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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I have read cases stating that the plaintiff must have an assignment recorded before a foreclosure case is filed. I just noticed that in my case, the MERS assignment was filed one day after my case was filed. It was allegedly notarized three days before the case was filed. Does the recording time and date hold more importance in the alleged transfer, since it cannot be fudged? Or does the recording date matter at all when the assignment signatures are dated and notarized earlier?
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I think it all depends on what state your in, I know that in NY assignments don't need to be recorded.  It is the date that the assignment is made that controls the effect.  If the assignement was done prior to the summons and complaint, it would be enough. 

BUT, as Mr. Roper has stated numerous times, if the recorded assignment was a FORGERY, then the dates dont really matter.
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William A. Roper, Jr.

You need to look to the law and the cases of YOUR jurisdiction for the answer to this question, but generally speaking in most places the VALIDITY of the assignment would tend to be determined by the Statute of Frauds, while the PRIORITY of the assignment in respect of competing claims would be ascertained with reference to that state's Recording Acts.

Whether a particular conveyance is VALID as written and executed usually depends upon the conformity of the instrument to the express language of the Statute of Frauds for your jurisdiction.  In most places, recording is NOT necessary to give the instrument legal effect.  The instrument would typically be effective upon EXECUTION.

But where there were competing grants, as where the original Lender assigned the very same loan to more than one entity, the recording acts would be used to ascertain the priority of these competing instruments.

Under the common law, the rule is "first in time, first in right".  So the first grantee would have the right to enforce the mortgage.

The recording acts displace this common law rule.  The recording acts come in three general varieties:  Race, Notice, and Race-Notice.

Under a "Race" statute, the first grantee to RECORD its assignment would have priority, without respect to which grant occurred first in time.  So if the original mortgage Lender assigned the same mortgage to the ABC Mortgage Trust and to the XYZ Mortgage Trust, it wouldn't matter which grant had been made first, the only thing that matters is which assignment is RECORDED first.

Under a "Notice" statute, a subsequent grantee without notice of the prior grant has priority over the prior grant when the first grantee fails to record.  So if the mortgage was assigned to ABC Mortgage first and then later assigned to XYZ Mortgage after ABC Mortgage failed to properly record its earlier assignment, XYZ would have priority as long as XYZ did NOT KNOW ABOUT the earlier assignment.  To put this another way, XYZ cannot obtain a superior right when it is involved in some sort of collusive fraud with the seller of the mortgage or where it had actual or constructive knowledge of the prior conveyance.

Under a "Race-Notice" statute, a subsequent grantee without notice of the prior grant has priority over the prior grant when the first grantee fails to record, AS LONG AS THE INNOCENT PURCHASER RECORDS FIRST.  Under a Notice statute, the question isn't WHICH entity recorded first, but rather whether the subsequent purchaser for value INNOCENTLY purchased in reliance on the records after the first grantee failed to record.  Lack of diligence by the subsequent (second) purchaser will not undermine or defeat the subsequent purchaser's title as to the first grantee, although a failure to record by the second purchaser might still result in a loss of priority as to yet a third or other subsequent grantee.  The Race-Notice variant is distinguishable from the Notice statute in imposing an affirmative duty on the subsequent grantee to RECORD FIRST.


The concept of priority is a little more abstract and harder to understand with respect to assignments than with respect to deeds or mortgages.

With respect to deeds, imagine that ROBINSON owns Blackacre.  ROBINSON sells Blackacre to SMITH for valuable consideration and gives SMITH a deed.  Further suppose that SMITH fails to record his deed.  Subsequently, JONES approaches ROBINSON, who is still shown to be the record owner, and arranges to buy Blackacre.

JONES is an innocent purchaser offering real valuable consideration.

Of course, ROBINSON ought to tell JONES that he has sold the property to SMITH and that he should make his offer to SMITH.  But if ROBINSON is a crook, ROBINSON may not do so.  And it is SMITH's failure to record which has caused JONES to approach ROBINSON, in reliance on the public records.

Under the common law, ROBINSON's subsequent deed to JONES must fail as, after his conveyance in fee of all of his interest in Blackacre to SMITH, ROBINSON has nothing left to convey.  The subsequent deed is therefore a nullity.

Under each variant of the the recording acts, SMITH can "perfect" and protect his interest by merely timely recording the prior deed.  This puts the world on notice as to SMITH's interest and frustrates any scenario under which ROBINSON might defraud others by trying to sell the same property a second or a third time.

The variations are important in distinguishing the rights when SMITH fails to record.  Under the facts set forth above, under the common law, JONES has a void deed.

But under a Race statute, whether SMITH or JONES has the valid deed depends solely upon which RECORDS FIRST.  Suppose that SMITH fails to record and ROBINSON then sells to JONES.  JONES is an innocent purchaser.  But somehow, SMITH belatedly learns of the second conveyance to JONES.  If SMITH races to the court house and records his deed first, then SMITH prevails.  If JONES records first, JONES prevails.  The order of recording has displaced the common law rule of first in time, first in right plain and simple.  What would otherwise be a VOID deed can be elevated over the valid deed if the second conveyance is recorded first.

Under the Notice statute, if JONES had no notice of the prior conveyance, his deed for value would prevail over the earlier conveyance, even though it would have otherwise been void.  The notice issue can be a little tricky.  Because issues of constructive notice come into consideration in most places.  For example, suppose that SMITH fails to record, but enters upon the property and actually occupies it.  Further suppose that SMITH erects a large sign at the front gate identifying the property a "Smith Ranch" rather than "Blackacre".  SMITH puts a mailbox out front with his name on it.  SMITH begins paying the taxes and pays for several years, getting the tax records changed to his name.  And a notice of the sale appeared within the local newspaper.  Under these facts, JONES would have to be pretty careless to be confused about the ownership of the property.  Even if JONES found indications within the land records that ROBINSON was the owner, a modicum of due diligence, such as visiting the property and simply ASKING JONES about his interest in the property would probably clear up any doubts.  One can take the stark facts I have recited and present far more ambiguous cases.  Would JONES have notice if SMITH merely occupied the property without putting his name on the mailbox and without mention in the local press?  If SMITH kept his gate locked and had many anonymous "No Trespassing" signs with no listed telephone number at the property could JONES be excused from further inquiry?  Would it matter that the newspaper mention was one column inch on page 25 of a small weekly newspaper of limited circulation rather than a large daily newspaper with a more prominent and conspicuous mention of the transaction?  The central question is whether JONES had actual or constructive notice and these boundaries will vary with facts and the contours of various court decisions from jurisdiction to jurisdiction.

All of these same considerations come into play with the Race-Notice variant with the additional duty of JONES to actually record first.  Race-Notice differs from a pure Notice jurisdiction by the imposition of this requirement to record first.  Race-Notice differs from a pure Race jurisdiction in specifying that the subsequent purchaser for value must lack notice of the prior grant.


In thinking about the recording statutes from a mortgage perspective, think about two different Lenders loaning money on the same property.  Instead of SMITH and JONES, ROBINSON borrows money first from ABC Mortgage, but ABC Mortgage fails to timely record its interest.  ROBINSON then borrows money from XYZ Mortgage.

Unlike the deed scenario, in which the common law rule would render the second conveyance of the fee interest void, there is nothing inherently impermissible about granting a mortgage to more than one entity.  But it is easy to see that XYZ might THINK that it is getting a FIRST LIEN on the property when its title investigation shows NO OTHER PRIOR LIENS.

ABC Mortgage's failure to record has created a situation where XYZ Mortgage, relying upon the records, believes that the subject property Blackacre is free and clear of any mortgages.  So XYZ might very well lend a very large portion of the appraised value.  It would have lent far less and at higher rates had it known about ABC Mortgage's prior lien.

So the "first in time, first in right" rule when applied to mortgages has to do with the PRIORITY of the lien.  That is, which lien is entitled to be paid FIRST out of the proceeds of a sale and which lien is superior to the other.

Under the common law, the first grantee, ABC Mortgage would have the first lien if granted first and XYZ Mortgage would have the second or junior lien.

Under the recording acts, ABC has some duty to record its mortgage.  Note that this duty is NOT necessary to give the mortgage lien effect as to ROBINSON.  Rather the duty to record is to protect other subsequent grantees for value from being deceived into making loans in respect of the prior lien or to protect a subsequent purchaser of the fee interest from buying a property still subject to an unreleased lien.

Under the Race statute, the mortgage which was recorded first has the priority.  If XYZ makes a subsequent mortgage loan and records first, it gets a first lien priority moving ahead of the prior mortgage to ABC when ABC failed to record.

Under a Notice statute, XYZ can gain priority when making a subsequent loan and obtaining a subsequent mortgage grant as long as XYZ lacked notice of the prior loan to ABC.  It is easy to see that the notice issues are actually VERY DIFFERENT in a mortgage setting rather than a sale setting.

For example, suppose that ROBINSON discloses the PRIOR mortgage to ABC on his loan application to XYZ.  This would seem to put XYZ on notice of the prior loan to ABC, even though ABC failed to record.  Or, suppose that the prior loan to ABC  appeared on ROBINSON's credit report.  Wouldn't this put XYZ on notice of the prior lien?  Or suppose that ROBINSON told XYZ's loan officer of the prior mortgage to ABC, but was counselled to leave this loan OFF his application.

The contours of precisely how the Notice requirement might play out would again vary with the precise facts of a case, together with the appellate decisions of a particular Notice jurisdiction.

The Race-Notice variant would determine the priority as to ABC and XYZ with reference both to XYZ's notice, as well as whether XYZ got its mortgage recorded ahead of that granted by ROBINSON to ABC.

Note that questions of priority can arise quite innocently of ROBINSON.  ROBINSON can truthfully disclose the prior loan and lien and XYZ, either innocently or intentionally, can make the second loan.  (A Lender might  intentionally proceed where it intended to SELL the loan to a subsequent purchaser as a first lien, profiting from the loan sale, even though it really should have been a second lien.)

Note that NONE of these examples calls into question the VALIDITY of the mortgages granted by ROBINSON.  The issue with respect to recording is the PRIORITY of these competing mortgages.

Of course, if one of the mortgages was found to be INVALID under the statute of frauds, then there wouldn't be competing mortgages, would there?


In closing, permit me to reinforce that MOST of the assignments used in foreclosures are actually BALD FORGERIES.  The key issue is NOT usually whether the assignment was made before or after commencement, but rather whether the assignment is actually valid to convey anything at all!

But PROVING the assignment is a forgery is yet another matter.  And where the forged assignment purports to convey the mortgage AFTER the commencement of the suit, an astute defendant may very well get TWO BITES at the issue.

That is, suppose that the plaintiff uses a forged assignment dated after the commencement of the suit to support its claim of ownership.  The original suit might very well be readily dismissed by using the post commencement assignment to prove lack of standing to sue at the commencement of the suit.

When the suit is REFILED, with good discovery, the assignment itself might be shown to be a forgery and the refiled suit might be defeated using a clean hands defense!  But if you take the plaintiff to school in the first suit, they are very likely to distance themselves from the forgery upon refiling and it may be harder to win using the clean hands argument.


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Thanks what I meant.......LOL

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Interesting take Mr. Roper. I am in California and for anyone looking it is

California's Statute of Frauds, found at Cal.Civ.Code §1624

Not sure how it applies to all of my fraudulent assignments of deed of trusts though

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Here's an interesting take:  The assignment states "On or before Nov19 2008"
It is notorized the same day the Lis Pendens is dated Dec 2, 2008.

So my question is: How will the court of law look at this? After all the foreclosure mill is the one who created the assignment. It doesn't have a specific date. It leaves it in limbo. Is the date "ON" or "BEFORE" Nov 19 2008?????????????????????   Keep in mind again it was notorized Dec 2, 2008.

Any thoughts????
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That was funny, Angelo.  I wish I knew a fraction of what Mr. Roper is kind enough to teach me. Come to think of it, I guess I now do know a fraction of it, because he is teaching me. I want to know more!

cmc, If I understand this correctly, I don't see an issue with the dates, since "on" and "before" Nov. 19, 2008 are both before the Lis Pendens was filed.

Do you have a MERS situation where one of the plaintiff's foreclosure attorneys allegedly assigned the mortgage as a MERS certifying officer? If so, here's something I found on Matt Weidner's blog. It was posted by a title attorney, and I think it's important about a MERS so-called assignment. But I am not an attorney, so you know how much that opinion is worth.

Quote from Greg Clark March 2, 2010:

"My argument against the ethicacy of the MERS mortgage is founded on basic, longstanding principals of coveyancing law, agency law and mortgage law. Clearly, one person cannot sign a piece of paper and create an agency between two other non-signing parties. Only the debtor signed the mortgage....

"... Had the lender/note holder countersigned the mortgage at closing (as if a power of attorney) and had MERS interest, as putative holder of the mortgage, been clearly defined as “Agent with full authority and power to act in all matters as attorney in fact for lender” then at least one could argue that no real separation occurred since an agent with full power is nothing more than an extension of his principal, the arm of the master.

"But MERS serves under grant from the Debtor, at the debtor’s behest. You see in this sense the debtor is the principal having appointed MERS to act as ambassador “nominee”. What’s more, the debtor only gave a limited role to MERS as mortgagee, as holder of the mortgage – which did not include the power to assign...."
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Sandy,   It is a MERS situation and the attorney for the Plaintiff created the assignment.

What I am saying is it does say On or Before Nov 19, but it is notorized Dec 2
by the attorney's employees.
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Are your asking if there is a problem since it wasn't notarized on the same date the document was prepared? If so, the document could have been prepared on Nov. 19, but signed later with the notary on Dec. 2. 

I'm sorry if I'm missing something here, I'm not sure what you are asking. I think the important issue is that the assignment must be completed before the foreclosure suit is filed. 

Beware: I'm just learning, so I might be misunderstanding this myself. I'm sure someone else will correct me if I'm wrong. 
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William A. Roper, Jr.
There is an interesting and very recent Florida appellate case decided only this past week which discusses the recording acts.  The case is Argent Mortg. Co., LLC v. Wachovia Bank N.A.:

Argent Mortg. Co., LLC v. Wachovia Bank N.A., Case No. 5D09-4014, COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 2010 Fla. App. LEXIS 20132, December 30, 2010, Opinion Filed.

The decision can be found at:

Remarkably, the issue being clarified is an erroneous finding that Florida had become a "Race-Notice" state, rather than merely a "Notice" state.

Read the decision and then re-read my post above.  See how I did from memory compared to the Judge of the Circuit Court from Putnam County.  Note that the issue is priority, NOT validity.
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cmc said:
Here's an interesting take:  The assignment states "On or before Nov19 2008"
It is notorized the same day the Lis Pendens is dated Dec 2, 2008.

So my question is: How will the court of law look at this? After all the foreclosure mill is the one who created the assignment. It doesn't have a specific date. It leaves it in limbo. Is the date "ON" or "BEFORE" Nov 19 2008?????????????????????   Keep in mind again it was notorized Dec 2, 2008.

Any thoughts????

Your query combines and subsumes several different but related issues and probably needs to be analyzed using common sense, economic analysis as well as statutory and case law.

Frankly, you are not going to find a lot of cases on point, because this sort of mischief is yet a newly emerging variant of fraud being perpetrated by foreclosure mills.

As a point of departure, imagine that you went to a to a merchant TODAY (06 Jan 2011) and arranged to purchase some new energy efficient windows and some insulating material which might qualify for a Residential Energy Tax credit.  When you approach the counter to pay, you tell the proprietor "I want the sales receipt to reflect that I purchased these items on December 31, 2010, so that I can qualify for a 30% Residential Energy Tax Credit".

What is it that you are asking the merchant to do?

It is rather plain to see that you are asking him to prepare a document -- a receipt -- which reflects terms OTHER THAN a correct description of the transaction.

Is this legal? 

Suppose that instead of asking the merchant to backdate the receipt,  you had asked him to INFLATE the stated sales price and create a receipt showing that you had paid $5,000 rather than the $3,500 that the items actually cost.

Is this legal?

I probably do not have to cite any particular law or case to persuade you that the transaction isn't either ethical or lawful.  Your intuition would be that these situations involve your asking the merchant to prepare what in essence is a false document, which you might subsequently use to obtain a tax credit during a period in which you are not entitled or for an amount in excess to that to which you are entitled.


Bear in mind that the example described may very well involve two crimes.  One of these would involve the forgery or creation of the false business record.  The other would involve using that record to unlawfully obtain a tax credit to which one is not entitled.

Whether the antedated record or a record which falsely memorializes the amount or other details is criminal depends upon the laws of the jurisdiction in which the transaction takes place.

Here is the language of the Texas statute relating to forgery:

§ 32.21.  FORGERY. 
(a)  For purposes of this section:

(1)  "Forge" means:
(A)  to alter, make, complete, execute, or authenticate any writing so that it purports:
(i)  to be the act of another who did not authorize that act;
(ii)  to have been executed at a time or place or in a numbered sequence other than was in fact the case;  or
(iii)  to be a copy of an original when no such original existed;
. . .
(b)  A person commits an offense if he forges a writing with intent to defraud or harm another.
. . .

Tex. Pen. Code § 32.21

The New York Penal Code contemplates an offense called "falsifying business records":

§ 175.05 Falsifying business records in the second degree.
 A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
1.  Makes  or  causes  a  false  entry  in  the business records of an enterprise; or
2. Alters, erases, obliterates, deletes, removes or  destroys  a  true entry in the business records of an enterprise; or
3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
4.  Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.
Falsifying business  records  in  the  second  degree  is  a  class  A misdemeanor.

New York Penal Statutes

Florida's forgery statute reads:

§  831.01 Forgery.
—Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as a legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Now one can argue as to whether the merchant who alters the date or the amount of a receipt for money is doing so with the intent to injure or defraud, but I think that one can readily see that one is flirting with criminal charges when one prepares such a false document.

The person who then uses this false document is then very likely committing one or more additional crimes when the document is presented as authentic to induce some particular outcome, whether to qualify for a tax credit, to obtain an expense reimbursement to which one is not entitled or to use such a document as false evidence in an official proceeding.

* * *

I introduce this initial analysis as a prelude to what seems to me to be the central question which needs to be asked in respect of any particular purported mortgage assignment.  This question is "What was the underlying economic transaction that the assignment purports to memorialize or represent?".

When presented with an assignment which purports to assign from A to D a particular mortgage, together with the note, bond and indebtedness (or similar language), which contains an indication that the assignment is "effective" on some particular date other than the date of execution, one might readily inquire as to "Precisely WHAT HAPPENED on that effective date to merit the specification of such a date?"

(This seems to me to be an excellent deposition question to ASK the signatory of the instrument under oath.)

Here are some of the kinds of sub-questions one might also want to ask in follow-up.

  • How was the indicated effective date selected?
  • Who identified or specified the effective date?
  • How did the signatory learn of the effective date and how was this communicated and by whom?
  • What did the signatory do to verify that the effective date shown was actually correct?
  • Did any consideration change hands between D and A on the indicated date?
  • Was the alleged promissory note indorsed in favor of D or in blank on the indicated date?
  • Did A actually deliver the alleged promissory note to D on the indicated date?
  • Did either A or D make a journal entry in its accounting books memorializing the transfer of the alleged promissory note from A to D on the indicated date?
  • Was the alleged promissory note carried as an asset on the books of account of A at the date of the purported transaction?
  • Did either A or D report to the IRS the transfer of the alleged promissory note from A to D on the indicated date?
When one begins to ask rather specific questions, the specious nature of the forged assignment is going to become manifestly apparent!

Note that the emphasis is NOT on the authority of the person who executed the forgery.  The questions is WHY was the assignment made and HOW was the effective date determined.

* * *

There are a number of cases, mostly from New York State showing that an instrument showing an antedated effective date is wholly ineffective in establishing standing.  As I recall, several of the U.S. District Court decisions out of Ohio reached a similar holding.

Although I do not recall seeing any cases which expressly cite the statute of frauds, I would wholeheartedly recommend that every litigant carefully check the precise wording of the statute of frauds for their jurisdiction to see whether the language might actually INVALIDATE an instrument containing an antedated effective date.

Consider, for example, this language from New York State:

§ 244.  When  grant takes effect.
A grant takes effect, so as to vest the estate or interest intended to be conveyed, only from its delivery; and  all  the  rules of law, now in force, in respect to the delivery of deeds, apply to grants hereafter executed.

New York RPP Article 8, §  244
So riddle me this.  If the instrument cannot take effect until delivery, and the delivery must have taken place AFTER execution, HOW CAN ANY INSTRUMENT HAVE AN EFFECTIVE DATE WHICH ANTEDATES THE DATE OF EXECUTION.

Check the statutes and cases of YOUR jurisdiction to see if there is some case law (very possibly involving the statute of frauds and DEEDS) which shows that instruments involving interests in real property must be not only executed but alos DELIVERED in order for the instrument to be effective.

* * *

cmc also presented the somewhat more complex question of what it means when the instrument purports to be effective "on or before" some specific date prior to the execution of the instrument.

While the analysis above, particularly any state law requirement for delivery of the instrument to give the instrument effect, should cover the situation where an "on or before" effective date is used, it is important to distinguish that the REASONS that the mortgage investors have shifted and moved towards this language are twofold.

First, are the cases generally holding that antedating is impermissible

But there is a second reason involving minimization of risk relating to criminal perjury and forgery, as well as creating greater latitude to alter their pleadings later.

Very often, after creating the forgery for use as false evidence in the case, the plaintiff will later SHIFT the argument and begin to argue that the assignment was actually UNNECESSARY.  They will argue that the negotiable instrument was indorsed and delivered prior to commencement and that the assignment was merely some sort of duplicate or corrective assignment made later to supplement or correct the record.  They will point to this on or before language to support the idea that the assignment was memorializing another earlier transaction.  Of course it is nothing of the sort.

A corrective assignment is intended to INFORM and to CORRECT.  These assignments are intended to mislead and deceive

A corrective instrument is usually expressly so labeled.  Suppose that an assignment was prepared which purported to memorialize a conveyance from A to D, but which erroneously stated that the conveyance was from A to H.  The corrective assignment would typically expressly reference the prior INCORRECT assignment, giving its date, book and page number, it would expressly state that the prior assignment had an error and that the corrective assignment had been prepared to correct this error.

The assignment was created SOLELY for use as false evidence before the court.  The plaintiff is hoping that the defendant is ignorant and unrepresented and that the indications on the forged assignment as to the antedating of the effective date are overlooked or ignored.  If the defendant fails to make the argument, the busy courts are extremely unlikely to note the discrepancy and even if noted it is the rare judge that will sua sponte dismiss a case based upon this deception.

The plaintiff engage in this wholesale forgery because it usually works!  But WHEN CORNERED, the plaintiff will very likely distance itself from the forgery.

The plantiff may very well have actual valid evidence of the prior indorsement and delivery.  Using the "on or before" language, the plaintiff seeks to avoid getting trapped as to some of the questions posed above!

* * *

Hopefully, this gives you some additional ways to look at the facts, the law and the issues.  Read the statutes of your jurisdiction and the associated cases carefully.  Take particular care in reading the provisions relating to the statute of frauds, as well as criminal statutes relating to forgery, falsification of business records and similar offenses.  MAKE SURE THAT YOU UNDERTAKE EFFECTIVE DISCOVERY.


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William A. Roper, Jr.
In my prior post, I included language from the New York Statute of Frauds.

Compare the following language from the Texas Statute of Frauds:

Sec. 5.021.  INSTRUMENT OF CONVEYANCE.  A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor's agent authorized in writing.

Tex. Prop. Code §5.021

It seems hard to conceive how an assignment with an antedated effective date could be valid in Texas.  But I haven't checked the case law on this nor am I aware of any Texas cases on the validity of assignments with antedated effective dates.
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Mr. Roper,   "Again", you are the "Best"..... Between the Race Notice and above post, you have given me a brain storm...When it comes to the hearing, I will show up with the statutes blown up on a board as well as the assignment, and the forged signatures on the amounts due and owing...

Just to let you know that the book and page number on the LP is way before the book and page number on the assignment.

If you don't mind, I may use your example about the windows. I will also let the courts know that there is no difference between the windows and the assignment of mortgage. I take that back. There is a difference. I would be in front of the judge in handcuffs and an orange suit.

I can't "Thank You" enough..... Now you are making me get to work on this earlier than expected. I want to be well prepared....
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William A. Roper, Jr.

I am very glad that you found my explanation useful.  But rather than beginning to prepare exhibits, it is particularly critical that you first carefully read the law -- the statutes and the cases -- for your jurisdiction!  The discussion must be an inspiration for further inquiry and research, rather than conclusive as to the law as it applies to the facts of your case.

Also,you mention preparation of materials for a hearing.  If the matter is coming up on summary judgment, bear in mind that under the rules of civil procedure of most jurisdictions, the summary judgment hearing is NOT an evidentiary hearing!  To the contrary, the rules are likely to identify very particularly what may be presented as evidence (often affidavits and discovery responses on file and/or attached to the opposition) and WHEN that evidence must be submitted (very often seven days in advance of hearing).

If you show up with exhibits to show the court at a summary judgment hearing, you are very likely to discover that you are never given the opportunity to show these exhibits AT ALL.  Moreover, in some jurisdictions no record is kept of argument at summary judgment hearings.  So in such places, evidence or exhibits you try to put on are NOT GOING TO BE IN THE APPELLATE RECORD.

Be sure to ask a lawyer well familiar with summary judgment and trial procedure in your jurisdiction about this!

As mentioned above, good research and understanding of the law is essential.  Then, if the matter to be considered at a summary judgment hearing, you may need to focus on writing with singular clarity so that your compelling arguments are set forth within the written opposition to the summary judgment motion in such a way that your case on appeal is unassailable.

When you have a clear and convincing opposition and are otherwise ready, there might not be any harm (other than loss of time) in preparing some visual illustrations to show the judge at the hearing.  But I really doubt that you will be given the opportunity to show these.

These same efforts might be more appropriately put into preparation of a few key graphics which might be included within one or more supporting affidavit or as an illustrative exhibit to the opposition or memorandum of law itself.  Then, you could ask the judge to turn to some particular page and call his attention to information already conclusively within the record.

In deciding where to locate graphics, you need to ask yourself whether the information related is factual (in which case it might belong in an affidavit) are merely argument or illustrative of the law.  I would tend to avoid insertion of graphic material in pleadings, motions, oppositions and responses, or in memoranda of law, unless you can find a rule or an experienced attorney to assure you that it is OK.  ASK A LAWYER.


One other strategic issue which merits careful research and consideration is which arguments to make within a motion to dismiss and which to make in defense of a motion for summary judgment.

Generally, one would like to get a case dismissed at the earliest opportunity.  But this may NOT be the case with a foreclosure for several reasons. 

First, in a judicial foreclosure state where the subject property is your residence, you are most likely to remain in possession and occupancy during the pendency of an action.  If the case languishes, you are in possession longer.

Second, when a case is dismissed due to lack of standing, the dismissal is usually without prejudice.  That means that the plaintiff or another entity may be able to simply clean up the pleadings, get their evidence in order and refile.  If you get the case dismissed sooner, then the refiling and more perilous case is underway sooner.

Third, getting the case dismissed will truncate your discovery.  You may very well be better off running some extensive and effective discovery against the plaintiff to obtain the true facts of the case.  Some of the discovery, such as interrogatory responses and depositions, as well as the material you receive in requests for production, may be very useful to you if the case is refiled and retried.

Fourth, the limitations period for a suit on a negotiable instrument, very often six years, continues to run while the original case is before the court.  If the defective case is immediately dismissed it is likely to be refiled well within the limitations period.  I am seeing some New York cases which were filed in 2006 and 2007 remain on the docket without an order of reference.  If these cases continue to languish, limitations is going to run before they are dismissed.  Those defendants may very well end up with free houses!

In weighing whether to press your best evidence at a motion to dismiss or at summary judgment, bear in mind that the movant is going to have the burden of proof on each issue.  On the motion to dismiss the defendant bears the burden of proof.  On the motion for summary judgment, the plaintiff has the burden of proof.  Moreover, on summary judgment, the plaintiff must show that there are no issues of material fact as to the essential allegations of the case and as to the well pled affirmative defenses.

Bear in mind that the foreclosure mills are busy and tend to give the short shrift to preparation.  They are very likely to make a motion for summary judgment which relies upon their often very defective forged and perjured evidence.

If you mount a very effective and credible argument on the motion to dismiss, you are going to be taking the opposition to school as to the various defects in their case and helping them to formulate a more effective summary judgment motion.  And you are going to be dissipating some of your very best arguments on a matter where you bear the burden of proof. 

If you SAVE these arguments (to the extent permissible under the rules of your jurisdiction) for use in the summary judgment opposition, the plaintiff may very well use its stock motion and defective evidence to make its case.  Then you need only show the disputes in fact to avoid summary judgment.

But beware that you may need to make at least the basic argument in your motion to dismiss and/or in your answer.  But, again depending upon the rules in your state, you may be able to make a somewhat more general argument without laying out all of the specific facts supporting that argument.

For example, in some jurisdictions, you may preserve the argument by simply alleging that the plaintiff lacks standing without pointing out with particularity in the motion to dismiss or the answer that the lack of standing is shown by the assignment dated after commencement of the suit.  AGAIN, THIS IS SOMETHING TO DISCUSS WITH A LAWYER EXPERIENCED IN LITIGATION.

You will face this very same strategic dilemma with respect to discovery.  Effective discovery can be very helpful to developing evidence to oppose summary judgment.  But if you come at the opposition with some of the very best questions right away, you will also tip the plaintiff off to your knowledge and sophistication.

If you have a winning defensive case at summary judgment, you may very well want to keep some powder dry and some of the power of your defensive argument concealed until after the motion for summary judgment has been filed.


I have a couple of other thoughts and some distinguishing boundaries on the antedating argument, which I will relate later today.

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Your point about the grant takes effect from the ny statues, is that for assignments of mortgages or transfers on notes?

Also very good points about the motion to dismiss, I have a question about the discovery, if you have discovery from the 1st. Case and it is dismissed for whatever reason, lack of standing, improper service, etc., can that discovery be used in the 2nd case, if they re-file? Or do you need to conduct a whole new batch of discovery?

Again, excellent points of discussion.
Thanks again
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William A. Roper, Jr.
Angelo said:
Your point about the grant takes effect from the ny statues, is that for assignments of mortgages or transfers on notes?


That section was taken from New York RPP, the Real Property statute.  I have NOT looked at the cases on this statute.  In many places, the statute of frauds and related real property laws are generically written to include deeds, mortgages and assignments.  Whether that provision pertains to assignments is unclear to me.

If I lived in New York State, I would probably be researching that.  And even if the statute didn't actually apply, I would argue that a unilateral instrument such as an assignment couldn't possibly be effective absent delivery.  This is somewhat a matter of common sense.

If I make out a check (negotiable instrument) payable to YOU, but never deliver it did I make a payment?  Are you able to enforce the instrument?

If I make out a deed in your favor as grantor, even going so far as to have my signature authenticated, are you the owner of the property if I fail to deliver the deed?  If I execute a mortgage or deed of trust, but do NOT deliver it to the mortgagee and do NOT record it, is that a VALID mortgage?

It seems to me to be a matter of common sense and commercial practice everywhere that it is the delivery of the instrument which completes the grant.

Angelo said:
. . . if you have discovery from the 1st. Case and it is dismissed for whatever reason, lack of standing, improper service, etc., can that discovery be used in the 2nd case, if they re-file? Or do you need to conduct a whole new batch of  discovery? 

Angelo, the answer will depend upon the rules of civil procedure for YOUR jurisdiction.  READ THE RULES AND THE CASES RELATING TO THESE RULES.  ASK A LAWYER EXPERIENCED IN CIVIL DISCOVERY.

In many cases, sworn interrogatories WILL be admissible in another proceeding.  Very often sworn depositions or depositions on written questions from another case might be admissible.  Judicial admissions from a request for admissions are usually NOT going to be admissible.

Material produced under requests for production will probably NOT be admissible as self-authenticating documents absent a new production request.  But you HAVE the material produced, so you already KNOW what it says.

The prior discovery is also useful in at least four other ways. 

First, even if the material was NOT expressly admissible, you could present various documents attached to an interrogatory or request for admissions and ask for the authentication of the document and/or an admission of its authenticity.

Second, informed by the prior discovery, you can ask more particularly for specific documents in requests for production, can focus more precisely on those questions which were useful and productive, avoiding areas which proved to be unproductive, and can probably re-establish critical facts with greater economy.

Third, you may be able to enter into written stipulations permissible by the rules allowing for the admission of prior discovery material as a means of avoiding unnecessary inconvenience to a witness and cost to all parties.

Fourth, in the new suit, you are probably entitled to restart from ZERO whatever counts or metrics apply to interrogatories or requests for admissions (if any) or to restart hours of permissible oral depositions.

If you carefully read the rules and cases, you are very likely to find that there are a variety of viable avenues to effectively leverage the prior discovery and get the new case off to a strong start!
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William A. Roper, Jr.
Afterthoughts On This Thread Arising from the Ibanez Decision

It struck me that today's Ibanez decision sounded several themes touched upon within this and earlier discussion threads already underway this week.  I wanted to highlight a few of these key ideas.

First, the Massachusetts Supreme Court is implicitly quoting a rule which arises out of the Massachusetts statute of frauds in renewing its holding that:

"Like a sale of land itself, the assignment of a mortgage is a conveyance of an interest in land that requires a writing signed by the grantor.  See G.L. c. 183, § 3; Saint Patrick's Religious, Educ. & Charitable Ass'n v. Hale, 227 Mass. 175, 177 (1917)."

That should sound familiar.

Now look at what the Massachusetts Supreme Court tells us about assignments in blank:

"We now turn briefly to three other arguments raised by the plaintiffs on appeal.  First, the plaintiffs initially contended that the assignments in blank executed by Option One, identifying the assignor but not the assignee, not only "evidence[ ] and confirm[ ] the assignments that occurred by virtue of the securitization agreements," but "are effective assignments in their own right."   But in their reply briefs they conceded that the assignments in blank did not constitute a lawful assignment of the mortgages.  Their concession is appropriate. We have long held that a conveyance of real property, such as a mortgage, that does not name the assignee conveys nothing and is void; we do not regard an assignment of land in blank as giving legal title in land to the bearer of the assignment.  See Flavin v. Morrissey, 327 Mass. 217, 219 (1951); Macurda v. Fuller, 225 Mass. 341, 344 (1916). See also G.L. c. 183, § 3."

Finally, note what the Court said in Ibanez in respect of the antedated assignment effective date:

"Nor may a postforeclosure assignment be treated as a pre-foreclosure assignment simply by declaring an "effective date" that precedes the notice of sale and foreclosure, as did Option One's assignment of the LaRace mortgage to Wells Fargo.  Because an assignment of a mortgage is a transfer of legal title, it becomes effective with respect to the power of sale only on the transfer; it cannot become effective before the transfer.   See In re Schwartz, supra at 269."

The Court still leaves the door open to a belated confirmatory assignment where the assignment merely confirms and corrects a VALID, but defective earlier assignment:

"However, we do not disagree with Title Standard No. 58(3) that, where an assignment is confirmatory of an earlier, valid assignment made prior to the publication of notice and execution of the sale, that confirmatory assignment may be executed and recorded after the foreclosure, and doing so will not make the title defective.   A valid assignment of a mortgage gives the holder of that mortgage the statutory power to sell after a default regardless whether the assignment has been recorded. See G.L. c. 183, § 21; MacFarlane v. Thompson, 241 Mass. 486, 489 (1922). Where the earlier assignment is not in recordable form or bears some defect, a written assignment executed after foreclosure that confirms the earlier assignment may be properly recorded. See Bon v. Graves, 216 Mass. 440, 444-445 (1914).   A confirmatory assignment, however, cannot confirm an assignment that was not validly made earlier or backdate an assignment being made for the first time.  See Scaplen v. Blanchard, 187 Mass. 73, 76 (1904) (confirmatory deed "creates no title" but "takes the place of the original deed, and is evidence of the making of the former conveyance as of the time when it was made").  Where there is no prior valid assignment, a subsequent assignment by the mortgage holder to the note holder is not a confirmatory assignment because there is no earlier written assignment to confirm."

* * *

I would encourage those interested in the topics of this thread to read the Ibanez decision in its entirety and then to compare the Ibanez holdings with the analysis shown above.  I think that you will find the analysis to be remarkably consistent!

Ibanez was a thoughtful, deliberate and well reasoned unanimous decision of the Massachusetts Supreme Court.  There is ZERO chance that this decision would be overturned on an appeal to the U.S. Supreme Court.

Perhaps the most distinctive feature of the case was the idiocy of the financial institutions to appeal this case AT ALL.  They have inadvertently elevated an obscure decision of the Massachusetts Land Court into a landmark Supreme Court holding that creates new perils for the foreclosure mills everywhere!

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Mr. Roper,   I just need to let you know that what you taught me in reference to Florida "Race Notice"  I used it in a pending complaint I filed with the Florida Bar. When I put it all together, it all made a difference to me about how to put it in writing. I didn't know how to explain it. But with the knowledge I now have on this, it made all the difference in the world. I was able to include the statute number as well. I didn't even know that what I was trying to say had a statute number.

Wish me "Luck"... I just want to make a difference for the next victim. I don't want this young attorney to do this again without having to think about what she did was wrong, very wrong... This attorney needs to find another firm to work for that will teach her how to do her job the right way. I know that she will be able to sleep at night because as of yesterday, she did what she was told. But if she is reprimanded by the Bar, than maybe  instead of going to sleep tomorrow, she will be able to think about what was done. OVER AND OVER AGAIN.... 
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William A. Roper, Jr.
Though I am uncertain precisely how you are making use of the information in support of your complaint, I am delighted that you found the discussion and references pertaining to the recording acts to be useful!

You certainly remain in our prayers cmc and we all wish you the best of luck and hope for your success!

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By Tom Harvey

The Salt Lake Tribune

Published: January 16, 2011 04:41PM
Updated: January 16, 2011 01:01A

Chris Detrick | The Salt Lake Tribune 

Walter Keane poses for a portrait at his office Friday January 7, 2011. Keane has filed lawsuit that resulted in homeowners getting title to their property even if they owed someone money because of flaws introduced into the nation's property recording system by an entity created by the Mortgage Bankers Association.

A Utah court case in which the owner of a Draper townhouse got clear title to the property, even though he still owed $132,000 on it, raises new legal and financial questions about a property-records database created by mortgage bankers.

The award of a title free of liens means that whoever owns the promissory note on the Draper property — likely a group of faraway investors — no longer has the right to foreclose to collect on a delinquent loan. Indeed, the townhouse owner has sold the property and kept the money. Those who own the promissory note probably don’t even know what occurred.

Decisions such as the one 3rd District Judge Glen Iwasaki handed down in the Draper case could have a big impact as the state wends its way through hundreds of lawsuits involving foreclosures, loans on properties for more than they’re worth and predatory lending practices that led Utahns to lose their homes as the real-estate bubble burst.

Quiet title • Last year, the owner of the Draper property contacted attorney Walter T. Keane to help him deal with lenders, though Keane won’t say what the problem was and the owner declined an interview request.

Keane filed what’s called a “quiet title action,” a lawsuit in which the owner seeks clear title to a property free of liens by lenders or others.

In Utah, when you take out a mortgage loan to buy a home, you sign a promissory note held by the lender and a deed of trust that is recorded at the county recorder’s office. The promissory note gives the holder the right to collect payments on the loan. The recording of the deed of trust gives the lender the right to foreclose on the property if you default on the loan.

A trustee appointed by the lender also is recorded with the county and actually holds legal title to your property subject to the conditions of the trust deed.

The lawsuit over the title to the townhouse named Garbett Mortgage and Citibank FSB as the holders of promissory notes as recorded on trust deeds filed with the recorder’s office. Integrated Title Services was listed as trustee of the Garbett Mortgage trust deed, while First American Title was the trustee of the CitiBank trust deed.

Trust deed tag-along • But there also was another entity listed on the trust deeds called the Mortgage Electronic Registration Systems (MERS). The Mortgage Bankers Association, the Washington, D.C.-based trade group that represents major mortgage lenders, created MERS in the mid-1990s.

MERS is a database where promissory note owners are recorded, with MERS itself then listed on trust deeds at county recorder offices as the “beneficiary” of the note instead of the real lenders or note owners.

The new arrangement greased the way for mortgages to be packaged together and sold to investors who were relieved of the need under the traditional system to record the true owner of the promissory notes and to pay the county recording fees, which average around $35. Attorneys charge MERS is largely an instrument to avoid paying fees every time a promissory note is sold and resold and eventually packaged with others and owned by group of investors.

During the latter part of the real-estate boom, hundreds of thousands of subprime loans were packaged and sold using the MERS system. MERS has registered about 31 million loans, the company’s chief executive said in congressional testimony in November. CEO R.K. Arnold also said in a 2009 deposition that the system had saved its members an estimated $2.4 billion that would have gone to county governments.

Who’s the beneficiary? • Under the state’s quiet title laws, Keane said he did not have to name MERS or serve it legal papers in the lawsuit because it was not the legal owner of title to the property. Those were title companies. In addition, attorneys contend, MERS cannot be the “beneficiary” or holder of the promissory note because it readily has admitted it has no financial interest in any notes or mortgages.

Normally, a trustee named in a trust deed has a legal duty in Utah to the entity that holds the promissory note and for fair dealing with the homeowner. But in the townhouse case, First American Title filed a response to the quiet title action saying that it had no idea who had the right to collect payments on the promissory note, nor did it admit to knowing any other basic information about the property.

“The fact of the matter is First American Title doesn’t know who the beneficiary of the trust deed is and basically they disavow any interest in it,” Keane said. “It’s an acknowledgement [the recording system on this property is] a fiction, that they don’t have any real interest in it.”

Garbett Mortgage also told the court it no longer held an interest in the property. Integrated Title never filed a response to the lawsuit but did withdraw as a trustee with the Salt Lake County Recorder’s Office.

“Considering the owner of the property [the title companies who were trustees] failed to dispute the matter, and further considering that the original lender claims no further interest, the court nullified the trust deeds prior to setting any type of trial date,” Keane said.

So in the four months that the process took, the owner was able to gain title and deny the owners of his loan the ability to foreclose on the property for nonpayment. That means the promissory note owned by investors may be worth far less than they paid for it because it is no longer backed by an asset.

Record reliability • MERS spokeswoman Karmelo Lejarde said MERS actually added reliability to the system of county recording offices.

“Prior to the creation of MERS [when servicers routinely held the mortgage lien for the note owner], the information in the public land records was not accurate due to delays in recording assignments or missing assignments that never got recorded,” she said in e-mail that appears to be a boilerplate response to questions about MERS’ role in the nation’s property registration system.

“With the MERS System, mortgage data is more accurate and title information more reliable. The MERS process creates accountability and transparency, helps keep costs low, reduces the risk of errors in record keeping and makes it easier to keep track of the lien if a loan is sold to other banks and investors.”

Gary Ott, the elected Salt Lake County recorder for the past 10 years, disagrees. He characterizes his office as a neutral party that permanently safeguards records, all of which are available for public inspection. In the past, parties were able to record each transaction or lien involving a property so a clear picture emerges of the title history of a property, Ott said, adding that with computerization, the recording is now nearly instantaneous once documents are received by his office.

“You can trust what you see at the recorder’s office because it’s up to this date, everything is in order,” said Ott, “and you can’t see at MERS if it’s in order at all. That’s the scary part, and people’s homes are something you shouldn’t mess with.”

Default judgment • Keane said he’s been able to obtain quiet title in the same manner in two other cases. Another attorney, Abraham Bates, said he recently also won a quiet title action in a similar case in Salt Lake County.

In Bates’ case, a couple who owed $417,000 on a house whose value had dropped way below that also sued for quiet title.

He named the original lender and a title company listed as trustee on the trust deed. Because neither responded to the lawsuit as legally required, the judge granted the couple a default judgment that still must be verified in court, Bates said.

Bates said under Utah laws, it was not necessary to serve MERS legal papers, as it was not in the Draper townhouse case.

“MERS is not the beneficiary of the trust deed,” Bates said. “MERS did not make the mortgage loan.”

New questions • While these decisions stripped the owners of the promissory notes of the ability to foreclose on the property to recoup missed payments, it does not preclude them from suing the people who signed the notes to try to recover lost monies.

But that action would open up a new line of questions about the MERS method of property recording, said Christopher Peterson, a University of Utah law professor who has made a national name for himself recently by questioning the legal foundations of MERS’ appearance in property-recording records and its role in foreclosures.

Under laws adopted by all 50 states, the owner of a “negotiable instrument” such as a promissory note must be in physical possession of the document, said Peterson. Otherwise it would be like someone trying to cash a photocopy of a check instead of the actual check.

“One cannot be a holder of a note unless one is in physical possession of that note,” he said.

But Peterson said evidence is coming out in courts that shows the actual promissory notes or mortgages signed by buyers were not transferred as the notes made their way into the mortgage-backed securities investment pools.

That could mean in these cases that no one is in a position to try to collect because the actual notes are lost or destroyed, potentially making some promissory notes investors think they hold worthless.

Right to foreclose • Bates said he has more than 100 lawsuits pending over MERS-related questions and has hired more attorneys for his firm to handle the increasing load.

State courts have been more favorable than federal courts to homeowners seeking to halt foreclosure proceedings based on questions about MERS’ legal standing under state and federal laws, the attorneys say.

Rulings have gone different ways in different courts. But Bates said he and Peterson are teaming up to appeal a recent ruling by U.S. District Judge Tena Campbell that dismissed a lawsuit claiming MERS did not have the legal right to initiate foreclosure proceedings.

The attorneys are appealing Campell’s ruling as it relates to Utah law to the Utah Supreme Court. A decision will help sort out the issues with MERS over whether it actually can initiate foreclosures even if it does not have any financial interest in the promissory note, Bates said.

A ruling favorable to the homeowner “would be an absolute tsunami in terms of foreclosure in the state of Utah,” he said.

If MERS is not able to start a foreclosure action, “then there will be a brick wall put up over all nonjudicial foreclosures prosecuted in this state,” Bates said.

What is MERS?

The Mortgage Bankers Association created the Mortgage Electronic Registration Systems, or MERS, in the mid-1990s. It is a database that holds the names of the entities that have a financial interest in a particular mortgage, such as investment funds that bought bundles of mortgages called mortgage-backed securities. MERS is recorded on many property deeds of trust in Utah as the “beneficiary” of a loan taken out on a property even if that loan is sold and resold many times. MERS allows the actual loan owners to avoid paying fees every time a loan is sold.

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William A. Roper, Jr.

This article on new MERS developments in Utah is a very nice find!  Thanks!!

I was wondering how long it would take for some astute borrowers to realize that they might directly sue the mortgage Lender of record to have the mortgage set aside.

The holdings by the Supreme Courts of Kansas and Arkansas seem to almost invite such actions.

This topic probably deserves its own thread!

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Bob G
Clarification on points of New York law:

The statute of frauds here merely states that certain contracts must be in writing. Material misdating is fraud, period. NY's SOF, General Obligations Law 5-701, doesn't really cover this.

Second, one must be careful about invoking NY RPL 244.  NY does not consider mortgages or mortgage notes to be interests in real property. They affect an interest in real property, but they are considered personal property. Other states, particularly DOT states, apparently do consider such conveyances to be conveyances of interests in real property. Hence the Ibanez decision. I've seen a case related to mortgage/note conveyances wherein the court applied RPL 244. For what reason, I have no idea. Curiously, there was no appeal. Go figure.

NY Penal Code § 175.05, Falsifying Business Records. There is no private right of action here. The only time that I've seen this applied is when the government (state or local) is involved in the matter. For example, embezzlement or fraud against the government. This stuff between two civil litigants never becomes an issue or referred over to the D.A.'s office for prosecution.

Finally, even BK fraud around here isn't prosecuted unless it exceeds about $25K. BK Ch. 7 trustees long ago gave up referring BK fraud matters over to the U.S. Attorney's office below that threshold, because the U.S. Attorneys told them to get lost.
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