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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MOTION TO COMPEL BONDHOLDERS COMMITTEE TO MEDIATE

 

            Comes now, Defendants, ********* and moves this Court to Order a Bondholders' committee pursuant to Florida Statutes section 69.021 to facilitate mediation, and states:

 

1.      The ******* have always been able to pay their mortgage on time, and did pay on time pursuant to the original agreement.  They got behind on their payments due to the fault of the bank as the bank had miscalculated their monthly payment so that unbeknownst to the *******, each payment they were making several hundred dollars less than it was supposed to be.  When the bank realized the error, it sent them a demand for several thousand dollars.  The ******** did not have that lump sum available, but could make payments on it over a short period of months, but the bank refused and foreclosed on them.  They tried Y times to modify their loan but were rejected without reason. (Exhibit 1, Affidavit of *********)

 

2.      On May 28, 2010, Plaintiff's counsel, Kimberly Matot emailed Defendants' counsel and advised that Brevard County Administrative Order 10-09-B required mediation and stated that the ******** “qualify for this”.  (Exhibit 2, email transmission from Kimberly Matot) 

 

3.      The ******* mortgage loan has been securitized, meaning that the Note was pooled with other notes and sold into a trust.  On April 9, 2010, Plaintiff had filed the Pooling and Servicing Agreement with the clerk as document number 59.

 

4.      The Mortgage indicates no remedy of foreclosure for Lender error in miscalculating escrow sums; instead, it states that those sums, if not paid by the Borrower, are to be advanced by the Lender and become principal and subject to interest payments, thus amortized over the life of the loan.

 

5.      Paragraph 3 of the Mortgage states in pertinent part:

Borrower shall pay to Lender on the day Periodic Payments are due under the Note is paid in full, a sum (the “funds”) to provide for payment of amounts due (a) for taxes and assessments. . . .  These items are called Escrow Items. . . . (Complaint, Composite Exhibit A)

 

6.      Paragraph 9 of the Mortgage states in pertinent part:

 

Any amounts disbursed by Lender under this Section 9 shall become additional debt of borrower secured by this security instrument.  These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable with such interest upon notice by Lender to Borrower requesting payment.  (Complaint, Composite Exhibit A)

 

7.      There is a trust document that this loan is subject to and which was not executed by the Defendants, but which purportedly prevents any modification of the subject mortgage loan if not materially adverse to the interests of the Certificateholders and the Certificate Insurer.  On April 30, 2010, Plaintiff filed the Pooling and Servicing Agreement relating to the subject Mortgage Loan. (Document 59 in Clerks file)   Paragraph 3.01(c) of this trust document provides:

 

Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a Mortgage Loan (except as provided in Section 4.01 and except for Servicing Advances) and the Servicer shall not (i) permit any modification with respect to any mortgage loan terms that would change the mortgage rate, reduce or increase the principal balance or change the final maturity date; or permit any modification, waiver or amendment of any term of any mortgage loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions”  or “contributions after the startup date”  under the REMIC provisions, (iii) except as provided in  Section 3.07(a), waive any Prepayment Charges, or (iv) accept payment from the related Mortgagor of an amount less than the unpaid principal balance of such mortgage loan in final satisfaction thereof; provided, however, that the Servicer may take any action set forth in clauses (i) through (iv) with respect to any mortgage loan in default or, which in the judgment of the Servicer, a default is reasonably foreseeable, and only to the extent the Servicer determines that such action is not materially adverse to the interests of the Certificateholders and the Certificate Insurer (taking into account any estimated Realized Loss that might result absent such action).

 

8.      The Defendants mortgage loan is subject to Florida Statutes section 69.021, which provides in part:

 

Bondholders' committee.--

            (1)  SELECTION.--In any action to foreclose the lien of any mortgage or deed of  trust given to secure any issue of bonds or other obligations and encumbering real or personal property or both when the owners of the bonds or beneficiaries of the trust exceed ten in number, on motion of a party or on its own initiative, the court may appoint three persons, two of whom shall constitute a quorum for all purposes, as a committee for the protection of the holders of bonds or units or certificates of beneficial interest. The committee is vested with such powers and authority and shall discharge such duties in connection with the litigation and its subject matter as is necessary and proper in the court's discretion to protect the interest of the holders of the bonds and beneficiaries of the trust involved in, or affected by, the litigation. During the pendency of such litigation, the court may prescribe, modify, abrogate or nullify the powers and authority of the committee.

 

9.      The foreclosure is not only illegal, it is inequitable.  The lender has not stated the reason for the Defendants to be initially denied modification to make the additional escrow payments over time.  This mortgage loan should be modified and the Lender is incapable of rising to that challenge.

 

10.  WHEREFORE, the Defendants request the Court appoint a bondholders committee to address modification of said mortgage loan.

               

      This is funny, they do not have the authority to modify due to the constraints of there own documents. So why would they offer a modification? Anyway, my attorney states this is the only way to get a true modification and he filed this motion with the court.

T

 

T

 

 

 

 

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I've tried several times to do a loan mod with Saxon, only for them to tell me that they didnt recieve all paperwork, send again,so I sent it again,and guess what,they didnt recieve it again. I am holding the fax confirmation. WTF. They give me extentions and I have been on one payment plan after another for about 3 years now.Constant BS from them.So I get this guy on the phone from saxon and he says he is a loan mod specialist and tells me that my numbers dont jive and I cant get the loan mod. How can that happen when the day before you said that it did and sallie may accepted it? So even after they tell me my house is in forclosure, they still call me and want me to pay..why? Should I just save my money and walk? Finally one of their supervisors whispers to me, file bankruptsy, you might be able to save your home that way.I made some calls at that point.Its my understanding that if you file chapter 13,move out and rent your home as an investment property,the bank will cut your principal in half so you can keep your home, then you move back in a year and make it your primary home again. Its the only loop hole that I have heard of. Has anyone tried it? This could buy time or screw them back.
Any suggestions? is there a class action suit on FL yet? if so I want in.
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I too have been just another victim dealing with Saxon!  As I read your stories it all seems too familiar!  I have been dealing with Saxon since February of this year when my loan from AmTrust was sold to them.  They've been giving me the same BS they've been giving most of you. I've been told that I need to submit and then resubmit the same paperwork for multiple reasons (it was either wrongly imaged, they never received it... etc) then they tell me to wait until it is reviewed for the "HAMP" which i've been told since February I don't qualify for.  I made a few payments which they held without cashing only to be told 3 months later that they will not take them because I was in active forclosure. They advised me to stop making payments at that point.  How could I have been in active forclosure when I continued to make payments????   7 months later I'm told they have handed my case to an attorney for whom I need to pay fees for (whom I never received anything from - so how do I even know what he did???) in order to get back on track with my mortgage payments, which from what they've explained, I can only make for the next 3 months (stiff to modify) until I get re-evaluated for the HAMP that I won't qualify for.  This all sounds like a big scam and a neverending nightmare. I'm tired of fighting with these people. They must be doing something unlawful and unjust!  they are also working with attorney "Marshall Watson" on some (if not all) of their cases.  FYI:  google this attorney...  he is being investigated by the attorney general of Florida... for fraudulent activity.  It would be sooo great if we could all unite and fight this together!  good luck and please if there is a class action suit  - I too want to be included!

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Ms. Furious,

We can all attest to your frustration, I believe most of have been there and still are. This familiar pattern of customer abuse is not without reason. There is a lot of money to be made on customers in default. If you’re making your payment on time and correct the servicer, (Saxon, Ocwen, etc…) gets a small %. If you are in default you are a much more profitable customer. If the bank gets a judgment against you and actually forecloses they win the lottery. Sounds like fiction but unfortunately it is true. If you are a customer of one of these crappy servicers chances are there was something out of the ordinary about your loan at origination. Possibly debt ratio was high or your beacon was down and your credit was not so good. Long story short these banks took your down payment and hoped you would default. They bet you would default, and that is why your loan will have an insurance policy that you know nothing about that insures your loan for up to 30 times the face value. The bigger the risk the more it was insured for. If your loan was for three hundred thousand dollars and you were a high risk customer and they placed a policy of thirty times the face value of your loan amount on that loan, that’s a 9,000,000 pay day if you default. They don’t want our measly monthly percentage. They got TARP funds, which essentially paid all these risky loans off and now they are clearing the books of all risky customers and cashing the last checks, so to speak. In the center of the housing melt down the largest insurer, AIG was the biggest loser. Why? Well, the rating system that was grading mortgages was fixed and gave false ratings on mortgage backed securities, (this bond is great, I’ll give it an “A “ When in fact it should have been an “F”)  an insurer like AIG wouldn’t have seen the writing on the wall until it was too late. The funny thing is Americans do not realize that the first bailout given to AIG went directly to the banks, (to pay all the pending defaults) and then the banks needed more. So we the tax payer gave a bailout directly to the banks as well. Don’t be fooled the banks got two bailouts. This is probably why the banks don’t have any of the original paperwork. Why should they keep the originals on a loan that has been paid in full? This brings me to my second level of frustration, imagine that you were fighting over a car and you went in to court and said, “your honor, I know I do not have the proper documentation and all I have is a copy of some old documents that do not even have my name on them but, could you just take my word and give me a judgment and award me these people’s car, this title is legit I promises and that car is really mine, I cross my heart”. Sounds freaking funny doesn’t it? Well that is exactly what these banks are doing everyday in our courts, and they are getting away with it. Who would believe that a bank would lie? We all owe our loan payments to someone, we can not get away from that fact. If the banks had not bet against it’s customers we would still have value, unfortunately the value is in the details of our documents and not us, “THE CUSTOMER”. My personal fight has been for over two and a half years now and the servicer that made serious escrow mistakes has done nothing but sue me to fix there problem. I paid every payment on time and have plenty of money to make my payments. When the mistake was found they assured me that they would fix there problem and advised me to stop making payments until they could workout the issues. That day came after they initiated foreclosure proceedings. Now in court they have no note, fabricated assignments and a PSA that forbids them to modify anything in my mortgage. Somewhere in all this fighting the truth is lost, “I’m your dam customer, and could you treat me that way?”. The fact is, they do not and should not have the leverage they have over us. Until there is a shift in the prejudice that these judges have against us, this will keep happening.  

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arkygirl
Ah, JF, you are NOT the "servicer's customer" at all. You are a money cow and expendable. This mainly concerns loan mods and why no one ever seems to get one, but it also lays bare the mindset of the servicers.

From a former insider:

Foreclosures are a no lose proposition for a servicer,” Jerad told me during the interview.  “The servicer gets paid more to service a delinquent loan, but they also get to tack on a whole bunch of extra fees and charges.  If the borrower reinstates the loan, which is rare, then the borrower pays those extra fees.  If the borrower loses the house, then the investor pays them.  Either way, the servicer gets their money.

Jerad went on to say: “Our attitude at CHASE (or insert your own servicer name here) was to process everything as quickly as possible, so we can foreclose and take the house to sale.  That’s how we made our money.”

“Servicers want to show investors that they did their due diligence on a loan modification, but that in the end they just couldn’t find a way to modify.  They’re whole focus is to foreclose, not to modify.  They put the borrower through every hoop and obstacle they can, so that when something fails to get done on time, or whatever, they can deny it and proceed with the foreclosure.  Like, ‘Hey we tried, but the borrower didn’t get this one document in on time.’  That sure is what it seemed like to me, anyway.”

You can read the whole interview at this link and you will feel ill at the end of it.

INSIDE CHASE and the Perfect Foreclosure




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I would have to disagree, although that is there thinking. If no one bought a house, who are the investors going to invest in? Who will pay the investor the interest they so desire? Who then is going to pay the servicer? It all comes back to the customers on the street, period. There will come a time when big corporate banks and there investors will need our equity once more. Will there be any of us "customers" left? To answer that question "sure there will" with jacked up credit scores to fetch the "investor" higher interest rates. The wheels on the bus go round and round, round and round, all through the town.......

I should point out that "The Investor" was most likely paid on our so called loan the moment a "credit event" occurred. 

Look up "default swap" and read away.

Better yet, here you go: http://en.wikipedia.org/wiki/Credit_default_swap 

arkygirl, you probably already know this I'm just putting it out there.
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arkygirl
The issue is confusing at best.

I would like to see no one buying a house with a mortgage, period. The system is whacked. No one should be "investing" in anyone elses home, period. It should remain between a lender and a borrower  and all these middlemen can go hang. They have destroyed property records in this country.

That is why I would like to see state and county governments stepping in and taking control of these properties with unpaid taxes (there have to be some somewhere because these companies can't "service" their ways out if wet paper bags; their whole legal defense rests on "errors" and ignorance. They are bound to be screwing up tax payments, too).

That way we get butts in houses and get the state and local tax rates stabilized. The banks/servicers/MERs have to eat it. Maybe a few would have to fail because of it. It is my dream to see some of these big banks/servicers go belly up.

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With the breaking news about GMAC, Saxon may be soon to follow.

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I just read up on this GMAC story and it is in line with what we all knew already. They are above the law and will do whatever they want and if they get caught, they will talk there way out of it. Here is the link to one of the stories.

http://www.nakedcapitalism.com/2010/09/how-serious-is-the-gmac-problem-pretty-serious-and-not-just-gmac.html

GMAC Mortgage spokesman James Olecki acknowledged the following problems with the affidavits:

  • May have been executed without direct personal knowledge of all of the information stated in the affidavit.
  • In a number of cases, the affidavit was not signed in the physical presence of a notary public.

Olecki, who did not specifically identify Stephan as the person signing affidavits, said whoever signed them relied on the personal knowledge and information of other GMAC Mortgage personnel, and was known to the notary.

Olecki also said the facts of the affidavits are correct, and that GMAC would be working to clear up any problems.

Stephan testified in a deposition that he signed 10,000 affidavits a month.


 
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"The only question is how widespread this practice was at other servicers."

It is happen at Saxon, I have the proof.

1. What is the problem with evictions and foreclosure sales that GMAC Mortgage is worried about?

do you really need to ask

Is this problem curable?

can you say fatal flaw

Is the problem limited to judicial foreclosure states?

no it's across the country

is the problem limited to GMAC Mortgage?

no you should see the forged assignments, etc. that FIS-LPS did for Saxon

Are foreclosure problems limited to this sort of technical issue?

well, if you mean technical issue = fraud

F SAXON

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Hello, I have been waiting so long to find an employee (or past employee) of Saxon to speak to them about their abusive tactics and the real story behind their determinated foreclosures.
Can you write me? ckaypoems@aol.com
Thank you,
Cheryl K


Ms. Concerned wrote:
GET OUT NOW! Saxons abusive tactics are endured by employees and customers alike. I was an employee for Saxon. If you have the chance you will find another mortgage company before Saxon ruins your credit and takes your home to sell for profit. As for employees the management tactics they endure are at times humiliating and degrading. I made the mistake of questioning their tactics and was made to endure a verbal "attack" by management in front of my whole department. The details are irrelevant, this isn't about me. The suffering customers have to endure are at times almost unbearable. I  have had grown men and women cry begging me to help them and their families. I've been cussed at, told I was stupid, threatened with jail time(this was a police officer), and made fun of. I do not blame them. This is a bad time for them, and instead of getting help, they get helped out the door. If  I  could offer some advice to the customer I would say read the first sentence in this message. Another problem is the "open book" of  personal information that lays before an employee. All the customers sensitive info is laid out to be seen by any new employee. You don't need security clearance, just a click of the mouse...taking down your personal info and walking out the door is also easily accomplished. So, on that note I wish you all the best of luck. As for me, I'm looking for a better work environment.

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Don
alexa wrote:
Paul wrote:

Does anyone know if our Saxon Mortgages purchased from the original mortgage company will be eligible for the new Obama Housing Plan to which details came out on today?  I am speaking specifically to the provision which says that the mortgage needs to be backed by Fannie Mae or Freddie Mac to allow someone who is current on their loan to refinance at a lower interest rate even though they are upside down on their mortgage.


i  see  no  one  replied.. 

so,  is  Saxon's  participating   in  this  Obama  stimulus  plan--  does  anyone  know??

or  Is SAXON--  AND  THESE  BAILED  OUT  BANKS  TENDING  TO  IGNORE  WHAT  THE  PRESIDENT  IS  DOING  TO  SAVE  THIS  ECONOMY  &  SORT  OUT  THIS  CRISIS?

AND  PREFERING  TO  DO  FORECLOSURES,INSTEAD?!

No,Saxon does not participate in the obama program,i've tried before and got the run around from saxon.Anyway,they say this '

"HOPE" PROGRAM is to help with a mod with our motgage co. well i tried that too and saxon said they didnt get the paperwork in time so i was denied,come to find out this "HOPE" program is run by the mortgage companies too, i know saxon has a part,so how can we look for help from the very companies that are trying to put us under?

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GMAC CLASS ACTION!

November 5th, 2010 · Foreclosure


The “technical” problems and other issues seen in foreclosure courtrooms across this country are merely symptoms of much larger issues that impact our broader economy and in fact our national security and the economic survival of this country.

For too long, the real people in this world have operated under the apparently false assumptions that the leaders of business and finance were operating the larger economic machine with accuracy and fairness.  Other even more naive folks operated under the assumption that our elected and appointed leaders were exercising some sort of oversight, supervision or regulation of the financial markets and industry.

We should have learned during the 2008 economic collapse that the the entire subprime mortgage industry was an unregulated, unchecked fleecing of the entire country.  We did not learn, instead we bailed out the con artists and criminals and there were no consequences for this fundamental breakdown.  Next, we shoveled more money at the criminals and con artists during the Modification Madness of 2009 and 2010.

The madness continues as courts across this country continue to reward servicers and as national policymakers choose to ignore the evils and wrongdoing that have been occurring since the subprime boom began in 2003.

The only hope we have is that passionate and ethical attorneys will stand up and fight against the tyranny of the big monied interests through class action lawsuits.  It’s time for a popular uprising, for consumers to join together and fight for the principles of justice and the rule of law.

Read this class action and be prepared to join when these lawsuits are rolled out.

GMAC Complaint w Case No. 110410

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I've been sitting on this computer now for about 4 hours reading all these posts about Deustche bank and trust,also known as Saxon mortgage, I have something in common with just about all these posts which disturbs me the most,i'm going thru the same stuff with saxon.Which brings me to this: Even with all these complaints and all this proof that we have how in the hell can these big corps. still continue to take our homes? Why is the government just letting these banks etc. step back get their "documents" in order and just refile forclosures with "new" documents? It was ruled,to my knowledge, that the MERS. co. does not have the power to transfer or make any legal decision in referance to a loan due to the fact that the MERS co. doesn't even exsist since it has no employees.It's run by the mortgage companies for the mortgage companies. Why wont the gov't hold them accountable these crimes. How is there not a way for all of us to have a lawsuit here? Deustche bank has cost me my job,put my marriage in jeapordy, and cost me $1000's of dollars  not to mention the fact that they want to put my family in the streets and i'm supposed to submit to them and let them get away with these haneous crimes??????????? Even with the proof we all have it still comes down to OBAMA allowing this to happen...

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I am pursuing starting a class action lawsuit against saxon mortgage regarding predatory lending and breach of contract. Based on the way the adjustables were written AND their lack of communication/follow thru on written and verbal requests. Also, their refusal to comply with remodification efforts. If you are interested in being a part of this please respond. Thank you

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Don

Yes we are interested in suing Saxon mortgage co. We have been fighting Saxon for 8 years now and we have the same arguements you do but we also have them for fraud,deception, and forgery.You can email me at steelerfan13@myfrontiermail.com. Let me know, thanks for your time.

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Ed Cage
Bevb wrote:

I am pursuing starting a class action lawsuit against saxon mortgage regarding predatory lending and breach of contract. Based on the way the adjustables were written AND their lack of communication/follow thru on written and verbal requests. Also, their refusal to comply with remodification efforts. If you are interested in being a part of this please respond. Thank you


Bev I posted this about 4 days ago under "Pro Se vs. Attorney"
 
- - - ON:

I’m hardly a big fan of lawyers. Dishonest, expensive, trying to build a fee.. Did I say “expensive?”  However:

1) I recommend avoiding class action suits and instead exploring/discovering and documenting all the facts you can. Then negotiate and never fall behind on your mortgage or tax or insurance payments if you can avoid it. But if you are ultimately forced to go to Court in the mortgage fraud, insurance fraud arenas you better get an attorney.

- - - OFF

 

Generally speaking you are probably looking at a 5 yr wait and a 5% return on a class action. Fraudsters like Saxon and Wells Fargo et al. don't mind class actions near as much as you might think. They depose of perhaps a thousand pesky cases all at once and insist on a clause the lawyers invariably approve of as long as they get paid, "Saxon [or Wells Fargo] admits no wrong doing of any sort..."

 

 Ed Cage (Not a Lawyer)  |  ecagetx@gmail.com

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Virgil wrote:
Anyone fit this scenario:

1. Saxon is the entity that is foreclosing
2. Non-Judicial State
3. You have visited your county recorder and obtained:
     A. assignment from MERS to Saxon
     B. substitution of trustee
     C. assignment from Saxon to securities trustee

If so, look at the names of the "vice president's" who have signed these documents.  If you have one of the following individuals signing as VP, please contact me

1. Bethany Hood
2. Christina Allen
3. Liquenda Allotey

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I do have this Liquenda Allotey guy, and I'm currently in litigation, representing myself.

If anyone has information to pass along, please share.

Ed Daire
daire_e@yahoo.com


 
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Hey, me  and my girlfriend is moving to Nashville next summer. We were wondering what kind of weather condition out there affect the people, is it smooth or dry. I am also look for mortgage information in a cool place there. Can you give me a hand in finding me a home for me and my Girlfriend.


 http://mortgageamigo.com/

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Cheryl wrote:
Whoever said that Novastar did not really sell your mortgage note is correct.  Today, after a year of trying to get a loan modification, i was served foreclosure papers by the Bank of New York Mellon, as successor trustee under Novastar Mortgage Funding Trust 2005-2. I have requested an original Mortgage and Promissory Note.  This is what it says in the foreclosure papers:
17.  The original Mortgage and Promissory Note were lost and the manner of loss or destruction being unknown, and said documents are no longer within the custody or control of Plaintiff.
18.  The loss of possession was not the result of a transfer of a lawful seizure.
19.  Plaintiff knows of no parties except itself and Defendant who are interested in the reestablishment of said documents.
WHEREFORE,Plaintiff,THE BANK OF NEW YORK MELLON, AS SUCCESSOR TRUSTEE UNDER NOVASAR MORTGAGE FUNDING TRUUST 2005-2, requests that this Court enter an order reestablising said lost documents.
They can not produce the documents.  I AM FILING AN ANSWER TO THE COURT NOT ONLY ABOUT THE SUPERFICIAL LOAN MOD BUT ALSO ABOUT THE DOCUMENTS THAT THEY CAN NOT PRODUCE.  I will keep you informed.
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I believe Bank of New York is servicer or trustee for the Trust . They have no authority to claim that they are the new owner of the loan unless they produce an assignment which usually they don't have. I would file a motion to oppose to their request of reetablish lost note . I would also ask them to produce proof that they are owner of the note and proof that your loan is in the Plaintiff Trust. Did you file Request for Production ?

http://www.scribd.com/my_document_collections/3011898

 

I see in many cases, the loan is not in the  Plaintiff Trust but the Trustee still file foreclosure lawsuit. Then they have no standing to foreclose.

 

Not a legal advice. Consult a lawyer

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No or Fraudulent Assignment - No Cause of Action to foreclose

Not Just Standing – Standing at Inception
Posted on December 14th, 2011 by Mark Stopa

http://www.stayinmyhome.com/blog/2011/12/not-just-standing-standing-at-inception/

On the heels of two similar decisions just a few weeks ago,http://www.stayinmyhome.com/blog/2011/11/happy-thanksgiving-from-floridas-fourth-district/ Florida’s Fourth District Court of Appeal just issued another ruling which explains the need for a bank to have standing to foreclose, not just in general terms and not just when it moves for summary judgment, but at the inception of the lawsuit. McLean v. J.P. Morgan Chase Bank, issued today out of the Fourth District, does the best job of any foreclosure case I’ve read so far, at least in Florida, of explaining the distinction.

I strongly encourage everyone to read the opinion, but I’ll summarize. http://www.4dca.org/opinions/Dec%202011/12-14-11/4D10-3429.op.pdf

Generally, the issue of whether the bank had standing at the inception of a foreclosure case arises in one of two contexts. The first is where the bank contends it has standing to foreclose based on an Assignment of Mortgage, yet that assignment post-dates the filing of the Complaint. This was the fact pattern in McLean, and the Fourth District makes it clear that such an assignment is insufficient, particularly without proof that the actual transfer of the Note/Mortgage took place prior to the suit being filed. In other words, it’s okay for an assignment to post-date the filing of the Complaint so long as the actual transfer of the Note/Mortgage took place before suit was filed, and the bank must present evidence of that transfer to prevail.

The second and perhaps more common fact pattern is where the bank relies on an indorsement that was executed after the original Complaint was filed. (The indorsements are always undated, so how can you tell if the indorsement post-dates the Complaint? Easy – compare the Note attached to the Complaint, which often has no indorsement, to the ”original” Note filed thereafter, which usually does.) As the McLean court explained, this fact pattern also requires dismissal:

if the evidence shows the Note was indorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the Complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint.

In either scenario, i.e. whether the bank’s standing is based on an Assignment of Mortgage or an indorsement, the bank must present evidence that it acquired the requisite standing before it filed suit, failing which a summary judgment of foreclosure would be improper. In other words, even if the homeowner doesn’t know when the indorsement was executed, if the bank can’t/doesn’t prove when it was executed, then it cannot foreclose.

Notice how the court calls for an evidentiary hearing? In my view, the evidence from the homeowner would be simple. I’d have my client testify that the copy of the Note attached to the Complaint that he/she was served with did not have an indorsement. (This is easy – the Complaint is in the court file.) This would put the onus on the bank to prove it obtained the indorsement before filing suit even though the copy of the Note attached to the Complaint did not have that indorsement. In other words, a bank representative would have to testify when the indorsement was obtained, and trust me – that’s easier said than done.

One fascinating part of the opinion is the court’s indication that this issue can be addressed via a motion to dismiss. To illustrate, did you notice how the court kept saying the homeowner raised these arguments via motions to dismiss? Then, perhaps most tellingly, the court held:

where a mortgage foreclosure action is based on an assignment that was executed after the lawsuit was filed, the plaintiff has failed to state a cause of action. In such cases, the proper course of action is for the plaintiff to file a new Complaint.

The term ”failed to state a cause of action” is critical here. This is, quite simply, the clearest indication yet from any Florida appellate court that a plaintiff’s lack of standing at the inception of the case can be brought via a motion to dismiss.

It’s an exciting day for foreclosure defense, folks – and yet another reason to keep fighting your lawsuit.

(By the way, if you check my old blogs, here http://www.stayinmyhome.com/blog/2010/12/when-foreclosure-lawsuits-are-frivolous/ and http://www.stayinmyhome.com/blog/2011/08/the-solution-to-court-funding-problems-case-dismissed/ here, for example, you’ll see I’ve been arguing “standing at inception” in foreclosure cases for years. It’s terrific to see the arguments I’ve been making for so long are being adopted by Florida’s appellate courts.)

Mark Stopa Esq.

http://www.stayinmyhome.com



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Cheryl wrote:
Whoever said that Novastar did not really sell your mortgage note is correct.  Today, after a year of trying to get a loan modification, i was served foreclosure papers by the Bank of New York Mellon, as successor trustee under Novastar Mortgage Funding Trust 2005-2. I have requested an original Mortgage and Promissory Note.  This is what it says in the foreclosure papers:
17.  The original Mortgage and Promissory Note were lost and the manner of loss or destruction being unknown, and said documents are no longer within the custody or control of Plaintiff.
18.  The loss of possession was not the result of a transfer of a lawful seizure.
19.  Plaintiff knows of no parties except itself and Defendant who are interested in the reestablishment of said documents.
WHEREFORE,Plaintiff,THE BANK OF NEW YORK MELLON, AS SUCCESSOR TRUSTEE UNDER NOVASAR MORTGAGE FUNDING TRUUST 2005-2, requests that this Court enter an order reestablising said lost documents.
They can not produce the documents.  I AM FILING AN ANSWER TO THE COURT NOT ONLY ABOUT THE SUPERFICIAL LOAN MOD BUT ALSO ABOUT THE DOCUMENTS THAT THEY CAN NOT PRODUCE.  I will keep you informed.
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ka
Cheryl:

Is there a point to reposting this somewhat incoherent message?

Quote:
I have requested an original Mortgage and Promissory Note. This is what it says in the foreclosure papers:


It appears that Cheryl drank the swindlers' Kool-Aide and is in a race to lose her home by employing the discredited MYTH referred to as the "show me the note" strategy.

It would be too much effort to actually read the posts of others, so she is simply going to instruct the Forum that she has discovered this (meritless) strategy elsewhere on the Internet (or off the back of a cereal box) and will follow the stategy blindly to her own self destruction and financial ruin.

Too bad Cheryl cannot pay attention and learn from the Forum instead of plunging off the cliff like the other lemmings. 

Quote:
They can not produce the documents. I AM FILING AN ANSWER TO THE COURT NOT ONLY ABOUT THE SUPERFICIAL LOAN MOD BUT ALSO ABOUT THE DOCUMENTS THAT THEY CAN NOT PRODUCE.  I will keep you informed.


No, you are mistaken.  They HAVE the documents.  They CAN and WILL produce the documents.  But even if they could NOT produce the documents, the UCC provides an express mechanism for the enforcement of lost documents.

Drop us a note from time to time from your homeless shelter or the park you will be inhabiting.  But please spare us the nonsense about corrupt judges or a dishonest legal system.  You are about to lose your home because you have failed to read, appreciate and apply the useful information that is posted here and instead are intent upon pursuing the single strategy which is assured to result in an almost immediate loss of your property.
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Please explain what was the outcome of Saxon Morgage Housing deal.
Thank you. I am having problems with them.

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Ann wrote:
No or Fraudulent Assignment - No Cause of Action to foreclose

Not Just Standing – Standing at Inception
Posted on December 14th, 2011 by Mark Stopa

http://www.stayinmyhome.com/blog/2011/12/not-just-standing-standing-at-inception/

On the heels of two similar decisions just a few weeks ago,http://www.stayinmyhome.com/blog/2011/11/happy-thanksgiving-from-floridas-fourth-district/ Florida’s Fourth District Court of Appeal just issued another ruling which explains the need for a bank to have standing to foreclose, not just in general terms and not just when it moves for summary judgment, but at the inception of the lawsuit. McLean v. J.P. Morgan Chase Bank, issued today out of the Fourth District, does the best job of any foreclosure case I’ve read so far, at least in Florida, of explaining the distinction.

I strongly encourage everyone to read the opinion, but I’ll summarize. http://www.4dca.org/opinions/Dec%202011/12-14-11/4D10-3429.op.pdf

Generally, the issue of whether the bank had standing at the inception of a foreclosure case arises in one of two contexts. The first is where the bank contends it has standing to foreclose based on an Assignment of Mortgage, yet that assignment post-dates the filing of the Complaint. This was the fact pattern in McLean, and the Fourth District makes it clear that such an assignment is insufficient, particularly without proof that the actual transfer of the Note/Mortgage took place prior to the suit being filed. In other words, it’s okay for an assignment to post-date the filing of the Complaint so long as the actual transfer of the Note/Mortgage took place before suit was filed, and the bank must present evidence of that transfer to prevail.

The second and perhaps more common fact pattern is where the bank relies on an indorsement that was executed after the original Complaint was filed. (The indorsements are always undated, so how can you tell if the indorsement post-dates the Complaint? Easy – compare the Note attached to the Complaint, which often has no indorsement, to the ”original” Note filed thereafter, which usually does.) As the McLean court explained, this fact pattern also requires dismissal:

if the evidence shows the Note was indorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the Complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint.

In either scenario, i.e. whether the bank’s standing is based on an Assignment of Mortgage or an indorsement, the bank must present evidence that it acquired the requisite standing before it filed suit, failing which a summary judgment of foreclosure would be improper. In other words, even if the homeowner doesn’t know when the indorsement was executed, if the bank can’t/doesn’t prove when it was executed, then it cannot foreclose.

Notice how the court calls for an evidentiary hearing? In my view, the evidence from the homeowner would be simple. I’d have my client testify that the copy of the Note attached to the Complaint that he/she was served with did not have an indorsement. (This is easy – the Complaint is in the court file.) This would put the onus on the bank to prove it obtained the indorsement before filing suit even though the copy of the Note attached to the Complaint did not have that indorsement. In other words, a bank representative would have to testify when the indorsement was obtained, and trust me – that’s easier said than done.

One fascinating part of the opinion is the court’s indication that this issue can be addressed via a motion to dismiss. To illustrate, did you notice how the court kept saying the homeowner raised these arguments via motions to dismiss? Then, perhaps most tellingly, the court held:

where a mortgage foreclosure action is based on an assignment that was executed after the lawsuit was filed, the plaintiff has failed to state a cause of action. In such cases, the proper course of action is for the plaintiff to file a new Complaint.

The term ”failed to state a cause of action” is critical here. This is, quite simply, the clearest indication yet from any Florida appellate court that a plaintiff’s lack of standing at the inception of the case can be brought via a motion to dismiss.

It’s an exciting day for foreclosure defense, folks – and yet another reason to keep fighting your lawsuit.

(By the way, if you check my old blogs, here http://www.stayinmyhome.com/blog/2010/12/when-foreclosure-lawsuits-are-frivolous/ and http://www.stayinmyhome.com/blog/2011/08/the-solution-to-court-funding-problems-case-dismissed/ here, for example, you’ll see I’ve been arguing “standing at inception” in foreclosure cases for years. It’s terrific to see the arguments I’ve been making for so long are being adopted by Florida’s appellate courts.)

Mark Stopa Esq.

http://www.stayinmyhome.com



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Unregistered
genaro wrote:
Ann wrote:
No or Fraudulent Assignment - No Cause of Action to foreclose

Not Just Standing – Standing at Inception
Posted on December 14th, 2011 by Mark Stopa

http://www.stayinmyhome.com/blog/2011/12/not-just-standing-standing-at-inception/

On the heels of two similar decisions just a few weeks ago,http://www.stayinmyhome.com/blog/2011/11/happy-thanksgiving-from-floridas-fourth-district/ Florida’s Fourth District Court of Appeal just issued another ruling which explains the need for a bank to have standing to foreclose, not just in general terms and not just when it moves for summary judgment, but at the inception of the lawsuit. McLean v. J.P. Morgan Chase Bank, issued today out of the Fourth District, does the best job of any foreclosure case I’ve read so far, at least in Florida, of explaining the distinction.

I strongly encourage everyone to read the opinion, but I’ll summarize. http://www.4dca.org/opinions/Dec%202011/12-14-11/4D10-3429.op.pdf

Generally, the issue of whether the bank had standing at the inception of a foreclosure case arises in one of two contexts. The first is where the bank contends it has standing to foreclose based on an Assignment of Mortgage, yet that assignment post-dates the filing of the Complaint. This was the fact pattern in McLean, and the Fourth District makes it clear that such an assignment is insufficient, particularly without proof that the actual transfer of the Note/Mortgage took place prior to the suit being filed. In other words, it’s okay for an assignment to post-date the filing of the Complaint so long as the actual transfer of the Note/Mortgage took place before suit was filed, and the bank must present evidence of that transfer to prevail.

The second and perhaps more common fact pattern is where the bank relies on an indorsement that was executed after the original Complaint was filed. (The indorsements are always undated, so how can you tell if the indorsement post-dates the Complaint? Easy – compare the Note attached to the Complaint, which often has no indorsement, to the ”original” Note filed thereafter, which usually does.) As the McLean court explained, this fact pattern also requires dismissal:

if the evidence shows the Note was indorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the Complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint.

In either scenario, i.e. whether the bank’s standing is based on an Assignment of Mortgage or an indorsement, the bank must present evidence that it acquired the requisite standing before it filed suit, failing which a summary judgment of foreclosure would be improper. In other words, even if the homeowner doesn’t know when the indorsement was executed, if the bank can’t/doesn’t prove when it was executed, then it cannot foreclose.

Notice how the court calls for an evidentiary hearing? In my view, the evidence from the homeowner would be simple. I’d have my client testify that the copy of the Note attached to the Complaint that he/she was served with did not have an indorsement. (This is easy – the Complaint is in the court file.) This would put the onus on the bank to prove it obtained the indorsement before filing suit even though the copy of the Note attached to the Complaint did not have that indorsement. In other words, a bank representative would have to testify when the indorsement was obtained, and trust me – that’s easier said than done.

One fascinating part of the opinion is the court’s indication that this issue can be addressed via a motion to dismiss. To illustrate, did you notice how the court kept saying the homeowner raised these arguments via motions to dismiss? Then, perhaps most tellingly, the court held:

where a mortgage foreclosure action is based on an assignment that was executed after the lawsuit was filed, the plaintiff has failed to state a cause of action. In such cases, the proper course of action is for the plaintiff to file a new Complaint.

The term ”failed to state a cause of action” is critical here. This is, quite simply, the clearest indication yet from any Florida appellate court that a plaintiff’s lack of standing at the inception of the case can be brought via a motion to dismiss.

It’s an exciting day for foreclosure defense, folks – and yet another reason to keep fighting your lawsuit.

(By the way, if you check my old blogs, here http://www.stayinmyhome.com/blog/2010/12/when-foreclosure-lawsuits-are-frivolous/ and http://www.stayinmyhome.com/blog/2011/08/the-solution-to-court-funding-problems-case-dismissed/ here, for example, you’ll see I’ve been arguing “standing at inception” in foreclosure cases for years. It’s terrific to see the arguments I’ve been making for so long are being adopted by Florida’s appellate courts.)

Mark Stopa Esq.

http://www.stayinmyhome.com



Quote 0 0
landon1234

Saxon is merely a loan servicer, just like Ocwen.

You can contact the Supervisor of the modifications dpt, Lauren Martin at 561-682-8406, or the manager, John Fahey. The main number for the office is 561-682-8000 and from there, you can dial by name.

Good luck.

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wetfg
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La diferencia económica http://www.comprafutbol2012.com no es nada si lo comparamos con la distancia futbolística que existen entre ambos conjuntos. De hecho, sólo un desliz podría explicar un batacazo de España, que volverá a contar con David Villa. El delantero asturiano reaparece con la selección española casi nueve meses después http://www.comprafutbol2012.com de su fractura de tibia, la misma que le arruinó la temporada 2011-12 y que le impidió acudir a la pasada Eurocopa.
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