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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William A. Roper, Jr.
The Ohio Court of Appeals for the Eighth District upheld a trial court's dismissal of a foreclosure action on evidentiary ground, though it changed the dismissal to one without prejudice.  The decision is an instructive read on the evidence in the case.

The decision underscores the importance of careful review of the evidence, the law, the Rules of Civil Procedure, and particularly the Rules of Evidence.  Long time Forum participants will almost certain recognize several themes which appear within the decision.  I will add a few additional comments below, which seem to reflect some additional points not actually raised by the defendant.

The case is:
Freedom Mortgage Corporation v. Perry, No. 95834, 2011 Ohio 3067 (OH App. 8th Dist., June 23, 2011)


After reading the decision, I would call particular attention to the following mention within the decision:
According to the note, Consumers endorsed it to Freedom on October 23, 2006.  According to the assignment, MERS was Consumers’ “nominee,” and MERS had assigned the mortgage to Freedom in November 2008.
Whoops!  If MERS was Consumer's nominee, precisely WHAT INTEREST did Consumers purport to have in the mortgage in November 2008?

Note that we also have here a couple of the dilemmas presented in recent New York MERS decisions.

Can MERS assign a mortgage in Ohio without also being the holder of the note?  Did MERS receive authorization or direction from Consumers to make this assignment as Consumers' nominee?  Does the assignment purport to assign ONLY the mortgage OR does it purport to assign the note, as well? 

Comments by others are solicited, encouraged and appreciated!
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William A. Roper, Jr.
In examining the plaintiff's evidence, whether attached to the complaint, put into the record by a subsequent filing or by affidavit, BEWARE that the plaintiff KNOW that they are putting FALSE EVIDENCE into the record.

Consequently, they will routinely alter the language ever so slightly to AVOID any actual criminal exposure for perjury or filing false evidence.

This is done in very small subtle ways which are easily MISSED if you are not looking for them.

One approach is to omit the oath or  statement that says that they are swearing, making the affidavit ABSOLUTELY DEFECTIVE.  But very often this goes unnoticed by the defendant or overlooked by the defendant's attorney.

Another trick is to put a document into the record by filing it WITHOUT ANY AUTHENTICATING AFFIDAVIT.  Then they will mention this document in one or more of the pleadings, motions and/or affidavits AS IF IT WERE PROPERLY ADMITTED EVIDENCE, but WITHOUT actually authenticating it.

If pressed, the foreclosure mill attorney will argue that the document is being authenticated by its mere mention.  On the other hand, the entire purpose of the ruse is to allow robo-perjurers to avoid criminal responsibility for their forgeries and perjuries.

Note how this was cleverly done in this case by both the affiant and the attorney.

Yet another trick is to mention attached exhibits, when the exhibits are NOT actually attached to the affidavit AT ALL.  The exhibits may be attached to another pleading, motion or filing.  The idea is for the plaintiff to have their cake and eat it, too!

This latter gimmick is a pretty good one, because if the exhibits identified by the attorney in the pleadings are pointed to as being authenticated by the affidavit this very well might prove them up when the defendant and the court is NOT PAYING ATTENTION.  But how could the affiant actually be prosecuted in respect of false swearing when the exhbits mentioned in the affidavit are not attached at all?

The affiant can later claim that the affiant had intended to affix truthful exhibits to the affidavit, but that this was merely overlooked.

With busy criminal dockets, local prosecutors are going to be very reluctant to charge an affiant with criminality where these various seeming paperwork errors seem to undermine or eviscerate the criminal case!

And so when going over the evidence, you need to look at everything very critically and look for the little tell tale signs that the witness isn't really proving up the exhibits AT ALL.

Bear in mind that if you beat the plaintiff on the evidentiary points at summary judgment, the matter must necessarily go to trial.  Then, the defendant needs to be prepared to tear the witness up!  The witness almost NEVER has ANY personal knowledge of ANY of the documents, nor is the witness really any sort of records custodian.  IF ASKED ABOUT THEIR RESPONSIBILITIES, IT WILL EMERGE THAT THE WITNESS IS NOTHING MORE THAN A PROFESSIONAL PERJURER EMPLOYED BY THE SERVICER.

Look at the witness' background carefully.  And do NOT hesitate to ask some tough questions.  A cursory inquiry as to one servicer's witness in a recent major case reveals that this witness had a very serious criminal history, including hard prison time.

This would hardly seem to be a credential that should qualify a person to testify about questionable documents to dispossess someone of their home!  And asking the witness point blank about prior criminal history is going to present the witness with a rather daunting challenge as to whether to answer truthfully and tank the plaintiff's case OR to answer untruthfully and be exposed to a much stronger perjury charge in respect of facts that can be established with certainty!
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