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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The 10th Circuit Court of Appeals overturned a decision of the 10th Circuit Bankruptcy Appellate Panel on Tuesday in the case In Re Miller:

 

In Re Mark Stanly Miller, No. 11-1232 (10 C.A. 2012)

http://www.ca10.uscourts.gov/opinions/11/11-1232.pdf

 

Forum regulars will recognize the theme.  Negotiation is all about indorsement and delivery!

 

Once again, a major appellate court decision shows that Mr. Roper's analysis is spot on and similarly shows that anyone who relies on the wingnut theories of a swindler like Mike H. when viable defenses are available just by reading Mr. Roper's posts has to be out of his mind

 

I will leave it to others to identify the text from this decision which they find to be particularly compelling.

 

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John Lewis
f - nice find.

IT SHOULD BE NOTED:

Mark S. Miller and Jamileh Miller, Pro se

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HungarianProse
f wrote:
The 10th Circuit Court of Appeals overturned a decision of the 10th Circuit Bankruptcy Appellate Panel on Tuesday in the case In Re Miller:

In Re Mark Stanly Miller, No. 11-1232 (10 C.A. 2012)

http://www.ca10.uscourts.gov/opinions/11/11-1232.pdf


Forum regulars will recognize the theme.  Negotiation is all about indorsement and delivery!

Once again, a major appellate court decision shows that Mr. Roper's analysis is spot on and similarly shows that anyone who relies on the wingnut theories of a swindler like Mike H. when viable defenses are available just by reading Mr. Roper's posts has to be out of his mind

I will leave it to others to identify the text from this decision which they find to be particularly compelling.

I was reading it last night. What i see is that the Bank could have fix this whole thing with one(1) affidavit. At least that is what the judges saying. Scary! Care to comment?

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f

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I was reading it last night. What i see is that the Bank could have fix this whole thing with one(1) affidavit.  At least that is what the judges saying.
Scary! Care to comment?
 

 

In a summary judgment proceeding delivery might be proven by the competent admissible affidavit of a witness with personal knowledge of the delivery.  This is often easier said than done.

 

Go back and review Mr. Roper's threads on personal knowledge, conclusory affidavits, etc.  There is also a thread about the ancient origins of the business records rule.

 

You need to bear in mind that in most private securitizations, there are several intermediate sales of the note before it lands in the private mortgage trust.

 

Mr. Roper was the person who originally described these as the A to B, B to C and C to D transactions.  This nomenclature first used by Mr. Roper was later picked up and popularized by leading foreclosure attorney O. Max Gardner.

 

In most instances, these private securitization entities are:

A (Originator)

B (Plan Sponsor)  

C (Depositor)

D (Trustee)

So the final negotiation would be from the Depositor to the Trust (C to D).

 

The foreclosure action is almost always being brought by the servicer, which MIGHT BE the Originator (A), but might very well be either a completely different entity OR, if once the Originator, is no longer the same entity due to a transfer of servicing (e.g. Option One to AHMSI, Litton to OCWEN, etc.)

 

The affiant giving a routine robo-signed affidavit in support of the typical foreclosure action is therefore often an employee of an entity completely divorced from the securitization and negotiation.

 

Leaving aside that employees involved in default and foreclosure management would NEVER have been personally involved in the negotiation of the notes in a securitization (even if the entities were the same), the is absolutely NO WAY that an affiant working for the servicer can claim personal knowledge of a transaction that took place years earlier between two other different entities.

 

Go back and read that old post by Mr. Roper about the ancient origins of the business records rule and the old Federal Court decision authored by Judge Learned Hand.  Then meditate a little bit about how an honest and conscientious employee involved in routine transactions could ever claim personal knowledge of any particular transaction.

 

For example, pull out a two year old bank statement and locate a deposit transaction in which YOU personally deposited a check in your local bank.  Do you remember to which teller you gave the deposit slip and indorsed check?  Do you remember standing in line at the bank that day?  Do you remember what time of day it was?  What was the teller wearing?  Did you go into the bank or hit the drive through?  I doubt it, unless you bank in a singularly small bank with only one teller who wore the same uniform every day!

 

Do you really think that the teller remembers that single deposit transaction from amongst the dreary volume of various banking transactions routinely performed every day?

 

My point here is that what makes the teller a competent witness to authenticate a particular deposited check is (a) the well established and routine business processes employed by the bank with which the teller is well familiar and (b) the business records of the bank memorializing the deposit transaction.

 

Basically, SUPPORTED BY THE BANK'S BUSINESS RECORDS, the teller can testify that the teller worked on the day of the deposit, that the business records reflect that the check was presented and deposited and show the deposit recorded by that teller, that the teller would never have entered such a transaction in the bank's records if you hadn't appeared with a check, that the clerk routinely verifies the date, amount, payee and indorsement of the check before accepting it for deposit and notes the bank's ABA bank routine code on the deposit slip, that the teller reconciles all deposits at the end of the day and that this check appeared on the reconciliation, and (possibly) that the teller recognizes you as a regular customer and though having no specific recollection of the transaction remembers you generally as a bank customer for whom he or she has completed transactions. 

 

Basically, the testimony is NOT about the specific recollection of the transaction but is rather about the foundational business processes that show the business records to be reliable

 

Let me put this yet another way.  WHY would ANY employee of the mortgage investor remember the negotiation of YOUR mortgage note amongst the hundreds of undifferentiated transactions handled daily in the routine of business?

 

The promissory note, like a clearing check and covered by exactly the SAME Article of the UCC, is simply another routine transaction which clears through the banking system like a check and is immediately forgotten EXCEPT by the business records contemporaneously created to memorialize the transaction.

 

No clerk remembers YOUR note, unless you happen to be Angelina Jolie and the note for $5 million.  The clerk probably doesn't even remember your note at the end of a single business day, much less two or three years later. 

 

*

 

This brings us back around to the requisite proof.  Of course an affidavit could be competent proof of delivery, if only there was a person with personal knowledge of the transaction.  There is no such person!

 

A person obtaining an understanding of the transaction from a review of the business records does NOT have personal knowledge.  This person merely has hearsay knowledge, which is the foundation of Mr. Roper's hearsay argument.

 

The business records exception is NOT a rule that permits a person to merely inspect the business records and then testify as to that person's conclusion.

 

To the contrary, the person, if qualified, might be used to establish the authenticity of the business records, but then the business records must speak for themselves, because the defendant has the right to confront and impeach the evidence.  The evidence is the business records, NOT what some affiant says the business records say.

 

The primary business record that would reflect the delivery of a promissory note would therefore be a delivery receipt reflecting the completion of the negotiation.

 

If you think that this is easy to find and produce, I would simply observe that I have read hundreds and hundreds of cases and have NEVER YET SEEN SUCH A RECEIPT ACTUALLY PRODUCED.  I HAVE seen many, many cases where a plaintiff put in an affidavit that could have been easily impeached and disqualified if the plaintiff had simply made the sort of Objection that Mr. Roper has been advocating for several years.

 

Success comes with understanding.  If you understand the processes and the arguments, as Mr. Roper clearly does, defeating the affidavit is like shooting fish in a barrel!

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Dan

f does an exemplary job of explaining Mr. Roper's prior posts on these subjects.

 

He seems to be referring to at least these two prior threads:

 

Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule

http://ssgoldstar.websitetoolbox.com/post/Personal-Knowledge-Hearsay-Conclusory-Averments-and-the-Best-Evidence-Rule-4903945

 

On the Origins of the Business Records Exception To the Hearsay Rule

http://ssgoldstar.websitetoolbox.com/post/On-the-Origins-of-the-Business-Records-Exception-To-the-Hearsay-Rule-5075915

 

 

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Dan

Ann's post within thread "Tactical Considerations in fighting foreclosure" contains some good Florida cases on personal knowledge cited within a motion to strike prepared by attorney Matt Weidner:

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=41025878&postcount=44

 

Mr. Weidner doesn't seem to have the same understanding as Mr. Roper as to mortgage enterprise dynamics, but makes some good arguments following Mr. Roper's lead as to Florida law requiring personal knowledge.

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John Lewis
visit the thread:  RE Glarum has the banks running scared
 
I think that the attorney for Glarum read Mr. Ropers:

Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule

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Dan

See also Mr. Weidner's motion to strike as posted by Ann in the thread "Tactical Considerations in fighting foreclosure":

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=39116503&postcount=25

 

It is really a shame that Ann has been so injudicious in selection and posting of material.  She has posted several very useful documents, but also has posted some totally horrid unvetted material.

 

Also, she has posted way too much in this single disorganized thread rather than posting the information within appropriate topical threads on particular subjects.

 

These two posts probably should have been posted to or linked from Mr. Roper's piece on hearsay, etc.  Just dumping posts into a jumbled thread isn't very helpful.  Adding material thoughtfully into the correct thread is very useful.

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Dan

Also bear in mind ka's thread:

 

AL Appellate Court Embraces Mr. Roper's Personal Knowlege Argument: Perry v. Fannie Mae

http://ssgoldstar.websitetoolbox.com/post/AL-Appellate-Court-Embraces-Mr.-Ropers-Personal-Knowlege-Argument-Perry-v.-Fannie-Mae-5644207

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Dan

John Lewis also contributed some personal knowledge/hearsay arguments made by attorney George GINGO in a Florida case within his post in the thread "Need Help":

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1271853337&postcount=27

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Dan

This thread seems to contain one of Mr. Roper's last posts to the Forum:

 

Maine Supreme Court Further Clarifies and Applies Business Records Exception in Reversing: Beneficial Maine, Inc. v. Carter

http://ssgoldstar.websitetoolbox.com/post/Maine-Supreme-Court-Further-Clarifies-and-Applies-Business-Records-Exception-in-Reversing-Beneficial-Maine-Inc.-5388558

 

ka later added some interesting insight.

 

 

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Dan

f also seems likely to have read Mr. Roper's post (12/18/10 at 03:08 PM) in the thread "MERS Should Have Done & Did":

 

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1266544294&postcount=18

 

 

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John Lewis
Dan, thanks for adding the above info, it is extremely helpful to highlight 'threads' that just might get lost without their being reposted.

ps re Ann, Ann and I have not seen eye to eye at times, however, she has been adding insight to this forum for jeezzz since 2007, and like all of us who dare to 'post', at times we go off course - but believe me it is not intentional - speaking for myself, her thread 'Tactical Consideratos...' began 7/11 and yes it is not organized around on subject matter, however, there is a wealth of valueable information contained therein.

Within this forum the positive far outways the no so positive.
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Teresa
Here's what the bank should of done (watch the wording carefully).  I do beleive that this meets all the elements.  I'm not exactly sure that Roper's arguments would beat this, but, someone get Roper for me!!

"I am over 18 and employed as a vice president of SERVICER.  In this capacity, I am authorized to make this declaration regarding the loan described below.  If called to testify, I would testify under oath as to the following:

I have accessto an am familar with SERVICER'S books and records regarding the loan, SERVICER'S servicing records, and copies of the applicable loan docs.  I am familar with the manner in which SERVICER maintains its books and records, including computer records relating to the servicing of the loan. SERVICER'S records are made at or near the time of the occurence of the matter set forth in such records, by an employee or representative with knowledge of the acts or events recorded.  Such records are obtained, kept and maintained by SERVICER in the regular course of SERVICER'S business.  SERVICER relies on such records in the ordinary course of its business.

SERVICER has the contractual right and responsibility to service the loan on BIG BAD BANK as trustee for the ABCD TRUST  2007-3's behalf

As the loan servicer, SERVICER acts as an agent for BIG BAD BANK as trustee for the ABCD TRUST  2007-3 and is responsible for the administration of the loan until the loan is paid in full, assigned to another creditor or servicing right are transfered. Administering the loan includes, among other things, sending monthly payment statements collect payments maintain recorders of payments/balances collecting/paying taxes and insurance remitting money to BIG BAD BANK as trustee for the ABCD TRUST  2007-3 follow up on delinquencies, workouts, retention and other customer service functions.  In event of a default under the terms of the loan SERVICER is authroized by BIG BAD BANK as trustee for the ABCD TRUST  2007-3 and under applicale law to enforce the terms of the mortgage/deed of trust

According to SERVICER'S books and records the loan is evidenced by a Note executed by JOHN DOE dated _______. in the amount of $______ (See Exhibit X)

SERVICER'S records reflect that BIG BAD BANK as trustee for the ABCD TRUST  2007-3 holds possession of the original note. The note is endorsed and payable in blank (See Exhibit X)

The Note is secured by mortgage/deed of trust relating to the property. The mortgage was duly recorded ( See Exhbit X)

Copies of the note and mortgage/deed of trust are attached as exhibits X and X are true and correct copies of documents in SERVICERS business records.

Do not include any assignments (because as SERVICER, you know that you used DOC X to create them)


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Floyd

Quote:
SERVICER'S records reflect that BIG BAD BANK as trustee for the ABCD TRUST   2007-3 holds possession of the original note. The note is endorsed and payable  in blank (See Exhibit X)

 

Teresa

 

Close, but no cigar.

 

Your proposed affidavit of merit certainly would be much stronger than many actually presented by foreclosure plaintiffs.

 

But there are still a couple of problems.

 

First, the trustee rarely has possession and custody of the promissory note.  The note is usually in the possession of an institutional custodian

 

How does the affiant KNOW that the institutional custodian has possession of the note?  He or she will have NO PERSONAL KNOWLEDGE OF THIS.

 

How does the affiant even KNOW that the COPY is authentic without physical inspection of the original?

 

Employees of the institutional custodian WOULD tend to KNOW whether they have physical custody of the note and could also authenticate the copies, but it would be a lot of trouble to ask for them to execute an affidavit.  It is far easier to rely upon the incompetence of most defense attorneys and the intellectual laziness of the courts.

 

Even if an employee of the servicer had personal knowledge of the custody, an affidavit would also need to affirmatively show WHEN the custodian obtained custody.  Without a specification as to WHEN the negotiation took place, the court cannot know whether the plaintiff had standing at the commencement of the suit.

 

But possession by the institutional custodian presents yet another problem.  Although foreclosure mill law firms have argued that they can be a holder through constructive possession, very few courts have actually embraced this and the very idea may be legally erroneous.

 

Here is the trouble with the idea of a constructive holder.   Only ONE entity can really be the holder because only ONE ENTITY has a right of enforcement as holder at any one time.  It has been routine for more than five centuries for an entity other than the owner to take custody of the negotiable instrument as holder and to then enforce the instrument as a bearer instrument on behalf of the actual owner.

 

The holder is NOT NECESSARILY the owner.  The holder is merely the person with custody and the right of enforcement.

 

So asserting that the owner A can give physical custody to B as an institutional custodian and that B's custody of the instrument should inure to the benefit of A as the constructive holder is precisely contrary to the very idea of being a holder.

 

If A can enforce the instrument without custody on the mere assertion that someone else has custody, then one is admitting that more than one entity can enforce the instrument!

 

Most litigants lack the knowledge or sophistication to make this argument effectively.

 

But one of the KEY reasons that the robo-signers are keeping the facts MURKY is because EXCEPT in those places where rules require the production of the original, the servicer and mortgage investor usually leave the original note in the vaults of the institutional custodian throughout the foreclosure proceeding.

 

That is to say that the allegation that the plaintiff is the holder is usually FALSE, NOT because the notes have been destroyed (as some swindlers and conspiracy theorists claim) or that the plaintiff doesn't own the note, but rather because it is simpler, faster and easier to leave the notes in the vaults and simply LIE TO THE COURT.

 

This is the central reason that the produce the note strategy is almost ALWAYS a BAD IDEA.  Demanding that the plaintiff produce the original means that they go to the vault and obtain the document that they were too lazy to get.  Then the plaintiff WINS.

 

*

 

While you are generally on the right track that an admissible affidavit would set forth the facts and attach exhibits, truthful affidavits probably can only lace together the facts by having more than one affiant swear to different key factual averments.

 

The ease with which this can be done is significantly improved by physically obtaining the note from the vaults of the institutional custodian in advance of filing suit, but this takes a few weeks.

 

Since only a very small fraction of borrowers ever interpose effective defenses and it cannot be readily anticipated which borrowers will resist the foreclosure, the servicers and foreclosure mills must decide whether to adopt processes which are legally correct or whether to cut corners and then find themselves in a jam when caught in a web of lies and deceit!

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Teresa
Floyd wrote:


First, the trustee rarely has possession and custody of the promissory note.  The note is usually in the possession of an institutional custodian

 


Is there any proof to this Floyd? What document says this, the PSA, this is venturing into securitization and Roper says not to go there. Why can't the Trustee have possession according to the records? 


Floyd wrote:

How does the affiant KNOW that the institutional custodian has possession of the note?  He or she will have NO PERSONAL KNOWLEDGE OF THIS.

 


If the defendant makes this argument to try to refute that the trustee is in possession, why wouldn't the bank just argue that "the custodian has possession"  has no foundation or support to the argument?  No personal knowledge that the custodian has the note because the custodian does not have the note, the Trustee does.  What about if the trustee is the custodian of the trust as well?


Floyd wrote:

How does the affiant even KNOW that the COPY is authentic without physical inspection of the original?


Good point. How can the servicer say that the copies attached are authentic..

 

Floyd wrote:

Even if an employee of the servicer had personal knowledge of the custody, an affidavit would also need to affirmatively show WHEN the custodian obtained custody.  Without a specification as to WHEN the negotiation took place, the court cannot know whether the plaintiff had standing at the commencement of the suit.

 


Let's say that Janice Jones files BK.  In her BK, SERVICER files a POC on behalf of BIG BANK 1. The POC has a copy of the note and mortgage. This note does not contain any indorsement whatsoever. The note is payable to the originator.

4 months later BIG BANK 2 files a MFR and now note has allonge endorsed in blank & and fabricated assignment of mortgage.  The MFR gets granted.


Then Janice's hubby files BK.  5 months later here comes BIG BANK 2 again for a MFR.   This time BIG BANK 2 submits the above affadavit and attaches the note  and that post-petition allonge, but does not include the fabricated assignment that the declarant used in JANICE'S BK.  SO, when and DOES BIG BANK 2 have standing at the commencement of hubby's case?


Even so, even with a strong affadavit didn't In re Veal state that possession is only step 1:

The possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the “person entitled to enforce.”


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f

It appeared to me that Floyd's post was pretty thorough and dead on.

 

Quote:
Is there any proof to this Floyd? What document says this, the PSA, this is venturing into securitization and Roper says not to go there.  Why can't the Trustee have possession according to the records?
 

 

ALL Fannie and Freddie notes are in the custody of an institutional custodian.  The vast majority of notes in private securitizations are also in the custody of an institutional custodian.  The securitization documents, including the registration statement and the supplemental registration statement filed with the SEC would usually identify the institutional custodian.  The PSA would also often identify the intitutional custodian.

 

The use of an institutional custodian is usually a condition of the trust and while a trustee might be able to replace an institutional custodian under some extraordinary circumstances, this would be uncommon.

 

There have been a handful of trusts in which there is no separate institutional custodian, but this would be unusual.  

 

Floyd is right about this.  Mr. Roper has also posted about this before.

 

Mr. Roper has counseled against putting the PSA into evidence.  Other securitization documents will usually show the existence of the institutional custodian.  If the plaintiff were to put in a clearly perjured affidavit, then these other documents could be used to demonstrate the perjury.

 

But the plaintiff is going to try to simply get away with conclusory averments by a witness lacking personal knowledge.

 

Quote:
If the defendant makes this argument to try to refute that the trustee is in possession, why wouldn't the bank just argue that "the custodian has possession"  has no foundation or support to the argument?   No personal knowledge that the custodian has the note because the custodian does not have the note, the Trustee does.   What about if the trustee is the custodian of the trust as well?

 

I cannot speak for Floyd or for Mr. Roper.  I do not think that anyone is necessarily suggesting that the defendant needs to attack such an affidavit.

 

Floyd seemed to be basically saying that it wasn't going to be quite so easy for a plaintiff to produce the requisite affidavit.  I agree.

 

In most affidavits I have seen, the plaintiff takes exceptional care NOT to give specific details because the more details given the easier it is to catch the plaintiff in perjury and to disprove the averments.  The affidavits are written by the foreclosure mill law firms, NOT the servicer or witness.  The robo-affiant simply signs the affidavit.

 

In your response, you seemed to be suggesting the preparation of the affidavit would be easy.  Floyd tells you otherwise and he is correct!

 

Most defendants will probably NOT face a specific affidavit from the servicer setting forth great detail because the foreclosure mills purposely avoid including detail to avoid liability for subornation of perjury.

 

Mr. Roper has separately cautioned against taking the plaintiff to school.  Very often, poorly informed pro se defendants pull some pleadings off of the Internet and file these without understanding either the arguments or appropriate strategy to employ.  When a defendant telegraphs the creditor how much the defendant KNOWS, then the foreclosure mill begins to CLEAN UP THE CASE and takes greater care.

 

Very often, defendants are eager to IMPRESS the plaintiff/creditor or to impress the court.  This is not only unnecessary.  It is also counterproductive. 

 

It is usually far better to let the plaintiff underestimate you and to make out only as much of an argument as is absolutely necessary to preserve the argument until the matter is ripe for determination.

 

Of course, the way to prove the facts of the case is through discovery or by engaging an expert witness like Mr. Roper. 

 

Quote:
Let's say that Janice Jones files BK.  In her BK, SERVICER files a POC on behalf of BIG BANK 1. The POC has a copy of the note and mortgage. This note does not contain any indorsement whatsoever. The note is payable to the originator.

 

4 months later BIG BANK 2 files a MFR and now note has allonge endorsed in blank & and fabricated assignment of mortgage.  The MFR gets granted.

 

Under the facts you set forth the Proof of Claim ought to be DENIED!

 

When the second bank presents a Motion for Relief of Stay, it will need to have first presented a Proof of Claim and get the Proof of Claim approved.

 

So the Motion for Relief of Stay should be DENIED absent some order allowing the claim.

 

Quote:
Then Janice's hubby files BK.  5 months later here comes BIG BANK
2 again for a MFR.   This time BIG BANK 2 submits the above affadavit and attaches the note  and that post-petition allonge, but does not include the fabricated assignment that the declarant used in JANICE'S BK.  SO, when and DOES BIG BANK 2 have standing at the commencement of hubby's case?

 

The second bank would also need to first present a Proof of Claim.

 

Of course, the husband ought to have filed his bankruptcy concurrently with his wife's.  If there is a valid reason to delay, it is unknown to me.

 

Quote:
"The possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the “person entitled to enforce.”

 

As I recall, the cited language from In Re Veal relates to the right of a transferee to enforce the note, not the right of a holder to enforce.

 

*

 

IF YOU ARE LITIGATING FORECLOSURE IN A BANKRUPTCY SETTING, YOU NEED TO CONSULT WITH AN EXPERIENCED ATTORNEY WELL FAMILIAR WITH CONSUMER BANKRUPTCY AND CONSUMER DEBT LITIGATION.  GRADUATES OF MAX GARDNER'S BOOT CAMPS ARE AMONGST THE MORE CAPABLE.

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Kraft
I would like to add that how could those business records that the affiant is relying on be considered reliable in that scenario? 

Even with Teresa's declaration, you have a note un-indorsed and then all of a sudden an allonge appears, the affiant doesn't know WHEN the negotiation took place and the affiant does state how they came into possession of the note and under what purpose as well, WTF?

There is a case law for this I believe, let me see if I can find it.

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Bill

It is really important to understand WHY these affidavits are insufficient.  Anyone in foreclosure will be faced with an insufficient affidavit.  You need to read all the threads addressing affidavits, and read case after case where the affidavit is challenged so you really understand the faults.   I have NOT seen ANY affidavits that really stand up to scrutiny.  With all the default judgments the mills get, they never had to put in the HOURS it would take to draft a good template.  It would most likely take a few hours more to tailor it to their case.  When you start to see the problems clearly you will understand how time consuming it is to create an admissible affidavit and most of the time it would take SEVERAL to get the evidence in they are attempting to.  

Mr. Roper wrote several good threads on what "personal knowledge" is and the faults in many different affidavits used in foreclosure.  You HAVE to understand this because after you survive SJ these same faults are what is used to attack the witness testimony at trial.  You will just be objecting to foundation and heresay.  

My personal thoughts are that:

If you are defending pro se, you should be finding a random affidavit once a week and picking it apart.  You need to do this just to learn.  If you can't pick any random affidavit apart, you need to keep working on it.  They are all flawed.  Many of these flaws show a lack of trustworthiness which can have evidence excluded even IF it is authenticated.  Read the rules in your jurisdiction, read the cases, and start working on finding and understand the flaws.    Just my 2 cents.


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Unregistered
This Is Mark Miller of the 10th circuit appeal brought up here. Actually HungarianProse you are partially correct about the one afidavit. This afidavit can be produced by, and here is the important part, HOLDER OF THE NOTE... so even with this affidavit it comes back to if they produce this affidavit without being the holder in due course they commit fraud, and thus must still produce the note to prove they are the holder in due course. So with this in mind this argument really does not work and exactly why they did not pursue this defence (as it would defintly incriminate them) or the lawyers are just extremely ignorant and think they are above the law and in the pockets of the judges (well obvioulsy not all the judges can be bought) I would not want to be the one whos names are on these court documents for this bank!
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