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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during the ejectment action filed against my sister, the mortgage company filed a copy of the original mortgage, but never filed a copy of the note endorsed over to the assignee.  Well, after reading all the stuff about bankruptcy judges dismissing claims against mortgage companies, I did I would see who filed the claim in my sisters bankruptcy case.
  
CITI-RESIDENTIAL was acting as servicer for the secured debtor, but there was nothing filed that established there was a debt by the claimant.  Attached to the claim was the original mortgage and a TRUE AND CORRECT COPY of the promissory note with the stamp over AMERIQUEST as the original lender and there was not a copy of the assignment executed 6 mos after she was already in default.  

However, the true and correct copy of the note evidences the note was never assigned to the "secured debtor"  and therefore has no legal claim to the mortgage or the note.  And because a true and correct copy was filed with the bankruptcy court, the pretender lender cannot now file a  true and correct copy that was endorsed.

I thank God for giving me the wisdom to examine the bankruptcy claim.




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William A. Roper, Jr.
Crickett:

While you seem to generally be on the right track, be careful not to either celebrate too quickly or to be complacent.

You are absolutely correct that the certification that the copies pled were true and correct copies helps to establish a presumption that the claimant cannot have been the owner or the holder of the claim at the date the claim was filed, there remain a variety of challenges.

First, recognizing that litigants sometimes make honest mistakes, a court has a wide discretion to allow a party to withdraw or amend a pleading, motion or evidentiary filing, particularly upon a showing as to how a mistake was made.

So beware of not just the prospect, but the likelihood that the purported creditor may simply file an amended claim showing a new and different copy of the alleged promissory note.  The amended copy will either (a) contain one or more undated indorsements which didn't appear on the original and/or (b) have an additional allonge page containing such indorsement(s).

The claimant/creditor will then assert that the note was indorsed all along, but that they sent the court the wrong copy.

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When seeking to hold the claimant's toes to the fire, you should note that very often the foreclosure mill law firm will simply stamp a document with an indication that it is a true and certified copy, but will NOT show the identity of ANY PERSON who is actually making such a certification.

Right off the bat, this is an invalid authentication in most jurisdictions.

A valid authentication would be an affidavit which expressly authenticates the document under oath.

When the opposing party FAILS TO OBJECT, this improperly authenticated document is then accepted into evidence with no one swearing to its authenticity.

And since no one has sworn to the authenticity of the document, there is no one to hold accountable for the "accident" of submitting something other than a true copy.

There are many within the foreclosure defense community who would assert that you should immediately demand the production of the original.  I am of the view that this is a dreadful and deadly mistake!

The mainstream and establish paradigm of the foreclosure defense community is that the original wasn't ever indorsed and delivered and that by demanding the original, you will be able to establish that the plaintiff lacks standing.

I believe this paradigm to be almost always totally false.

I believe that what is usually happening is that the mortgage investor usually has a validly indorsed promissory note that is within the custody and control of the institutional custodian.  But instead of getting a copy of that document, the foreclosure mill attorneys simply obtain a copy of the note from the files of the servicer.  And that copy is unindorsed.

So if you believe the established paradigm and demand the production of the original note, what will happen is that the plaintiff will obtain the original, file an amended claim with a true copy of the original and will ultimately produce the original at hearing.  The discrepancy will be explained as a "paperwork error".

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I would therefore recommend a DIFFERENT strategy.

INSTEAD of demanding the production of the original, I would (where the rules and law of the jurisdiction support it) expressly OBJECT to the admissibility of the documents based upon the plaintiff's failure to properly authenticate the document.

That is, instead of focusing initially on the lack of indorsement, I would instead focus on the failure to authenticate.  And I would use the Rules and case law to show that the copy is absolutely inadmissible without a supporting affidavit or other valid authenticating witness.

Then, the creditor/claimant MIGHT just file a perjured affidavit seeking to prove up the unindorsed copy.  You really want the plaintiff to come into court and SWEAR TO the unindorsed copy.

But even if they repudiate the copy and file something else, there remains a CHANCE that they remain foolish and careless enough to plead into evidence a forged allonge.  That is alos common.

That is, when faced with a change to standing, the knee jerk reaction of the foreclosure mill law firms is NOT to obtain a copy of the original instrument.  Rather, the knee jerk has been to FORGE AN ALLONGE which purports to convey the promissory note by indorsement.

Coupled with the post claim assignment, the lack of an indorsement on the original filing is going to put the claimant in an awkward and defensive position.  At the very least, this is NOT going to be a case they are going to want to press aggressively.

There is a procedure to initiate a so call "adversary action within bankruptcy".  This is well beyond my lay expertise.  I have read a number of pleadings where this has been done.  In a few instances, the Chapter 13 Bankruptcy Trustee has filed the adversary action and in some instances, the United States Trustee has intervened.

There are a LOT of ways to get tripped up in Bankruptcy.  Your sister needs some help!  She needs to be using an experienced bankruptcy lawyer, prefereably one who is well familiar with some of the mischief ongoing with foreclosure fraud.

In an adversary action, parties can probably conduct discovery to obtain additional facts of the case.  Discovery is an additional means of getting the plaintiff to lock into a particular story.  Take a look at the story by Gretchen MORGENSON in today's New York Times "Waiting 7 Years for Two Answers".

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I would note that your message seems to describe an ejectment action rather than a foreclosure action.  It is important to disitinguish that in most instances an ejectment is an action for possession of a premises for which title has already been obtained by other means.

So in non-judicial foreclosure states it is common for the alleged mortgage investor to (a) forge an assignment, (b) execute an appointment of substitute trustee, and (c) conduct a private sale of the property.  But very often, the plaintiff gets the horse ahead of the cart and appoints the substitute trustee and conducts the sale without first forging the assignment.  And the Ibanez case shows that in at least a few places the substitute trustee's deed is therefore a nullity.

Your sister has a situation with some promising elements, but do NOT assume that her rights and reasonable courses of action are the same as those in a judicial foreclosure state.  PLEASE, PLEASE HAVE HER CONSULT WITH A REALLY CAPABLE ATTORNEY!  Use this Forum to inform her discussion, but let her actioins be guided by competent and qualified legal help! 


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after almost 2 years,  I don't rule anything out.  And as you stated they will have attempted to "explain"  by false affidavits how the mistakes were made in their filings.  

The bankruptcy case was dismissed so that's when they foreclosed.  But they  never filed a copy of the note in the court for the ejectment action, just the assignment and I wasn't sure how to get a copy of  the note without it being all doctored up with endorsements, so this did make that a lot easier for me but I still have a long row to hoe.  But I would think they would have to file a copy of the assignment of mortgage with the bankruptcy court too, which they did not.

And you're right, there is no way to authenticate the certification  because it's ineligible and there is no affidavit.    And I don't want to give them the opportunity to find the original - I just want to hold them to the copy of the one filed in the court, because like you said,  the original endorsed note can just pop up out of thin air.

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"Then, the creditor/claimant MIGHT just file a perjured affidavit seeking to prove up the unindorsed copy. You really want the plaintiff to come into court and SWEAR TO the unindorsed copy."

 

and they are so good at that too - I much prefer the sworn affidavits

 

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At the very least, this is NOT going to be a case they are going to want to press aggressively.

 

 

that's what I'm hoping for ... with all the stuff I've found, I think they would be stupid to continue to pursue with the house - they've got a whole lot more to lose than that.

 

the assignment was executed in Nov 2007 and recorded Dec 2007 and the claim filed by the "secured creditor" was  in January 2008.  But the assignee's claim included defaults from July 2007 prior to the assignment.   

 

the mortgage company did a foreclosure and then demanded possession of the property - when she didn't vacate they filed an ejectment action and that's when  their claim to legal title was challenged by yours truly.  

 

17 days and still counting til an answer is due ...  

 

 

 

 

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