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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Jimbo2014 Show full post »
mar7
?what is the status of your 'note'?

ie: only one indorsement (in blank); allonges etc

?have you requested to see the original note - if yes
what is their response.
**
if you can get to view the note there is a case out of
Washington -- McDonald v One West Bank -- where
McDonald hired an individual to make copies of the
note and then performed some test to determine if
the note presented to the Court was actually the
'wet ink note' or a photoshopped copy. 
**
the person who performed the analysis listed the
step-by-step process one would need to do to
confirm the authenticity of a 'note' -- if this is
something that would help you let me know
and I will figure out away to get the info to you ...
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iknow
Jimbo2014 wrote:
Take a look at this brief on appeal in NY, by a very savvy lawyer.

http://www.appellate-brief.com/images/stories/PDF/3-8-12BriefFrclsr2dCir.pdf

This new case by Angelo ( got the link to work) is very much on point also. http://www.nycourts.gov/reporter/pdfs/2014/2014_30153.pdf

Both of these are arguing the PSA, in my case the plaintiff is making arguments about the PSA he opened the door for opposition to it.

I think I draft it two ways attacking the PSA and attacking the assignments???????????

There are some judges that get it and others that don't.


Jimbo, this is going to end badly for you.  This is NOT A WINNING ARGUMENT.  There is only 1 winning decision with this argument, out of Illinois.  I tried to point you in the right direction several times.  I would certainly make the argument (if you can get it right), but you have so many other more robust defenses, you really need to put this to bed.  Don't get mesmerized with this argument.  While it can muddy things up it is a LOSER.  With hundreds of thousands of foreclosures, why do you think NO ONE can show you a case where this argument prevails?  If it was a winning argument, the banks would crumble. 

You need to start looking at what your OTHER arguments are going to be.  I posted 2 cases that show you the faults in the affidavit.  This IS A WINNING ARGUMENT supported by case law. 


Oh, and by the way, if we look at the end result of the savvy lawyer's work.....

  http://www.leagle.com/decision/In%20FCO%2020121204069

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

While this ended very poorly, it is very important.  This decision is BINDING on the Supreme Courts in NY.  It is an appellate decision.  It would be a good idea to read and figure out "why" the defendant lost.  It is also just as important to figure out why the Plaintiff "won".  What you are really trying to do is eliminate one of the elements that entitled the Plaintiff to SJ. 
"Between two evils, I always pick the one I never tried before."

-Mae West
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Angelo
Jimbo

Here is the link, maybe this one is better.

http://www.nycourts.gov/reporter/pdfs/2014/2014_30153.pdf
A arena
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iknow
Let me also add, I really think the breif posted by Jimbo is pretty poor resulting in a poor decision.  There is a lot of dicta with no supporting cases.  I'm not sure that the attorney really understood about negoation and the UCC.

"Third, contrary to Squadron's allegations on appeal, neither the MLPA nor the PSA required that the note be endorsed. Rather, although both documents permit notes "endorsed on its face or by allonge attached thereto," each also contemplates notes transferred "in blank." Therefore, as Squadron does not otherwise contest the validity of the note, the unendorsed copy presented by U.S. Bank was sufficient. See, e.g., Green Point Sav. Bank v. Papis, 668 N.Y.S.2d 943, 943 (App. Div. 2d Dep't 1998) ("The plaintiff's submission of a copy of the duly executed mortgage note . . . sufficiently established its cause of action for foreclosure."); Wells Fargo Bank Minn., N.A. v. Mastropaolo, 837 N.Y.S.2d 247, 248, 251-52 (App. Div. 2d Dep't 2007) (mortgagee entitled to summary judgment on its action to foreclose where its complaint included copies of the mortgage and note)."

Correct me if I'm wrong guys, it appears because of the unclear arguments by the appellant, the court of appeals just issued a decision stating that there does not need to be an endorsement because the PSA said they can be transferred "in blank" (I'm quite sure it was "endorsed in blank). 

If you wonder why some of us split hairs here is because IT DOES MATTER.  The small simple things are what changes this argument into a winner. 

"Between two evils, I always pick the one I never tried before."

-Mae West
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Jimbo2014

mar7 wrote:
?what is the status of your 'note'?

ie: only one indorsement (in blank); allonges etc

?have you requested to see the original note - if yes
what is their response.
**
if you can get to view the note there is a case out of
Washington -- McDonald v One West Bank -- where
McDonald hired an individual to make copies of the
note and then performed some test to determine if
the note presented to the Court was actually the
'wet ink note' or a photoshopped copy. 
**
the person who performed the analysis listed the
step-by-step process one would need to do to
confirm the authenticity of a 'note' -- if this is
something that would help you let me know
and I will figure out away to get the info to you ...


I have my note that doesn't match their note??
Also there are two allonges attached, both have my name, loan #, address, amount, note date.
first one from the original mortgager to Option One Mort corp a california corp

Without recourse

At the top it says allonge to note ( corone lender) it has the date of the note the signature is undated.

This could have fit on the last page of the note.
then there is second allonge page
THis page is almost the same form, the top says allonge to note (invester)
Pay to order of: blank without recourse

Option one mort corp a california corp

signed Asst Secretary Julie Popowitz

Odd they both say "a california corp" ??

I have no allonges on my oringinal

Also just to say they do not have the Original Mortgage
It is stamped "certified copy of original"

Here's the catch the copy of the mortgage as an exhibit in the Complaint doesn't have that stamp, so sometime between 7/2012 and now there are two different copies.
Both different than mine

they claim they have the original Note with allonges.

They agrred to show me these next week for examination, I want to see the wet ink, the way the allonges are attached, I bring my camera also

So in answer to your ? Mar7 get me any info you can please, not sure if you can send a PM or email thru my scrren name


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iknow
Jimbo2014 wrote:
>I have no allonges on my oringinal

Also just to say they do not have the Original Mortgage
It is stamped "certified copy of original"

Here's the catch the copy of the mortgage as an exhibit in the Complaint doesn't have that stamp, so sometime between 7/2012 and now there are two different copies.
Both different than mine

they claim they have the original Note with allonges.

They agrred to show me these next week for examination, I want to see the wet ink, the way the allonges are attached, I bring my camera also

So in answer to your ? Mar7 get me any info you can please, not sure if you can send a PM or email thru my scrren name





You are not going to have an allonge on your "original". For an endorsement or allonge, the original after you execute it needs to be sent to the originator so that they can endorse it. How can this be done when you are at closing and the lender isn't there?

That they don't have the original mortgage is irrelevant. They don't need it. The mortgage is public record. They can simply get a copy of the mortgage from the registrar. To make sure it is an exact copy, when you get a copy of a public record you need to get a "certified copy" of the record. A certified copy of a public record is proper evidence. They don't have 2 copies of the mortgage, they are submitting a certified copy of the mortgage in a motion for SJ. If it was not certified, the Judge couldn't consider it.
"Between two evils, I always pick the one I never tried before."

-Mae West
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mar7
?what type of discovery have you done so far? interrog's rtp admit??
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JJ
Quote:
PS I would urge you to strongly take into consideration anything that is posted
by 'Angelo'. He has been on this cite for many many years --- the 'William A.
Roper Jr' years -- when this cite was vibrant and teaming with great great
exchange or points of view etc ....


Are we sure this is the same Angelo?  Look at his registered date and number of posts.

Quote:
if you can get to view the note there is a case out of
Washington -- McDonald v One West Bank -- where
McDonald hired an individual to make copies of the
note and then performed some test to determine if
the note presented to the Court was actually the
'wet ink note' or a photoshopped copy. 


This is a shot in the dark, not to mention an expense that you will have to bear, even if you can find the right expert.  What you will most likely find when you travel to view the note is that it does in fact have your original signature.
In FL, under the UCC, signatures are self authenticating unless challenged (it then becomes the plaintiff's burden of proof.)

Quote:
Take a look at this brief on appeal in NY, by a very savvy lawyer.

http://www.appellate-brief.com/images/stories/PDF/3-8-12BriefFrclsr2dCir.pdf

This new case by Angelo ( got the link to work) is very much on point also. http://www.nycourts.gov/reporter/pdfs/2014/2014_30153.pdf

Both of these are arguing the PSA, in my case the plaintiff is making arguments about the PSA he opened the door for opposition to it.


Have to agree with iknow concerning the brief.  The argument concerning the PSA is baseless, since there is nothing to support it.

In the case supplied to you by Angelo, the PSA is only referenced as evidence as to indorsement and delivery, which under the UCC is what it is all about.

I agree with iknow that you should really start looking in another direction.  The subject of the suit is between you and the plaintiff, it does not matter if the plaintiff complied with the PSA or not.  This is probably the best advice that you have received within this thread -->
Quote:
You are not privy to the PSA and cannot enforce the PSA. The argument is simply pointing out the NY law requires an asset transferred to a trust to be done in a certain matter. Because it was not properly transferred to the trust, legally they don't own the note and mortgage. Your mileage may vary, they have the note endorsed in blank. The UCC says they are the holder and can enforce the note, which is why I would encourage you to assert more robust evidence defenses.

The more robust defenses would concern their lack of evidence, and evidence problems. It would seem that the first most obvious thing to attack would be the affidavit. I have never seen an Ocwen affidavit that was admissible in court if properly objected to. These affidavits are full of legal conclusions, heresay, the affiant lacks personal knowledge, and a failure to attach documents. You will find several decisions where Judge Schack in Kings County takes Ocwen's affidavits apart. 


Below are some links to some great threads on this forum.

http://ssgoldstar.discussioncommunity.com/post/in-re-wells-it-is-all-about-indorsement-and-delivery-3546460

http://ssgoldstar.discussioncommunity.com/post/personal-knowledge-hearsay-conclusory-averments-and-the-best-evidence-rule-4903945

http://ssgoldstar.discussioncommunity.com/post/the-conditions-precedent-affirmative-defense-5059262

Wishing you success.



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texas
Ask Angelo if he is the one in the same.
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Jimbo2014
mar7 wrote:
?what type of discovery have you done so far? interrog's rtp admit??


Filed admissions they went crazy and made motion to strike that too many ?? were triable issues.

Jusge said I have to wait for trial.

So I filed a bunch of interog end of Nov, they ignored them and filed for SJ 2 weeks after receipt.

So I'll make a cross for discovery.
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Jimbo2014
iknow wrote:



You are not going to have an allonge on your "original". For an endorsement or allonge, the original after you execute it needs to be sent to the originator so that they can endorse it. How can this be done when you are at closing and the lender isn't there?

Makes sense


Quote:
That they don't have the original mortgage is irrelevant. They don't need it. The mortgage is public record. They can simply get a copy of the mortgage from the registrar.


They never stated how it was certified, shouldn't they have?
to be admissible

Quote:
To make sure it is an exact copy, when you get a copy of a public record you need to get a "certified copy" of the record. A certified copy of a public record is proper evidence. They don't have 2 copies of the mortgage, they are submitting a certified copy of the mortgage in a motion for SJ. If it was not certified, the Judge couldn't consider it.


This mortgage was altered when they are compared esp the signatures, so I'm getting the certified assignments on record (including the copies of the mortgages presented on all assignments) and compare them further, also as I said going to the lawyers office to review their copies, should be interesting......

Here's an interesting point. they claim they had the originals from 1/1/05 - 1/13/05(close date of trust) and thereafter, but the oringal lender recorded their mortgage on 1/3/05, county clerk states all assignments must be accompanied with the original mortgage & note, it takes 2-4 weeks after recording to have the originals returned.
Therefore, the trust couldn't have have it in their possession at the same time......


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iknow
Jimbo2014 wrote:
iknow wrote:



You are not going to have an allonge on your "original". For an endorsement or allonge, the original after you execute it needs to be sent to the originator so that they can endorse it. How can this be done when you are at closing and the lender isn't there?


Makes sense


Quote:
That they don't have the original mortgage is irrelevant. They don't need it. The mortgage is public record. They can simply get a copy of the mortgage from the registrar.


They never stated how it was certified, shouldn't they have?
to be admissible

Quote:
To make sure it is an exact copy, when you get a copy of a public record you need to get a "certified copy" of the record. A certified copy of a public record is proper evidence. They don't have 2 copies of the mortgage, they are submitting a certified copy of the mortgage in a motion for SJ. If it was not certified, the Judge couldn't consider it.


This mortgage was altered when they are compared esp the signatures, so I'm getting the certified assignments on record (including the copies of the mortgages presented on all assignments) and compare them further, also as I said going to the lawyers office to review their copies, should be interesting......

Here's an interesting point. they claim they had the originals from 1/1/05 - 1/13/05(close date of trust) and thereafter, but the original lender recorded their mortgage on 1/3/05, county clerk states all assignments must be accompanied with the original mortgage & note, it takes 2-4 weeks after recording to have the originals returned.
Therefore, the trust couldn't have have it in their possession at the same time......




You have 2 types of "certified copies" you are going to run into. 

The first is going to be certified by the custodian of a public record.  You would clearly know this is a certified copy from the clerk.  Often they will have a cover page.  At the min, it would have a clerk stamp, state how many pages, and state it is a true copy of the record in the clerks possession.

The second type you often run into is the "Plaintiff" certifying or "swearing" (usually in an affidavit) that a document is a true and correct copy. 

With the first example, it is self authenticating and admissible as evidence.  The second, not so much if you can contest if for a variety of reasons.  The first problem I would have is how can the Plaintiff (servicer) certify it is a true and correct copy if the note is NOT in their possession (the attorney has it)?  There are many other problems that can occur when a party is trying to certify a document if objected to. 
"Between two evils, I always pick the one I never tried before."

-Mae West
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iknow
As I posted before, you need to focus.  You are really all over the place.

1.  You need to get a copy of an opposition to SJ (preferably Erobobo) along with the Affidavit in Opposition to SJ.

2.  You need to sit down and write down what "questions of material fact" you have that will preclude SJ.

3.  You need to write out the arguments that point out these "questions of material fact" that supports your position and precludes SJ.

4.  You need to write down what evidence you need to submit (designate) to support your arguments.

5.  You need to write your opposition to SJ by using the form you got from the clerk's office (Erobobo).

6.  You need to write your affidavit designating your evidence and supporting your opposition.



You have to get started.  You need to get the form down, then just fill in the blanks with your arguments.  Start with 1 argument (your strongest), making the argument, designating the evidence, and add it to the affidavit.  Then move on to the second argument.  If you run out of time you have SOMETHING to submit that will save your home.  It only takes 1 argument to preclude SJ.  The more the better in case one argument is rejected by the court, but I'd rather have 2 good arguments than 8 that aren't developed or properly supported.

Going from topic to topic like you are doing is like picking up a handful of sand.  You think your hand is full, but when you open your hand, everything slips through your fingers.

Take a break, focus, focus, focus, and make a plan. 

"Between two evils, I always pick the one I never tried before."

-Mae West
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JJ
Quote:
Ask Angelo if he is the one in the same.


Texas is right, so I am now asking.  For the record, I was not in anyway insinuating that the new Angelo (if he is in fact different) was any less credible than the Angelo of old.
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Angelo
Yes fellas, I am the same Angelo that has been here for years.  This forum went dead, so I sporadically would check to see if there was any real dialoge going on.  There was a stretch here when Mike H and others corrupted this site, that I wanted no part of, and then they instituted the log on feature, which I wasn't sure if I wanted to partake in.

I hope that answers all of your questions and concerns.  Now lets get this place back to a meaningful site, where people can come and seek help for a very bad situation!
A arena
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texas
Well said Angelo.
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iknow
Angelo wrote:
Yes fellas, I am the same Angelo that has been here for years.  This forum went dead, so I sporadically would check to see if there was any real dialoge going on.  There was a stretch here when Mike H and others corrupted this site, that I wanted no part of, and then they instituted the log on feature, which I wasn't sure if I wanted to partake in.

I hope that answers all of your questions and concerns.  Now lets get this place back to a meaningful site, where people can come and seek help for a very bad situation!


Weren't you in NY Angelo?
"Between two evils, I always pick the one I never tried before."

-Mae West
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Angelo
Yes I am!
A arena
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mar7
Jimbo2014:

I would suggest that you read the following WAR thread re[biggrin]iscovery:

http://ssgoldstar.discussioncommunity.com/post/defensive-discovery-starting-off-on-the-right-foot-4893757

the reason I make this suggestion is two fold:

1. by using WAR's 3 discovery questions, you will force the fraudsters to answer the many 'fraud' issues that
you have raised above.  ps: WAR not only provides 3 or 4 extremely relevant discovery questions but ones that
no judge will NOT force them to answer.  And, based on your contentions of 'bankster fraud' re your note etc
they will be reluctant to answer. (thus, buying you some time to get organize and follow iknow's advice above).

2.  You must read the entire post as WAR explains in detail the purpose and how to address the fraudster's
standard reply "not relevant' 'wouldn't lead to any discoverable material' etc.

good luck
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mar7
ps:  no disrespect intended but you must ignore the discovery proffered by Texas ~ as it is not relevant to your case.
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mar7
if u decide to use the 'discovery' suggestion here is a rough sample of a motion to the court to xtend time:

MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO SUMMARY JUDGMENT AND TO PERMIT DISCOVERY [insert your CIV. R. Here]

 

Now come defendants [enter relevant info here], and move the Court for an Order permitting [them] to conduct discovery prior to being required to respond to Plaintiff's pending summary judgment motion. The defendant's intend to vigorously [prosecute their counterclaims; under the Fair Debt Act; defendant this lawsuit etc].

 

Defendant's cannot definitively establish either of the [above factors ie counterclaims] at this pre‑discovery stage of the litigation. As such summary judgment is premature.

 

Defendant's therefore move, pursuant to [Civ. R. XXXXXX) for an enlargement of time within which to respond to plaintiff's motion for summary judgment and for an Order permitting discovery to be fully completed prior to requiring defendant's summary judgment response.

 

Respectfully Submitted,

 

[enter signatory line here]

 

 

[Certificate of Service

 

The undersigned hereby certifies that a true and accurate copy of the above was served by U.S. mail this ????       day of February , 2014 upon the following:

 

 

[enter fruadster data here}

 

 

[not sure if you need to file an affidavit or not so check]

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Jimbo2014
I already served discovery, just before they filed for SJ, they ignored it.

So I was going to cross move for discovery and attach the notice I served along with the discovery requests.

Found good cases where this was done here.
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mar7
good luck --- just trying to help -- so 'if it fits' wear it if NOT 'disregard' ....
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mar7
?1 at this point in time what is your objective?  is it to stop the sj hearing???
**
?2 re: discovery
     a? when did you file your discovery
     b? what type of discovery e.g. Interrog's / RTP / Admit
     c? did the bankster ever reply to any of your discovery
     d? if they did not reply, did you ever try (must have backup
          documentation) to resolve out side of the Court 
      e? if yes to d? and they still did not respond, did you ever file a
           a 'motion to compel'
      f? what actions had you taken to compel the discovery that you
          are entitled to

?3 what exactly do you want to accomplish at this stage?
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Jimbo2014
mar7 wrote:
?1 at this point in time what is your objective?  is it to stop the sj hearing???
have it dismissed
?2 re: discovery
     a? when did you file your discovery
last summer for admit, they moved for protection, court granted (didn't like my questions)
     b? what type of discovery e.g. Interrog's / RTP / Admit
End of November seved interogatories
     c? did the bankster ever reply to any of your discovery
     d? if they did not reply, did you ever try (must have backup
          documentation) to resolve out side of the Court 
      e? if yes to d? and they still did not respond, did you ever file a
           a 'motion to compel' No because I was served with SJ
      f? what actions had you taken to compel the discovery that you
          are entitled to,
only intent is to cross move in SJ answer for discovery have several cases on that way of doing it.


?3 what exactly do you want to accomplish at this stage?


Dismissal, if not granted I will appeal without a doubt


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