BUSINESS FOR AN UNAUTHORIZED PRACTICE OF LAW, YOU MAY BE INVOLVING OTHERS IN YOUR CRIMINAL ACTIVITIES.

I would encourage you to speak to a lawyer right away about what you are doing and your civil and criminal liability.

NOTE:  I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE!
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William A. Roper, Jr.
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Mike H. said:
Never believe that just because you have a lawyer, he/she will properly represent you. You need to look over their shoulder and MAKE SURE they do everything correctly.  Research it yourself and double check every thing they file.


Mike H.'s statement encouraging both caution and due diligence in respect to foreclosure is less suspect.  But you need to apply this to interactions with and suggestions BY Mike H.

The law, like medicine, involves both some foundational training and also much specialization.

A person with a malignant brain tumor probably should seek treatment from a podiatrist.  Happily, most responsible podiatrists would refer the patient with a brain tumor.  Even if the podiatrist failed to do so, the auditors emplyed by medical system payors (mostly insurers or the government) would usually question brain cancer treatment by a podiatrist and would REFUSED TO PAY. 

Unfortunately, this is not always the case with attorneys.  Many attorneys simply assume that because they have some training in the law that they are prepared defend a wide variety of specialized cases.  The attorneys who are unacquainted with mortgage foreclosure defense and who have little experience in litigating these case are very often deceived by perjured, forged and fabricated evidence presented by foreclosure plaintiffs.

Whenever possible, it is a good idea to get an attorney with experience and training in consumer debt, foreclosure defense and bankruptcy.

But even an attorney lacking such training is very helpful for most borrowers compared with successfully preparing and mounting a successful foreclosure defense pro se.

Reading widely and exploring various alternative defenses is a good idea.  Falling under the spell of wingnut charlatans, such as Mike H., is not a good idea.

The most successful defensive strategis can be employed by defendants without Mike's counsel or assistance.  The most bizzare of his recommended approaches will lose the borrowers home as surely as the better strategies might stop or slow foreclosure.

READ WIDELY AND DO YOUR OWN DO DILIGENCE.  THIS SHOULD START WITH THE EMPLOY OF A COMPETENT ATTORNEY.  BEWARE OF THOSE SELLING SERVICES AS CONSULTANTS.
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William A. Roper, Jr.
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Linda said:
Does anyone know of any case law where foreclosure dismissed because original "bank"/loan company went out of business and they failed to file assignment of mortgage when the loan was allegedly "sold" to the trustee.  No assignment on file with the county clerk for the property from any company but who originally financed the mortgage.
thanks!

 
Linda:
 
"In most jurisdictions, the mortgage automatically follows the note when the note is properly negotiated by indorsement and delivery."
 
An assignment is NOT strictly required, but plaintiffs often forge an assignment for use as evidence in a case.  Sometimes this assignment is forged AFTER the commencement of a suit.
 
Assignments are NOT required to be recorded in most jurisdictions to give the assignment legal effect.
 
Mike H.'s assertions about note negotiability are mostly mistaken.  He conflates a couple of Florida cases to suggest a generalized result will is unsupported by the law or the cases.
 
In New York State, the standing defense must be pleaded in the very first answer or other responsive pleading.  DO NOT TAKE ANY CHANCES WITH THIS.  IF YOU HAVE BEEN SERVED WITH SUIT IN NEW YORK STATE, FIND AND EMPLOY A CAPABLE ATTORNEY WITH EXPERIENCE IN CONSUMER DEBT LAW, FORECLOSURE DEFENSE AND/OR BANKRUPTCY.
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the SEC filing of the trust and pooling agreement when the loan/note was allegedly sold specifically states that the seller or the trustee must record the newly assigned mortgage in the county-so doesnt this constitute some sort of legal issue if they havent followed through on the SEC requirements? 

(xxii)  Each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been delivered for recordation or have been
recorded in the appropriate jurisdictions wherein such recordation is 
necessary to perfect the lien thereof as against creditors of or 
purchasers from the Seller (or, subject to Section 3.05 hereof, are in 
the process of being recorded); each Mortgage and assignment of 
Mortgage is in recordable form and is acceptable for recording under 
the laws of the jurisdiction in which the property securing such Mortgage
is located;  

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William A. Roper, Jr.

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linda said:

the SEC filing of the trust and pooling agreement when the loan/note was allegedly sold specifically states that the seller or the trustee must record the newly assigned mortgage in the county-so doesnt this constitute some sort of legal issue if they havent followed through on the SEC requirements?


linda:

There is NOT an SEC requirement associated with recording nor does the disclosure within the PSA and or registration statement impose an SEC requirement.

But generally those who make various representations and disclosures in securities registration statements and public SEC filings can often be held liable under the securities statutes for misrepresentations made in such filings.

It would be the injured party -- probably the trust cetificate holders -- not a nonparty to the transactions therein described which could validly allege and sue upon an injury or material breach in the securities laws as a consequence of the false representations.

Within this Forum, we frequently discuss standing as a defense in a mortgage foreclosure action.

Suppose that some particular company -- let us say Goldman Sachs -- makes some false representation in a securities filing.  On what basis can I complain and sue if I am not (and have never been) an owner of Goldman equity, debt or other securities affected by the alleged false representation?

Absent some actual interest and injury, I would lack standing to bring such a suit and complain about the alleged misbehavior.

Makers of the alleged mortgage indebtedness are neither parties to nor beneficiaries of the PSA or securities registration statements or other SEC filings.

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Bill


Quote:
Absent some actual interest and injury, I would lack standing to bring such a suit and complain about the alleged misbehavior.

Makers of the alleged mortgage indebtedness are neither parties to nor beneficiaries of the PSA or securities registration statements or other SEC filings.


I posted this in a different thread this evening but it applies to your question also.  You are not a part of the PSA contract.  If the participants to the contract are satisfied with the end results, you CANNOT claim that someone breached the contract.  The only thing the introduction of the PSA can do for your case is HURT it.   


As stated by the United States Supreme Court over a century ago,
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"The parties to a contract are the ones to complain of a breach, and if they are satisfied with the disposition which has been made of it and of all claims under it, a third party has no right to insist that it has been broken.
" Williams v. Eggleston, 170 U.S. 304, 309, 18 S. Ct. 617, 42 L. Ed. 1047 (1898).
 
I am not an attorney and this is not legal advice.
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Angelo

Is the PSA really a 2 party contract, I think not, or just an agreement of REPS. and WARRANTS.?, I have never seen a PSA that was signed by all of the certificate holders, have you.  I think its unilateral if anything,  a pledge made my the creator/sponsor/depositor of the trust, that they will follow the rules.   

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William A. Roper, Jr.
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Angelo said:
Is the PSA really a 2 party contract, I think not, or just an agreement of REPS. and WARRANTS.?, I have never seen a PSA that was signed by all of the certificate holders, have you.  I think its unilateral if anything, a pledge made my the creator/sponsor/depositor of the trust, that they will follow the rules.


Angleo:

The typical PSA is a tri-partite agreement signed by three parties:  the Plan Depositor, the Servicer and the Trustee.

There is NOTHING unilateral about it AT ALL.  And the PSA is NOT governed by the UCC.  You are WAY OFF THE RESERVATION of reality here.

Go to the SEC web site and pull up the filings of a few mortgage trusts at random.  Find the PSA, often filed along with a Form 8-K within the first few filings.  Realize that there are usually many Exhibits to the PSA.  The signatures would typically be on the last page of the main document.
 
The certificate holders do not sign the PSA.  They are the beneficiaries of the trust and purchase the certificates AFTER the trust closing.  The trustee is the representative of the certificate holders.  But the certificate holders clearly have a pecuniary interest and are beneficiaries of, if not parties to the contract. 
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George Burns
A simplistic analogy is seen in the providing of  employer sponsored employee health insurance.

There are 3 parties to the Contract/Policy (Services Agreement), the employer (as Plan Sponsor), the employee benefit Plan or Trust (usually  as Plan Administrator), and the insurance coverage provider.

The employee is only a Certificate Holder and is the beneficiary of the coverage, yet was neither a party nor a signer to the policy (Servicee Agreement). The eligible dependents of the covered employee also become beneficiaries (holders) in due course.

The rules they follow are provided by the Plan Document which controls the Policy, and both are governed by ERISA (Federal Law) and State law, depending on the issue.
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so bottom line-because the mortgage was "pooled and sold" to trustee, yet the trustee did not file an assignment on the property as purchaser which is (also required by NYS RPAPL §  418.  Assignment  of  mortgage, lease, or other lien or charge. The holder of any mortgage, lease, or other lien  or  charge  on  registered property,  in  order  to  transfer  the  same or any part thereof, shall execute an assignment of the whole or any part thereof;  and  upon  such assignment  being  filed  in  the office of the registrar, the registrar shall enter in the title  book  a  memorial  of  such  transfer  with  a
  reference  to the assignment by its file number; he shall also note upon
  the instrument on file in his office intended  to  be  transferred,  and
  upon   the  registration  copy  thereof  produced,  the  number  of  the
  certificate on which the memorial is  entered,  with  the  date  of  the
  entry.")
the alleged trustee would still be able to foreclose even though there is no record of the assignment of the mortgage from the bank that went out of business and sold it to a trustee?
i think that if the assignment has not been filed by the successor, they dont have standing.

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