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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us

About Wrongful Foreclosure

[Doc is Printer Friendly]

Statutory Requirements for Establishing the Right to Enforce an Instrument

Some research that may be of value. Always validate new information. After validation and comprehension of the information revealed below, please pass along the information to others who may be in jeopardy of losing their property for non-payment of mortgage installments.

References to the Uniform Commercial Code (UCC) are to the Federal UCC. Each state in the union, except Louisiana, has adopted the Federal UCC into its own law. The Federal UCC can easily be cross referenced to your local jurisdiction. When using the UCC in your jurisdiction, reference the version of the UCC adopted in that particular jurisdiction.

i.e.: UCC § 3-301 has been adopted in the Alabama Code at -- Ala.Code 1975, § 7-3-301.

The Cornell UCC state locator can be found here: LII: UCC - Locator

Discovery is where the questions are asked about production of the original wet-ink NOTE.

If the foreclosure claimant cannot produce the NOTE or a valid chain of custody in the form of valid assignments back to the holder of the NOTE, the case is over for lack of establishing the court's subject matter jurisdiction over the case.

Present physical possession of the NOTE must be established pursuant the fact that if the NOTE is still in existence, and a party not the holder and without a valid assignment traceable in an unbroken chain of valid assignments back to the present holder, is awarded judgment against the mortgagor (you), at some time in the future the present holder of the original wet-ink NOTE could appear and file another lawsuit to enforce the NOTE.

If you paid a lawyer to represent you in a foreclosure lawsuit where you were dispossessed of the property, and the lawyer failed to use the UCC to defeat the foreclosure claimant, that lawyer is incompetent and provided ineffective counsel. A complaint against such lawyer should be lodged with his local bar association. You might want to conduct an investigation to determine any conflict of interest between the lawyer and the bank. Your lawyer was probably acting as a "shilling" for the bank.

Legal Term: "shilling" Slang term for posing as an innocent bystander at a confidence game but giving aid and assistance to the perpetrators of the scheme as a decoy. Black's Law Dictionary, 6th Edition, p. 1377 (BLD6-1377)

Subject matter jurisdiction can be challenged at any time. Even after judgment and execution.

If the facts indicate that the foreclosure was wrongful pursuant to the court's lack of subject matter jurisdiction, the court's judgment in favor of the foreclosure claimant is voidable.
See Rules of Civil Procedure, Rule 60(b), (void judgment - lack of subject matter jurisdiction).

The following research is the supporting statutory law in support of the demand "Show me the NOTE!"

In light of the fact that virtually all promissory notes taken by banks, mortgage companies, etc., were sold at some time after the "closing" for the respective transactions --- without the right in discovery to physically inspect, and photocopy the original wet-ink instrument, (production of the original instrument), meaning that the bank, mortgage company, etc., retained physical possession of the NOTE, or can PROVE a valid assignment of the rights of the holder to enforce the instrument from the holder of the original wet-ink NOTE, standing in a court to enforce the instrument in foreclosure is impossible pursuant to the Uniform Commercial Code. (UCC).

Without possession of the original wet-ink NOTE, or proof of authentic and valid assignment of the rights of the holder of the original wet-ink NOTE, no foreclosure action can be sustained when confronted with the following research.

If the bank is suing to enforce a NOTE and foreclose on property, if the bank sold (transferred) the NOTE, the bank lost the right to enforce the NOTE as a holder.
See UCC § 3-309(a)(2).

Access to UCC online: http://www.law.cornell.edu/ucc/ucc.table.html


Statutory Requirements for Establishing the Right to Enforce an Instrument

1. Prove status of holder of the instrument. (UCC § 3-301(i)); or

UCC § 1-201(21) "Holder" means:
(A)the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; or
(B)the person in possession of a document of title if the goods are deliverable either to bearer or to the order of the person in possession.
http://www.law.cornell.edu/ucc/1/article1.htm#s1-201

2. Prove status of non-holder in possession of the instrument who has the rights of a holder. (UCC § 3-301(ii)); or

3. Prove status of being entitled to enforce the instrument as a person not in possession of the instrument pursuant to UCC § 3-309 or UCC § 3-418(d). (NOTE is lost, stolen, destroyed).

UCC § 3-309, requirements.

a. Prove possession of the instrument and entitled to enforce it when loss of possession occurred. (UCC § 3-309(a)(1)).

NOTE: If illegality or fraud were involved in the original transaction, it cannot be proved that the person is entitled to enforce the instrument. (See UCC § 3-305. DEFENSES)

b. Prove non-possession of the NOTE is NOT the result of a transfer. (UCC § 3-309(a)(2)).

NOTE: If discovery shows that the instrument was sold by the person claiming the right to enforcement, a transfer occurred, and such person is NOT entitled to enforce the instrument. (See UCC § 3-309(a)(2)).

c. Prove that the person seeking enforcement cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. (UCC § 3-309(a)(3)).

NOTE: If discovery shows that the instrument was sold by the person claiming the right to enforcement, a transfer occurred, and such person is NOT entitled to enforce the instrument. (See UCC § 3-309(a)(2)).

d. A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. (UCC § 3-309(b)).

UCC § 3-309ENFORCEMENT OF LOST, DESTROYED,
OR STOLEN INSTRUMENT.
(a) A person not in possession of an instrument is entitled to enforce the instrument if
(1)the person seeking to enforce the instrument
(A)was entitled ** to enforce the instrument when loss of possession occurred, or
(B)

has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

(2)

the loss of possession was not the result of a transfer by the person or a lawful seizure; and

(3)

the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. (UCC § 3-203(a)).

If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee.(UCC 3-203(d))

UCC § 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.

NOTE:

Only a valid holder in physical possession of the NOTE can assign the holder's right to enforce the NOTE to a non-holder.

The foreclosure claimant must be able to prove the right to enforce the NOTE by production of valid and authentic assignment agreements all the way back to the holder presently in physical possession of the NOTE.

No assumptions! Make them PROVE IT!

If this cannot be proved, the claimant has no standing to bring a suit in foreclosure and the case must be dismissed because the court then lacks subject matter jurisdiction over the case.

Proof of the Terms of the Instrument
(Promissory Note and Mortgage Agreement are NOT Separable).

"The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." [Fn3 Jackson v. Blodget, 5 Cowan 205; Jackson v. Willard, 4 Johnson 43.] Quotation and Footnote from: Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872). (emphasis added)
(Access Carpenter here: http://supreme.justia.com/us/83/271/case.html)

The above referenced current and binding opinion of the Supreme Court of the United States, was recently utilized as basic law in Landmark Nat’l Bank v. Kesler, No. 98,489, by the Supreme Court of the State of Kansas, (August 2009). Access Landmark here: [Landmark Decision]

If the bank, mortgage company, etc., sold the NOTE, they have no right to enforce the NOTE, through foreclosure or court proceeding pursuant to the fact that the UCC bars such claimant from invoking the court's subject matter jurisdiction of the case.

Even if the claimant produces the original wet-ink NOTE, there is a defense to the action pursuant to UCC § 3-305.

Illegality and false representation (fraud) perpetrated in the transaction.

Did the bank disclose the SOURCE of the money for the transaction?

Did the bank disclose to the NOTE issuer (you) that the money for the transaction was provided at no cost to the bank?

Did the bank disclose that the NOTE would be sold at the earliest possible convenience, and that such sale and receipt of money from a third party would actually pay off the NOTE? (Satisfaction of Mortgage).

Did the bank make the false representation that a "LOAN" transaction was being executed?

Did the bank identify the issuer of the promissory note (you) as a "borrower?"

Many discovery questions to be asked when a claimant initiates foreclosure proceedings.

Many assume that the bank/broker/lender that begins the process is actually providing the money for making a "loan," when in fact, the bank/broker/lender is only making an "exchange," of notes, at no cost, and then, coercing the issuer of the promissory note into the comprehension that he is receiving a "loan." The following was stated in A PRIMER ON MONEY, SUBCOMMITTEE ON DOMESTIC FINANCE, COMMITTEE ON BANKING AND CURRENCY, HOUSE OF REPRESENTATIVES, 88th Congress, 2d Session, AUGUST 5, 1964, CHAPTER VIII, HOW THE FEDERAL RESERVE GIVES AWAY PUBLIC FUNDS TO THE PRIVATE BANKS [44-985 O-65-7, p89]

[2nd paragraph, "Primer on Money" PDF page 89 of 141]
"But the conditions under which private banks operate are very different.
In the first place, one of the major functions of the private commercial banks is to create money. A large portion of bank profits come from the fact that the banks do create money. And, as we have pointed out, banks create money without cost to themselves, in the process of lending or investing in securities such as Government bonds. Bank profits come from interest on the money lent and invested, while the cost of creating money is negligible. (Banks do incur costs, of course, from bookkeeping to loan officers' salaries.) The power to create money has been delegated, or loaned, by Congress to the private banks for their free use. There is no charge." (emphasis added).

[open (PDF) Primer on Money -- US Congress Subcommittee on Domestic Finance]

In this instance, the transaction was funded by using the prospective property (collateral) and the signer's promissory note as if the property and the Note already belonged to the bank/broker/lender.

So, if the bank used the promissory NOTE, as money, to create the cash reserve which was then used to validate the bank check issued on the face value amount of the promissory NOTE, at no cost to the bank, without NOTICE to the signer of the promissory NOTE, and without fully disclosing these facts and aspects of the transaction, the bank committed a Deceptive Practice, False Representation, and Fraud.

Followup:

After digesting the statutory requirements for enforcement of a promissory NOTE, and it is determined that the foreclosure claimant had failed to establish standing pursuant to the statutory requirements of UCC § 3-301 and UCC § 3-309, it would be logical to conclude that the foreclosure was wrongful pursuant to the court's lack of subject matter jurisdiction over the case, therefore, the court's judgment in favor of the foreclosure claimant is voidable.

An action to void a judgment for lack of subject matter jurisdiction over the case can be brought up at any time, even after judgment, appeal, and subsequent execution of the judgment. See Rules of Civil Procedure, Rule 60(b), (void judgment - lack of subject matter jurisdiction).

NOTE: there is a distinction between the term “subject matter jurisdiction” and “subject matter jurisdiction over the case.”

“subject matter jurisdiction” is a broad and general term referring to the court’s general subject matter jurisdiction over a class of case types. Without this jurisdiction, judgments of a court are VOID.

“subject matter jurisdiction over the case” is a sub classification within the general subject matter jurisdiction of the court. The court’s lack of subject matter jurisdiction over a particular case makes the judgment in that case VOIDABLE.

See the following case for an explanation of the difference: Edwin A. Hisle and Olive Sue Hisle Cook v. Lexington-Fayette Urban County Government, Appeal From Fayette Circuit Court, Action No. 65-CI-17431, Commonwealth of Kentucky Court of Appeals, No. 2006-CA-001733-MR. [http://162.114.92.72/COA/2006-CA-001733.pdf ]

If the demand to "Show me the NOTE!" and that means the original wet-ink NOTE, was unfulfilled, it is more than likely that the foreclosure claimant had no right to enforce the NOTE.

Where's The Note, Who’s The Holder:
Enforcement Of Promissory Note
Secured By Real Estate

In light of the fact that virtually all promissory notes taken by banks, mortgage companies, etc., were sold at some time after the "closing" for the respective transactions --- without the right in discovery to physically inspect, and photocopy the original wet-ink instrument, (production of the original instrument), meaning that the bank, mortgage company, etc., retained physical possession of the NOTE, or that the foreclosure claimant can PROVE a valid assignment of the rights of the holder to enforce the instrument in an unbroken chain of valid assignments from the present holder of the original wet-ink NOTE to the foreclosure claimant, standing in a court to enforce the instrument in foreclosure is impossible pursuant to the Uniform Commercial Code. (UCC). Therefore, the court has no subject matter jurisdiction over the case.

Without possession of the original wet-ink NOTE, or proof of authentic and valid assignment of the rights of the present holder of the original wet-ink NOTE, no foreclosure action can be sustained when confronted with the Statutory Requirements for Establishing the Right to Enforce an Instrument

If the bank is suing to enforce a NOTE and foreclose on property, and it can be shown through discovery that the bank sold (transferred) the NOTE, the bank lost the right to enforce the NOTE. See
UCC § 3-309(a)(2).

Repeating:

Authoritative foundational basis for the determination of the right to enforce an instrument in a foreclosure proceeding: The foreclosure claimant must predicate the claim upon proof and evidence of physical possession or valid assignment of BOTH the NOTE and the Mortgage Agreement.

"The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." [Fn3 Jackson v. Blodget, 5 Cowan 205; Jackson v. Willard, 4 Johnson 43.] Quotation and Footnote from:
Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872). (emphasis added)
(Access Carpenter here: http://supreme.justia.com/us/83/271/case.html)

The above referenced current and binding opinion of the Supreme Court of the United States, was recently utilized as basic law in Landmark Nat’l Bank v. Kesler, No. 98,489, by the Supreme Court of the State of Kansas, (August 2009).
Access Landmark here: [Landmark Decision]

Hit Counter

Quote 0 0
ka

Ann: 

 

You failed to identify the source of this information.

 

Some of the assertions are legally erroneous or at least legally questionable.

 

I find several sttements made in this document to be singularly ALARMING.  For example, the statement below is NOT universally correct as to ALL jurisdictions and is MISLEADING as to MOST jurisdictions.

 

Quote:
Subject matter jurisdiction can be challenged at any time. Even after judgment and execution.

 

The statement is partially true as to U.S. Federal Courts under Article III, as well as in courts in places such as Connecticut and Texas which have expressly found that standing is esential to subject matter jurisdiction and that standing is a state constitutional imperative under the "open courts" provision.

 

But in other places, such as Maine and New York, appellate courts have reached other conclusions.  The Maine Supreme Court has held that standing is a prudential rather than a constitutional imperative.  New York Appellate Courts hold that standing must be raised in the first defensive pleading.

 

Ohio Courts have reached mixed decisions on standing, muddling the issue with real party in interest, in part due to some poorly argued pro se cases.

 

Even in places where standing is a constitutional imperative, the statement is MISLEADING.  IF, in Texas or Connecticut, a defendant FAILS TO RAISE standing as a defense, the defendant could still challenge standing in a timely filed APPEAL.  But if the defendant lets the appeals period run and fails to make out the standing argument in a timely appeal, the judgment becomes FINAL.

 

The assertion that the matter might be later asserted with respect to execution is, I believe WRONG EVERYWHERE nationally.  This is nonsense propagated by several pro se litigants who have LOST THEIR HOMES and have continued to argue this point LOSING at EVERY APPEAL.  (See Richard DAVET.)  This argument is simply INVALID.

 

If ANYONE can find case law that supports the assertion, I would be interest in seeing it.  Every case I have ever read in EVERY STATE reaches a contrary holding.

 

*

 

Encouraging borrowers to seek malpractice actions against their defense lawyers, similarly seems likely to be a total waste of time in most cases.  This is not because the defense lawyers have done a singularly good job.  Rather, it is because legal malpractice actions are as hard to win as defensive foreclosure cases, probably harder.  You would be better off recommending that the distressed borrower buy lottery tickets.  The odds are probably far, far better in the lottery!

 

*

 

Posting UNSOURCED material of such questionable quality is NOT a service to the Forum.  Rather, it is a distraction and a reason for thoughtful contributors to simply abandon this space.

 

I do NOT have time to explain the folly of every poorly conceived post which is held out to be authoritative.

 

This material is MOST DANGEROUS, because it is formatted in a professional way and comes across as credible.  But information like this will very likely result in MORE LOST HOMES!

 

*

 

I am sure that Moose, Bill et al can take apart other assertions in this post.  BUT WHY SHOULD ANYONE HAVE TO WASTE THEIR TIME DOING SO?  WHY INTRODUCE SUCH QUESTIONABLE MATERIAL TO THE FORUM WHEN DISTRESSED BORROWERS ARE ALREADY SO EASILY VICTIMIZED AND CONFUSED??

Quote 0 0
ka

This HORRID exposition seems to have been floating around since at least December 2009.  While it contains some useful references to several statutes, these can also all be found within other legally defensible Forum posts.

 

By contrast, the document contains numerous legally erroneous and legally questionable assertions.  It uses a few valid mentions of statutes and cases to support absolutely unsupporable conclusions.  This is the kind of material posted at other purported foreclosure defense sites which is used to try to explain or justify that which cannot be supported by case law or good legal strategy.

 

In short, it presents the produce the note strategy as though it actually had some legal merit, while a careful look at the arguments, statutes and cases cited demonstrates that this is merely a MYTH used to separate FOOLS from their money.  Unsurprisingly, I found this posted verbatim at several of the sites which are used to regularly swindle borrowers.

 

Happily, Googling key phrases from the posted document is a quick expedient for identification of swindlers.  Unfortunately, this post now introduces MSFraud into that questionable company.

Quote 0 0
George Burns
Ann means well and is trying to help, but she cannot understand that promoting and linking everything that she finds, is not helpful and quite often is dangerous.

Posting things that are unvetted for accuracy, efficacy and relevance, exposes the unwary to items which, if applied, could damage the chance of an effective defense. Many readers wrongly will assume that a link posted or literature cited etc, has been evaluated by the poster. In Ann's case this does not seem so. She posts every and anything from any source Some materials even conflict with others.

I suggest that a few should use her email link and make her aware of the consequences of her action. This should not be done on the Forum because she means well andis only trying to help.
Quote 0 0

Someone in the legal community send me the exposition. I am not a lawyer so I cannot evaluate legal info and I don't pretend to be able to do so. My posts and finds are for information purposes and readers should seek legal advice before using any of the info or strategies I post. I suggest readers should do so with ALL ideas or info found on Internet. Do not purchase any legal documents/report without discuss it with an attorney who specializes on the matter.

 

I personally believe that people go to the Internet forum to search for info but also looking for a moral support (someone out there in my same situation and care about me, not judging me). Provide this moral support is already very helpful.

 

Readers should go to the MS fraud Legal Lounge to find more legal info, case law . The forum should be open for ALL discussions on news, info, ideas related to foreclosure and mortgage fraud.  Too harsh critics can result to less people turn to the Forum asking for help/learn  and less people take their time to give their helpful opinion/info.

 

I guess that's why many good people who used to post here don't bother to post anymore. And new people are afraid to ask questions because their questions could be critized as idiotic openly and widely in public. 

 

The Produce the Note strategy is very effectifve if it is used wisely by a good attorney at the right time and combined with other strategies to defend agaisnt Bank's Motion for Summary Judgment or trial defense. It is used widely in Opposition to Motion for Summary Judgment together with other frauds.

Go to the courthouse , read the other foreclosure cases to see how attorneys used it in their pleadings. Do not go to Court Hearing without an attorney and a Court reporter, the written pleading is only half of the game. Oral argument also determines the outcome of the hearing.  The Court Reporter transcript is required for Appeal Court, the reporter's presence keeps the Judge and Bank lawyer in check.

 

I review foreclosure cases in my jurisdiction once a week, as many as I can to do research.

Quote 0 0
ka
Quote:
The Produce the Note strategy is very effectifve if it is used wisely by a good attorney at the right time and combined with other strategies to defend agaisnt Bank's Motion for Summary Judgment or trial defense.  It is used widely in Opposition to Motion for Summary Judgment together with other frauds.


No, Ann.  The "produce the note" strategy doesn't work effectively AT ALL anywhere.  If you believe this to be the case, you clearly are NOT talking to leading foreclosure defense attorneys, but rather mediocre lawyers who are mistaking the fact that ANY defense interposed by an attorney tends to DELAY foreclosure simply because these cases are pushed to the back of teh queue.

Talk to the attorneys who know what they are doing and actually prevailing and you discover otherwise.  Moreover, one of the things you seem to be failing to appreciate is that the success rate of the pro se litigants here at the Forum who have been following Mr. ROPER's posts is far better than the results obtained by even the most celebrated attorneys.

There are several who are getting very close to obtaining a free house.  This is done through patience.  Since Mr. ROPER is not an attorney and not busy trying to rip people off like the swindlers, he doesn't encourage Forum participants to celebrate or trumpet their modest successes.  Instead, he encourages them to "keep in a defilade" to use his words. The defendant ought not to draw attention to themselves, so as not to become a target.

There are several here that have survived initial attempts to wrest them of their homes, have had cases dismissed and are watching the calendar as weeks turn into months, and months turn into years.

Can you find a single case where a plaintiff, when ordered to produce the note, was actually unable to do so

Yes, there are licensed attorneys involved in the swindle.  Yes, they propagate this myth to line their pockets.  No, it does NOT work.

You say you read the cases.  Read them.  Categorize them.  Sort them.  That is what Mr. ROPER did at this site for years.  Borrowers can usually win on evidentiary and, initially, on standing issues.  But this is almost never the case if the borrower is challenged to produce the original note.  When this strategy is pursued, the lender simply produces the note and WINS!

Quote 0 0
Gary
That really was a horrible exposition, as noted by others.  That someone in the legal community brought it to Ann's attention reflects either that she is communicating with an attorney of exceptionally mediocre ability or that the attorney is in the orbit of the swindlers.

This is the type of thing one expects to find at the "Chock Full of Lies" website (to use Mr. Roper's veiled reference to the notorious swindler).
Quote 0 0
Gary
This little tidbit within In Re Jessup (posted by sirrowan in another thread) also eviscerates the show me the note strategy and vindicates Mr. Roper's position:
 
Quote:
Further, the Defendants cite In re Cook, 457 F.3d

561 (6th Cir. 2006) in which the court explained that a note is a

negotiable instrument under KRS 355.3-104 and is self-authenticating

evidence under Fed. R. Evid. 902(9).

A copy of the note has to be authenticated and can be kept out of evidence absent proper authentication.  The original of the note is self-authenticating.
 
Those were demand the production of the note almost uniformly LOSE THEIR CASE and most often quickly.  As ka explains, this strategy is a scam.  No serious lawyer engaged in foreclosure defense ever approaches the case in this way.
 
The swindlers want to make it look easy to sell their vacuous wares.  As long as a distressed borrower believes that prospects of winning are good with minimal effort, they will shovel money to these thieves.

Quote 0 0
t
Amongst the other useless information in Ann's unsourced post is this:

Quote:
Did the bank disclose the SOURCE of the money for the transaction?

Did the bank disclose to the NOTE issuer (you) that the money for the transaction was provided at no cost to the bank?

Did the bank disclose that the NOTE would be sold at the earliest possible convenience, and that such sale and receipt of money from a third party would actually pay off the NOTE? (Satisfaction of Mortgage).

Did the bank make the false representation that a "LOAN" transaction was being executed?

Did the bank identify the issuer of the promissory note (you) as a "borrower?"

ALL of this is utter nonsense and a complete waste of the borrower's time.  If a defendant employed even a fraction of the USELESS suggestions shown in this "exposition", the borrower's credibility will be destroyed.

This is just the kind of vacuous material that gets pro se borrowers in trouble.  Any person in the legal community who would forward such material to Ann has no credibility whatsoever.
Quote 0 0
DT
KA,

Let me ask you about FS 90.953 (2002) "Original promissory note as a duplicate of a note is not admissible otherwise, the plaintiff must meet the requirements of section 673.3091." (lost note)
Quote 0 0
Texas
A Lost Note Affidavit is not a Negotiable Instrument.
Once the Lost Note status has been proved, no further negotiation is possible.

People in lien theory states need to use caution when using laws based on title theory.

Quote 0 0

Squires v. BAC | SD Alabama Court Denies BAC MTD – TILA case alleging violation of §1641(g)(1) which is notice of the sale or transfer of a loan from one entity to another - 2012-01-04 22:58:17-05
http://www.scribd.com/doc/77260455/Squires-v-BAC-Order-Denying-Bank-MTD-TILA-Case

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILLIAM C. SQUIRES, et al., Plaintiffs, v. BAC HOME LOANS SERVICING, LP, Defendant.
. Plaintiffs, William and Loretta Squires, brought this action against defendant, BACHome Loans Servicing, LP, alleging a single violation of the Truth-in-Lending Act, 15 U.S.C.§§ 1601 et seq. (“TILA”). According to the well-pleaded allegations of the Complaint, plaintiffsexecuted a real estate mortgage with non-party Countrywide Home Loans in June 2007, with theloan being secured by plaintiffs’ principal residence. (Doc. 2, ¶¶ 5, 7.) The Complaint further alleges that “[o]n July 21, 2010 beneficial interest in the Plaintiffs’ mortgage and notewas assigned to BAC,” and that a written assignment identifying BAC as assignee was executedon that date and recorded shortly thereafter. (Id., ¶ 6.)1
.......

Nonetheless, BAC’s argument fails because comparison of the Squires’ claims in theState-Court Action with those presented here reveals that they do not involve the sametransaction or occurrence. After all, the only claim interposed by the Squires in this action is aTILA claim alleging that BAC breached its obligation to notify plaintiffs in a timely mannerafter the Squires’ mortgage loan was transferred to it in July 2010. By contrast, the Squires’claims in the State-Court Action have nothing to do with the July 2010 Assignment of Mortgageand BAC’s purported failure to notify plaintiffs of same. Rather, the State-Court Action claimsconcern the September 2010 foreclosure sale and BAC’s alleged misrepresentations relating to that foreclosure. This is a different occurrence and a different wrong, involving a different timeperiod. The Squires have not engaged in improper claim-splitting because the subject matter ofthe two sets of claims is not the same, but rather is factually and temporally distinct.7 Dismissal of the Complaint on claim-splitting grounds is therefore unwarranted.

7 In so concluding, the Court has considered BAC’s contention that the allegations

in both sets of claims “arise out of the same operative nucleus of facts, i.e., BAC[]’s servicing of

Plaintiffs’ mortgage loan.” (Doc. 10, at 10.) But BAC’s servicing of the Squires’ mortgage loan

was not itself a singular operative factual nucleus; rather, it had different features at different

times. The transfer of the loan to BAC in July 2010 is of crucial importance to the Squires’

claims in this action, but appears only of tangential relevance to the State-Court Action.

Similarly, the foreclosure sale and BAC’s communications to the Squires in relation to same are

of minimal relevance to this proceeding, but likely are at the heart of the State-Court Action. In

short, the claims involve different conduct at different times. The possibility that “discovery in

both cases is likely to involve many of the same documents and witnesses” (doc. 20, at 5) is not,

without more, enough to justify dismissal of this action on claim-splitting grounds. At any rate,

BAC appears to overstate the likely degree of that overlap, given the different conduct and

events on which each set of claims is predicated. Finally, the Court declines BAC’s invitation to

“require Plaintiffs to assert their TILA claims in the pending state court litigation” (doc. 20, at 5),

which (assuming the deadline for amending pleadings has not passed in the State-Court Action)

would pave the way for BAC to remove that entire State-Court Action to federal court.

Case 1:11-cv-00413-WS-M Document 21 Filed 11/29/11 Page 9 of 10

-10-

III. Conclusion.

For all of the foregoing reasons, defendant’s Motion to Dismiss (doc. 10) is denied.

Defendant is ordered to file its answer to the Complaint on or before December 13, 2011.

DONE and ORDERED this 29th day of November, 2011.

thereafter. (Id., ¶ 6.)1
Quote 0 0
Bill
Ann wrote:

Squires v. BAC | SD Alabama Court Denies BAC MTD – TILA case alleging violation of §1641(g)(1) which is notice of the sale or transfer of a loan from one entity to another - 2012-01-04 22:58:17-05
http://www.scribd.com/doc/77260455/Squires-v-BAC-Order-Denying-Bank-MTD-TILA-Case

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILLIAM C. SQUIRES, et al., Plaintiffs, v. BAC HOME LOANS SERVICING, LP, Defendant.
. Plaintiffs, William and Loretta Squires, brought this action against defendant, BACHome Loans Servicing, LP, alleging a single violation of the Truth-in-Lending Act, 15 U.S.C.§§ 1601 et seq. (“TILA”). According to the well-pleaded allegations of the Complaint, plaintiffsexecuted a real estate mortgage with non-party Countrywide Home Loans in June 2007, with theloan being secured by plaintiffs’ principal residence. (Doc. 2, ¶¶ 5, 7.) The Complaint further alleges that “[o]n July 21, 2010 beneficial interest in the Plaintiffs’ mortgage and notewas assigned to BAC,” and that a written assignment identifying BAC as assignee was executedon that date and recorded shortly thereafter. (Id., ¶ 6.)1
.......

Nonetheless, BAC’s argument fails because comparison of the Squires’ claims in theState-Court Action with those presented here reveals that they do not involve the sametransaction or occurrence. After all, the only claim interposed by the Squires in this action is aTILA claim alleging that BAC breached its obligation to notify plaintiffs in a timely mannerafter the Squires’ mortgage loan was transferred to it in July 2010. By contrast, the Squires’claims in the State-Court Action have nothing to do with the July 2010 Assignment of Mortgageand BAC’s purported failure to notify plaintiffs of same. Rather, the State-Court Action claimsconcern the September 2010 foreclosure sale and BAC’s alleged misrepresentations relating to that foreclosure. This is a different occurrence and a different wrong, involving a different timeperiod. The Squires have not engaged in improper claim-splitting because the subject matter ofthe two sets of claims is not the same, but rather is factually and temporally distinct.7 Dismissal of the Complaint on claim-splitting grounds is therefore unwarranted.

7 In so concluding, the Court has considered BAC’s contention that the allegations

in both sets of claims “arise out of the same operative nucleus of facts, i.e., BAC[]’s servicing of

Plaintiffs’ mortgage loan.” (Doc. 10, at 10.) But BAC’s servicing of the Squires’ mortgage loan

was not itself a singular operative factual nucleus; rather, it had different features at different

times. The transfer of the loan to BAC in July 2010 is of crucial importance to the Squires’

claims in this action, but appears only of tangential relevance to the State-Court Action.

Similarly, the foreclosure sale and BAC’s communications to the Squires in relation to same are

of minimal relevance to this proceeding, but likely are at the heart of the State-Court Action. In

short, the claims involve different conduct at different times. The possibility that “discovery in

both cases is likely to involve many of the same documents and witnesses” (doc. 20, at 5) is not,

without more, enough to justify dismissal of this action on claim-splitting grounds. At any rate,

BAC appears to overstate the likely degree of that overlap, given the different conduct and

events on which each set of claims is predicated. Finally, the Court declines BAC’s invitation to

“require Plaintiffs to assert their TILA claims in the pending state court litigation” (doc. 20, at 5),

which (assuming the deadline for amending pleadings has not passed in the State-Court Action)

would pave the way for BAC to remove that entire State-Court Action to federal court.

Case 1:11-cv-00413-WS-M Document 21 Filed 11/29/11 Page 9 of 10

-10-

III. Conclusion.

For all of the foregoing reasons, defendant’s Motion to Dismiss (doc. 10) is denied.

Defendant is ordered to file its answer to the Complaint on or before December 13, 2011.

DONE and ORDERED this 29th day of November, 2011.

thereafter. (Id., ¶ 6.)1

Ann found a very interesting case.  This is a fairly NEW requirement under the TILA.  Obama signed this into law, requiring that when you transfer, sell, ect the bennifitial interest in a loan that the assignee MUST provide the homeowner the NAME, ADDRESS, PHONE NUMBER, POINT OF CONTACT, ect of the NEW OWNER.   

Quote:

(a)  Scope. The disclosure requirements of this section apply to any covered person except as otherwise provided in this section. For purposes of this section:

(1)  A "covered person" means any person, as defined in § 226.2(a)(22), that becomes the owner of an existing mortgage loan by acquiring legal title to the debt obligation, whether through a purchase, assignment or other transfer, and who acquires more than one mortgage loan in any twelve-month period. For purposes of this section, a servicer of a mortgage loan shall not be treated as the owner of the obligation if the servicer holds title to the loan, or title is assigned to the servicer, solely for the administrative convenience of the servicer in servicing the obligation.




(d)  Content of required disclosures. The disclosures required by this section shall identify the loan that was sold, assigned or otherwise transferred, and state the following:

(1)  The name, address, and telephone number of the covered person.

(i)  If a single disclosure is provided on behalf of more than one covered person, the information required by this paragraph shall be provided for each of them unless paragraph (d)(1)(ii) of this section applies.

(ii)  If a single disclosure is provided on behalf of more than one covered person and one of them has been authorized in accordance with paragraph (d)(3) of this section to receive the consumer's notice of the right to rescind and resolve issues concerning the consumer's payments on the loan, the information required by paragraph (d)(1) of this section may be provided only for that covered person.

(2)  The date of transfer.

(3)  The name, address and telephone number of an agent or party authorized to receive notice of the right to rescind and resolve issues concerning the consumer's payments on the loan. However, no information is required to be provided under this paragraph if the consumer can use the information provided under paragraph (d)(1) of this section for these purposes.

(4)  Where transfer of ownership of the debt to the covered person is or may be recorded in public records, or, alternatively, that the transfer of ownership has not been recorded in public records at the time the disclosure is provided.





Quote 0 0
Write a reply...