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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Danny

From:

Notes from Foreclosure World

http://foreclosurecourtroom.com/court-grants-motion-to-strike-complaint/

 

{Quote}

“Court grants motion to strike complaint….Posted on May 1, 2013 by Foreclosure Warrior….

 

Only the wife applied for a home loan, but the bank made both, the husband and wife, sign the mortgage.  However, the wife was the only one who signed the promissory note.

 

When JPMorgan Chase started foreclosure, it named both the husband and wife as defendants and sought not only the foreclosure of the mortgage, but the monetary damages in the amount of $150,000 as well.  The husband filed motion to strike complaint because JPMorgan Chase claims as to monetary damages were without merit.

 

The court granted the motion.

 

This entry was posted in motions by Foreclosure Warrior. Bookmark the permalink.” {End Quote}

 

Is the Banks error in seeking separate and additional ‘monetary damages’ against the “non” responsible husband (the party who did not sign the note) the legal error?

 

Any elaboration on the legal premise used by the husband in his Motion to Strike the Complaint would greatly be appreciated
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Mike H
   My research here in Florida indicates that on Homesteaded property owned by the "entireties" by
a husband and wife, neither one can "alienate" the property by sale or mortgage without the other
spouse joining in. (Article X, section 4, Florida State Constitution regarding the homestead exemption)
   The purpose of this requirement was to prevent a spouse from mortgaging or selling the Homestead
without the permission of the other.
    Very often, I see only one spouse signing the Note while both sign the mortgage. A mortgage
without a corresponding Note is a nullity so in my humble opinion, when this happens, it must be
an unsecured loan only to the spouse who signed the Note.
    Some of my students have made this argument, but so far there has been no ruling on it. Anyone
care to speculate on this? or add an opinion backed by a case ruling?
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Reg
Lets start with the simple and most basic. Under no circumstances is a person who failed to sign a note as the maker or as a guarantor or indorser primarily liable for the note or even secondarily liable under the note. However, one who signs a mortgage, deed of trust, security deed or other security instrument is ordinarily liable as to his or her interest in the pledged property. There is generally no valid support for the proposition enunciated by Mike H. in state law anywhere.

The distinction when the there are two owners of the property and only a single maker under the note is that only the maker of the note can usually be charged with a deficiency judgment.

Even so, it is quite common for the foreclosure mills to use the very same pleadings and very same counts in a complaint where there is only a single maker and if the defendant who is not an obligor under the note fails to make his or her defense about lack of obligation under the note, then that defense is usually waived. One avenue is for the non-obligor under the note to seek dismissal of both counts under the two count complaint, because neither count correctly states this defendant's breach of duty nor does it make out a valid legal complaint.

The first count is usually a count to establish a default under the note (by the obligor). The second count is usually that the obligor on the note also is obligated under a mortgage, etc. A valid complaint against a non-obligor would usually be properly set forth in a third count reciting that the non-obligor is a co-owner of the property who has pledged his or her interest in the subject property and that this interest is subject to foreclosure by establishing the validity of the first count of the obligor, etc.

The distinction when properly pled and proven is a judgment against the obligor for the full amount of the mortgage indebtedness and foreclosure of that party's interest, but only a judgment against the non-obligor of the interest in the real property. A plaintiff wouldn't ordinarily be entitled to any deficiency judgment against a non-obligor of the note.

Again, if the non-obligor fails to answer OR if the non-obligor fails to move for the dismissal of those counts that do not apply or to interpose a valid defense against those two counts, the issue is waived and the non-obligor finds himself or herself fully liable.

Because so many defendants are either unrepresented or poorly represented, "mistaken" use of the standard two count complaint becomes a means of obtaining a deficiency judgment against the non-answering or poorly represented party, which actually encourages the lenders to "accidentally" use the wrong counts.

*

There are a number of other defensive avenues available under different fact patterns which vary widely from state to state if less than all of the owners of equity in the real property pledge that interest by mortgage, deed of trust, security deed or other mortgage security instrument.

In several states, and especially in states with homestead laws and in respect of ownership by husband and wife as tenants by the entirety, failure to get the signature of every owner of the property can occasionally result in a legally ineffective mortgage. This does not seem to be what the original post is talking about. Also, in some states where a property has been declared a homestead it cannot be subject to a new mortgage at all or to a mortgage other than for replacement of the existing mortgage, etc., though most of these laws have fallen by the wayside in recent years.

In antiquity, the protections of the spousal interest, especially the interest of what was deemed the "weaker sex", were much more robust. For example, very often a wife had to waive her interest or dower interest in a property by execution of the mortgage instrument or deed outside of the presence of her husband (to preclude her from being intimidated into agreement), etc. With the advent of various equal rights protections, these too have mostly fallen by the wayside, though these situations are often found in reading older cases.

*

Outcomes are never as simple as explained by Mike H., who seems to simply invent various legal principles as part of his debt elimination scam business. But the original post brings to bear a valid and legitimate argument which can and should be brought to bear under certain circumstances. The argument is not usually going to save the property, but it may result in both a slight delay in the ultimate adjudication as the plaintiff amends its pleadings, as well as avoiding a money judgment or deficiency judgment against the non-obligor. The latter can be genuinely helpful in those instances where the mortgage debt is the only significant defaulted obligation, sparing the non-obligor a bankruptcy filing. It also may be somewhat easier to shield some assets from marshaling in bankruptcy if only one spouse files.
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....
Mike H wrote:
   A mortgage<BR>without a corresponding Note is a nullity so in my humble opinion, when this happens, it must be<BR>an unsecured loan only to the spouse who signed the Note.<BR>   


That makes no sense at all. How is it an unsecured loan only to the spouse that signed the note??? The spouse that signed the note also signed the mortgage which would be a valid loan secured by a mortgage.
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Reg, what happen in the scenario outlined below:


1. Person A brought a Foreclosed property from Bank A, where the property deed transfer contained an inaccurate Legal Description of the property at the time Bank A took possession due to the Foreclosure Action.  Apparently, all notices and advertisement were done with the inaccurate Legal Description before the Final Foreclosure Action and Deed Transfer from the Courts.  Foreclosure The original action was done with the correct Legal Description.  It is not clear if Bank A is still in business.  The person that Bank A Foreclosed on is no longer living in the US and can no longer be found.

2. Person A (Borrower) signed both the Note and the Mortgage at closing with Bank B, where the inaccurate Legal Description was carried over from the previous Foreclosure Action by Bank A.  Title Insurance was obtained for the Bank and Borrower.

3. The original mortgage was re-financed a year later, using the same Bank B and again, the new Mortgage contained the inaccurate Legal Description for the property.

4. Person A Quit Claim the property to Person B with the correct Legal Description of the property.

5. Bank B goes out of business and the loans are taken over by Bank C (No assignment of Mortgage done to date).

6.  The property goes into foreclosure due to action of Bank C and was not contested by either Person A or B.  Fortunately, foreclosure was dismissed due to lack of prosecution after about 18-months after initial foreclosure.

6. Bank C claims the Note was lost and is unable to locate the Note and attached photocopies of Mortgage and Note (available for public Records), to the Foreclosure Complaint.  Asking the court for reformation of the Mortgage/Note.  Also, seeking the court's action in correcting the inaccurate Legal Description of the property of the Mortgage (Note has no Legal Description, just the property address).

7. Bank C have not re-filed the foreclosure case in over 2-years since the case was dismissed for lack of prosecution, although they have call Person A and send various correspondence over this 2-year period offer various options (short sale - anywhere from $10K-$20K after selling the property, etc.)

8. Person B is the sole occupant of the property and has Homestead Exemption filed on the property.

Any thoughts?
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Mike H
    A quiet title works like this. You deny having borrowed any money from the entity named on the
mortgage. You force that entity to prove they ever loaned you any money. (cancelled checks, wire
transfers etc.)
     Since in many cases, the entity named on the mortgage was not the "true" lender, it will not
be able to prove it lent any money and the lien will have to be removed.
     Now, this does not mean you didn't borrow some money from someone. You probably did, but
not from the entity named on the mortgage. This means the loan was unsecured and you can get
it discharged in bankruptcy using the homestead exemption.
     If only one spouse is on the Note, but both spouses are on the mortgage, it means the mortgage
is incorrect and it should be expunged using a Quiet Title action. At that point, the spouse on the
Note should do a Bk to get rid of the "phony debt".
     I say "phony debt" because our whole monetary system is "phony" in the sense of it being composed
of unconstitutional fiat money, which can be created at will by the "money creators" out of nothing, so
that the American people can be enslaved in "phony debt".
     The problem with the "Roperites" is that they think the debt is real, when in fact it is not. The
whole system is one big "Ponzi scheme" designed to rob the pension funds, ie the savings accounts
of  Americans. It was the biggest "heist" in history and it is up to each American to "liberate" him/her
self from "debt bondage". Quiet title is one tool in the arsenal for "national liberation".
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