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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
John Lewis

There are two issues on appeal.

 

The first is whether the Bankruptcy Court erred in determining that the Aurora employees had authority to assign the Note and the Canellas Mortgage to the 2006-3 Trust.

 

The second issue is whether the bankruptcy court erred in failing to consider the Bankruptcy Trustee's argument that the assignment of the Note and the Canellas Mortgage to the 2006-3 Trust was void because it failed to comply with the terms of the PSA.

 

issue 1: The Bankruptcy Trustee argues that there are at least issues of material fact as to whether the Aurora employees had authority to assign the Note and the Canellas Mortgage to the 2006-3 Trust. Even if the Aurora employees did not have actual authority at the time they signed the assignment and the Allonge, however, it is clear that Aurora has adopted and ratified the employees' actions. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1355 (11th Cir. 2011) ("Ratification of an agreement occurs where a person expressly or impliedly adopts an act or contract entered into in his or her behalf by another without authority." (quotation omitted)); Vargas Realty Enters., Inc. v. CFA W. 111 St., LLC (In re Vargas Realty Enters., Inc.), 440 B.R. 224, 235 (Bankr. S.D.N.Y. 2010) ("Ratification is the express or implied adoption, i.e., recognition and approval, of the unauthorized acts of another." (quotation omitted)). Therefore, the bankruptcy court did not err in determining that there was no genuine issue of material fact regarding the Aurora employees' authority

 

issue 2: The Correia court rejected this argument, concluding that the debtors lacked standing to challenge compliance with the pooling and servicing agreement because the debtors were not parties or third-party beneficiaries to the agreement, nor were they investors who purchased securities based upon the pooled mortgages. Id. at 324. Accordingly, the court held that the debtors lacked prudential standing because they were attempting to assert the rights and interests of a third party, not their own. Id. Like the debtors in Correia, the Bankruptcy Trustee in this case does not have standing to challenge compliance with the PSA because neither she nor Mr. Canellas was a party to the PSA, a third-party beneficiary, or an investor in the pooled mortgages at issue.

 

III. Conclusion

In accordance with the foregoing, it is ORDERED and ADJUDGED that the Order of the bankruptcy court granting summary judgment to U.S. Bank (Doc. 1-3) is AFFIRMED. The Clerk is directed to enter judgment affirming the decision of the bankruptcy court and thereafter to close the file.

 

http://scholar.google.com/scholar_case?case=15842088168185009056&hl=en&lr=lang_en&as_sdt=2,10&as_vis=1&oi=scholaralrt

Quote 0 0
John Lewis

As a side note, I have in print format most or if not all of the motions/pleadings for this case.  I would offer comment but that I do not have the necessary background to do so.  As a lay person, I can't believe that 'person a' could generate the note, 'person b' then generates an allonge, and they some how get attached to become a valid indorsement!?

 

Quote 0 0
John Lewis

....approximately 4 years after the fact.

Quote 0 0
John Lewis

This William A. Roper post, Agency, Powers, Principal and Agent, http://ssgoldstar.websitetoolbox.com/post/Agency-Powers-Principal-and-Agent-5136472, should forever put to rest any criticism of Mr. Roper, as this topic is dated "03/13/11 at 04:59 AM", and, in part states the following:

 

"There is another basic principal of agency called ratification. Even where an agent lacks actual or apparent authority, the principal can make the contract or bargain good by ratifying the terms agreed to by the person otherwise lacking authority.

By simple ratification, the father binds himself to the contract and with his agreement and partial performance, he has manifested his intention to be so bound.

While the father might have REPUDIATED and REJECTED the proposed contract from the outset, once he ratified and accepted the contract to deliver pecans, he was bound.

The baker cannot simply deny the existence of the contract. Once he has ratified the contract and undertaken partial delivery, neither can the farmer. That is, if the price of pecans went up and the farmer thought he would be better off selling his pecans at the market price, he couldn't simply terminate his forward contract to deliver to the baker.

With the ratification, the contract the principal has bound himself to the terms which were agreed to by his unauthorized agent. "

This is why William A. Roper Jr. is missed from this Forum!

 


Quote 0 0
Walt

Forum contributor Gary gave us a very nice summary of some of Mr. Roper's posts on ratification back in December within the thread "Is it just me or did the judge really fail here?":

 

Quote:
Here, the Federal Bankruptcy Judge tells us precisely what Mr. Roper has been warning us all along about the fixation with robo-signing. By the simple expedient of post execution ratification, the robo-signing defect as to assignment is cured.

See:

"Agency, Powers, Principal and Agent"

http://ssgoldstar.websitetoolbox.com/post/Agency-Powers-Principal-and-Agent-5136472

 

"Explosive New DOCX Deposition Discusses Surrogate Signers"

http://ssgoldstar.websitetoolbox.com/post/Explosive-New-DOCX-Deposition-Discusses-Surrogate-Signers-5164545


"NEED TO COMPARE ENDORSEMENT SIGNATURE ON NOTES"

http://ssgoldstar.websitetoolbox.com/post/NEED-TO-COMPARE-ENDORSEMENT-SIGNATURE-ON-NOTES-4667498

 

"Case Law on Fraud Notary Signatures"

http://ssgoldstar.websitetoolbox.com/post/Case-Law-on-Fraud-Notary-Signatures-4877397


It is bizarre how some Forum participants become fascinated in resurrecting failed arguments rather than helping distressed borrowers make use of the sound guidance posted by Mr. Roper.

Mr. Roper suggests that a means around the ratification argument would have been to point out that the document might have taken legal effect at the date of ratification rather than the date of execution. That can screw up the plaintiff's standing. But this argument seems not to have been made in the In Re Jessup case.

 

Gary on 12/30/11 at 09:46 PM 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1271598204&postcount=4

 

Mr. Roper also briefly discusses ratification within this post in the thread "Official signatures of attorneys and notaries":

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1266948388&postcount=4

 

Thanks for posting John!

 

Of course, some people think that since Mr. Roper's views are consistent with those of judges, this disqualifies him from any respect or consideration.

Quote 0 0
John Lewis

quote: "Walt, re: Mr. Roper suggests that a means around the ratification argument would have been to point out that the document might have taken legal effect at the date of ratification rather than the date of execution. That can screw up the plaintiff's standing. But this argument seems not to have been made in the In Re Jessup case."

 

In support of William A. Roper Jr. " that a means around the ratification argument would have been to point out that the document might have taken legal effect at the date of ratification rather than the date of execution. That can screw up the plaintiff's standing."  reference:

 

In re: Barry Alton Parker, Chapter 13, Debtor.

Barry Alton Parker, Plaintiff,

v.

U.S. Bank National Association, as Trustee on behalf of the Holder of the Adjustable Rate Mortgage Trust 2007-1, et al. Defendants.

Case No. 09-10186, Adversary Proceeding No. 09-1022.

United States Bankruptcy Court, D. Vermont.

March 18, 2011.

See Undisputed Material Facts ¶ 18, supra; see also doc. # 51-3 (“Credit Suisse . . . ratifies and approves the indorsement of the Note by Patrick Brown, post Closing Manager for Lydian Data Services as the attorney-in-fact for Credit Suisse”). The leading commercial law treatises shed light on the issue of the effectiveness of ratification. An unauthorized signature may be ratified expressly, thus binding the ratifying principal. See 2 White & Summers, Uniform Commercial Code § 16-4 (5th ed. 2010). A signature by an agent in excess of his or her authority may be ratified. See 4 Hawkland UCC Series § 34-04:2 (2010). Once a signature is ratified, it becomes effective as if authorized at the time made. See id; see also 9A V.S.A. § 3-403, Official Comment 3 (“[r]atification is a retroactive adoption of the unauthorized signature . . .”) (emphasis added). Thus, the Court finds that upon ratification by Credit Suisse, the endorsement by Mr. Brown became effective as if it had been authorized at the time made.

This raises the question of when the allonge was endorsed, as the allonge endorsed by Mr. Brown is not dated. The Bank argues that the timing of the endorsement is immaterial to the question of whether the Bank is the holder of the Note because regardless of when the Note was endorsed, it is now endorsed and in the Bank’s possession. See In re Wilson, 442 B.R. 10, 15, 2010 Bankr. LEXIS 4252, * 9-11 (Bankr. D. Mass. Nov. 29, 2010).

From the Blog: Being Middle Class quoting Stopforeclosurefraud:

 http://beingmiddleclass.org/showthread.php?2818-stopforeclosurefraud.com&s=e9bb051b30f4ba54d13d1275f5ef6be8


Quote 0 0
John Lewis

In re: Barry Alton Parker, Chapter 13, Debtor

 

http://scholar.google.com/scholar_case?case=15537790988753223481&q=09-10186&hl=en&as_sdt=2,10

Quote 0 0
Write a reply...