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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William A. Roper, Jr.
Wall Street Journal reporter Nick Timoraos gives us another terrific foreclosure related story in a post from early evening at the WSJ site.  No doubt the story will also appear within the WSJ print edition tomorrow:

 

WSJ: "Oregon Judge Denies Foreclosure, Challenges MERS", by Nick Timoraos (May 26, 2011) [subscription $$$]

http://blogs.wsj.com/developments/2011/05/26/oregon-judge-denies-foreclosure-challenges-mers/


The story discusses the Oregon case Hooker v. Northwest Trustee Services, Inc.:

http://www.scribd.com/doc/56433445/Hooker-v-Northwest-Trustee-Opinion-and-Order-on-Motion-to-Dismiss-25-May-2011


U.S. District Court Judge Owen M. Panner's decision in this case may very well be the most significant U.S. Court decision in the U.S. regarding MERS.  Although the decision is NOT binding on Oregon Courts, it is likely to be influential in Oregon and elsewhere.  And the decision does create some case law that might be binding on the U.S. Bankruptcy Courts in Oregon.

*

Your comments, analysis and critique is solicited and appreciated!
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William A. Roper, Jr.
I have posted the defendant's (Northwest Trustee Services, Inc. and MERS) motion to dismiss, memorandum of law in support of motion to dismiss and declaration in support of the motion to dismiss at Scribd:

Defendant's Motion To Dismiss (14 Oct 2010)

http://www.scribd.com/doc/56434419/Hooker-v-Northwest-Trustee-Motion-to-Dismiss-14-Oct-2010

 

Memorandum of Law in Support of Defendant's Motion To Dismiss (14 Oct 2010)

http://www.scribd.com/doc/56434851/Hooker-v-Northwest-Trustee-Memorandum-of-Law-14-Oct-2010

 

Declaration in Support of Defendant's Motion To Dismiss (14 Oct 2010) [includes the Sept 2010 documents]

http://www.scribd.com/doc/56435133/Hooker-v-Northwest-Trustee-DEFs-Declaration-14-Oct-2010


These documents can inform borrowers what it might look like if when the trustee / MERS/ servicer / foreclosure mill seeks to dismiss a borrower's declaratory action when brought in Federal Court.
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William A. Roper, Jr.
Brent Hunsberger of The Oregonian has also weighed in with a story on the Hooker case:

The Oregonian: "Judge blocks Oregon foreclosure, sharply criticizes mortgage industry's practices and MERS", by Brent Hunsberger (May 26, 2011)
http://www.oregonlive.com/business/index.ssf/2011/05/judge_blocks_oregon_foreclosur.html


Why not drop by the site and share your comments?

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fred
dave ..

Quote:

fred, why dont you repost this over in roper's thread on the hooker case:


WSJ: "Oregon Judge Denies Foreclosure, Challenges MERS" - Hooker v. Northwest Trustee Services, Inc.

http://ssgoldstar.websitetoolbox.com/post?id=5290147


(this thread has already gotten very long and off topic due to the repeated incoherent posts of christopher.)



Just for you :-)

Oregon Judge Blocks Seizure of Home, Questions Non-Judicial Foreclosure, MERS involved again!

http://realestate.bryanellis.com/4507/oregon-judge-blocks-seizure-of-home-questions-non-judicial-foreclosure/
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MJ
Quote:
I have posted the defendant's (Northwest Trustee Services, Inc. and MERS) motion to dismiss, memorandum of law in support of motion to dismiss and declaration in support of the motion to dismiss at Scribd:

 
Once again we see the MERS side of the story.  Who does this clown work for?
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fred
Interesting Poll ....
http://blog.oregonlive.com/finance/2011/05/poll_should_legislature_give_m.html
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William A. Roper, Jr.
Quote:
MJ said:
Once again we see the MERS side of the story. Who does this clown work for?

 
MJ:
 
I spend many hours scouring public documents seeking to find material which is useful for foreclosure defendants.  This includes time expended downloading materials from PACER at my own expense, which I then upload to Scribd to make the material more accessible to others for FREE.
 
It takes time to properly upload and add correct keywords and descriptive information to a Scribd document to make the information readily discoverable to those seeking the information on Google or other search engines.
 
It also takes more time to post links on this or any other message board.
 
Sometimes, personal and business matters intrude on these efforts.  Other times I am interrupted from routine posts by urgent queries from those facing the imminent loss of their homes.  And this activity is interspersed with calls or e-mails from reporters inquiring about particular cases or foreclosure fraud scenarios.  (Do NOT assume that I first learned of the posted news articles and cases only AFTER reading the article!)  Like everyone, I must necessarily prioritize my efforts.
 
While YOU seem to be incapable of appreciating the use of the MERS or servicer pleadings, it is actually very useful to KNOW IN ADVANCE what arguments the opposition is likely to present. 
 
In my work in military intelligence, our job was to give our commander a better understanding of the battlespace, including from the perspective of the opposition.  This means actually wargaming opposition scenarios, battle plans, strategies and tactics.  I recall assisting our BDE Intel officer in doing a particularly stark wargaming of opposition strategy during a plans assessment phase that was rather instrumental in anticipating and predicting the ultimate strategy employed (albeit in another major simulation exercise).  The correct anticipation and wargaming of this strategy allowed for corrections to the plan that resulted in winning the fight.
 
There is value in reading not only model defensive pleadings, but also reading in advance the plaintiff's pleadings employed in other cases.
 
I have much other material from the Hooker case which I will deliberately post as time allows.  If you find my leisurely pace to be unsatisfactory, you are welcome to hit the PACER site, download the material at your own expense, upload it to Scribd, and share it in the manner you see fit.
 
I spend several hours a day gratuitously helping others with their foreclosure fights.  What have YOU done for others recently?
 
Who is the clown in this scenario?
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William A. Roper, Jr.
P.S.:

If my posts occasionally seem harsh or impatient it is often because the mindless and misleading posts of ungrateful clowns such as yourself cost borrowers their homes.  And I find myself wasting additional time correcting the egregious misstatements rather than actually advancing foreclosure defense!
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MJ,

I need to post my 2 cents here.  I have over 20 years experience as a paralegal and have known Mr. Roper for several years and his analyses of cases is superb.   In my experience, you have to analyse pleadings filed by the opposition in order to understand their strategy.  You have to understand their chief arguments and whether those arguments worked and in what context those arguments worked.  Only in this manner can you formulate responsive pleadings. This means gathering any and all motions filed in other similar cases by the same party.  You also have to compare the motions against the court rulings.  It is time consuming to properly analyze and comment on rulings.  

For cases in the federal courts, it is easy to get a PACER account and download whatever documents you may think are germane.  When I started on this journey several years ago, I did a PACER search and downloaded everything I could find.  I also performed GOOGLE searches as well as searches of the dockets in my state.  I studied everything - the good, the bad, and the ugly.  

Before launching an offensive or defensive strategy, know your enemy.   Also, study and know your state's rules of civil procedure as well as rules of evidence.  
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Brindy
MJ: Once again we see the MERS side of the story.  Who does this clown work for?

What a waste of human protein.  Go back to that little tiny room under your grandmothers basement stairs.  She has yummy bowl of Cocoa Puffs waiting for you.  If you talk nice to to she won't kick you out today after finding all those special magazines under your sheets.


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MJ

I was looking for WINNING arguments, those that have actually kept people in their homes.  Could you please post some of those and give me some hope?

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William A. Roper, Jr.
Quote:
MJ said:
I was looking for WINNING arguments, those that have actually kept people in their homes.  Could you please post some of those and give me some hope?


It seems that for the past week, everyone at the Forum has been so busy trying to clarify, refute and dismiss the misplaced, ill-conceived, poorly thought out and downright counterproductive strategies suggested and championed by a couple of total idiots that there has been little time to advance new and useful arguments.

However, if you scroll back through hundreds of prior threads (or search these threads), there is a LOT of useful information!

I have several new matters that I was hoping to introduce, but I keep getting interrupted by queries by reporters and rather distracting and counterproductive posts.  There is little time left to post new material.

There is probably sufficient material to keep you busy reading for a couple of hundred hours if you begin to make a serious study of prior posts.

I would suggest that you scroll back and read MANY posts in their entirety and then find themes that you find particularly interesting or useful.  Then use search keywords to find other related posts on those topics.

If you have a question about a particular topic, post a query within the relevant thread.  Others may be able to help focus your inquiry and identify other related keywords and threads.

Several of us have been attempting to post crosslinks from one thread to another to help Forum participants navigate through topics of interest.  Unfortunately, those who are lacking in knowledge, but disruptive, continue to post irrelevant, erroneous and otherwise specious information.  So you will often have to sort through a LOT chaff to find the wheat.

*

Moreover, bear in mind that there is no silver bullet or universally winning argument applicable to every case.  The winning arguments are almost always heavily fact dependent and vary from jurisdiction to jurisdiction.

If you are merely looking for a shortcut to victory, you have an unrealistic expectation.  If you are willing to spend a LOT of time to read and learn, you can definitely benefit significantly from this site.  Showing up and exhibiting impatience and ingratitude to longtime participants is not going to endear you to anyone.
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William A. Roper, Jr.
The Oregonian has been reporting on the efforts of MERS and the taxpayer subsidized banks to overcome the Court's decision on MERS' criminal behavior by legislative change:

The Oregonian:  "MERS foreclosure fix postponed but effort appears in jeopardy, legislator says" (May 31, 2011)
http://www.oregonlive.com/business/index.ssf/2011/05/mers_foreclosure_debate_delaye.html

 

Anyone who lives in Oregon ought to be contacting their state legislator and expressing their dismay and outrage!

 

Moreover, someone needs to be making a list as to which elected officials need to be turned out at the next election!!

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William A. Roper, Jr.
The Oregonian is also conducting a non-scientific online poll of reader views as to whether the legislature should amend the state recording law to retroactively give immunity to MERS' criminality:

The Oregonian:  "Poll: Should Oregon lawmakers give foreclosures, MERS a do-over?"
http://blog.oregonlive.com/finance/2011/05/poll_should_legislature_give_m.html


Why not share your view with members of the legislature by voting in the Oregonian poll?
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Thoughts from Judy

Entrapment


Related to Abuse of Process




Entrapment: (See: Estopple by Entrapment [for the future sale of tort claims])



There is a judicial discretion to stay proceedings where an offense was incited by another.




The general principle was asserted by Lord Goddard in Brannan v Peek (1947) who condemned as “wholly wrong” the practice of sending police to commit crimes in order to obtain evidence of unlicensed betting in public houses: the fact that the nominal defendant had been initially reluctant to bet with them made their conduct “the more reprehensible”




(The American Bar Association's published 'LITIGATION”, Volume 32, No. 4, Summer of 2006, article “Here Comes the Pro Se Plaintiff” by Len Niehoff, affirms the character of the business of the litigation (district trial) courts:




In some cases, the plaintiff's elect not to proceed because they don't want to risk the cash they'd need to secure the bond – in other words, they're happy to gamble with the defendant's money but don't want to gamble with their own. In other cases, the plaintiff's cannot proceed because they cannot secure a bond – they don't have the necessary funds themselves, and no one they know feels moved to gamble on their case.”)




This general principal, was reasserted in respect of terrorist offenses by Lord Widgery in Mealey (1979). The Court approved the current Home Office guidelines to police 'so far as they go”, viz: -




(a) No member of a police force, and no police informant, should counsel, incite or procure the commission of a crime.




The informant should always be instructed that he must on no account act as an agent provocateur, whether by suggesting to others that they should commit offenses or encouraging others to do so...”


(Home Office Consolidated Circular to the Police on crime and kindred matters, Section 1, para. 77 (196) New Law Journal 513)




The Commonwealth/American Authorities:


Wider afield, the courts of Canada ...have developed both exclusionary rules and the doctrine of abuse of process in aid of fundamental constitutional purpose identified by Justice Felix Frankfurter in Sherman -v- U.S. (1958) 356 U.S. 369 at 382:




The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than to detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.”




The Commonwealth courts have developed a set of techniques for applying and vindicating the principle which holds it unjust to expose an individual to the ordeal of trial and punishment for actions the like of which he or she would not have undertaken without calculated and persistent temptation and persuasion by Government agents.




The Canadian courts use the abuse of process to stop trials which have started with entrapment operations, on the principle that the court -




withholds its processes from the prosecution on the basis that such would bring the administration of justice into disrepute... the issue is not the discipline of the prosecution but the avoidance of the improper invocation by the State of the judicial process and its powers in circumstances where the accused has been ensnared by the police force in order to bring about an offense for which he will be prosecuted.”


(Amato -v- The Queen (1982) 69 CCC 2d 31)




The societal interest in limiting the use of entrapment techniques by the State was described by the Canadian Supreme Court in these terms:




One reason is that the State does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals. Another is concern that entrapment techniques may result in the commission of crimes by people who would not otherwise have become involved in criminal conduct ... Ultimately, we may be saying that there are inherent limits on the power of the State to manipulate people and events for the purpose of obtaining the specific objective of obtaining convictions.”


(Mack -v- The Queen (1988) 44 CCC 3(d) 513 at 541)




In deciding whether entrapment techniques are offensive, the Canadian .. courts are inclined to envisage an ordinary person with the same characteristics and in the same position as the accused (a hypothetical construct familiar to the law of provocation in manslaughter) and to ask whether the nature of the provocation offered by the police agent might induce such a person to commit the offense.


The American view is expressed by Justice Felix Frankfurter in Sherman v U.S. (12958) 356 US 369 at 383:




No matter what the defendant's past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into future crime is not to be tolerated by an advanced society.”




Other criteria related to an entrapment defense were also established by the Justices of the Supreme Court for the United States, including:




(a) Entrapment occurs only when criminal conduct was “the product of the creative activity” of the enforcement officials.




(b) Although informer was not being paid, the Government cannot disown him or disclaim responsibility for this actions, since he was an active government informer who was himself awaiting trial on... charges for which he was later given a suspended sentence.




(c) It makes no difference that the sales for which petitioner was convicted occurred after a series of sales, since they were not independent acts subsequent to the inducement but were part of a course of conduct which was the product of the inducement.




(d) The government cannot make such use of an informer and then claim disassociation through the ignorance of the way in which he operated.




In applying the tests for 'entrapment' the American courts view the task as drawing a line between “the trap for the unwary innocent and the trap for the unwary criminal” Sherman, supra n. 3 ]




In Sorrells -v- United States (1932) 287 U.S. 435 the Supreme Court firmly recognized the defense of entrapment in the Federal courts. The intervening years have in no way detracted from the principles underlying that decision. The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, “A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” 287 U.S. at 442. Then stealth and strategy become as objectionable as police methods as the coerced confession or compulsory signing of papers.




Lawsuits as Actions Premised Upon Legal Theories


1 Am. Jur. 2d “Actions”




Section 50 – Actions contrary to public policy and practical considerations


It is not sufficient for the maintenance of an action to remedy a supposed wrong that a technical right of action exists, unless it is at the same time practical, and in the interest of sound government to permit the action to prevail.


Public policy also forbids the maintenance of any suit in any court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.




Section 51 – Actions based upon plaintiff's wrongful, illegal, or immoral acts or conduct.


The law does not permit one to profit by his own fraud or take advantage of his own wrong or found any claim on his own iniquity or to acquire property to his own wrong.


Davis v Brown, 94 US 423, 24 L.Ed. 204


Union Bank v Stafford, 12 How. (US) 13 L.Ed. 1008


And no court, particularly a court of equity, will lend its aid to a party who grounds his action upon an immoral act or illegal act or an illegal contract, or whose conduct in connection with the transaction upon which his claim is based is illegal or criminal.


No action can be founded upon acts which constitute a violation of a criminal or penal laws of the State, or upon one's own dishonest, fraudulent, or tortuous act or upon his own moral turpitude.


Hence, an action will not lie to recover money or property which is the fruit of an employment involving a violation of law, where a recovery would have to be based on the illegal contract, or to recover back the consideration given for the maintenance of illicit relations with the defendant.




Section 52 – Where parties are in pari delicto (in equal fault)


It is a trite and commonplace maxim that where parties are equally wrong, the courts will not give one redress against the other but will leave them where it finds them. Some courts have applied the rule to transactions with a public officer or an official of the court, but most take the position that the rule does not apply to prevent maintenance of any action against public officers for the recovery of money acquired by official misconduct.

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William A. Roper, Jr. wrote:
The Oregonian is also conducting a non-scientific online poll of reader views as to whether the legislature should amend the state recording law to retroactively give immunity to MERS' criminality:

The Oregonian:  "Poll: Should Oregon lawmakers give foreclosures, MERS a do-over?"
http://blog.oregonlive.com/finance/2011/05/poll_should_legislature_give_m.html


Why not share your view with members of the legislature by voting in the Oregonian poll?


                               

According to The Oregonian, the legislation died in the Oregon House, just about an hour ago. Oregon House Judiciary Committee co-chair Jeff Barker cited public outcry in opposition: “I probably got more emails about this than anything all session.”

                       
                       
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William A. Roper, Jr.
Thanks for the heads up, Sal!!

I think that the new story in the Oregonian is sufficiently interesting that it merits posting:

 

The Oregonian:  "MERS foreclosure amendment dies in Oregon House committee" (June 1, 2011)
http://www.oregonlive.com/business/index.ssf/2011/06/mers_foreclosure_amendment_die_1.html


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William A. Roper, Jr.
Before the Forum was repeatedly attacked by wingnuts seeking to SPAM the Forum message boards with wingnut proganda and theory (together with scam solicitations to rip off distressed borrowers), I had been posting some of the materials from the Hooker case.

These efforts were interrupted and I never got around to posting some of the additional materials I found within the PACER files for the Hooker case.

Perhaps the single most important discovery was the inclusion of an MERS Milestone Report amongst the filings furnished by Defendants Bank of America and Mortgage Electronic Registration Systems (MERS).

The MERS Milestone Report has not been a subject of Forum discussion in some time.  As I recall, Nye LaValle first alerted me to the existence of the MERS Milestone report in late 2006 or early 2007.

There is much discussion about MERS as a registration system, but due to the failure of borrower defendants to engage in effective discovery and egregious discovery abuse by plaintiff in judicial foreclosure cases, it is very RARE when an MERS Milestone Report actually surfaces.  So almost no one on the foreclosure defense side of things (other than singularly experienced foreclosure defense attorneys) KNOWS what an MERS Milestone Report actually looks like.

In an interaction yesterday with a foreclosure defense litigator, I suggested that she obtain a copy of the MERS Milestone Report in her client's case.  When she was unfamiliar with the MERS Milestone Report and asked if I could give her an example, I remembered that I had intended to post the MERS Milestone Report from the Hooker case, but was distracted by some fools from Wisconson.

Ironically, in Hooker, the MERS Milestone Report was put into evidence by BAC and MERS.  This almost never happens.  To the contrary, in other cases, the servicer or MERS usually OBJECTS to production and will spend tens of thousands of dollars to seek protective orders when ordered to produce the Milestone Report.  This is because very often, the MERS Milestone Report will PROVE both the fraudulent allegations appearing within the pleadings, the perjury of the robo-perjurers and the forgery of the false assignment given to the Court as evidence in a case.

I am going to also separately create a new thread to discuss MERS Milestone Reports, but I thought I should at least first post the document here amidst the Hooker thread.  The document is introduced as an exhibit to the "Supplemental Declaration of Stephen P. McCarthy" filed in the Hooker case on January 31, 2011.  It is Document 22 amongst the case filings in that matter:

 

http://www.scribd.com/doc/58710228/Hooker-v-Northwest-Trustee-DEFs-Declaration-31-Jan-2011

 

This is by no means the only MERS Milestone Report floating around.  But since the servicer will very often SETTLE a case when the defendant actually obtains an MERS Milestone Report proving the servicer's criminality, very often this report never finds its way into the filings.  Here, the attorneys for BAC and MERS put it into evidence!

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William A. Roper, Jr.
There is some value in re-reading the Hooker decision in consideration of a look at the MERS Milestone Report.  The Milestone Report played a very important role in the decision.  See in particular the discussion on pages 3, as well as 9 and 10.

Also note that the decision informs us that the Milestone was produced as a result of Judge Owen M. PANNER's Court Order.

Bravo Judge PANNER!
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William A. Roper, Jr.
See also these related message threads concerning the MERS MIN and MERS Milestone Report:

"Foreclosure Mill Dirty Tricks: Redaction of the MERS MIN"

http://ssgoldstar.websitetoolbox.com/post?id=5367898

 

"The MERS Milestone Report"

http://ssgoldstar.websitetoolbox.com/post?id=5367215

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