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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Bill
With all the LPS problems in the news, I had a question.  WHO is the one committing the fraud?  Is it the person producing the document or the person executing the document?

If the attorney for the Plaintiff creates the assignment and a Servicer executes the document using a MERS officer, who is committing the fraud?  Obviously the MERS officer, but what about the Plaintiff who's counsel created the document?
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I’d say both.  If the foreclosure mill produces a missing document that had to be executed many moons ago and then sends it to a third party for execution then they know it is wrong.  

I wonder why someone hasn’t sued the mills and the document companies for conspiracy. To prove conspiracy one of the conspirators needs to fess up.  The 60 Minutes piece is a clear fess up.

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William A. Roper, Jr.
Bill:

The precise nature of the crime depends upon the laws of the jurisdiction where the instrument was forged as well as the laws of the jurisdiction where the instrument was recorded and/or pled into evidence.

The elements of criminal forgery vary from state to state.  And some states have laws which make it a crime to create a false business record.

In many places, uttering a forgery is a separate crime from the creation of the forged instrument.  That is the firger commits a crime and the person who seeks to pass of the forgery also commits a crime.

Many states now have laws which make it a separate crime to record a false document.

And pleading a fabricated or forged document into evidence is a crime almost everywhere, but the elements and nature of the crime vary.

Since introduction of a document into evidence in a summary judgment setting also usually requires that the document be authenticated, the false authentication may be a separate perjury.  This is one of the reasons that the plaintiff very often attaches the forged instruments to a filing WITHOUT authentication.  And this gets into the summary judgment record almost everywhere UNLESS the defendant expressly OBJECTS.

If you present the forged assignment to the plaintiff as an attachment to a written discovery request and ask the plaintiff to authenticate the document by interrogatory, you may be able to hang the plaintiff up for perjury of the interrogatory response, too.

As "Way To Go" points out, the involvement of more than one person in a crime can be an actionable criminal conspiracy

I have also seen some case law which suggests that an instrument forged which affects interests in real property may be a criminal forery BOTH in the place where the forgery took place, AS WELL AS in the jurisdiction where the affected real property is actually located.

*

But enumerating the various crimes is academic unless and until some prosecutor actually brings charges.  It is also important to note that many criminal prosecutions are instigated by an injured person bringing forward a criminal complaint.  If NO ONE COMPLAINS, the prosecutor DOES NOTHING.
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floridagal
Was trying to get this point across in another thread.
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Angelo
Bill

I know in my state, there has been many instances where the foreclosure mills just state in their reply affirmation for summary judgement, that the assignment was made to "put the world on notice" that the mortgage was assigned.  They claim that the mortgage follows the note, so the assignment is irrelevant to the facts of the case.  And the judges just go along with the plaintiff's attorney's. 

Futhermore, the forgery(creation /filing) is a criminal offense, in a civil matter, I don't think we are ever going to see a police officer come into court and arrest an attorney.

I think thats were the difficulty lies.


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floridagal
Yes that it was they claim, after the fraud assignment.

But how does that work when they claim to have been transferred the note if the originating lender/owner of the note is under bankruptcy protection and does not have any proof that BK Court allowed asset to leave and/or does not know of the asset, (hidden)???
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Angelo
They are going to claim that the note was transfered long ago, some 30-90 days after closing.  Im sure your note was negotiated in blank.  The issue is they have a proof problem, as to when the note was negotiated.  So they try to fabricate an assignment from MERS, if it was a MOM loan, that proports to assign the mortgage and note.  Thats where the fabrication comes in!

So the original lender being in BK has no bearing now.
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    We see this alot with New Century Notes and Mortgages. NC went BK in
Nov of 2007 without having ever lawfully endorsed many of its Notes over
to any other entity and with no assignment of the mortgages.
    This should mean those Notes and Mortgages are part of the BK estate
and essentially belong to the BK Trustee.
    However, what we see is that the servicers like Ocwen are trying to foreclose on these Notes using Deutche Bank National Trust Co. as the
plaintiff.
    First of all DBNTC is not the real Deutsch Bank Trust Co. Americas, it
is merely a fictitious name for an investor in So. Florida. This fictitious name
has never registered with the Florida Dept. of State as a Trust or Trustee,
so it has no CAPACITY to be suing anyone. These actions are a complete
fraud on the Court as a brave Judge in Pasco County, Florida recently ruled.
(see Matt Weidner's web site for the details).
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William A. Roper, Jr.
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Angelo said:
Futhermore, the forgery(creation /filing) is a criminal offense, in a civil matter, I don't think we are ever going to see a police officer come into court and arrest an attorney.


Angelo:

In many jurisdictions, a witness or a victim of a crime can swear out a private criminal complaint.  Until someone COMPLAINS to a law enforcement official, the DA and the police have no knowledge of the crime.  When a complaint is sworn out, the DA usually has to at least make a cursory investigation of the facts set forth in the complaint.

Of course, it is essential that the complaint be truthful, since it is sworn.

I frequently hear Forum participants complain that law enforcement officials are not taking action, but only a handful of Forum participants have EVER formally complained to the authorities.  Instead, they mostly complain about law enforcement officials whose inaction is generally readily explainable by the failure of the victims to come forward and COMPLAIN.
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Angelo

I totally understand, and I would be the first to run to my DA since I have connections with her office,but isn't it true that attorney's can't be prosecuted for any action they make during litigation?  Aren't they imune from prosecution?

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floridagal
NC went BK in April 2007. And had been ordered to cease and desist starting as soon as March 2007, I believe.
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Bill
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William said:

In many jurisdictions, a witness or a victim of a crime can swear out a private criminal complaint


I understand that filing a complaint is different in each jurisdiction.  But if you had to guess, with whom would you file a white collar criminal complaint?  Where do you start?  The County Prosecutor? I think a lot of people don't know (including me) with whom to file a white collar crime criminal complaint.


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William A. Roper, Jr.
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Angelo said:
I totally understand, and I would be the first to run to my DA since I have connections with her office,but isn't it true that attorney's can't be prosecuted for any action they make during litigation?  Aren't they imune from prosecution?


Angelo:

I am aware of no place where this would be true.

However, there are several related concepts which are probably the soure of your confusion.

First, attorneys and their clients typically enjoy an attorney-client privilege.  This tends to shield both attorneys and their clients from inquiry into their conversations, strategy, communications and documents pertaining thereto.  This makes obtaining evdience of attorney criminal misconduct challenging.

At every juncture, both attorney and client will invoke this privilege to obstruct any criminal investigation.

But the privilege is NOT without limits and usually the privilege CANNOT BE USED to conceal actual criminal activity in which the attorney is complicit.  Getting the evidence is challenging.

Second, in some jurisdictions, both attorneys and parties enjoy some limited immunity from slander or liable actions in respect of allegations made within pleadings, motions, responses and court testimony.  So if the attorney blurts out in open court that he thinks that Bill Roper is a dirty rotten rat fink and I am NOT, then I probably cannot sue for slander.

On the other hand, if the attorney brings a false action against me, I might have a valid claim, counterclaim and/or cause of action for abuse of process or some other similar tort.

Third, very often the State Supreme Court or another similar constituted body overseas attorney discipline in respect of misconduct in the practice of law.  If an attorney suborns perjury, assists in the fabrication of an instrument which is forged by someone at the attorneys direction or behest, arranges for the recording of a forged document, and/or pleads the perjured affidavit, forged or fabricated document into evidence, the attorney may be both committing a CRIME, as well as engaging in actionable misconduct.

A bar complaint would tend to be filed with the bar disciplinary authorities.  A criminal complaint would be lodged with prosecutors.

One can complain to BOTH.

Fourth, there are provisions of the bar disciplinary and or ethical rules in many jurisdictions that expressly state that an attorney should NOT refer an opposing attorney for prosecution or discipline during the pendency of an action.  In other words, when you are represented by an attorney and he catches the oppositing attorney engaging in behavior which might merit a criminal complaint OR bar referral, the attorney is supposed to REFRAIN from reporting the infraction until the conclusion of the litigation.  Presumably, this gentile professional courtesy is intended to keep the litigation civil and to avoid various reprisals.

This rule does NOT usually apply to pro se litigants, though the pro se litigant may tax the Judge's patience by initiating a criminal or bar complaint during the pendency.

*

Parties to litigation need to bear in mind that reporting the crime will tend to have consequences as to the willingness of the other side to settle.  Sometimes the inherent or implied threat of prosecution or discipline will induce a favorable settlement.  So a party should carefully consider its self-interest in deciding whether to report and WHEN.

But in FAILING TO REPORT, we can hardly fault prosecutors and bar disciplinary panels for not acting.
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Angelo
Bill

Those are the exact situations I was thinking of, I know I heard them somewhere but didnt know the context.  Thanks!

Also here is AHMSI responce to the 60 minutes

“In addition to transferring the mortgage through an unrecorded assignment at the time the assignee securitization trust obtains the loan, it has been industry practice for the loan servicer to have an assignment of mortgage executed and recorded in the name of the trustee for the securitization trust typically shortly before a foreclosure action is commenced. This latter assignment would be recorded to put record title into the name of the owner or holder of the loan, to eliminate any confusion about the assignee being the appropriate plaintiff to commence the foreclosure action. However, this assignment would not act to transfer ownership or holder status to that assignee, which occurred earlier, as explained above.

Although there exists a signed and notarized unrecorded assignment of mortgage in favor of the securitization trustee in a loan file maintained under contract by a custodian retained by the trust, in most cases it is very burdensome and costly to obtain that old, original assignment and more troublesome to record it, which is a document in favor of blank (that is, the name of the assignee is not filled in) and is dated, signed, and notarized years ago; it is generally less burdensome, more efficient, and less expensive to have foreclosure counsel review the current state of title and counsel or a document preparer prepare, sign, notarize, and record a currently prepared assignment, pursuant to appropriate corporate authority.”

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Bill
It appears in most cases the assignment is prepared by one entity then executed by another (ie. MERS officer).  Does anyone know why this would be the procedure they use?  Why would the attorney for the Plaintiff prepare an assignment and have the Servicer's MERS officer execute the document? 

Why not just have the MERS officer working for the Servicer print the document and execute the document?

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William A. Roper, Jr.
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Angelo said (from the AHMS 60 Minutes response):
Although there exist a signed and notarized unrecorded assignment of mortgage in favor of the securitization trustee in a loan file maintained under contract by a custodian retained by the trust, in most cases it is very burdensome and costly to obtain that old, original assignment and more troublesome to record it, which is a document in favor of blank (that is, the name of the assignee is not filled in) and is dated, signed, and notarized years ago; it is generally less burdensome, more efficient, and less expensive to have foreclosure counsel review the current state of title and counsel or a document preparer prepare, sign, notarize, and record a currently prepared assignment, pursuant to appropriate corporate authority.  (emphasis  added)


Now compare this language from the Ibanez decision:
“We now turn briefly to three other arguments raised by the plaintiffs on appeal.  First, the plaintiffs initially contended that the assignments in blank executed by Option One, identifying the assignor but not the assignee, not only "evidence[] and confirm[] the assignments that occurred by virtue of the securitization agreements," but "are effective assignments in their own right."  But in their reply briefs they conceded that the assignments in blank did not constitute a lawful assignment of the mortgages.  Their concession is appropriate.  We have long held that a conveyance of real property, such as a mortgage, that does not name the assignee conveys nothing and is void; we do not regard an assignment of land in blank as giving legal title in land to the bearer of the assignment.  See Flavin v. Morrissey, 327 Mass. 217, 219 (1951); Macurda v. Fuller, 225 Mass. 341, 344 (1916). See also G. L. c. 183, § 3.  (emphasis added)” 

United States Bank Nat'l Ass'n v. Ibanez, SJC-10694, SUPREME JUDICIAL COURT OF MASSACHUSETTS, 458 Mass. 637; 941 N.E.2d 40; 2011 Mass. LEXIS 5, October 7, 2010, Argued, January 7, 2011, Decided
http://scholar.google.com/scholar_case?case=4569784280786262124
*

So what we have is AHMS dancing out the SAME failed argument already CONCEDED in the Ibanez case.  And, oh, by the way, AHMS IS clearly lurking in the background:
"On September 2, 2008, more than one year after the sale, and more than five months after recording of the sale, American Home Mortgage Servicing, Inc., "as successor-in-interest" to Option One, which was until then the record holder of the Ibanez mortgage, executed a written assignment of that mortgage to U.S. Bank, as trustee for the securitization trust.[14]  This assignment was recorded on September 11, 2008."

United States Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 643.
http://scholar.google.com/scholar_case?case=4569784280786262124

"In Ibanez, for example, the mortgage was originally granted to Rose Mortgage, Inc., then assigned to Option One Mortgage Corporation, then assigned to American Home Mortgage Servicing, Inc., and then assigned to the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-Z, of which U.S. Bank is currently the trustee. Ibanez Complaint at 2, ¶ 3. Larace and Rosario have similar histories."

See Footnote 14 of Judge Long's Decision in the Mass. Land Court:
http://masscases.com/cases/land/2009/2009-384283-MEMO.html
ALTHOUGH I HAVE NEVER SEEN THE ASSIGNMENT IN IBANEZ, BASED UPON THE TIMING, I WOULD BET MONEY THAT IT IS A DOCX FORGERY.  BY SEPTEMBER 2008, LPS HAD GENERALLY SHUT DOWN THEIR PRIMARY FORGERY OPERATION IN DAKOTA COUNTY AND SHIFTED THE AHMS FORGERIES TO DOCX.

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William A. Roper, Jr.
See also my posts within the prior discussion thread and the links therein cited:

"Distinguishing Indorsement In Blank and Assignment In Blank" (01/10/11 at 01:56 PM)

http://ssgoldstar.websitetoolbox.com/post?id=5042928


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Alina
As usual, Mr. Roper, well said.  This is why discovery is crucial.  You need to pin them down in their lies.  They cannot produce the alleged "original" assignment of mortgage because it is an assignment in blank which is void. 

Their other argument is that since the "mortgage follows the note" it does not matter if there exists an assignment of mortgage.  False again and doubly false in Massachussetts as is evidenced in the Ibanez decision. 
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