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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Sunday  18 December 2011

My FC case is almost 5 years old.  Summary judgment awarded against me,
house went to sale, Pf was successful credit bidder.  My challenge to
approve sale stopped everything.

Pf went BK in 2009, and divested itself of all loans, which would include
mine, in August 2009.  My case litigated by a local FC mill, and it withdrew
from the case after my challenge of sale, [challenge motion, August 2010].

Challenge pointed out that Pf was BK and no longer had the purported loan.
BK attorney informed me they were unaware that my case even existed, and
for sure, PF did not bid on my property, nor was it able to enter a credit bid,
among a few other issues. 

Withdrawal from case and judge would not consider my motion due to the
withdrawal of attorney.  Pf had 21 days to secure new counsel.

Surprise that new counsel showed up at 11th hour!  Even judge expressed
surprise and denied my motion to dismiss case, with prejudice.

I sent a subpeona ducus tecum to new attorney demanding proof that
someone from Pf actually hired that firm.  At a motion to quash subpeona,
heard by a different judge, [seemed like a set-up], motion to quash was
granted, and I will be held in contempt to bring up the argument, again.
Privileged information, [attorney-client], and my subpeona was deemed
frivolous.

That was over a month ago, and I have not heard anything further from
this new attorney.  Is there a way to challenge how  BK entity, with no
employees, can hire a new attorney and the attorney form appointed by
the BK judge in Deleware is STILL unaware of this FC case.  The BK
attorney will not help me other than the information already provided.

Ideas?



Quote 0 0
s

You need to focus on reading the rules and statutes of your jurisdiction.  Some jurisdictions have rules that expressly address the issue you mention.  For example, in Texas Tex. R. Civ. P. 12 hits this topic squarely:


RULE 12. ATTORNEY TO SHOW AUTHORITY
A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act.  The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion.  At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party.  Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.  The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.

 

A member of my family used this rule with some success in some non-foreclosure litigation.  A suit had been brought on behalf of a partnership and we suspected that not all of the partners were aware of the suit.
Although in this instance the plaintiff succeeded in showing authority, the case was dismissed soon after.  We believe that the other partners were not enthusiastic about expending resources on this suit.

Note that the Texas Rule expressly shows that this motion must be heard and determined before the parties announce readiness for trial, so in Texas it would seem not to afford any meaningful post judgment relief.  To the contrary, though I haven't read any case law on the subject, I would expect that failure to raise such a motion and have it timely determined would constitute a waiver of the issue.

*

It seems to me though that you have another different problem.  Once a judgment has been entered, it usually becomes final after a certain period unless timely and properly appealed.  Many places also have some provisions to set aside judgments for certain reasons, including fraud.  But there is usually a limited period in which to raise this by appropriate motion.

It seems to me that you are missing the fact that even if you are correct that the suit was brought without authority, it you failed to properly raise this during the original suit in a timely way and then failed to appeal, it may not matter whether you are right.

You might still be able to reopen the matter with a motion to set aside the judgment.  Whether this can be done in respect of a suit brought without authority is unclear.  Read the rules on setting aside judgments carefully.  Read the rules about finality of judgments and time for appeal carefully.
Even if there was a rule in your jurisdcition like Texas' Rule 12, if you failed to invoke the rule in a timely way, you may have already waived the issue.

Attorney-client privilege is usually very robust and can only be pierced in limited circumstances.  Trying to pierce the privilege without  benefit of discovery and on thin evidence, particularly in a post-judgment setting is going to be challenging.
 
Quote 0 0
Monday  19 December 2011

S:

Thank you kindly for the response.  Most helpful.
the fact that my case is 5 years on 19 January 2012,
suggests more went on than I reported. 

There have been three judges, one appeal, and
another appeal to the Illinois supreme court.  Not one
decision/ruling in my favor, yet the case is still ongoing.

It is my guess that the original FC-mill attorneys may
have continued this case on their own, figuring they
would get a proverbial free house.

Rather than go into the messy details, post-dated
assignments retroactive, with conflicting dates that
show "B'" assigned away all rights and interest "as
of 10 January 2007," nine days before it filed its
complaint.  The assignment to substitute original
"lender," shows it assigned all its rights and interests
to "B" as of 1 February 2007, four months before it
became the substitute party in June, 2007.

Judge ignored this material fact, well-pled with case
sites...appellate court ignored the same argument
and upheld the summary judgment,a and the arrogant
bastards at the supreme court level do not have to
explain their decisions.

I mentioned a motion, above.  All of my filings were
in the form of a Notice and Demand to each court,
not in the form of a motion, by title description.

Your information on Rule to show authority is exactly
what I am looking for.

While post summary judgment, my challenge to have
the new attorney show proof of representation was
made immediately after his filed appearance, so I am
on record for making a timely challenge on a NEW
circumstance.  What can the court do, say no, again?

Like that has stopped me before.  Despite losing at
every turn, why would the attorneys abandon the
case after 4+ years with summary judgment against
me, a sherrif's sale already conducted and property
sold, just waiting for confirmation?

My inexperience and ineptitude has precluded me
from winning, already, but my pit-bull perseverance
to keep fighting against clear fraud and judicial
favoritism, fighting the right issues that prompted
the attorneys to bow out at the 11th hour and
59th minute.

I included the above info merely to demonstrate
that much, much more has been going on,
including a new lender making a claim that they
were assigned the same note, and having their
servicer Saxon dun me for mortgage payments.
I pretty much shut them up with a bunch of
Notice and Demand letters to have them prove
every word they claimed, at least for now.  That
is a fight I would relish.

Your information has been most helpful and spot on.

Cheers!

mn
Quote 0 0
PMBVA
mn

You are an inspiration since I just lost Summary Judgement after fighting for 3 years, I like you will not stand for this and will fight as you have to the Supreme Court and Beyond...waiting for attorney to coach me on next step.

More to the story just like your situation.

Question are you in Judicial or Non-Judicial and are you still in the house?

Just looking for hope I have an attorney but it is my case and I am lookig 
Quote 0 0

Some samples of Motion to Vacate Summary Judgment.

http://www.scribd.com/my_document_collections/3011900

 

http://mattweidnerlaw.com/blog/2011/04/summary-judgement-vacated-sale-cancelled-justice-prevails-a-great-order/

Quote 0 0
mn
Monday Evening  19 December 2011

PMBVA:

I am in Illinois, a judicial and a fact pleading state, and yes, I am in the
house, but not "still."  It is where I belong and where I will stay.


Short version of a long story.  I helped a friend learn English, and had
spent some time teaching the difference between the articles "a" and "the."
"a" is general, and "the" is specific.

A dog ran across the street. [It could have been any dog.]

The dog was chasing a cat.  [The article "the" refers specifically and
only to the dog that ran across the street]

After taking my closing papers home, I was reading the promissory note.
It said, in pertinent part, "In return for a loan I have received, I promise
to pay $x..."

Wait a minute... "a" loan?   Why isn't it "the" loan I just received.  If it
isn't "the" loan, then what was the "a" loan referencing?  Turns out,
Blacks Law distinguishes the difference, as well.  Anyone  not familiar
with the difference, in law, should look them up.

I sent a Notice and Demand letter to the purported lender asking for an
explanation.  I was told just to make the payments, in response.  I then
sent another Notice and Demand to the company president, informing
him of my concern.  I expressed a willingness to commence making
mortgage payments, but not until I learned what was "a" loan that I
received, and how did it differ from "the" loan in the amount of $X
that I was supposed to repay?

Never did get an answer, and I never did make a single mortgage payment.
There was more correspondance, and the purported lender's chief fraud
attorney called my argument frivilous and irrelevant.  I wrote back asking
for proof of oath of office that she was an actual attorney, [as required
by the STATE OF CALIFORNIA], [FYI, there is not a single purported
"attorney" in the STATE OF CALIFORNIA that has taken a sworn oath of
office, the first step required to become a licensed attorney.]  I called HER
frivilous and irrelevant, and never did hear from her again.  Nor did I ever
hear back from the CEO, CFO, COO, and the head of accounting.  All
received a minimum of three Notice and Demands from me.

My education in law continues.  I never did use an attorney because I
knew one would never fight the kind of battle I fought, and I refuse to
hire an attorney and be considered "incompetent" and a "ward of the
court," which ALL poeple are who hire an attorney.

Attorneys have a decided edge against me in law and procedures, but
I have the edge when it comes to determination not to lose, and it ain't
over, yet.

Thank you, Ann, for the links.

Cheers to you both!

Quote 0 0
ka
mn:

It appears to me that you are wasting everybody's time, including your own, but best of luck to you with your wingnut theories.

Before I discovered just how bizarre a theory you have of the law, I had searched and found an old and ever instructive U.S. Supreme Court case which gives some insight into the concept of res judicata:


United States v. Throckmorton, 98 U.S. 61; 25 L. Ed. 93; 1878 U.S. LEXIS 1362; 8 Otto 61 (U.S. 1878).
http://scholar.google.com/scholar_case?case=9640976524557144959 

It is an ancient case and the contours of the law have somewhat changed since, but the fundamental principles are mostly unaltered.

I would encourage those who desire to acually keep their homes to accept from mn lessons on arguments not to make and things not to do.

There are quite a few potent defensive arguments.  Quite a few Forum participants have had some measure of success in defending against foreclosure.  And then there are folks like mn, who drink the Koolaide, lose their house and spend years trying to prove the pointless.  For these folks, I would suggest getting a dog or a hobby.  But never would I encourage them to undertake years of needless litigation to prove only their inability to grasp reality and overcome denial.  Nor would I suggest that anyone become a student or understudy of these useless rantings.
Quote 0 0
mn
Tuesday  20 December 2011

KA:

Your judgmental response appears to be predicated on some unclear
perceived notion of how you "believe" law and order should be applied.

You claim I have "wingnut theories," but the claim is lacking as to what
any such "theories" were advanced by me.  To exactly what "bizarre theory...
of the law" are you referring?

Can you amplify on which specific "arguments" you "believe" I pled that
should not have been so pled?  Pray tell, which specific "things not to do"
were so done?

Please identify where I exercised an "inability to grasp reality and
overcome denial."  Say what?  Tell me what reality exists in your own
"perception[s]" that demonstrates an "inability" for me to see or understand?
To what "denial" do you refer?

I agree issues reseolved cannot be relitigated, and I fail to see where I made
any statement that was my objective.   Apparently, your unsubstantiated
"observations," [?  I am not quite sure what to call them], assessing my
post[s] as "useless rantings" seem to suffice in your own limited mind as
the arbiter of what you believe ought to serve for your self-created
definition of reality.

What exactly has been "pointless" on my part?  Before you decide to step
in and serve up your own self-styled wingnut and baseless accusations
toward another, remember, the finger you point has three pointing back in
your own direction.

There must be a reason why this case did not make it to the confirmation
of sale stage finality, and I have an idea of why not.  If you expect me to
give up, take it , walk away, or fill in the blank yourself, [as you are so
prone to do], from a purported "lender" that refused to acknowledge that
it made a loan to me and then press foward with a pro forma complaint to
foreclose that was riddled with inconsistencies, you are addressing the
wrong person.

I suggest you keep your own wingnut rantings, with zero substantiation,
to yourself, where they are best understood in your own little world of
reality as you see it, and skip reading any posts associated with me.

Clearly, you can learn nothing from them.

Cheers!


Quote 0 0
s
Anyone with the resources to pay their mortgage who voluntarily defaults on the note and mortgage citing an ambiguity in the English language of the standard instruments is insane.

Anyone who makes such an argument a central element of a defensive case is insane.

Anyone still in possession of their home after asserting such a defense is merely lucky and any survival is certainly based upon other factors.  On balance, the posts seem to indicate that mn has already lost his case and is now merely awaiting the inevitable dispossession.  This is certainly not a person to emulate.

I agree with ka that mn and his posts are a waste of time and energy.  Nutcases like mn make foreclosure defense more difficult for everybody else, because rather than trailblazing some valid and viable defensive strategy, they set up borrowers for demonization.  This is not helpful!
Quote 0 0
mn
Tuesday  20 December 2011

Tough crowd here, and incredibly judgmental.

S, did you happen to read any of my pleadings?

> "Anyone who makes such an argument a central element of a defensive
> case is insane."

Fantesy appears to be rampant here, for your statement is baseless and
100% wrong.

If you must know, my initial argument was that there was there was no
contract between the plaintiff that filed the complaint to foreclose.  It
was not the original puported lender.  First judge immediately granted
summary judgment against me.

That was challenged by me, and a second judge agreed and dismissed
the summary judgement and allowed for an amended complaint.  The
amended complaint turned out to be a change in plaintiff party from
original plaintiff to the purported initial lender.  This was accomplished
by two post-dated assignments, each referencing wrong dates as to
what entity was assigned interest in the mortgage.

From that point, my "central argument" was challenging the assignments
that showed the initial complainant assigned away all rights and interests
10 days before the complaint to foreclose was filed.

The new plaintiff party's assignment showed that it assigned all rights and
interests in the note and mortgage almost three months prior to it becoming
the new plaintiff.

That was the basis for my appeal and appeal to the Illinois supreme court.

For your own information, your chosen description using the word "ambiguity"
is simply misplaced.  There is a distinct meaning in law between the article
"a" and "the."  Look it up and maybe learn something.

If you go back and read my post for content, the challenge I mounted to
the purported lender to prove they made a loan was through written
correspondence, not through any court.

Choose to cast whatever judgmental indictment against me as you will, and
so far, none of it is based on fact and actual events, what I have done is
challenged the corrupt mortgage loan system before the extent of the
corruption was made known.  This was back in 2006/2007.  It was not a
prescient move on my part, for I was unaware of that kind of corruption,
as well, and also knew nothing about securitization.

Turns out, my challenge was the right thing to do because so many, and
maybe most, if not all loans were done on false premises and paperwork.
Cast stones and be judgemental, I really do not care.  The case against
me is based on faulty, maybe even fraudulent paperwork, and for the past
two years is being "litigated" by a company that no longer exists.

I never asked anyone to emulate me, nor did I present background information
to be viewed as a model.  I am simply one who said "No" to a situation
that was fraught with lies and sanctioned by the courts that have been
notoriously anti-homeowner.

Quite frankly, it is too bad there aren't more "insane" people out there who
are willing to stand up against the system.  That is all I have done.  From
my point of view, the real lender never noticed me as being in default.  A
pretender lender did.  I admit that I owe someone or some entity the
amount of the loan, but I can tell you, it ain't the party that has foreclosed
on me. 

You would think after five years this case would have been a slam-dunk
from the beginning, especially in Cook County where they chew up and
spit out homeowners as quickly as they can... and you attribute it to "luck"
on my part?

Thank you, once again, for your original reference in response to my
question, but no thanks to your mis-guided, baseless crtiticism leveled
against me for, to use one of your own words, your "insane" reasoning
that missed the mark, entirely.

You can join the other individual and not read any posts associated with
me.  Your blame-it-on-the-homeowner syndrome sentiment ain't going to
fly with me.

Anyone else feeling judgmental that wants to chime in?


One more thing, S...why would you accept a "standard instrument" designed
to deceive and not identify the proper parties to the purported agreement?
Anyone who knowingly accepts "standard instruments" written by lawyers
expressly for banker's interests that are designed to deceive is, how did you
so eloquently express it...is INSANE!

Cheers!


 
Quote 0 0
Bill

s wrote:
Anyone with the resources to pay their mortgage who voluntarily defaults on the note and mortgage citing an ambiguity in the English language of the standard instruments is insane.

Anyone who makes such an argument a central element of a defensive case is insane.

Anyone still in possession of their home after asserting such a defense is merely lucky and any survival is certainly based upon other factors.  On balance, the posts seem to indicate that mn has already lost his case and is now merely awaiting the inevitable dispossession.  This is certainly not a person to emulate.

I agree with ka that mn and his posts are a waste of time and energy.  Nutcases like mn make foreclosure defense more difficult for everybody else, because rather than trailblazing some valid and viable defensive strategy, they set up borrowers for demonization.  This is not helpful!


I think a lot of people over look how "lucky" they are and contribute the "delay" in losing their home to some magical legal thing they said but are not quite sure what it was.

If you had a summary judgment entered against you, they schedule your house for sale, and you did not prevail on some kind of appeal,  YOU LOST, YOUR LEGAL ARGUMENTS FAILED!!!!!!!!!!!!!!!!!!!! 

If you watch the most recent 60 min story on how many banks have decided NOT to take possession of a home because they don't want it due to it's lack of value and high potential cost does NOT mean the homeowner prevailed!!!!!!!!!!!!!!!!  This is almost the equivalent of a strategic default by the bank.  It's not worth the liability to take the home. 

Do to a lot of judges "catching on" to the deficiencies and fraud of the banks you will also see strange things like the bank voiding it's judgment and moving for judgment a 2nd time.  In this case the homeowner LOST, THEIR LEGAL ARGUMENTS FAILED!!!!!!!!!!!!!!!  The bank is trying to clean up it's act for some undisclosed reason. 

Mn posts everything you need to know about his arguments:

 
Quote:
Summary judgment awarded against me, house went to sale, Pf was successful credit bidder

 
Quote:
There have been three judges, one appeal, and
another appeal to the Illinois supreme court.  Not one
decision/ruling in my favor,
yet the case is still ongoing.


 

Quote:
I sent a subpoena ducus tecum to new attorney demanding proof that someone from Pf actually hired that firm.  At a motion to quash subpeona, heard by a different judge, [seemed like a set-up], motion to quash was granted, and I will be held in contempt to bring up the argument, again.  Privileged information, [attorney-client], and my subpeona was deemed frivolous.



Quote:
Surprise that new counsel showed up at 11th hour!  Even judge expressed surprise and denied my motion to dismiss case, with prejudice.



I really love this one............we're back to the old argument, I am right but the whole world doesn't know it.  California attorneys are required to take oaths but NONE OF THEM HAVE and he is the only one that caught that.  Everyone else in California is stupid.  You didn't hear back because they couldn't stop laughing long enough to reply.  I'm sure your wing-nut letters are still being circulated internally on days like April Fools to give everyone a real laugh. 

Quote:
Never did get an answer, and I never did make a single mortgage payment.
There was more correspondance, and the purported lender's chief fraud
attorney called my argument frivilous and irrelevant.  I wrote back asking for proof of oath of office that she was an actual attorney, [as required by the STATE OF CALIFORNIA], [FYI, there is not a single purported "attorney" in the STATE OF CALIFORNIA that has taken a sworn oath of office, the first step required to become a licensed attorney.]  I called HER frivilous and irrelevant, and never did hear from her again
.  Nor did I ever hear back from the CEO, CFO, COO, and the head of accounting.  All received a minimum of three Notice and Demands from me.




This is a VERY POOR example of how to defend ANY KIND of court action and using any similar argument will speed up a final judgment in favor of the banks.  Mn lost at EVERY STEP and feels he is getting some traction because the bank decided to delay things.  Mn should be quiet as a mouse and hope he can squeeze out a few more months before he starts renting.  When they want him out he will be out. 


Quote 0 0
ka

Well said, Bill!

Quote 0 0
mn
Tuesday  20 December 2011

Bill:

I do not mind constructive criticism but expect it should at least be accurate.

The self-admission that I have lost at every turn, "yet the case is still
ongoing" is for a reason.  Pay attention here, because you have failed to
read what I have written, re my exchange with the purported lender officers
and legal counsel.  This was NOT a part of any court action, as you so
gleefully state in your effort to denigrate what I have posted.

I never said I was "gaining traction because the bank decided to delay things."
The plaintiff "lender" is NOT a bank.  It went bankrupt over two years ago.
In the rush to "delay things" against me, the attorneys representing the
lender for over four years decided to abandon the case instead of having
the sale confirmed.  What would it say to you that a group of lawyers,
after spending time, energy, and well over $10,000 in fees, with summary
judgment under their belt, abandons the case, leaving the purported
plaintiff without representation, instead of responding to my Notice and
Demand to void the sale?  They won every other time.  Why not continue
their unbroken streak of wins and have the sale confirmed?! 

Bill would say, the bank was merely delaying things until, whatever.  He
failed to make a cohesive complete thought beyond his mere conjecture.

Said confirmation of the sale would THEN put the purported lender in a
position to toss me out.  The purported lender was the successful credit
bidder at the auction sale, which remains unconfirmed, 10 months later.

Let me state this separately:  THE PURPORTED LENDER FILED FOR BANKRUPTCY
OVER TWO YEARS AGO, DIVESTED ITSELF OF ALL LOANS,[which included
mine], AND HAS NO ABILITY/CAPACITY/AUTHORITY TO MAKE A CREDIT
BID ON ANYTHING.  THE LAW FIRM REPRESENTING THE PURPORTED LENDER
IN BANKRUPTCY STATED IT IS UNAWARE OF THIS FORECLOSURE CASE,
AND FURTHER STATED NO CREDIT BID WAS EVER TENDERED AT THE AUCTION SALE
BY THEIR CLIENT.

What part of the above does not raise a red flag?  While you, ka, and S are
cheering on the fact that, to quote all three of you, separately:

 I am "Wasting everyone's time with wingnut theories"  ka

I am  "insane and a nutcase"  S

I really cannot quote you, Bill for all you did was repost some of the
comments, other than I should be quiet as a mouse hoping for more delay.

Unlike the three of you, I am not willing to bend over in acquiescence to
the lending financial community.  Despite losing at every turn, AS ADMITTED,
I never gave up on the injustice being attempted by the plaintiff.

If anyone else wants to join this trio of Larry, Mo, and Curly, champions
of the lending institutions stealing properties through faulty papers, and
accepted by the courts as a matter of course, at least get the facts right,
as presented.

Apparently this trio accepts rampant fraud by the banking industry as
acceptable, and anyone unwilling to accept the unacceptable is viewed
as a "wingnut," "insane," "nutcase," etc.

Note that none have substantiated their positions, beyond judgmental
hyperbole, misstating facts to suit their stances.  I guess they can't stand
it when someone is willing to make a stand in the face of overwhelming
odds.  It does not seem to bother them in the least that the party
foreclosing was a warehousing lender that sold the loan and kept the
servicing rights, pretended to still be the "lender," filed this case through
a different party before switching back to them, and then went bankrupt
two years before making a credit bid from the bankruptcy grave.

The number that can ignore any posts associated with me is now up to
three.  There may be more, but have refrained from commenting.

I love a good fight.  So far, the effort from above has been poorly made.

Next?





Quote 0 0
bobbief
mn,
  Are you describing Taylor, Bean, & Whitaker as the bankrupted warehousing
'lender'?  They got much of their money from Colonial Bank which was also
seized, and they filed for bankruptcy also.

Quote 0 0
mn
Wednesday  21 December 2011

bobbief:

It was Accredited Home Lenders.
Quote 0 0
Bill
Mn,

If you are wondering WHY you are considered a "wing-nut" here is a simple explanation:

Quote:

I am in Illinois, a judicial and a fact pleading state, and yes, I am in the
house, but not "still."  It is where I belong and where I will stay.


Short version of a long story.  I helped a friend learn English, and had
spent some time teaching the difference between the articles "a" and "the."
"a" is general, and "the" is specific.

A dog ran across the street. [It could have been any dog.]

The dog was chasing a cat.  [The article "the" refers specifically and
only to the dog that ran across the street]

After taking my closing papers home, I was reading the promissory note.
It said, in pertinent part, "In return for a loan I have received, I promise
to pay $x..."

Wait a minute... "a" loan?   Why isn't it "the" loan I just received.  If it
isn't "the" loan, then what was the "a" loan referencing?  Turns out,
Blacks Law distinguishes the difference, as well.  Anyone  not familiar
with the difference, in law, should look them up.



Your argument is complete garbage.  It is in the best interest of EVERYONE that reads this forum trying to defend their home NOT to consider making the argument you just made.  If you have SOME CASES that SUPPORT the contention that your meaning of the word "a" and "the" affect your note please post them.  99% of the notes used are Freddie/Fannie standard forms.  With a few nuances, most people have signed the same note as you.

A quick look at Ill cases (about 30 seconds) show that you are WRONG.  The fact that the appellate and supreme court ruled against you SHOWS you were WRONG.  This is the first case a search brought up on the court interrupting contracts:


Hobbs v. Hartford Ins. Co. of the Midwest, 823 NE 2d 561 - Ill: Supreme Court 2005


An insurance policy is a contract, and the general rules governing the interpretation of other types of contracts also govern the interpretation of insurance policies. Dempsey v. National Life & Accident Insurance Co., 404 Ill. 423, 426, 88 N.E.2d 874 (1949); see also Maremont Corp. v. Continental Casualty Co., 326 Ill. App.3d 272, 276, 260 Ill.Dec. 133, 760 N.E.2d 550 (2001); Pekin Insurance Co. v. Willett, 301 Ill.App.3d 1034, 1037, 235 Ill. Dec. 350, 704 N.E.2d 923 (1998). Accordingly, our primary objective is to ascertain and give effect to the intention of the parties, as expressed in the policy language. American States Insurance Co., 177 Ill.2d at 479, 227 Ill.Dec. 149, 687 N.E.2d 72. If the policy language is unambiguous, the policy will be applied as written, unless it contravenes public policy. Menke v. Country Mutual Insurance Co., 78 Ill.2d 420, 423, 36 Ill.Dec. 698, 401 N.E.2d 539 (1980). Whether an ambiguity exists turns on whether the policy language is subject to more than one reasonable interpretation. Although "creative possibilities" may be suggested, only reasonable interpretations will be considered. Bruder v. Country Mutual Insurance Co., 156 Ill.2d 179, 193, 189 Ill.Dec. 387, 620 N.E.2d 355 (1993). Thus, we will not strain to find an ambiguity where none exists. McKinney v. Allstate Insurance Co., 188 Ill.2d 493, 497, 243 Ill.Dec. 56, 722 N.E.2d 1125 (1999). Although policy terms that limit an insurer's liability will be liberally construed in favor of coverage, this rule of construction only comes into play when the policy is ambiguous. Menke, 78 Ill.2d at 424, 36 Ill.Dec. 698, 401 N.E.2d 539.

We will not, however, "torture ordinary words until they confess to ambiguity." Western States Insurance Co. v. Wisconsin Wholesale Tire, Inc., 184 F.3d 699, 702 (7th Cir.1999).


It appears you are suggesting "creative possibilities" about the meaning of words  "only reasonable interpretations will be considered".  The Fannie/Freddie standard note is used because it is universally accepted by the banking community.  This has ALREADY been challenged in just about every way possible and has been found to be a quality example of a binding note.  Failing to use this standard note can result in many institutions refusing to purchase the note (thanks William Roper Jr.).  This is why the banks use them, they plan on sometime down the road to sell the note (or at least have the option).  They do not want to limit it's marketability.

The Supreme Court of Ill has rejected your argument in case after case.  You don't get to pick one or two words and try to twist them to conform to your meaning to defeat equity and pretty much "rip off" the entity that lent you money to buy a home. 

It's not a surprise that you lost on your appeals.

If you have ANY cases that in some way SUPPORT your garbage theories please post them.  You should have them right on hand because of your opposition to SJ motion and Appeals. 

But as with all the other wing-nuts, we won't hold our breath for the cases.

Post some cases before you attempt to discredit the people posting.....

Maybe you should have argued the "Death Gamble" as well as the "note is not a negotiable instrument" theories.  They would have fit right in.


P.S. Did the judge keep a strait face when you made this argument????? 
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Angelo
Here is the NY statute for moving the court for Authority for appearance of  attorney in real property action.  This might help some NY homeowner, especially if they have a Plaintiff who is a securitized trust. In this instance, the servicer is paying the attorney to bring the suit, and the plaintiff has no idea of the suit.

Rule  322.  Authority  for  appearance  of  attorney  in real property
  action.  (a) Authority of plaintiff's attorney. Where the  defendant  in
  an  action  affecting real property has not been served with evidence of
  the authority of the plaintiff's attorney to begin the  action,  he  may
  move  at any time before answering for an order directing the production of such evidence.
Any writing by the plaintiff or his  agent  requesting
  the  attorney to begin the action or ratifying his conduct of the action
  on behalf of the plaintiff is prima facie  evidence  of  the  attorney's
  authority.
    (b) Authority of non-resident defendant's attorney. The attorney for a
  non-resident  defendant  in an action affecting real property shall file
  with the clerk  written  authority  for  his  appearance,  executed  and
  acknowledged  in the form required to entitle a deed to be recorded, and
  shall serve either a copy of such authority or notice of such filing  on
  the  plaintiff's attorney within twenty days after appearing or making a
  motion.
    (c) Agencies or wholly-owned corporations of the United States.   This
  rule  does  not apply to an attorney representing an official, agency or
  instrumentality of, or corporation wholly owned by, the United States.


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ka
Angelo:

Thank you!  Yours is a useful post that is helpful to New Yorkers defending against foreclosure.

Reading and understanding both the applicable statutes, as well as the cases, relating to particular points is always helpful in assessing possible arguments and strategies.

That being said, I would also throw out a strong caution associated with actually making use of the strategy suggested, even though questioning the attorney's authority might be effective.

In other threads, several Forum participants following Mr. Roper's lead have cautioned against a borrower putting the PSA into evidence.  One reason to refrain from putting the PSA into evidence is that a fully executed and admissible copy of the PSA to include the loan schedule will likely support rather than defeat the plaintiff's foreclosure.  For this reason keeping the PSA out of evidence is usually the better strategy.

The Ibanez case shows that even when the plaintiff tries to put the PSA in, they very often just print a copy out from the SEC website and then try to put in this unsigned and unauthenticated document, often without the loan schedule, which could be readily excluded if the defendant merely objects

I mention this because in challenging the attorney's authority to foreclose, there are a couple of levels of authority which would seem to be appropriate.  First, there is some engagement of the attorney by the entity actually controlling the litigation.  It is ALWAYS the servicer which is bringing the foreclosure, even when the foreclosure is brought in the name of the trustee of the trust which is alleged to be the owner of the note.

Where the plaintiff is an institutional trustee, such as U.S. Bank, and the servicer is an entity like Litton Loan or OCWEN, the authority of the servicer to sue in the trustee's name would usually be found in the PSA or some other power of attorney.

Despite all of the MYTHS that a plaintiff cannot show this authority, the truth is that they usually CAN, but often do so ineptly, inadequately or improperly.

In my view, bringing the argument about the attorney's authority presents the plaintiff with a preview of an argument much more effectively brought much later in a summary judgment defense.  Bringing out this argument in its full splendor is simply going to serve to take the plaintiff to school and to better prepare the plaintiff the weather, survive and prevail at summary judgment.  It is, to use Mr. Roper's expression, taking the plaintiff to school.

Any dismissal based upon a lack of attorney authority would also be a dismissal without prejudice, like a dismissal based upon standing.

There is also a second reason not to pursue this argument which is again subtle.

Very often, plaintiffs have brought deeply flawed cases where the initial filings and evidence seems to show that the plaintiff lacked standing at the inception of the suit.  Sometimes, there also can be shown to be a failure of conditions precedent.  This suit is probably ultimately subject to dismissal.  But upon dismissal, the suit is going to be refiled, but very often without the defects of the original suit.

WHY WOULD THE BORROWER WANT A SOONER DISMISSAL?  This only speeds refiling and in the refiled action, the distressed borrower often has fewer defenses.  A sooner dismissal of the first action may ultimately speed the loss of the borrower's home.

WHEN A PLAINTIFF HAS FILED A SUIT THAT IS DEEPLY FLAWED AND CAN BE DISMISSED BASED UPON LACK OF STANDING, IT IS OFTEN IN THE BORROWER'S INTEREST TO DRAW THE MATTER OUT AS LONG AS POSSIBLE.  THIS CAN GIVE THE BORROWER YEARS IN A PROPERTY BEFORE A CASE IS REFILED.  GETTING A CASE TOSSED EARLY BY CHALLENGING THE ATTORNEY'S AUTHORITY TO ACT ON A PLAINTIFF'S BEHALF, WHILE SATISFYING, IS ACTUALLY LIKELY TO BE COUNTERPRODUCTIVE, BECAUSE IT PUTS THE PLAINTIFF QUICKLY BACK AT SQUARE ONE WHERE THE PLAINTIFF CAN FILE A NEW ACTION WHICH IS NOT IMPAIRED BY THE DEFECTS IN STANDING APPEARING IN THE ORIGINAL SUIT.  BE CAREFUL WHAT YOU ASK FOR! 
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Angelo
Ka

I agree with you through explanation of the topic, but I just have a few points and questions if you will.  I haven't looked through the case law on cplr 322, but if its not brought up early enough might it be demeed waived, by you not questioning the attorney early enough might you be admitting they have a vaild POA.  Also, does the POA need to be signed before the suit is filed, or can they just memorialize it after the commencement of the suit?

Secondly, if the servicer wasn't the original servicer(master servicer) in the PSA, wouldn't need a valid sub-servicing agreement?  So they might not put the unathenticated PSA into the record. 

Aren't 99% of the foreclosure dismissals without prejudice, even thoughs dismissals for lack of standing and condition precedent.  I totally agree with your points to try and string the action out as long as possible, so if you file a pre-answer motion seeking authority of appearence, this could take months for it to be ruled on, then the answer would be due.  Wouldn't this prolong the time?  
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ka
Quote:
I agree with you through explanation of the topic, but I just have a few points and questions if you will.  I haven't looked through the case law on cplr 322, but if its not brought up early enough might it be demeed waived, by you not questioning the attorney early enough might you be admitting they have a valid POA.  Also, does the POA need to be signed before the suit is filed, or can they just memorialize it after the commencement of the suit?


Angelo, I would think that a POA that was used to support an assignment used as the basis to establish standing would need to have been executed prior to the execution of a document like an assignment prior to commencement of the suit.  This would seem to be necessary under the statute of frauds in most jurisdictions.

By contrast, I suspect that a POA authorizing a servicer to file suits on its behalf probably would not need to have been executed prior to commencement.  Generally, principals can authorize agents to act on their behalf orally, an exception being those types of matters which are required by the statute of frauds to be done in writing.

Also, bear in mind that a special POA, such as a PSA, really would have been executed contemporaneous with the closing of the trust.  It isn't that the PSA doesn't exist or that it was unsigned.  Rather, the copy filed with the SEC and shown on the SEC EDGAR website is typically unsigned and is usually inadmissible.  The laziness and incompetence of the foreclosure mill law firm is going to preclude its use as evidence, NOT the failure to sign the PSA prior to the filing of the suit.

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Secondly, if the servicer wasn't the original servicer(master servicer) in the PSA, wouldn't need a valid sub-servicing agreement? So they might not put the unathenticated PSA into the record.


You are right on the money here.  If your servicer is either a subservicer of the servicer shown in the PSA OR a successor servicer after a sale of servicing rights (e.g. OCWEN as a successor to Litton, etc.), then to prove authority to bring the suit, a foreclosure mill might need to prove (a) the PSA, (b) the subserving agreement or sale of servicing rights with a new servicing relationship, and (c) the engagement of the foreclosure mill by the new servicer.

They could trip up in respect of any of these.  But on balance, I wouldn't suggest taking the foreclosure mill to school prematurely and helping them get their evidence all lined up for the summary judgment proceeding.  You WANT them to have deficient proof when they move forward for sj.  In fact, ideally you would also file a motion for defensive summary judgment to be decided coincident to the plaintiff's MSJ.

Generally, you will want to draw out the hearing on the plaintiff's MSJ as long as possible.  Then, when the court will no longer extend the time, you would want to put in the response, file a cross-motion for defensive sj and then INSIST that both motions be heard together at the earliest possible date.

In this way, the uncured evidentiary deficiencies can both form the basis for the grant of a defensive motion and the two cross-motions can go up together on appeal!

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Aren't 99% of the foreclosure dismissals without prejudice, even thoughs dismissals for lack of standing and condition precedent.  I totally agree with your points to try and string the action out as long as possible, so if you file a pre-answer motion seeking authority of appearence, this could take months for it to be ruled on, then the answer would be due.  Wouldn't this prolong the time?


First, almost all foreclosure cases end in the grant of judgment to the plaintiff and the loss of the borrower's property.  Most judicial foreclosures are decided by default judgment.  In the few cases where a defendant even answers, the plaintiff usually gets a summary judgment by the often unrepresented borrower.

In most of the cases where a borrower has succeeded in obtaining a dismissal, it has been due to lack of plaintiff standing and these dismissals are without prejudice.

Other cases where a borrower has prevailed, mostly on appeal, have been cases where a foreclosure judgment was overturned due to evidentiary issues and often failure to prove conditions precedent.  In most of these instances, the case is remanded to the trial court rather than dismissed.  This is usually due to the defendant's failure to file a cross motion for defensive summary judgment.  If the  defendant had filed a cross-motion, the case might have been dismissed.

As to the advisability of filing some motion to require the plaintiff's attorney to show authority, my reaction in the prior post is colored by my belief that it would be imprudent to press this issue.

This is not to say that they might not be some value in raising the issue in select instances.

By this I mean that if a defendant simply raised the issue in an initial pleading and made the argument generally and even possibly slightly inarticulately, this might result in the foreclosure mill simply obtaining some written statement from the servicer confirming that it had engaged the law firm.

Suppose, for example, that the foreclosure mill obtains a letter executed by a robo-signer "I.M. Forger" explaining that U.S. Bank had engaged the services of Dewey, Cheatham & Howe.  The letter might be signed "I.M.Forger", Vice President, OCWEN, attorney in fact for U.S. Bank.  Now perhaps you KNOW that the servicer identified in the PSA was Litton.

You could make a big fuss and demand that Dewey, Cheatham and Howe produce the PSA, as well as some document showing that OCWEN has succeeded to the servicing rights of Litton.

My point here is that pressing the issue will help the plaintiff prepare for summary judgment and this is what is unsound.

If you simply raised the issue of the attorney's authority and then relented when the letter from I.M. Forger was presented to the Court, you might both accomplish a delay and even have obtained something that could later be used against the plaintiff.  Depending upon the wording of the letter, it might very well make things tougher for them later on.

But this is really a tightrope.  If you raise the issue and cave too easily and quickly, the Judge might perceive that you are making frivolous arguments and seeking only delay.  If you press too hard, you will take the plaintiff to school and they may obtain and ready evidence that could defeat you at summary judgment.

Precisely where to balance on this tightrope is a matter that must be ascertained by the unique facts of your case, the law of your jurisdiction, the level of involvement and engagement of the foreclosure mill law firm, the temperament of the judge and a variety of other factors.

I have seen judges that are so hostile, that I think such a motion would only tend to increase their hostility to the defendant.  I have seen other judges who seem to be already impatient with confusion as to representation or evidence presented by a servicer on behalf of an institutional trustee.

So, for example, if you were trying a matter before Justice Arthur Schack, making such a motion might be good fun!  Making the same motion before some hyper-hostile Florida rocket docket judge might be a really bad idea, although there might eve be cases where merely raising the issue in a credible way, only to be shot down by a judge without giving it due consideration might establish and preserve an issue for appeal.

As to whether to raise the issue, I think there is reasonable ground for disagreement and that it could be a useful delaying tactic in select cases.  (Bear in mind that no practicing attorney could bring this motion for this purpose, as Bar Rules preclude bringing matters solely for the purposes of delay.)  I think that it would uniformly be a bad idea to press the matter if it resulted in the foreclosure mill bringing a valid copy of the executed PSA (including loan schedule) into evidence.

And if they brought in an unexecuted or unauthenticated copy and you failed to timely Object, then I think you might have already waived the evidentiary issue as to summary judgment.

You need to weigh what it is you hope to gain versus the risks of focusing the plaintiff's attention on this proof.
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ka thanks for the well explained strategy . these types of exchange are invaluable to those of us treading in uncharted waters of "corrupt court[s]" and lack of "equal justice" forums we must fight in. lack of adherence to black letter law will surly be the country's  demise.
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We will not, however, "torture ordinary words until they confess to ambiguity."
whata great statement!
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Unregistered

Angelo  01/06/12 at 14:47 PM:

 

“Secondly, if the servicer wasn’t the original servicer (master servicer) in the PSA, wouldn’t need a valid sub-servicing agreement? So they might not put the unauthenticated PSA into the recorded.

 

[response] Ka 01/06/12 at 06:27 PM

 

“You [Angelo] are right on the money here.  If your servicer is either a sub servicer of the servicer shown in the PSA OR a successor servicer after a sale of servicing rights (e.g. OCWEN as a successor to Litton, etc), then to prove authority to bring the suit, a foreclosure mill might need to prove ….(c) the engagement of the foreclosure mill by the new servicer.”

 

 

My question:

 

Would Chase (WAMU) and/or BofA (Countrywide) be considered ‘a successor servicer’, or, a ‘sub servicer’?

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Unregistered
oopps the other part of the ?

"...then to prove authority to bring the suit, a foreclosure mill might need to prove ….(c) the engagement of the foreclosure mill by the new servicer.”


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Unregistered
In most of these instances, the case is remanded to the trial court rather than dismissed.  This is usually due to the defendant's failure to file a cross motion for defensive summary judgment.  If the  defendant had filed a cross-motion, the case might have been dismissed.

This is an IMPORTANT comment. I don't think I've read this anywhere before.

Does this mean every homeowner defending against foreclosure should always file a defensive summary judgment? 

I read in a recent case that one judge opined that burden of proof still remains on the plaintiff in the event a defensive summary judgment is filed.
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