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 Oklahoma Court of Appeals has handed MERS another major defeat in its decision in the case BAC Home Loans v. White.  The case was filed on December 3, 2010, and has been released for publication, but at the date of this post hasn't yet been officially published.  Neither is the text of this decision yet posted at the Oklahoma Courts web site, though the disposition IS noted on the Docket:

http://www.oscn.net/applications/oscn/GetCaseInformation.asp?number=108736&db=Appellate&submitted=true


I have posted the full text of the decision at the Scribd web site:

 

http://www.scribd.com/doc/45108174/BAC-Home-Loans-v-White-Decision-OK-Court-of-Appeals-03-Dec-2010


Though the Court expressly rejects the theory that MERS could be an owner of a bi-furcated mortgage, thereby presumably setting aside the possibility that a holder of the note might have an unsecured debt, the ruling would seem to indicate that any of the forged mortgage assignments commonly fabricated for use in evidence in Oklahoma are NULLITIES.

Take a look!  Your comments and insights are solicited and appreciated!
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Sandy
I thought this was interesting: a response from White in Oklahoma about his successful case against MERS. Found this at Foreclosure Blues. 

http://foreclosureblues.wordpress.com/2010/12/11/ok-civ-appeals-court-reversal-%E2%80%9Cconflicts-in-note-ownership%E2%80%9D-%E2%80%9Cmers-bifurcation%E2%80%9D-bac-home-loans-fka-countrywide-v-white/

                               

Hi, Ron White here. Well I did well in handling my case and then appealing to the Oklahoma Supreme Court (Pro-Se) and as a complete shock the court reversed the lower court’s ruling. The court also seems to have chosen my case to make a stand against MERS and the million plus MERS VP’s out there. Two weeks before receiving notice of the ruling and days before being forced out in a sheriff’s sale, I was unwillingly forced to sell my house in a short sale. Now I have a win in the courts, no house and no idea of how to proceed from here. I’m not even sure if there is anywhere to proceed too at this point. Like many others I’ve still been forced out of my house by the servicer who the courts in Oklahoma now agree didn’t have standing to foreclose. The not so funny thing is, BAC Home Loans Servicing still received the money for my house they weren’t the holders of the note. Any law firms that would like to provide representation to me on a contingency basis are encouraged to contact me. ronwhite444@yahoo.com. Anyway, I hope this ruling will help others. I examined my note and gained discovery on MERS transaction history and subpoenaed FHLBC (Federal Home Loan Bank of Chicago) for records as I believe they are the ones who currently hold my note. I provided the district court with all the proof that was needed but they still granted summary judgment. Good Luck All!



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William,

I would like to hear your reasoning for the following based upon the courts decision in that MERS could not own the MORTGAGE.  In their decision, they stated that Oklahoma laws are in accord with the cases in Kansas, Missouri, Arkansas and Maine I believe.  In those cases, particularly in Kansas, Missouri and Arkansas, the courts found that MERS held the mortgage but did not have a beneficial interest in the note.  So here is the senario:

ORIGINAL mortgage made to MERS
ORIGINAL note made to XYZ home loans

Is the original mortgage "without effect?"  According to the court case, if the assignment would be without effect, then would not the original mortgage?  And if so, since XYZ never had a mortgage, would the debt not be unsecured, since the original mortgage is without effect?

Michael

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William A. Roper, Jr.
Michael:

Usually, appellate courts seek to limit their holdings and rulings to issues actually before the court.  Also, courts tend to rule based upon the arguments and issues presented by the parties.  Those issues which are not actually made by one or both of the parties are very often deemed to have been waived.

When courts are presented with multiple arguments to overturn a judgment on appeal, sometimes the court will address only one or two of these when reaching a decision and then declare that discussion of the other issues is unnecessary since the case can be determined based upon just those issues alone.

While courts will sometimes venture beyond what is strictly necessary in reaching a decision they usually seek to avoid this and confine the holding to the actual controversy before the court.

In some instances, a significant holding by a court may have major consequences to the development of arguments in other cases.  But the court will rarely go further than is necessary in respect of the case presented to rule as to those other consequences.

This is probably a Constitutional imperative in most instances, but is also a matter of good public policy.  The courts are in the very best position to enunciate the law when the parties to a controversy have presented well formulated and reasoned arguments by means of legal briefs.  If the court ventured over into areas beyond the current controversy, it would very often be ruling unaided by the briefs which will tend to be confined to the subject matter of the suit.

Once the Oklahoma court ascertained that the assignment was a nullity, it was clear that the plaintiff lacked standing.  The question as to whether the original designation of MERS as the mortgagee was void and its consequences to the mortgage itself wasn't necessary to determine this case and is left unsettled for another day.

*

I am doubtful that the court is ultimately going to hold that the mortgage itself was invalid.  More likely would be the determination that the original Lender was actually the mortgagee entitled to the benefit of the mortgage instrument.  Whether the law in Oklahoma holds that the mortgage automatically passes with the note, or whether, like in Massachusetts, it requires a separate express written assignment is unclear to me (I haven't studied the other Oklahoma decisions in this area).

Even if the mortgage follows the note, the plaintiff still has a PROOF PROBLEM.  Bear in mind that the assignments have been forged and are being used as the proof of ownership precisely because the plaintiffs haven't been carefully maintaining the evidence of indorsement and delivery in a means convenient to use as proof.  

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William,

Thanks for your thoughts.

In reading the decision, and yes here in Oklahoma the theory is that the mortgage follows the note, the judges said:

"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."

What would one conclude was of no effect?  The assignment of the mortgage or the mortgage itself? 

I do not think it would matter either way.  I think one could make a very good case here in Oklahoma that the original was of no effect, therefore, MERS would be toast here in Oklahoma...

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William A. Roper, Jr.
Michael:

I believe that the court was purposefully cryptic.  I think that it CLEARLY means the an assignment of the mortgage from MERS to a mortgage trust not holding the promissory note would be of no effect, as the court expressly rejects bi-furcation. 

Left unclear is whether an assignment of the mortgage from MERS to a mortgage trust would be valid IF MERS were the note holder at the date of the conveyance.

Since the language of the decision expressly rejects bi-furcation, this also seems to me to suggest that any conveyance of legal title to the mortgage to MERS, as mortgagee, appearing within the original mortgage may have been VOID.  Whether this actually VOIDS the mortgage itself is unclear, but questionable.

Once again, the court goes no farther than is necessary to explain its holding.  This decision will no doubt be a catalyst for many arguments contesting Oklahoma foreclosures to come.  And from these cases and the arguments, the court will craft the more precise dimensions of what is to be made of MERS in Oklahoma.
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anon
This sounds similiar to my situation. Weirdly enough a month after filing a lis pendens countrywide assigned the mortgage to countrywide home loans servicing. this seemed to completely befuddle the judge on my case. i still lost. But as they say the complexities of securitization have befuddled the rocket docket.

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Ginger
An Oklahoma quirk I am researching for a friend is found in one of MERS' manuals. It states that Oklahoma requires a "vice president" sign the assignment out of MERS at foreclosure. One of my friends showed me his mortgage assignment for foreclosure signed by an attorney from the plaintiff's law firm, named as "certifying officer." Perhaps this distinction of the MERS signator is insignificant, but I would like to find out more. The law firm must not have read where MERS preferred signator as assistant secretary or certifying officer, but instructed that in Oklahoma, no problem, just sign as a vice president. (What a sham!)

By the way, Judge Schack in NY found the involvement of a member of the plaintiff's law firm in signing the assignment out of MERS (a named defendant) while the firm represented the plaintiff was a conflict of interest and a violation of professional ethics, as no evidence showed that either party had been informed of the possible consequences of such conflicting representation.

So far, I can find no legal reference to the Oklahoma requirement of a vice president's signature. Maybe it's in the law concerning corporations, I'm not sure.  If anyone knows where I might look, I would greatly appreciate your help.

Plaintiff law firm also answered about MERS, saying: "Under Oklahoma law, an agent or nominee has the standing and authority to assign a mortgage and even has standing to bring a cause of action to foreclose the lien on the mortgage" (multiple title examination standards were cited).

MERS, in that case, acts as an agent for the original lender, but Greg Clark, a title agent who won a big case this week (see Matt Weidner's blog), opined that only the debtor signed the mortgage, and a debtor has no authority to create agency between the two non-signing parties (MERS and the original lender).  He went on to say that by the boilerplate language of the MERS mortgage, the debtor agreed to certain provisions for MERS, but did not include assignment of the mortgage. In other words, MERS exceeded the debtor's authorization, and it provided no evidence, such as power of attorney, that the original lender authorized MERS to act as its agent. (Of course, we know where they can find someone to fabricate that right quick!)

I am confused about what the consequences are, if any, when MERS is not authorized by any party to the mortgage. To put it another way, what would happen if the closing agent added his or her name as nominee or agent without authorization? 

The plaintiff law firm also stated "the note attached to plaintiff's petition contained an endorsement in blank, which, under UCC, makes said note bearer paper, meaning it is payable to the holder of the note. It alleges that plaintiff is the holder of the note and is in process of obtaining the original note and mortgage from its document custodian." (This loan servicer was Countrywide after the original lender. Maybe good for the defendant, maybe not.)


Comments appreciated.

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William,

That was my exact thought that since the court specifically stated that bifurcation was impossible in Oklahoma, that it could be opening the way for Oklahomans to fight this corrupt system.

Ginger, I do not know about the vice-president thing, but I agree with the Judge Schack decision, but unfortunately here in Oklahoma we are not on the leading edge of this.  The assignment of mortgage in my case was exactly what you described.  One of the firm partners signed the assignment as Vice-President of MERS.  When asked to provide evidence that he had the authority, they provided an agreement between MERS, MERSCorp, WF and the Law firm.  My argument was the fact that this agreement meant nothing, as it would have had to have been between MERS, MERSCorp, The Original Lender and the Law firm, because the law firm was not acting on behalf of WF, but on behalf of the Original Lender.  I got nowhere with this.

Oddly enough though, I argued pretty much to a tee the exact things that Ron White argued in District Court and lost on Nov 12 2010, just before the ruling of the Appeall Court.  The judge in my case did not even address these issues, relying only on the fact that I was in default.  Guess this court will be seeing this issue again very soon, as I plan to file a supplemental petition for my motion to vacate.  Funny thing is that the judge that denied my petition to vacate is now at the Supreme Court, and a new judge will hear these arguments. 

I am meeting with my attorney this morning to address this decision, and plan an attack to proceed based upon this ruling.

I will let you know what I find out.....

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William A. Roper, Jr.
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Michael said:
Guess this court will be seeing this issue again very soon, as I plan to file a supplemental petition for my motion to vacate.  Funny thing is that the judge that denied my petition to vacate is now at the Supreme Court, and a new judge will hear these arguments.


Check very carefully to see whether inclusion of an issue in the motion to vacate makes that issue a matter which can be raised upon appeal.  If so, consider that any issue you have NOT properly raised in the opposition to summary judgment and in the motion to vacate may be WAIVED.  Be aware though that there may be a different standard used in determining what is error in the original summary judgment proceeding and as to a motion to vacate.

In the former, your jurisdiction is likely to require that the movant show that there are NO DISPUTES as to material fact and the appellate court probably reviews the evidence de novo.

As to the latter, the appellate court probably uses a different standard in which you have the burden of proof and the appellate court may review the decision on the motion to vacate by a standard involving an abuse of discretion.  That is, it will probably be more deferential of any decision on a motion to vacate.  You really need to argue that effectively and try to carry that motion WITHOUT the necessity of an appeal!

*

Also, take a look at some of my prior posts relating to hearsay and the best evidence rule.  MANY SUMMARY JUDGMENTS CAN BE READILY DEFEATED SIMPLY BY OBJECTING TO THE AFFIDAVIT OF MERIT AND SHOWING THAT THE ALLEGATIONS IN THE AFFIDAVIT USED IN SUPPORT OF THE PLAINTIFF'S CASE CONTAINS NOTHING MORE THAN INADMISSIBLE HEARSAY.  
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William,

Thanks for the info.  Unfortunately, my attorney informed me that although the arguments that we raised were correct according to the ruling of the appeals court, the clock has struck 12 o'clock on me. 

He said the final order was entered on Dec 1, 2010 and my 30 days to appeal the final order of the motion to vacate has passed.

He sad my only option was to file chapter 13 and fight to include this as unsecured debt based upon the ruling.

I asked him, since my wife was a named defendant, and she has never filed nor joined anything I have fought, if she could file a motion to vacate, and he said no because she would be filing basically the same arguments that I made.



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Bob Schmidt
Michael,

Suggest to your attorney to review FRAP 4(a)(5)(A). 

Hope this might help but you only have a few days to react.

Good Luck,
Bob
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William A. Roper, Jr.
The full LEXIS citation for the case has finally been released.  It is:

BAC Home Loans Servicing, L.P. v. White, Case No. 108,736, COURT OF CIVIL APPEALS OF OKLAHOMA, DIVISION ONE, 2010 Okla. Civ. App. LEXIS 132, December 3, 2010, Filed,  This Opinion has been Released for Publication by Order of the Court of Civil Appeals.

The case seems likely to be published in the near future in the Pacific Reporter, so even this citation will change with that publication information.


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William A. Roper, Jr. wrote:
The Oklahoma Court of Appeals has handed MERS another major defeat in its decision in the case BAC Home Loans v. White.  The case was filed on December 3, 2010, and has been released for publication, but at the date of this post hasn't yet been officially published.  Neither is the text of this decision yet posted at the Oklahoma Courts web site, though the disposition IS noted on the Docket:

http://www.oscn.net/applications/oscn/GetCaseInformation.asp?number=108736&db=Appellate&submitted=true


I have posted the full text of the decision at the Scribd web site:

 

http://www.scribd.com/doc/45108174/BAC-Home-Loans-v-White-Decision-OK-Court-of-Appeals-03-Dec-2010


Though the Court expressly rejects the theory that MERS could be an owner of a bi-furcated mortgage, thereby presumably setting aside the possibility that a holder of the note might have an unsecured debt, the ruling would seem to indicate that any of the forged mortgage assignments commonly fabricated for use in evidence in Oklahoma are NULLITIES.

Take a look!  Your comments and insights are solicited and appreciated!
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William A. Roper, Jr. wrote:
The Oklahoma Court of Appeals has handed MERS another major defeat in its decision in the case BAC Home Loans v. White.  The case was filed on December 3, 2010, and has been released for publication, but at the date of this post hasn't yet been officially published.  Neither is the text of this decision yet posted at the Oklahoma Courts web site, though the disposition IS noted on the Docket:

http://www.oscn.net/applications/oscn/GetCaseInformation.asp?number=108736&db=Appellate&submitted=true


I have posted the full text of the decision at the Scribd web site:

 

http://www.scribd.com/doc/45108174/BAC-Home-Loans-v-White-Decision-OK-Court-of-Appeals-03-Dec-2010


Though the Court expressly rejects the theory that MERS could be an owner of a bi-furcated mortgage, thereby presumably setting aside the possibility that a holder of the note might have an unsecured debt, the ruling would seem to indicate that any of the forged mortgage assignments commonly fabricated for use in evidence in Oklahoma are NULLITIES.

Take a look!  Your comments and insights are solicited and appreciated!


Dear Bill,

I was delighted to see you kicked ass. MERS and its acolytes are a miserable bunch. I have been fighting MERS and its predecessors for 40 years. I am doing a brief for a MSJ in almost identical case.

I doubt that I would want to go to Rogers Cty. I'm in OKC. But I probably know more about the subject than anyone else in Oklahoma. I will be glad to help you get from here to there, whatever that means. It would be better to get a local lawyer, even Tulsa. I think I could help you get a good lawyer on a contingency basis. I know several good lawyers in Tulsa. Baer and Timberlake are their. I've known them for 40 years. They know this kind of stuff well.

So what if the jerks got the money. It's yours now. You can kick as and get it from them. Who owns the house? If the judgment creditor, you can take it away from him. Give me a call at 405-210-6989 or email at DavidEldridge@att.net.

I can tell you how to stick it up their bass (so you will respect me in the morning), and/or tell your attny. I'm sure I can get you  a lawyer even if I have to co-counsel with him. I'm talking about a contingent fee lawyer. You've got a lay down case. It should not be hard to do a contingency deal.

Peace and grace,

David
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William A. Roper, Jr.
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David Eldridge said:
Dear Bill,

I was delighted to see you kicked ass. MERS and its acolytes are a miserable bunch. I have been fighting MERS and its predecessors for 40 years. I am doing a brief for a MSJ in almost identical case.


David:

While I appreciate the expressions of support, I am a bit perplexed by your post, if it was indeed addressed to me.

Ronald WHITE was the successful defendant/Appellant in the cited case discussed within this thread.  I posted information about the case for the benefit of others.

I have no interest or stake in this case.  Mr. WHITE seems to have otherwise settled by entering into a short sale.

I am NOT litigating in Oklahoma.

While I certainly encourage others to retain an attorney to assist them, I myself prefer to litigate pro se and am doing just fine, thank you very much!
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David,

I've read some of your cases. You make my laugh and smile. I've not been able to do these two things in 2 plus years. Especially when it comes to these cases. I thank you kindly, If you have any pull in one of our foreclosure mills please keep me in your thoughts! Love, Okie
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