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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Hi there, I have questions about securitization.

SECURITIZATION FRAUD: MY QUESTIONS

  So the objective is, according to reputable sources is:
  "...to show the judge that my loan closing, my loan documents,
  were within the context of a securitized structure, prove that
  I have those documents, that the real creditor is not before
  the court, and that the lawyers and their clients are attempting
  to commit fraud upon the Court"

  When I find the pool I guess my loan ended up into, the
  party named "SPONSOR" (within the "pool and service ageement")
   is my original creditor?  In short: "SPONSOR" = "ORIGINAL CREDITOR"?  and this is the same as "ORIGINAL LENDER"?

 Other thing is that the other party must prove that the
"securitization  Entity" still exist? (in court?)

 And finally, the only person or institution named in the
 "Contents Table" of the "pooling and service agreement" is the ONLY one
 with authority to modify a loan or negotiate with the homeowner?

 How to Properly identify that person, or entity?

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William A. Roper, Jr.
Jose:

In defending a foreclosure in a judicial foreclosure state, generally you are trying to disprove the allegations of the plaintiff or to show that the proof proffered by the plaintiff does not actually prove the allegations made within the pleadings.

You need to look to the plaintiff's pleadings, the plaintiff's motion for summary judgment and the proof presented by the plaintiff to ascertain how to defend.

You need to take particular care about what you DO PROVE.  For example, if the wrong plaintiff has filed the suit and you PROVE that another entity actually owns the loan, the plaintiff will very often simply AMEND ITS PLEADINGS and make out a new case claiming to represent the entity that you have PROVEN (admitted) is the owner and holder.

For this reason, you need to be very, very careful in what you seek to PROVE.

*

In a summary judgment setting, which is typically the first major determination faced by a foreclosure defendant, all you actually need to PROVE is that there are critical FACTS which are IN DISPUTE.  If there are diputed matters of material fact, usually a plaintiff's summary judgment motion must be denied.

*

BEWARE of one size fits all defenses.  Your defense needs to be carefully crafted based upon the pleadings and FACTS in YOUR CASE.  It is best to obtain the help of a qualified attorney specializing in consumer debt and foreclosure defense to present a strong, effective defense.
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I can't thank you enough for clarification of my case overview

I have a question that I need to address,
in the foreclosure jargon, these words are the same?

"sponsor"   =    "original creditor"   =   "original lender"?
(found in
the service
agreement
 pool)

in the prospectus

 

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Digger
Excerpts from Richard Kessler's must read "Explanation of Securitization": 

- Accordingly, the trustee, the QSPE, and the other parties servicing the trust, have no legal or equitable interest in the securitized mortgages. Therefore, any servicer who alleges that they are, or that they have the right, or have been assigned the right, to claim that they are the agent for the holder of the note for purposes of standing to bring an action of foreclosure, are stating a legal impossibility. Any argument containing such an allegation would be a false assertion. Of course, that is exactly what the servicer of a securitized mortgage that is purported to be in default claims. The same is the case when a lender makes that same claim. The party shown as “Lender” on the mortgage note was instrumental in the sale and issuance of the certificate to certificate holders. which means they knew that they were no longer the holder of the note.

- Before securitization, the holder of an enforceable note has a financial responsibility for any possible losses that may occur arising from a possible default, which means that holder also has the possible losses that may occur arising from a possible default, which means that holder also has the authority to take steps to avoid any such losses (the right to foreclose). Securitization, however, effectively severs any such financial responsibility for losses from the authority to incur or avoid those losses.

- Securitization also makes the mortgage and note unalienable (def.: Not to be separated, given away, or taken away). The reason is simple: once certificates have been issued, the note cannot be transferred, sold or conveyed; at least not in the sense that such a transfer, sale, or conveyance should be considered lawful, legal, and legitimate. This is because the securitized note forever changes the nature of that instrument in an irreversible way, much in the same way that individual strawberries and individual bananas can never be extracted, in their “whole” form, from a strawberry banana milkshake once they’ve been dropped in the blender and the blending takes place.

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Thanks for that post Digger. Is Richard Kessler an attorney?  This piece would fit nicely as an exhibit for me as I am building my defense.
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From Max Gardner Esq. and Kevin Byer
Twenty Reasons to Request Pooling Servicing Agreement (PSA)
 

Every time I file a civil action against a mortgage servicer the very first document I want is a copy of the “Pooling and Servicing Agreement.”  This is the legal document that creates the securitized trust of mortgage loans and also strictly provides for the duties of all entities who are assigned the responsiblity of servicing loans for the Trust.

For all “public placements” or “public offerings,”  the Pooling and Servicing Agreement is always filed on Form 8-K with the Securities and Exchange Commission.  All such documents can be found by conducting a search of the SEC’s website through an internal search engine known as “Edgar.”  But, what is a PSA?  Why do I want to see it? What can be found in the PSA?  Kevin Byers, a forensic accountant, who works with me on these cases, has assisted me in developing the following list of reasons why any consumer must have the PSA.  The reasons are as follows:

Pooling and Servicing Agreements (PSA)Top Twenty Reasons to Request ProductionKevin Byers and O. Max Gardner III

In no particular order, these are some of reasons you need to request through formal discovery in any mortgage-related case the PSA Agreement and why it is relevant:

1.     It is a contractual document naming the parties to any given securitization, important for standing issues.  The document will list the Sponsor, the Trustee for the Securitized Trust, the Master Servicer, and all primary and secondary servicers.

2.     It provides address for all necessary parties including “notice” addresses for the service of legal process. 

3.     It outlines the specific duties of the Servicer and/or the Master Servicer as well as the Trustee on behalf of a respective trust. 

4.     It contains the representations and warranties of all parties to the agreement, including the Servicer and/or Master Servicer.

5.     It includes all representations provided by the Depositor of the loans into the trust as the same relate to important consumer protection issues related to the underwriting and origination of the loan, such as conformity with anti-predatory lending laws, full-file credit reporting, title insurance coverage, and validity and content of individual loan files.

6.     It gives the conditions under which a prepayment penalty may be waived or modified by the Servicer and/or Master Servicer. 7.     It oftentimes will outline specific loss mitigation and foreclosure avoidance measures available to the Servicer, including, for example, forbearance and loan modification, principal reductions, interest reductions and interest changes.

8.     It defines a “defective mortgage loan” and describes the circumstances and process by which the lender must repurchase a loan.

9.     It establishes the rights of the Trustee under the Trust to force the Depositor/Originator of any loan to repurchase a loan under the recourse provisions. 10.    It describes the specific process by which a delinquent loan can be charged off and the subsequent servicing party and procedures that apply to such charged-off loan.

 11.    It provides guidelines on loan-level advances that must be paid by the servicer.

 12.    It provides details regarding the mechanics of how the Servicer must go about foreclosing on property, what documents need to be requested and/or recorded and what authorizations need to be granted to foreclose, and in whose name the foreclosure must be filed. 

13.    It provides guidance on the fees a Servicer may retain as compensation in the administration of the loans, for example, NSF fees, late fees, loan modification or assumption fees.

14.    It will contain the Mortgage Loan Schedule, important to verify the ownership of the loan on behalf of the Trust.

15.    It details the requirements for mortgage assignments and when these will or will not be recorded and the implications of the failure to record such assignments. 16.    It details the specific loan documents contained in each loan file that will be delivered to the Trustee or Document Custodian on behalf of the trust, establishing who holds the original Note and where it may be found.

17.    It describes the credit enhancements that have been deployed to enhance the rating of the most secure certificates of investment in the Trust.

18.    It provides rules and procedures for the rights of the Master Servicer or the Primary Servicer to accept a deed-in-lieu of foreclosure or a short sale of the property so as to avoid a foreclosure.

19.    It describes the rights the Originator/Depositor may retain the Residual Value of the Trust and the extent to which the residuals may be used as credit enhancements.

20.    It will name a default servicer and describe when a loan is considered to be in default and outline the process for the transfer of servicing rights

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William A. Roper, Jr.
Jose:

The terms original creditor and original lender are generally synonymous.  The original lender could be the plan sponsor, but this is not usually the case.

Typically, in a Wall Street mortgage securitization, both the originator and the Wall Street mortgage investment banking concern acting as a conduit interpose so-called bankruptcy remote affiliates into the transaction.

So, for example, if New Century Mortgage Corp was the originator ("A"), they would tend to first transfer the mortgage to an affiliated entity such as NC Mortgage Capital ("B").  This affiliate would then transfer the mortgage to the bankruptcy remote affiliate of the investment banking concern.  This might be something like Merrill Lynch Mortgage Capital ("C").  The bankruptcy remote subsidiary would then transfer the mortgage to the trustee of the newly created mortgage trust on the trust closing date, an entity like Deutsche Bank Trust Company ("D"), as trustee of the Questionable Collateral Real Estate Trust .

So if you read the PSA for a trust, this sequence of ownership should be reflected in the disclosures.

The bankruptcy remote subsidiary of the investment banking concern -- C -- was usually the plan sponsor, though in some instances with the larger subprime entities, the benkrruptcy remote subsidiary of the originating lender -- B -- might also be the sponsor of the trust. 

Under the UCC the means of negotiating the promissory notes from entity to entity would be the physical delivery of the promissory note from A to B, from B to C and from C to D.  This would also be memorialized in an assignment from A to B, and assignment from B to C and an assignment from C to D.

(I referrred to this in correspondence with some leading foreclosure lawyers as the "alphabet problem" several years ago and this description seems to have come into vogue in describing these transactions!)

Very often, contract forgers and perjurers employed by the foreclosing servicer fabricate an assignment to present in court and use as false evidence in a case.  One dead giveaway that the assignment is a forgery is the execution of an assignment from A to D, when the PSA and the SEC registration statement expressly describe the A to B, B to C and C to D assignments!

The forged assignment is describing a transaction which never took place!

A NEVER negotiated the promissory note to D and no assignment from A to D took place.  But using the forged assignment, mortgage servicers are able to routinely obtain default judgments and summary judgments against unsophisticated borrowers!

*

Digger:

Several of the passages you quote from Richard KESSLER's work appear to be both legally and factually WRONG!  It is disappointing to see that defendants are being coached with erroneous information.

I will address the errors in these statements in another subsequent post.  
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Answered my own question, it states his credentials at the end of the doc. Yale law and attorney.
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William A. Roper, Jr.
CORRECTION:

Quote:
The bankruptcy remote subsidiary of the investment banking concern -- C -- was usually the plan sponsor, though in some instances with the larger subprime entities, the benkrruptcy remote subsidiary of the originating lender -- B -- might also be the sponsor of the trust. 


In my post above, I seem to have had a senior moment.  The bankruptcy remote subsidiary in of the Wall Street investment banking concern is typically the depositor.  The bankruptcy remote affiliate of the originator is often the trust sponsor

*

The link posted by Ann in the thread "Info on securitized mortgage", gives a very nice graphical depiction of a typical securitization scheme:

http://www.sec.gov/Archives/edgar/data/1243106/000106823807000235/bsmf_2007ar3-fwp.htm


Apologies!

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William A. Roper, Jr.
Digger:

In quoting from KESSLER, you posted:

Quote:
Securitization also makes the mortgage and note unalienable (def.: Not to be separated, given away, or taken away). The reason is simple: once certificates have been issued, the note cannot be transferred, sold or conveyed; at least not in the sense that such a transfer, sale, or conveyance should be considered lawful, legal, and legitimate. This is because the securitized note forever changes the nature of that instrument in an irreversible way, much in the same way that individual strawberries and individual bananas can never be extracted, in their “whole” form, from a strawberry banana milkshake once they’ve been dropped in the blender and the blending takes place.


If you actually READ a typical PSA and the associated SEC registration statements, you learn that the loans are almost always sold to the mortgage trust based upon certain representations and warranties.

This is reflected in the material Ann posted above from Max GARDINER et al.

For example, in the link Ann posted the SEC registration statement contains this language:

"On the Closing  Date,  the sponsor will  represent  that each  mortgage  loan at the time it was made complied in all material respects with all applicable laws and regulations,  including,  without  limitation,  usury, equal credit  opportunity,  disclosure and recording  laws and all predatory  lending laws; and each mortgage loan has been serviced in all material  respects in accordance  with all applicable laws and regulations,  including,  without limitation,  usury, equal credit  opportunity,  disclosure and recording laws and all predatory  lending laws and the terms of the related  mortgage note, the mortgage and other loan  documents.  In the event of a breach of this  representation,  the sponsor will be obligated to cure the breach or repurchase  or replace the affected  mortgage loan in the manner described in the prospectus.  [emphasis added]"
This warranty has to do with compliance with the law.

Here is another provision of the same trust:

"Generally,  the Mortgage Loan Purchase  Agreement will provide that, in the case of a breach of any representation or warranty set forth above which materially and adversely  affects the value of the interests of  certificateholders  or the Trustee in any of the mortgage loans,  within 90 days from the date of discovery or notice from the Trustee,  the Depositor or the Sponsor,  the Sponsor will either (i) cure such breach in all material  respects,  (ii) provide the Trustee with a substitute  mortgage  loan (if within two years of the Closing Date) or (iii) purchase the related  mortgage loan at the applicable  Repurchase  Price.  The obligations of the Sponsor to cure,  purchase or substitute shall constitute the Trustee’s sole and exclusive remedy  respecting a breach of such  representations and warranties.  [emphasis added]"
If you closely read the language you will find the various other representations which would trigger this contractual required repurchase.

The seller of the mortgages -- usually both the originator and the originator's bankruptcy remote affiliate, the plan sponsor, as well as the depositor -- represent to the mortgage investor -- the trust -- that the mortgages have certain legal, financial and underwriting characteristics.  If and when it later emerges that the loans FAILED to conform to these representations, the trust can REQUIRE that the originator repurchase the loans.

Historically, this didn't happen very often, in large part because of an inherent conflict of interest created at the inception of the securitization.

In my description above, I mention the A to B to C to D negotiation and assignments.  I didn't dwell on the fact, also depicted in Ann's posted securitization diagram from an SEC filing that another affiliate of A most often ends up as the servicer.

While the trustee of the trust is responsible for most of the interactions with the trust certificate purchasers, the PSA delegates to the servicer most of the management of the collection of cash flows of the whole loans purchased by the trust.

It is therefore the servicer, which would typically discover any breach in the seller's warranties.  But OOPS, the servicer is an affiliate of the originator!

No sevicers were going to identify defects in the loan collateral, because doing so would require the servicer's parent or affiliate to REPURCHASE the loan!

As a consequence of the mortgage meltdown and particularly the meltdown with respect to subprime mortgages, many subprime lenders went out of business, often filing for bankruptcy.  In so doing, the servicing rights were sold to others.  For example, Option One (which did not file for bankruptcy) sold its servicing portfolio to American Home Mortgage Servicing.

This process often divorced the servicer from the originator.  The new servicers can look at the loan collateral more critically.

Another factor is also driving required repurchases and this is the rescission of mortgage insurance policies by major mortgage insurers.  Rather than paying mortgage insurance claims, the insurers are going through the loan files with a fine toothed comb and finding a variety of often valid bases to RESCIND the insurance policy and DENY the claims!  This creates a rather novel problem for the mortgage originators.

One of the representations made by the originators was that the high ratio loans requiring insurance had a valid mortgage insurance policy.  When the policy is rescinded, it becomes clear that this representation was FALSE!  This results in an immediate requirement that the originator repurchase the loan!  Of course, the worst of the subprime lenders are insolvent and there is no one available to make good on the warranty.  But one of the most significant issues now facing the entire mortgage industry is the unbelievable overhang of repuchases faced by financial institutions!  These repuchases will cripple a number of large financial institutions and precipitate another financial crisis next year!

KESSLER makes it sound as though a loan finding its way into a trust can never be removed from the trust.  This is absolutely UNTRUE and contrary to the express provisions of the PSA and the representations and warranties made by the originators and sellers in the creation of these trusts!

KESSLER IS CORRECT that in the ordinary course of business, absent required repurchase, that the mortgage collateral becomes stranded in the trust.  And this is very much a challenge since the trusts were not written for the benefit of either the mortgage borrowers OR the mortgage certificate purchasers.  These trusts were created by the investment bankers to maximize their own profits (and give their customers a nice haircut in the process)!  

Given that the provision for required repurchase is expressly written into the PSA, I believe that KESSLER erroneously overstates the extent to which the collateral is marooned inthe trust (e.g. "the note cannot be transferred, sold or conveyed; at least not in the sense that such a transfer, sale, or conveyance should be considered lawful, legal, and legitimate").

But as I stated above, it IS correct that someone showing up with what purports to be a belated instrument evidencing a transfer out of the trust ABSENT a reasonable REQUIRED REPURCHASE, is probably pleading a forged assignment.  Just be careful in presenting KESSLER's argument as worded!
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My 2 cents.
Even if you are not sure about the legalese of the PSA etc, you should put all these issues in Affirmative Defenses with the words "Upon information and belief,..... If pro se is wrong, Judge won't put pro se in jail. But if well presented, it will raise issues against Summary Jugment. Summary Judgment is improper when there are issues to be resolved at trial.
Bank will have to hire more senior lawyer to respond to these PSA, securizations, trust etc and it will take them many months to study these so Pro Se can buy some time to do more research.  I see in many cases when PSA, securization, fraud assignments (who is really has the right to make assignment) etc are raised in Opposition to Summary Judgment, Bank cancel the MJ hearing and initial negotiation.

If you go it Pro Se , you should try to delay hearings (direct court confrontation) as long as possible. You have to use underground tactics, file many motions, discoveries to avoid direct confrontation at the hearings. File Motion to Dismiss first. If Motion to Dismiss denied then put all these PSA, securitized mortgages etc in the Answer as Affirmative Defenses (See my latest post Tactical Defenses in Fighting Foreclosure) to lay ground for the battle.  Send out Discoveries and supoenas . If they don't answer your discoveries, file Motion to Compel. If you think the Bank is wrong, Florida, file Motion to Sanction the lawyer 57.105.

Call the Servicer every 2 weeks, write down the time/dates/the person you talked to. So you can show the Judge at hearings that you did try to get a loan modification but the Bank ignore you . It will make the bank look bad to the Judge. I see cases when the Judge denies Summary Judgment and order bank to offer loan mod but then the bank who sues is not the owner of the mortgage so they can't give any kind of loan mod ; therefore there is an impass. With the impass bank can't get the judgment to foreclose. The case is in limbo for how long nobody knows.

 If you can't afford lawyer then fight it pro Se anyway. Don't be afraid. Try to save money to hire a lawyer as soon as yo can BUT when Bank serves you with Motion for Summary Judgment you should absolutely get a lawyer. The lawyer will file Amended Motions and other pleadings to defend you. A hearing for Motion for Summary Judgment is like a Mini Trial, it is not recommended to go without a lawyer. It is never too late to hire a lawyer but defend yourself anyway even if you can't afford a lawyer. Read http://www.foreclosureprose.com for more inf.

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I FOUND in which pool my loan ended up. (thanks to you guys, THANKS!!)

So what is the next step?

 print the whole "8K", "10K", and the "Prospectus?"

...and what I am gonna do with that?

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William A. Roper, Jr.
What is the jurisdiction in which the subject property is located?  Are you in a judicial foreclosure or a non-judicial foreclosure state?  Have you already been served with a foreclosure complaint?

Hopefully you have NOT posted under your actual name.  Publicly discussing factual and legal details of your case, including your specific identity, on a public web site is a really BAD IDEA!
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I was already served with the F. Complaint,
And is a Judicial State

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What do I do if I am sued for foreclosure in Florida?
 
For info. only. It is recommended to consult a lawyer as soon as possible.
And it's never too late to get a lawyer.
 
1. Respond to the Complaint
You have twenty days after service to respond to the Complaint. You can file a Motion for Time Extension to ask for another 20 days to file a response The response can be an Answer or a Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if you omit them from the motion, so you should hire a lawyer to represent you if at all possible.
2.Draft the Motion to Dismiss
Consider: 1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident) 2. Is a copy of the promissory note attached to the Complaint? 3. Does the plaintiff adequately show the plaintiff owns and holds the note? 4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific? 5. Does the Complaint show that the taxes on the note were paid? 6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) -- being a spouse of the debtor is no reason to sue you. Serve the motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the original to the clerk of the court with the original motion and have the clerk time-stamp your copy to show it was on time).
3. Wait until the judge rules on the motion
Some circuits require that you send a copy of the motion to the judge with a blank order and envelopes. If there is such a requirement, do it. You do not have to do anything else until the motion is denied. Under the above procedure, this might happen without a hearing, or the judge might request a hearing. In the circuits that do not require notifying the judge about a motion to dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the Complaint is defective (not why you do or do not owe the money). If the Plaintiff has no Standing to foreclose(i.e does not own the notes or Plaintiff is not a Party of Interest etc ), the Judge still denies your Motion to Dismiss, you can consider go to Appeal. Remember to go to the hearing with a Court Reporter as you need certified transcript to go to Appeal Court.
4. Answer the Complaint
You should have a lawyer do this in order not to miss important issues. But consider: 1. Denying all the material facts alleged. 2. Adding Affirmative Defenses; consider these: A. The same issues detailed in the Motion to Dismiss considerations B. Predatory lending C. Illegal interest rates D. Waiver E. Violation of the Truth in Lending Act F. The Complaint fails to state a cause of action. G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff. H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. §§673.011, et. seq. I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-resident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so. J. Plaintiff is not the real party in interest
5. The matter will be set for mandatory mediation
The Florida Supreme Court has recently adopted rules requiring mandatory managed mediation in all residential foreclosure cases. You will be contacted by the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is set.
6. Attend mediation
Consider these possibilities: If you want to leave the home, consider: 1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness) 2. Asking for move-out money ("Cash for Keys") 3. A short sale (be sure you get a guarantee of debt forgiveness) 4. Setting a move-out date long into the future. If you want to stay in the home, consider: 1. Ask for a reduction in principal to the value of the home (A recent federal program may help facilitate this in part) 2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced) 3. Asking about conventional refinancing to current rates Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold and then enforced against you if you do not get the original note back.
7. If mediation is unsuccesful, send discovery to the plaintiff
You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider: 1. Interrogatories 2. Request to Produce 3. Request to Admit Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff's lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff's discovery. (Request to Admit are deemed admitted if you do not timely respond).
8. When the Motion for Summary Judgment is filed; Respond with an Affidavit
A trial will be needed if any material allegations are at issue. These might include who owns the note, are you in default, as well as the legal defenses set forth above. But, the judge will only defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.
8.If there is a trial, defend aggressively. Make sure you hire a court reporter for trial
Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.
10. If you lose
Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond. You can still redeem the property by paying the judgment until the clerk of the court issues the certificate of title. Consider refinancing. You can also file Bankruptcy to delay the sale and have your debts including the mortgage wipe out.
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William A. Roper, Jr.
Generally, Ann has posted some pretty good advice, HOWEVER:

Quote:
Ann indicated: 
1. Respond to the Complaint
You have twenty days after service to respond to the Complaint.  ...


The amount of time to respond to the complaint VARIES from jurisdiction to jurisdiction.  It is not necessarily twenty days everywhere, though this is probably going to be roughly correct most places.  CHECK YOUR LOCAL RULES AND THE LANGUAGE IN THE SUMMONS OR CITATION.

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Ann indicated:
2.Draft the Motion to Dismiss
Consider: 1. Was service on you proper?


In some jurisdictions, you are required under the Rules to "appear specially" by filing a special appearance rather than appearing generally and moving to dismiss.  That is, in those places ANY general appearance may subject you to the jurisdiction of the court and waive any defects as to service.  In other places, defective service may be a valid basis to set any judgment aside, as long as you weren't properly served.  In some places, you have a duty to appear and answer if you LEARN of the suit, even through improper discovery, and in other places you have no  such duty.  But BEWARE that the court is going to act upon the plaintiff's affidavits of service and these are going to generally be considered to be correct and valid unless PROVEN otherwise.  So this is a very treacherous area and court rules and laws relating to adequacy of service and consequences of defective service vary widely.  If there are any significant defects in the service of the suit, you need to consult a local lawyer (which would be a good idea in any case)!! 

Quote:
Ann indicated:
3. Wait until the judge rules on the motion


In many jurisdictions, YOU will have to set YOUR motion for a hearing.  In failing to do this, the court will never actually consider and rule on your motion.  If you simply file a motion and then sit back and DO NOTHING, you may be setting yourself up for defeat.  This is another reason to carefully read the rules and the law and to CONSULT A LOCAL LAWYER.

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Ann indicated:
4. Answer the Complaint


In some jurisdictions, such as New York, you must raise any questions as to the plaintiff's standing before (or possibly concurrent with) your answer or these defenses are deemed waived.  BE CAREFUL.  CONSULT A LAWYER.

But Ann is certainly correct, you do NOT want to miss any deadline to file and interpose your answer!

MEDIATION
Rules relating to mediation vary widely from jurisdiction to jurisdiction.  There may even be local rules pertaining to jurisdiction that vary within a state.

DISCOVERY
Ann's response has essentially left out the single most important defensive element after getting an answer filed and that involves conducting well thought out, and meaningful discovery to obtain the true facts of your case.  It is ONLY through discovery that you are likely to obtain the evidence that you need to actually defeat a plaintiff's foreclosure case.  Expecting to win or draw without conducting discovery is unrealistic!  Read the discovery rules of your jurisdiction!  CONSULT A LAWYER. 
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Roper is correct on Discovery.

However, you have to first get past the Summary Judgment.

Even when there is a genuine material dispute that should prevent the courts granting the MSJ to the banks, many courts still grant the MSJ to the bank.

In years of working with attorneys throughout the country, this appears to be a constant problem for many attorneys not to mention a pro se.

Makes one wonder, do I have to say in big bold letters, "DISPUTE 1", :"DISPUTE 2"???

And, when you do Discovery, except them to answer, "vague and ambiguous" and if you write the question or admission to where they think it reads in two parts, expect, "multifarious".

Discovery is precision, precision, precision. You almost need to know the answer to write the questions, so do your homework.

Be extremely precise and then you might have a chance with a "Motion to Compel" if the judge is a judge that follows the law.
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FIGHTING4MYHOME
I'm still confused with the pre-securitization process.  I've read the post and the article by Kessler.  Can someone please breakdown the player's title in the A-D steps. i.e. A = Originator, B = ?

My mortgage loan has gone through 4 stages
(1) origination (I've had 4 servicers at this stage at this stage)
(2) sold/transferred/assigned/conveyed (5th servicer)
(3) sold/transferred/assigned/conveyed (6th and 7th servicer at this stage)
(4) securitization


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Texas
Goto http://www.scribd.com/people/documents/881212-a-campbell and find AGNON and DO-DID, they should give the answer you seek.

Many other graphic and text explanations.

Number of Servicers is irrelevant.

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William A. Roper, Jr.

FIGHTING4MYHOME:

You seem to be a little confused as to both the terminology and the sequence.

Each loan is originated once.  The originator is the entity originally making the loan, at least nominally funding the loan at the table, shown on the HUD-1 Settlement Statement and appearing as the Lender on the promissory note and mortgage, deed of trust or other mortgage security instrument.  The originator is the beneficiary of the pledges made within the mortgage, deed of trust or other mortgage security instrument.

At one time, the originator would have also been described as the original mortgagee, though recently MERS has hijacked that term and claims to be the Lender's nominee and the mortgagee under the mortgage, deed of trust, or other mortgage security instrument.  (Some courts have found this claim to be legally questionable.)

There are basically two types of originators.  A full service mortgage company typically sells all of its loans, usually within about sixty days of origination, but retains the mortgage servicing rights.  But there also exist many much smaller mortgage lenders which act as corresponding lenders for the larger mortgage companies and banks.  Very often, these corresponding mortgage lenders lack any loan servicing capability at all.  They have no servicing department.  These solely originate loans and sell ALL of their loans servicing released to the larger mortgage companies.  When dealing with a corresponding lender, you will typically be advised at closing or within a Hello / Goodbye letter immediately following closing to make your payments to the larger mortgage company purchasing your loan.

One thing that also distinguishes full service mortgage companies from the corresponding lenders is the existence and availability of a warehousing line of credit.  Usually, the larger mortgage companies have a so-called warehousing line of credit from a much larger commercial bank.  The full service mortgage companies draw down this credit line to actually fund the loans, not unlike the way a merchant will draw down a credit line to purchase inventory.  Like the merchant pledging inentory to the bank, the mortgage lender pledges the newly originated mortgage production immediately upon closing as collateral for this credit line.

By contrast, the corresponding lenders have one or more of what is described as a captive warehousing line of credit.  The captive warehousing line is made available by the larger mortgage lenders which typcially agree to fund those loans they have agreed in advance to purchase

To a certain extent, the corresponding lenders are then acting nominally as the Lender at closing, but the loan is really being funded by the larger lender which has already agreed to purchase each loan and which will purchase the loan immediately upon closing.

Mechanistically, what ought to happen in the case of the corresponding lender is immediately upon closing the Lender would indorse the note and assign the mortgage to the larger lender purchasing the loan.  Then the promissory note would be sent, usually by overnight mail to the purchasing lender (indorsement and delivery).  The assignment would be immediately sent together with the mortgage, deed of trust or other mortgage security instrument to be recorded within the records of the county where the property is located.

*

The mortgage lender making the loan at closing and shown as the Lender on the instruments is always the originator.

But as described above, a loan may be sold immediately together with the servicing rights and the borrower may make his or her initial payments to another entity.

*

After the loan is closed (and after the initial sale servicing released in the case of a corresponding lender), the originating lender (or the purchasing corresponding bank) will indorse and deliver the promissory note to an institutional custodian acting on behalf of the warehousing lender.  In the case of correspondent loans, if the original indorsement was in favor of the correspondent bank, a second separate blank indorsement is added.  If the original indorsement was in blank then the note need only be delivered to the custodian.

The delivery of the indorsed promissory note to the warehousing lender's custodian is necessary to perfect the warehousing lender's security interest in the loan.

In the meantime, depending upon the size and scale of the mortgage company making or purchasing the loan, the loan is either sold to FNMA / FHLMC, exchanged with FNMA / FHLMC for mortgage backed securities, sold to a larger loan aggreagator OR accumulated to be securitized along with other loans.

Loans are almost ALWAYS sold within sixty days, in part because this is expressly contemplated in the warehousing credit agreement.  That is, the warehousing lender is not advancing funds for mortgage companies to make and hold (invest in) loans.  It is advancing funds for the lenders to make and sell loans.

Only large depository institutions have access to deposit funds to portfolio loans.

The sale of the loan is completely transparent to the mortgage borrower.  (I use this term meaning that the borrower doesn't SEE THE SALE as opposed to there being good transparency, which might imply that it is easily seen.)  The borrower most often continues to pay the very same servicer, as the servicing rights are not necessarily transferred upon sale.  Ownership of the promissory note has changed, but the borrower is not notified and isn't aware of the sale.  (A borrower WILL be notified when the servicing rights are sold.)

When the loan is sold (or exchanged for residential mortgage backed securities) to FNMA or FHLMC, this will usually be the very LAST sale of the loan, UNLESS the GSE requires the repurchase of the loan by the seller/servicer upon discovery of a breach of warranty.

While the mortgage loans may continue to be bought and sold, this is then done through the sale of the mortgage backed securities backed by the loan. 

Similarly, when loans are sold for securitization on Wall Street, the sale to the mortgage trust is the LAST SALE of the whole loan.  Once the loan enters the mortgage pool service as collateral for a RMBS issue, the loan remains within that trust UNLESS there is an enforcement of the required repurchase requirement under the seller's / sponsor's warranties.

*

Here I should note that there is much MISINFORMATION about this in the courts and the news media.  The mortgage servicers and particularly MERS have propagated the MYTH that loans are repeatedly bought and sold.  THIS IS UNTRUE.  The assertion that many loans are repeated bought and sold is pure unadulterated BULL****.  The typcial loan might be traded several times within sixty to ninety days of origination, but thereafter finds its way into a mortgage trust, either with a GSE or a private Wall Street conduit.  And once the loan is in this trust, there it remains.

Note my prior post distinguishing and correcting the oversimplification by KESSLER.  KESSLER is absolutely CORRECT that the loans finding their way into the trusts REMAIN THERE, EXCEPT for required repurchases under the PSA and/or trust indenture.

*

So in terms of sequence, FIRST there is origination which occurs at CLOSING.  This happens ONCE.  Then there is one or more sale of the loan.  The first sale may involve sale servicing released when a correspondent lender makes this loan.  When the loan is sold servicing released, the borrower is immediately notified as to the identity of the new servicer.

Almost ALL sales of the loan itself may be completed with the securitization of the loan, usually within sixty to ninety days of origination.

After the securitization of the loan, the servicing rights to the loan may be sold again one or more times.  Mortgage servciers sometimes sell all or a part of their servicing portfolio.  Financial institutions also sometimes acquire other financial institutions, recently often under distress.  When a financial institution is acquired, its mortgage servicing operations will very often be consolidated into those of the acquiring parent.

It is UNUSUAL for the servicing rights to loans in Wall Street trusts to be repeatedly sold, as the servicer is typically identified in the SEC registration statement.  It would be more common for the servicing rights to a Wall Street securitized issue to change only upon acquision of the servicer by another financial institution and/or the insolvency of the servicer.

It would be more common for the servicing rights of FNMA / FHLMC loans to be traded, usually as an aggregation to larger and larger servicing entities.

*

Here, it is appropriate to add a postscript as to what typically happens upon a required repurchase.

IF a loan is found to have violated the seller's / sponsor's representations and warranties, the GSEs or the mortgage trusts can REQUIRE the repurchase of this loan.  It used to be that a loan that went into default for ANY REASON within the first six months was subject to required repurchase by FNMA / FHLMC.  (I am unsure if this is still true, but it probably is.)

There are a variety of other circumstances that might result in a required repurchase.

IF a lender is required to repurchase a loan, the lender is going to have to try to find some other investor to purchase the loan right away, usually at a very steep loss.  This is necessary because most mortgage lenders lack the capital to portfolio loans (the ability to hold the loan as an asset).

There are several concerns that are bottom feeders, which purchase these loans.  Very often the loans subject to required repurchase may be sold servicing released, so the servicer would change in this instance.

Very often, these bottom feeding entities are buying loans for a fraction of the principal amount.  If they can immediately foreclose on these loans and sell the property for at least the full loan amount, they can make a very tidy profit.  The servicers specializing in the servicing of these loans are amongst the most predatory and unscrupulous.  They are almost never seeking to work out the loan or to help the borrower stay in their home.  Their business model is based upon either precipitating a rapid foreclosure or in soaking a borrower for various invented loan fees and charges.  

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Very impressive.

So I guess that the next step is to order an audit loan report to
    the prospectus(8k+10K),   plaintiff papers,  and mortgages papers?

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FIGHTING4MYHOME
Thank you for the explanation / information!

I probably didn't word this as clear as I should have in my first post so I'll try again.  My house loan has gone through these processes
1.  Original Loan bank
2.  Transfer of Assignment of Deed of Trust to a different bank
3.  Transfer of Assignment of Deed of Trust but THE ASSIGNEE NAME IS BLANK one this one
4.  Transfer of Assignment of Deed of Trust to another different bank
5. Transfer of Assignment of Deed of Trust to a Trustee for a REMIC Trust Series

My initial question was basically are these 4 "transfers" what is considered the A-D process?   There are no records of my loan having been placed with MERS, FannieMae, GNMA etc.

Also, just as a side note, I mentioned that that servicing has changed hands 7 times. 

Again, thank you for your help.


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MSFraud Admin
FIGHTING4MYHOME:

Someone on the Forum wants to talk to you.  Please send your email address to contact@msfraud.org and we will send you their contact information. 
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William A. Roper, Jr.
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FIGHTING4MYHOME said
3.  Transfer of Assignment of Deed of Trust but THE ASSIGNEE NAME IS BLANK one this one


It is very important to distinguish and understand that while an indorsement in blank is expressly contemplated and permissible under the UCC, an assignment in blank is probably at best an incomplete conveyance and may be a VOID instrument.

In thinking about mortgages, deeds of trust and other similar mortgage security instruments, as well as the assignments which might assign the rights to these, generally the law of real estate conveyance, contract law and the statute of frauds controls.  But the application of this law VARIES from jurisdiction to jurisdiction so it is important to carefully research the law of YOUR STATE and to consult a qualified and licensed lawyer specializing in the law of real property.

But in thinking about this problem, consider the equities and public policy considerations which would attend to deeding a piece of real estate in blank.  That is, suppose that an owner of a property executed a deed, but left the name of the grantee BLANK.

IF one applied the law of commerical transactions embodied in the UCC, one might think that the holder of such a deed would own the real property.  But this doesn't make sense and is problematic from public policy considerations for a variety of reasons.

First, the very idea that there might be a secret, unknown or indefintie owner of parcels of real property is contrary to the express intention and purpose of the recording acts.  Suppose that A grants a deed in BLANK and delivers it to B.  Since the deed is actually BLANK, B doesn't RECORD this transaction.  What is to stop A from selling the very same tract to some other innocent purchaser, who, after checking the county records, believes that he is getting good title to the property.  If A then subsequently sells the same tract to C, executing a correct and complete deed, then C can record this deed and ends up with a superior title to B's deed in BLANK.

One might suppose that one could RECORD the deed in blank putting others on notice that the property had been sold and alerting all that there was an UNKNOWN OWNER, which seems to be roughly the equivalent to the situation you describe with the blank assignment.  

But with a deed, there are a variety of other considerations. 

For example, public taxing authorities have a legitimate need to KNOW the identity of the owner to properly assess and collect ad valorem taxes.  A deed in blank frustrates the public's right to lay and collect taxes from the correct owner.

Similarly, public authorities need to know WHOM to notify should they need to obtain easement rights or to initiate a comdemnation proceeding.  Public utilities may similarly need to know the identity of the owner in respect of easements for public utilities.

Law enforcement officials may need to know the owner of a property for the purposes of contolling illegal activity taking place on a property or in respect of treaspass considerations.

Environmental officials may need to know the identity of the owner should environmental issues affecting the community arise.

Neighbors will occasionally need to know the identity of an owner when issues arise relating to boundaries, encroachments, or hazards (e.g. suppose that there is a dangerous tree growing on one property and threatening another or a poorly maintained dam or similar feature the failure of which would endanger others).

And strangers passing by the property may from time to time have a need to know the identity of the owner when improper maintenance of the property creates other dangers or hazards or causes an injury.  For example, many jurisdictions impose some duties upon owners to keep sidewalks clear of snow and ice.  How will an injured party learn the identity of a secret owner concealed behind a deed in blank?

While these problems may all seem to be unique to deeds rather than mortgages, the law usually views these similarly.  And the public policy interests in discovering the correct identity of the owner clearly extends to mortgages, deeds of trust and other mortgage security instruments, as well.

Suppose that a public taxing authority or a homeowner's aassociation with rights to collect dues seeks to foreclose on a property for non-payment of taxes or Condo fees.  Usually, the lien holders are required to be served with such a suit to afford these entities an opportunity to appear and oppose the foreclosure or to at least bid at the auction to protect their interests.  HOW are these to find out the identity of the owner, if not from the public records.

And how are subsequent prospective purchasers of a property encumbered by lien to discover WHO to pay off and which entity is authorized to release a lien?

It should be noted here that the very existence of MERS reflects the interests of lien holders in being contacted by interested persons and notified when suits involving a property emerge.  

*

In somewhat of a reducto ad absudum argument, where an assignment is recorded in favor of BLANK, why not simply execute a RELEASE of lien by BLANK?  Who is to say that John SMITH doesn't have the authority to release a lien on behalf of BLANK?

*

The entire specter of a deed or mortgage granted in favor of an unidentified grantee is so bizarre and irrational that there exist only a handful of cases nationally on this topic.  (It has been some time since I researched this area and I do not recall these cases by name.)

As I recall, there are two schools of thought as to the correct handling of such a situation.  One approach is that the instrument is inherently incomplete and therefore VOID.  The other is that the instrument is incomplete, but might be rendered complete by inserting the name of the grantee.  But in the latter case, there is a recognition that the effective date of the instrument would be the date that the instrument was completed, NOT the date of original execution of the deed in blank!

The former holding would seem to suggest that the assignment is VOID and therefore that the chain of assignments is BROKEN at the point of the assignment in blank.

The latter holding presents a plaintiff with a rather vexing PROOF PROBLEM.  Recording the assignment in blank creates a PUBLIC RECORD that the instrument lacked a grantee at the date of recording.  While later alteration of the instrument to include the actual grantee might seem to CURE this problem, WHEN did the alteration occur?  Absent some affirmative evidence as to the DATE that the identity of the grantee was inserted, the plaintiff may be stuck with the rather persuasive proof that there was no grantee at the date of recording.

If there is only a single assignment in blank into a plaintiff, then at best the date of the completion of this assignment is critical to a determination as to whether the plaintiff had standing to foreclose at commencement of the suit, which is a Constitutional imperative in many jurisdictions.

*

The subsequent assignments BEFORE the insertion of the grantee completing the assignment in blank are also problematic.  In many jurisdictions, the rule is that one cannot grant what one does not have.  So if the grant to BLANK wasn't effective until AFTER a subsequent assignment was executed, each subsequent assignment may be VOID due to a lack of any interest by the grantor to convey.

*

In closing, I would point out that defendants rarely either research or present strong legal arguments or public policy analysis showing a court WHY an assignment in blank neither makes sense nor is consistent with public policy.

I would encourage you to do a little research on your own, but critically to consult with a really good real estate lawyer.  A well articulated argument may be very persuasive to a court!

P.S. -- Also take a look at the Ohio appellate court decision in HSBC Bank USA, N.A. v. Thompson.  Note the Court's logic as to the significance of allonges that appeared to be out of sequence.  Similar logic applies to assignments out of chain!
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FIGHTING4MYHOME
Mr. Roper - I am taking notes! And yes, I do have an attorney on the case but like you said, it is in my best interest to also to be knowledgeable.  I am learning a lot from this forum but as you pointed out, there are things that still confuse me. Such as, I have yet to find the "remic pool" information regarding my loan.  It doesn't come up in the IRS list and I haven't located it on the SEC site. The only reason I think it has been securitized is because I received letter from the "trustee" stating the remic name and trust series number.  We are waiting for the opposing counsel to furnish us with their proof of standing, the accounting of the loan, etc.  So far -- nothing.  We have had one hearing before the Judge where he allowed opposing counsel an extension of time to bring forth their documentation.  That date has passed and my attorney said last week he hasn't received any response yet.  I will keep you posted to any new event.  Again, thank you and everyone for sharing valuable information and your experiences with me.
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The Equitable One
RELEASE of lien by BLANK

That had me rolling on the floor.

The Mass. case of US Bank v Ibanez, Judge Long, that was decided October 14, 2009, addressed assignments in blank. In essence Long said they have no legitimacy. A read of that case will likely be instructive.

I am aware that many Pooling and Servicing Agreements call for assignments to be executed in blank.

That doesn't really comport with what Mr. Roper has expressed. For the record I agree with Roper and believe the PSA's are calling for a document that is void.
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Texas

Assignment 1 – Negotiation 2

Homeowner’s Note and Security Instrument

 

Reference for this writing will be the Uniform Commercial Code.[1]

 

It looks like a duck, it squawks like a duck, and it waddles like a duck, but it can’t fly backwards. MERS would like you to believe that assigning lien rights to a “valid note holder”/”non valid note holder” is flying the right legal path. Where is the FAA when you need them? Grand Pappy used to say; “It isn’t illegal until you get caught”. Time for duck soup?

 

OK, Squawkers, negotiation of the instrument is not the same as assigning lien rights to the security instrument to subsequent parties reflecting negotiation.

§ 9-102 of the Uniform Commercial Code states in part: "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment”. § 3-104 NEGOTIABLE INSTRUMENT, (b)  "Instrument" means a negotiable instrument. § 3-201 NEGOTIATION, (a)”Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

§ 9-102 identifies that negotiation is required to have any assignments of the lien to accompany the negotiation. For MERS to state they can make the assignment of the security and the note would follow is like telling the duck to fly backwards.

 

Article 9 allows a temporary period of perfection to allow the subsequent purchaser to comply with the laws of the local jurisdiction to transfer perfection. Failure to transfer lien perfection according to laws of local jurisdiction would render the security instrument a nullity.

 

MERS and the PSA: MERS named as “Nominee for Lender” on the security instrument, MERS as agent; maybe between the loan originator and MERS but MERS could not be an agent of a contract “PSA” that has not yet been executed. The PSA defines the agents of the trust and clearly identifies MERS as only a registry. Herein lies an issue, MERS may claim to be an authorized agent of the servicer or the Trustee of the Trust but no such agent relationship is readably identified in any PSA’s the author has reviewed.

 

The author has written about a scenario as if the instrument and the security were in tangible form, in fact, things are worse, the means and methods that are currently being followed are that of an intangible transferable record. The Articles would support a transferable record but as an instrument and security cannot be in intangible form the procedure is fatally flawed.

 

Maybe in the future when laws are changed then the banks ducks would quack and be able to fly backwards, not today under current laws.

 

Elections – November - Vote Trust In

If that means voting them all out, so let it be!

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In the local recorder’s office here in a non-judicial state, I have an assignment of the note and deed of trust from MERS as nominee to the servicer (3 years after the cutoff date of the trust) and then from the servicer to the trustee of the mortgage loan trust (again roughly 3 years after the cutoff date).

 

Here’s what the trust says:

 

DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES 

 

     Section 2.01. Creation and Declaration of Trust Fund; Conveyance of

Mortgage Loans.                  

 

     (a) Concurrently with the execution and delivery of this Agreement,

the Depositor does hereby transfer, assign, set over, deposit with and          

otherwise convey to the Trustee, without recourse, subject to Sections 2.02    

and 2.05, in trust, all the right, title and interest of the Depositor in and  

to the Trust Fund. Such conveyance includes, without limitation,

 

(i) the  Mortgage Loans, including the right to all payments of principal and interest  

received on or with respect to the Mortgage Loans on and after the Cut-off     

Date (other than Scheduled Payments due on or before such date), and all such  

payments due after such date but received prior to such date and intended by   

the related Mortgagors to be applied after such date

 

(ii) all of the Depositor's right, title and interest in and to all amounts from time to time credited to and the proceeds of the Distribution Account, any Custodial        

Accounts or any Escrow Account established with respect to the Mortgage Loans;

 

(iii) all of the rights and obligations of the Depositor as assignee of the    

Seller with respect to the Seller's rights and obligations under the Purchase  

and Servicing Agreements pursuant to the Acknowledgements; (iv) all of the     

Depositor's right, title or interest in REO Property and the proceeds thereof; 

 

(v) all of the Depositor's rights under any Insurance Policies related to the  

Mortgage Loans; (vi) $2,000 (which amount has been delivered by the Depositor  

to the Securities Administrator to be held in the Distribution Account until   

distributed to the Holders of the Class I-P and Class 3-P Certificates         

pursuant to Section 5.02(a)) and $100, plus interest, (which amount has been   

delivered by the Depositor to the Securities Administrator to be held in the   

Distribution Account until distributed to the Holders of the Class A-R         

Certificates pursuant to Section 5.02(a)); and

 

(vii) if applicable, the Depositor's security interest in any collateral pledged to secure the Mortgage  Loans, including the Mortgaged Properties and any Additional Collateral   relating to the Additional Collateral Mortgage Loans, including, but not   limited to, the pledge, control and guaranty agreements and the Limited        

Purpose Surety Bond, to have and to hold, in trust; and the Trustee declares   

that, subject to the review provided for in Section 2.02, it has received and  

shall hold the Trust Fund, as trustee, in trust, for the benefit and use of    

the Holders of the Certificates and for the purposes and subject to the terms  

and conditions set forth in this Agreement, and, concurrently with such        

receipt, has caused to be executed, authenticated and delivered to or upon the 

order of the Depositor, in exchange for the Trust Fund, Certificates in the     

authorized denominations evidencing the entire ownership of the Trust Fund.    

 

 The foregoing sale, transfer, assignment, set-over, deposit and

conveyance does not and is not intended to result in the creation or           

assumption by the Trustee of any obligation of the Depositor, the Seller or    

any other Person in connection with the Mortgage Loans or any other agreement  

or instrument relating thereto except as specifically set forth therein.       

 

 In connection with such transfer and assignment of the Mortgage

Loans, the Depositor shall cause to be delivered and the Custodian acting      

on the Trustee's behalf will continue to hold the documents or instruments     

listed below with respect to each Mortgage Loan (each, a "Trustee Mortgage File") so transferred and assigned:                                                      

 

    (i) with respect to each Mortgage Loan, the original Mortgage Note

endorsed without recourse in proper form to the order of "RIPOFF Bank         

National Association, as Trustee of RIPOFF Mortgage Loan Trust         

2006-99RY, Mortgage Pass-Through Certificates, without recourse", or in blank  

(in each case, with all necessary intervening endorsements, as applicable);    

 

   (ii) with respect to each Mortgage Loan (other than a Cooperative

Loan) that is not a MERS Mortgage Loan, the original Mortgage with evidence of  recording thereon, or if the original Mortgage has not yet been returned from   the recording office, a copy of such Mortgage certified by the applicable Originator, title company, escrow agent or closing attorney to be a true copy   of the original of the Mortgage which has been sent for recording in the appropriate jurisdiction in which the Mortgaged Property is located, and in the case of the each MERS Mortgage Loan, the original Mortgage, noting the  presence of the MIN of the Mortgage Loans and either language indicating that  the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the  Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon;      

 

    (iii) with respect to each Mortgage Loan (other than a Cooperative

Loan) that is not a MERS Mortgage Loan, the Assignment of Mortgage in form and 

substance acceptable for recording in the relevant jurisdiction, such          

assignment being either (A) in blank, without recourse, or (B) endorsed to     

"RIPOFF Bank National Association, as Trustee of RIPOFF Mortgage Loan 

Trust 2006-99RY, Mortgage Pass-Through Certificates, without recourse";        

 

   (iv) with respect to each Mortgage Loan (other than a Cooperative

Loan) that is not a MERS Mortgage Loan, the originals of all intervening       

assignments of the Mortgage, if any, with evidence of recording thereon, or if 

the original intervening assignment has not yet been returned from the         

recording office, a copy of such assignment certified by the applicable        

Originator, title company, escrow agent or closing attorney to be a true copy  

of the original of the assignment which has been sent for recording in the     

appropriate jurisdiction in which the Mortgaged Property is located;           

 

  (v) with respect to each Mortgage Loan (other than a Cooperative

Loan), the originals of all assumption, modification, consolidation or         

extension agreements, if any, with evidence of recording thereon;              

 

(vi) if any, with respect to each Mortgage Loan (other than a

Cooperative Loan), the original policy of title insurance (or a true copy      

thereof) with respect to any such Mortgage Loan, or, if such policy has not    

yet been delivered by the insurer, the title commitment or title binder to     

issue same;                                                                    

 

(vii) if any, with respect to each Mortgage Loan (other than a

Cooperative Loan), the original power of attorney and guaranty agreement with  

respect to such Mortgage Loan;                                                 

 

(viii) [Reserved];                                           

 

(ix) with respect to each Mortgage Loan which constitutes a  

Cooperative Loan:                                                              

 

 

              (a)      the original of any security agreement or similar

              document executed in connection with the

Cooperative Loan;        

 

                (b)      the original Recognition Agreement and the original

          Assignment of Recognition Agreement;

 

      (c)      UCC-1 financing statements with recording

              information thereon from the appropriate

                    governmental recording offices if necessary to

                      perfect the security interest of the Cooperative

                   Loan under the Uniform Commercial Code in the

                       jurisdiction in which the Cooperative Property is

                        located, accompanied by UCC-3 financing statements

                        executed in blank for recordation of the change in the secured party thereunder;

 

(d)      an Estoppel Letter and/or Consent;

 

           (e)      a search for (i) federal tax liens, mechanics'

                liens, lis pendens, judgments of record or

                       otherwise against (x) the Cooperative Corporation

                      and (y) the seller of the Cooperative Unit, (ii)

                        filings of financing statements and (iii) the deed

                     of the cooperative project into the Cooperative Corporation;             

 

              (f)      the guaranty of the Mortgage Note and Cooperative

Loan, if any;            

 

              (g)      the original Proprietary Lease and the Assignment

                       of Proprietary Lease executed by the Mortgagor in

                         blank or if the Proprietary Lease has been assigned

                     by the Mortgagor to the Seller, then the Seller

                     must execute an assignment of the Assignment of

     Proprietary Lease in blank; and

 

          (h)      if any, the original or certified copy of the

              certificates evidencing ownership of the

                  Cooperative Shares issued by the Cooperative

                Corporation and related assignment of such

                       certificates or an assignment of such Cooperative

                      Shares, in blank, executed by the Mortgagor with

such signature guaranteed;

 

(x) [Reserved]; and                                          

 

  (xi) any other document or instruments required to be delivered.

 

     In addition, in connection with the assignment of any MERS Mortgage

Loan, it is understood that the related Originator will cause the MERS(R)      

System to indicate that such Mortgage Loans have been assigned by the related  

Originator to the Trustee in accordance with this Agreement for the benefit of 

the Certificateholders by including (or deleting, in the case of Mortgage      

Loans which are repurchased in accordance with this Agreement) in such         

computer files the information required by the MERS(R) System to identify the  

series of Certificates issued in connection with such Mortgage Loans. It is    

further understood that the related Originator will not, and the Master        

Servicer hereby agrees that it will not, alter the information referenced in   

this paragraph with respect to any Mortgage Loan during the term of this       

Agreement unless and until such Mortgage Loan is repurchased in accordance     

with the terms of this Agreement.                                               

 

  On or prior to the Closing Date, the Depositor shall cause to be

delivered to the Master Servicer, the Trustee and the Custodian an electronic  

copy of the Mortgage Loan Schedule in a form acceptable to the Master Servicer,

the Depositor, the Trustee and the Custodian.                                  

 

     (b) As soon as is practicable after the Closing Date, the Depositor

shall cause the Servicer of any Additional Collateral Mortgage Loan to deliver 

to the applicable Custodian the Assignment and Notice of Transfer with respect 

to each Additional Collateral Mortgage Loan as well as the assignments of any  

rights with respect to each Additional Collateral Mortgage Loan under any      

Limited Purpose Surety Bond.                                                   

 

   (c) In instances where a title insurance policy is required to be

delivered to the applicable Custodian on behalf of the Trustee and is not so   

delivered, the Depositor will provide a copy of such title insurance policy to 

the applicable Custodian on behalf of the Trustee, as promptly as practicable  

after the execution and delivery hereof, but in any case within 180 days of    

the Closing Date.                                                              

 

      (d) For Mortgage Loans (if any) that have been prepaid in full after

the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of      

delivering the above documents, herewith delivers such amount to the           

Securities Administrator, and delivers to the Securities Administrator, the    

Trustee, and the applicable Custodian, an Officer's Certificate which shall    

include a statement to the effect that all amounts received in connection with 

such prepayment that are required to be deposited in the Distribution Account  

pursuant to Section 4.01 have been so deposited. All original documents that   

are not delivered to the applicable Custodian on behalf of the Trustee shall   

be held by the Master Servicer or the related Servicer in trust for the        

benefit of the Trustee and the Certificateholders.                             

 


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William A. Roper, Jr.
William:

Is there a question??

The recorded instrument is a clearly a classic forgery.  MERS is NEVER the owner of the promissory note.  NEVER.

See the Appellant's Brief in the MERS v. Nebraska Dept. of Banking case.

MERS IS the nominee and mortgagee of record in many mortgages, deeds of trust and other mortgage security instruments.

The attorneys for many mortgage servicers routinely create a false instrument purporting to transfer not only the mortgage, deed of trust or other mortgage security instrument, but also the promissory note, bond and/or mortgage indebtedness to create a false impression that the note and debt is being assigned together with the mortgage, deed of trust or other mortgage security instrument.

This is done for two reasons.  First, these false representations help to overcome five centuries of common law and probably binding court decisions in most states showing that a conveyance of the mortgage lien without a contemporaneous conveyance by negotiation of the debt is a nullity.

Second and more importantly, they have created a piece of false evidence that can be pled into court and used against you in subsequent litigation.

This evidence also creates a perception that the private sale is being conducted regularly in accordance with the provisions of the deed of trust, thus giving it the appearance of legal effect.

However, BEWARE.  GET A GOOD ATTORNEY WHO SPECIALIZES IN CONSUMER DEBT AND BANKRUPTCY MATTERS WITH AN EMPHASIS ON MORTGAGE FORECLOSURE.  The deck is especially heavily stacked in favor of the foreclosing entity in a so called non-judicial foreclosure state, because YOU are the party who would have to go into court and ask the court to intervene and for relief.  That also means that YOU have the burden of proof.  And ALL of the discussion relating to jurisdiction and standing within this Forum is totally IRRELEVANT where YOU are seeking the court's jurisdiction rather than the mortgage servicer/investor in a judicial foreclosure state.

So IF you are in default of your mortgage loan, your chances of successfully defending in a non-judicial foreclosure setting are much impaired compared with the prospects in a judicial foreclosure.  Courts will show great deference to the private power of sale appearing within the deed of trust.

*

You will have to either seek a TRO, OR seek timely protection from a Federal Bankruptcy Court in order to delay or prevail.

FIND A GOOD LAWYER! 

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Thanks William!  Yes, there was a question.  Based upon the limited info I have provided, do you think I would survive in a relief from stay motion in BK?

The assignment from MERS to the Servicer separates the note from the deed of trust, & was notarized and recorded roughly 3 years after the closing/cutoff date of the trust.  I learned the name of the trust from the next assignment, from the servicer to the trustee.  That assignment is bogus because of the previous assignment (from MERS to the servicer & this assignment is roughly 3 years late).  I looked at the specifics of that trust and there is a section that says the mortgage loans are to be recorded:
 To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for
real property records in all the counties or their comparable jurisdictions in
which any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is necessary under
applicable law or reasonably requested by the Purchaser.

Also the signatures of the vice presidents who signed the mers to servicer assignment, substitution of trustee, and servicer to the securitization trustee assignments do not match when compared
to other assignments across the country. they are also signing on as vice presidents of other financial institutions.

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