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, I'm in foreclosure, and the notary that made the assignment was caught in the
fraud assignment scandal of shapiro + fishman in FL.  Even the law offices itself issued
that they had made an "error". It all over the forums.

The assignment that this notary made has clearly signs of fraud.

QUESTION: CAN I "SUBPOENA" THIS NOTARY?
                     OR ARE THERE OTHER METHOD IN WHICH THIS PERSON
                     IS FORCED TO TELL THE TRUTH, LIKE AN AFFIDAVIT,
                     OR SOMETHING ALIKE?

The notary was already caught in the fraud, and my assingment shows the same faults that has in the fraudulent assignment, PLUS the "Mers Secretary" that signed
the assignment,  is the same person that works for my servicer!

I have plenty of proof that may be upgraded as "evidence" in the court

Any thoughts?

                    

         

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I think you can send the notary a Request for Admission to make them admit their fraud.

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I am aware that any comments here does NOT constitute legal advise.

So feel free to speak your mind. The post from Ann is very good.
I will consult a lawyer, but first I want your thoughts, because some lawyers do not
pay much attention to the little guys. 

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William A. Roper, Jr.

Jose:

First, please understand that this is NOT legal advice!  I am NOT an attorney.  You would be very well counseled to obtain a qualified, licensed attorney to represent and advise you.

This having been said, I believe that it is important to distinguish several issues that are implicit in your query and Ann's response.

These questions include the validity of a purported assignment, the consequences of irregularities relating to an authentication (notarization), ownership of the promissory note and mortgage and means of obtaining evidence for your case through discovery.

*

Generally speaking, in most jurisdictions, a deed need NOT be witnessed NOR must it be notarized in order for such an instrument to be valid.  The requirements for the validity of deeds are usually set forth in what in most states is called "The Statute of Frauds".  This varies from state to state.

The need for witnesses and or authentication by a notary typically arises rather from the recording acts.

Both the statute of frauds and the recording acts vary from state to state, so you need to check the statutes and cases for YOUR jurisdiction to fully understand how the law in your state works.

In ancient times, pretty much any deed which conformed to the statute of frauds, which requires contracts or deeds for the sale of interests in real estate to be in writing and signed by the party against whom the instrument is enforceable, would be valid.  But recording acts were also enacted to encourage the registration of deeds and to help avoid disputes as to the ownership of real property.

Under these recording acts, a deed had to meet certain specifications to be eligible for recording.

Early in the history of America, even in the Colonial period, the typical process of conveyance involved first the deeding of a property, signed by the grantor, as well as the execution of the document by one or more witnesses.  AFTER the execution of the deed, the grantee would bring the executed deed to court together with either the grantor himself, in person, OR two of the witnesses to the deed.  These folks had to appear IN PERSON in the courtroom during a court session that very often only met once a month or every other month.

The court would then hear the testimony of the witnesses under oath as to the validity of the deed.  Only after hearing testimony, would the court ORDER the recording of the deed in the public records.  And when the deed was recorded, the Clerk literally made a copy of the deed, word for word in a single continuous deed book kept for that purpose.

It is clear that there are several awkward aspects to this procedure.  First, very often the court house was some distance from the location of the property and the place where the witnesses lived.  It wasn't always convenient for these folks to travel the distance to the court, particularly in very large counties (some places that are now STATES were at one time counties within the early colonies).  Moreover, witnesses could get sick and die between sessions of the court.

The critical thing, though, wasn't whether the witnesses lived or died, or the regularity of their signatures as witnesses.  Rather, the central question was whether the maker of the deed actually executed the deed as his voluntary act.

So even if the maker and one or more witnesses dies, if the grantee could PROVE that the maker/grantor had voluntarily executed the deed, then the deed would be found to be valid and eligible for recording.

Bear in mind that there can be circumstances where the deed is ineligible for recording, but where the deed might still convey a valid interest in the subject property.

As one historical aside, in those days, while real property tended to be in the name of the husband, a woman usually had a "dower" interest in the property.  Therefore, a man usually had to have his wife also sign the deed as a "release of dower" in order for the deed to be valid.  And even in Colonial times, the law in some places recognized that the husband had such an influence and control over his wife that law required that the wife be examined separately by a trusted person to assure that she was executing the deed freely!

So in some cases, there would be two witnesses to the husband's signature and yet another third witness who would appear in person and swear that he had examined the wife privately and that she freely consented to the transaction, releasing her right of dower.

Another variant on this process involved witnesses from particularly far away places.  Those witnesses might appear in court in another jurisdiction where they were sworn and examined.  If their testimony was found to be credible, the foreign jurisdiciton might then prepare (for a fee) some official sealed record which would show that the court had examined the witnesses and what these witnesses had sworn.

It is this process of officially examining witnesses that has given rise to the development of notaries.  The state has essentially outsourced this aspect of obtaining official sworn testimony from persons who are supposed to be both trained and trustworthy.

*

I mention this historical background by way of emphasis, to show that even if you PROVED some serious irregularity with respect to the notarization, this would NOT necessarily implicate the validity of a deed or assignment in most jurisdicitons.  Rather, it would usually only implicate the eligibility of the deed or assignment for recording.

So while it is interesting to impeach the plaintiff's evidence respecting the assignment, you need to keep clearly in mind that total destruction of the legitimacy of the authentication may not preclude the court from finding for a plaintiff.

*

On the other hand, to your rather distinct advantage is the rule that in a summary judgment setting, the plaintiff is usually only entitled to summary judgment where it can be shown that there are no disputes of material facts in the case and that the plaintiff has shown by unrefuted and essentially undisputed evidence that the plaintiff is entitled to summary judgment as a matter of law.

Moreover, the court in most places is required to view all of the summary judgment evidence in the light which is most favorable to the party opposing summary judgment.

So if you can show that there are some key disputes as to material facts, this can prevent the plaintiff from winning a summary judgment and force the matter to a trial.

*

The KEY issue then is whether the admitted irregularities as to the authentication of these assignments can be reasonably extended to show that there are legitimate questions of fact as to the validity of the execution and or the validity of the assignment itself.

Since almost ALL of the assignments pleaded into evidence by plaintiffs are bald FORGERIES, if you do your homework AND submit admissible evidence showing reasons to believe that the assignment is of questionable validity, then you ought to be able to block a summary judgment.

There are a number of other discussions and resources discussed in other threads showing the types of things to look for.  But in the end, you really need a competent expert witness to put in an affidavit showing that the assignment is a forgery.

*

Bear in mind that in a summary judgment proceeding the ONLY proof you are going to typically be allowed is properly executed and timely served affidavits and discovery responses.  You will NOT be able to bring witnesses to or be entitled to testify yourself at a summary judgment proceeding.

THIS IS ONE OF THE KEY WAYS THAT PRO SE LITIGANTS GET THROWN UNDER THE BUS WHEN APPEARING IN COURT UNREPRESENTED.  THE PRO SE LITIGANT THINKS THAT THEY ARE GOING TO GO TO THE HEARING AND BE ALLOWED TO TESTIFY OR TO SHOW THE COURT SOME GOOD DEFENSIVE EVIDENCE.  BUT IF THE EVIDENCE WASN'T DEVELOPED INTO AFFIDAVIT FORM AND FILED IN TIME, THE COURT WILL REFUSE TO CONSIDER THE EVIDENCE.  SO THOSE WHO SHOW UP HAVING FAILED TO PREPARE AND FILE THE AFFIDAVITS, OR TO CONDUCT DISCOVERY FIND THAT THEY HAVE ALREADY LOST BEFORE THE HEARING EVEN GETS UNDER WAY.  THIS IS WHY IT IS IMPORTANT TO GET AN ATTORNEY!

*

Although I have repeatedly hit on this theme in other discussion threads, I also want to remind you and caution you that a valid assignment is NOT usually necessary for the plaintiff to become the owner and/or holder of a promissory note.  What IS necessary under the UCC is indorsement and delivery.  (Some cases, such as the recent unfortunate Taylor decision in Florida have held that it isn't even necessary to prove indorsement, though this is contrary to well established law in most places.) 

A properly indorsed and delivered promissory note usually carries with it the mortgage, deed of trust and/or other mortgage security instrument, though it is unclear if this is actually the case where MERS is the nominee.

So in preparing your defense, it is very important that you make sure that you show that there is a dispute as to the indorsement and delivery of the negotiable instrument.

One advantage you have is that very often lazy plaintiffs have fabricated a mortgage assignment soley to be used in foreclosure as false evidence of the indorsement and delivery.  So when you impeach and defeat the fabricated assignment, you have gutted their case!

But you need to carefully consider the elements that the plaintiff is seeking to prove and to show that these elements are disputed or unproven.

*

Ann suggests that you could address a request for admission to the notary.  While she is generally on the right track, her suggestion is also a little OFF THE MARK.

You need to READ THE CIVIL RULES and associated cases of your jurisdiction to understand what your discovery rights are.  These vary from place to place.

But in most places, the following types of written discovery are available: interrogatories, requests for production, requests for admission, and depositions on written questions.

In addition, in some places there is an additional mechanism called a request for disclosure that includes several standard interrogatory questions that have been deemed to be privileged and MUST be answered (no objectiions are permissible).

Written discovery is available only to parties, subject to express provisions of these civil rules.  Usually, interrogatories, requests for production and requests for admission may only be served on the opposing parties.

By contrast, depositions on written questions (usually accompanied by a subpoena) may be used to engage in discovery with a non-party.

Oral depositions (accompanied by a subpoena) and production requests assiated with such depositions may also be served on both parties and non-parties.

Most often, discovery is developed in several layers.  Usually, you will find it most efficient and productive to begin with written discovery and then to follow up with oral depositions, where possible.  But do NOT imagine that you are going to have ANY success conducting an oral deposition BY YOURSELF PRO SE without an attorney.

First, the opposing side will probably apply for and possibly obtain a protective order preventing the discovery from taking place.  And even if there IS a deposition, the other side will have its lawyers object to essentially ALL of your questions and direct the client to refuse to answer.  This will force you to go to court to get the court to ORDER the witness to answer.  But if your questions are improperly formatted or delve into matters which are deemed improper, you will get no help from the court whatsoever.

So IF you are going the deposition route, it is imperitive that you DO IT RIGHT!

*

Since the notary executing the document is NOT a party to the suit (even if the notary WORKS FOR the plaintiff or the plaintiff's attorney, the employees are NOT considered parties), the notary cannot be served with requests for admission.  What you CAN do, is serve the plaintiff with well thought out and carefully crafted interrogatories and requests for admissions.  That is, you can ask the plaintiff about its practices relating to the creation of assignments, the execution of these instruments and the authentication of the same.

You also could prepare a deposition on written questions directed to the notary himself/herself, accompanied by a subpoena.  This actually has some advantages for you over an oral deposition.  Since you have NO EXPERIENCE in developing such questioins, you can deliberately develop the questions and circulate these to one or more experienced attorney.  The attorney (or other experienced paralegals or pro se litigants) may be able to help you hone your questions into particularly compelling wording that will help to get the notary hung up.

This also has some particular advantages where the notary may have engaged in a pattern of behavior that is illegal and/or criminal.  While the notary could probably REFUSE TO ANSWER citing the 5th Amendment, a series of 5th Amendment refusals is going to probably cause the judge to think twice about giving a plaintiff a summary judgment.  And if the notary were to answer TRUTHFULLY, the notary might be creating legal problems for himself/herself!

I am going to create another separate thread to throw out some basic suggestions on discovery for discussion by others within the Forum.

*

I would suggest that you consider generally soliciting suggested questions to both the plaintiff and, separately, to the notary within this thread.  Wave a magic wand.  Imagine that you had a cooperative (or uncooperative) witness present under oath (or a witness prepared to make unsworn admissions).  What should you ask??
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Here are few transcripts of depositions of foreclosure mills notary frauds and robots signors. Pay attention to the defendant attorney's questions.

http://www.scribd.com/doc/22580737/Erica-Johnson-Seck-Deposition-Indymac-Federal-Bank-Fsb-Plaintiff-Vs-Israel-a-Machado-50-2008-CA-037322xxxx-Mb

http://www.scribd.com/doc/27326061/Full-Deposition-of-the-Soon-to-Be-Infamous-Cheryl-Samons-RE-Deutsche-Bank-National-Trust-Company-As-Trustee-for-Morgan-Stanley-ABS-Capital-Inc-Plain

I think if prose sends Request for Admission and Interrogatories to 3rd party, usually they will hide behind Protective Order and refuse to repond.  pro se files Motion to Compel, if they continue to refuse to respond, the Bank will look bad and this fact could be used as an issue to oppose Summary Judgment. File Motion to strike all their SJ Affidavits as hearsay evidences.
Read http://www.mattweidner.com/blog look for the post "The foreclosure Killer - Strike all their Affidavitts".

I see other people files very good Answer with Affirmative Defenses to raise all possible defenses to prepare ground for opposing the SJ. If the issues are  not raised in the Answer, Judge may refuse to hear the issues at the hearing for Summary Judgment or trial .  
Check this out, this is written by an excellent attorney:
http://www.scribd.com/doc/36645226/Foreclosure-Answer-With-27-Affirmative-Defenses



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William A. Roper, Jr.
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Ann Said:

I think if prose sends Request for Admission and Interrogatories to 3rd party, usually they will hide behind Protective Order and refuse to repond.  pro se files Motion to Compel, if they continue to refuse to respond, the Bank will look bad and this fact could be used as an issue to oppose Summary Judgment.

 
Ann, please re-read my prior post and re-read the Rules! 
 
I am not aware of ANY jurisdiction where requests for admission and interrogatories can be served on non-parties (3rd parties).  A defendant can and possibly SHOULD bring in an key third party through a third party complaint, which requires making out allegations against that party and serving that party.  Such a third party complaint can make another entity a party to the suit and subject to regular written discivery, including interrogatories and requests for admission.  And this could be a very good idea in some instances!
 
By contrast, if the third party witness is NOT a named party in the suit, such an entity is probably IMMUNE from any requests for admission and interrogatories.  The correct procedure to obtain written discovery from a non-party in most places is through a deposition on written questions or a deposition, in each instance accompanied by subpoena.

My suspicion is that in most places, a non-party can safely IGNORE misdirected requests for admission and interrogatories improperly addressed to the non-party.

Moreover, attempting to direct this invalid discovery to a non-party is not only NOT going to win any points with the judge, but to the contrary may result in the judge simply shutting down discovery altogether.

IT IS ESSENTIAL THAT DEFENDENTS GET THEIR DISCOVERY RIGHT!  This is a key reason why following the guidance of even a well informed and well intentioned pro se litigant is probably unsound.  Get a lawyer!

* 

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Ann Said:
I see other people files very good Answer with Affirmative Defenses to raise all possible defenses to prepare ground for opposing the SJ. If the issues are  not raised in the Answer, Judge may refuse to hear the issues at the hearing for Summary Judgment or trial. 


By contrast, this is an EXCELLENT POINT.  And the principle applies to discovery, as well.

Defendents need to set forth clearly in their answer those defensive arguments upon which they hope to base their summary judgment opposition.

One key equitable defense is to plead the unclean hands doctrine.  This can actually be a BIG HELP in creating a foundation for wide ranging discovery.

One basic objection that the plaintiff is almost always going to try to use to resist discovery is relevance.  The plaintiff will argue that the discovery requested is not relevant to the issues in the case.

Generally in many places, discovery can inquire into matters which are relevant and even matters not relevant where these might reasonably lead to relevant admissible evidence.

With the unclean hands defense, you are arguing that the plaintiff has engaged in misdeeds and this creates a foundation to inquire into such misdeeds.

As you frame your discovery questions, bear in mind that you may have to explain to the court WHY you should be entitled to the requested discovery.  Be sure to frame the questions in a way that is likely to win the judge over when the matter comes before the court on a motion to compel!   

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In Florida, especially in the Rocket Docket Court manned by Retired Judges who are still think "you don't pay mortgage, you have to give the house back to the bank".  These Judges usually don't even read the files, signs the Summary Judgments IN ADVANCE of the hearings. If Defendants represented by a lawyer, the lawyer would protest and get a continuance. Pro se got roll over, did not allow to say much and get the house schedule for sale.

If I can afford a lawyer, get one. Make sure I get a good one. There are many lawyers out there just want your money, file a couple of bad pleadings and out go the house on the auction.Give the lawyer all the pleadings and discoveries written by other lawyers you can find at http://www.scribd.com/83jjmack and http://www.scribd.com/winston2311,
 If I can't afford a lawyer, I still will fight it without fear. The Court understands that if a person is in foreclosure, it is normal that he can't afford a lawyer and he can't understand all the court complicated rules.

 I will ask  as many questions as I want for discovery (my friend files 4 times discovery to delay Motion for Summary Hearing , still in his house since 4 years) , supoena whoever I think their testimony will help my case.  The rule is complicate but if Pro se ask unrelevant questions, the most risk he gets is a NO reply.  Court won't put Pro se in jail if wrong questions are nicely asked. If I don't ask I won't discover plaintiff's fraud. Write " Upon info and belief  i.e the Assignment is fraud and will be proved in further discoveries etc....

The key here is by discovery I can delay the hearing for Motion for Summary Judgment and also get the info needed to defend myself at the MSJ. MSJ is a mini trial, lose the MSJ the house will be sold rapidly unless I go in Bankcruptcy.

Discovery is a legal right for defendant to defend a lawsuit against him/her.
I would use it as much to nail the Plaintiff Assignment frauds, Affidavits fraud  and the fact that they are not a party of interest, they have no standing to foreclose. Plaintiff usually try not to respond to discoveries to admit their frauds etc.  It would take couple months for Plaintiff to respond to Discovery if they respond at all. Then I file Motion to Compel them to respond. In Florida Rule , Hearing for Summary Judgement can't be set when the parties are still in Discovery. This will buy time for the Pro Se to do more reseach to get ready to face the MSJ.

These Plaintiff's Assignment frauds, Affidavits frauds  and if I can prove that they are not a party of interest, they have no standing to foreclose  then it will hopefully create triable issues . With triable issues Judge should not grant the bank Summary Judgment (well ! many time Judge grant it anyway). That's why I would try to delay the MSJ hearing as long as possible .

My 2 cents.


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Good news from Florida. Fraudulent Assignments, Fraudulent Affidavits submitted to the Court can be considered FRAUD UPON THE COURT, Judgement is voidable .
------------------------------------------------------------------

WHAT DOES THE GMAC ANNOUNCEMENT AND NOTICE OF WITHDRAW MEAN ?

The national media, attorneys, homeowners, activists and shareholders across the country are struggling to understand what the recent announcement by GMAC means and what it means that some of the foreclosure mills have attempted to withdraw affidavits that they have submitted in court cases.  Some insight into what this might mean comes from my friend and Foreclosure Fraud Fighter John Redding.  You see Redding was an underwriting attorney for a title insuror and he’s got some authoritative speculation on the potential meaning and consequences of these unprecedented developments.  Below is what he had to say.  I find it very credible and the potential far reaching impact if he is correct is part of what we’ve all been warning about for a very long time….read on…..
The Palm Beach Post reported today that GMAC has suspended all pending foreclosures nationwide because of a practice uncovered in Florida that could lead to VOIDABLE foreclosure judgments – thus creating havoc with foreclosure sales and REO sales.  The article, GMAC Suspends Foreclosure Evictions and Sales of Seized Property<
http://www.palmbeachpost.com/money/real-estate/gmac-suspends-foreclosure-evictions-and-sales-of-seized-927171.html>, cites the deposition taken by a Palm Beach County law firm that exposed the practice of affidavits regarding the verification of accuracy of a complaint and information about the loan being summarily signed in conveyor belt fashion. In the affidavits the signor is saying he or she has personal knowledge of the facts in the affidavit. The deposition showed that in fact such statements were untrue.

This creates a huge problem.  If there is a fraud on the court (the court is asked to consider these affidavits in making a judicial review as part of having that judge issue a foreclosure judgment), then the judgment can be reversed. Essentially the judgment is “voidable”.

There is no statute of limitations on the voidablity of a judgment because of fraud on the court.  Wikipedia has a basic and accurate statement on this issue:

In the U.S., when an officer of the court<http://activerain.com/wiki/Officer_of_the_court> is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as “fraud upon the court”, is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.

Officers of the court include: Lawyers, Judges, Referees, and those appointed; Guardian Ad Litem, Parenting Time Expeditors, Mediators, Rule 114 Neutrals, Evaluators, Administrators, special appointees, and any others whose influence are part of the judicial mechanism.

“Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23

In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”

What this means for existing judgments of foreclosure? Each is subject to scrutiny. One big problem is FUTURE real estate closings. If title passing needs to have title insurance and the closing is an REO sale or is a purchase from a foreclosure sale, title insurers may be fearful of insuring into a lawsuit since there is a distinct and not remote chance that the foreclosure judgment could be set aside.

As of this writing no insurance company has made the announcement that it will not insure REO or foreclosure sale properties- but wait a few days after the underwriters start to examine this new risk.  The inability to obtain title insurance will certainly inhibit the private purchase of property at foreclosure sales and from REO inventory where the property was acquired by foreclosure sale.

John N. Redding, Esq.
Redding & Associates, P.A.
230 East Davis Boulevard, Suite 210
Tampa, Florida 33606
Telephone 813.258.4401
Facsimile 813.259.1545
http://www.jrtampalaw.com<http://www.jrtampalaw.com/>

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Ellen

There is some really good information by Mr. Roper including discussion about discovery in this old message thread from September 2010.

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