Fight Foreclosure |Foreclosure Fraud |HAMP|Loan Modification

In the Foreclosure Fight there are several “Tip of the Spear” Law Practitioners. The reason for posting this article is to open your eyes regarding foreclosure fraud and how you can fight foreclosure based on the mortgage note the mortgage and the fraudulent foreclosure practices of the “foreclosure Mill Law firms, the Servicers and the courts who are allowing wrongful foreclosures simply to clear their dockets!

Thank you Florida Foreclosure Defense Law Offices of Carol C. Asbury

This article addresses some of the traps that have engulfed my clients, causing the loss, or near loss of their homes. Later I will explain why it is more advantageous to litigate rather than seek a loan modification or walking away from your home…

Trap 1: Not hiring a mortgage defense attorney who believes in winning.
Truth: You will lose your home.

Trap 2: Trusting the bank is delaying your foreclosure lawsuit while “considering” your loan modification application.
Truth: That’s a LIE. The Bank’s game is to keep you from defending the foreclosure until the Court orders your house sold and you lose your home.

Trap 3: Paying a Loan Modification Company or Loan Modification Attorney for a loan modification. THERE ARE NO loan modifications.
Truth: The Home Affordable Mortgage Program (HAMP) is not  guaranteed loan modification; it’s free, if your lender is participating; and, if you agree to a HAMP loan modification, you become worse off than a renter. The truth is, loan modification is not available because the Banks DO NOT own your Note. The Note was sold to a Trust, whose investors often won’t agree to a loan modification.

Trap4: Trusting the Loan Modification Company or Loan Modification Attorney handling your foreclosure suit.
Truth: No one is DEFENDING your foreclosure suit. Result: You lose your home.

Trap 5: Signing an answer handed to you by a non-attorney or Loan Modification Attorney as a “Pro Se” defendant.
Truth: “Pro Se” means you are representing yourself and you may be admitting to something you do not want to admit. Result: you lose your home.

Trap 6: Ignoring the foreclosure complaint.
Truth: Big Mistake! Result: You lose your home.

Trap 7: Thinking Bankruptcy will solve the foreclosure.
Truth: Bankruptcy may be an option but in most cases it only stalls the foreclosure. You need to seek an attorney who will explain the difference as well as your options.

Trap8: Mortgage Defense Attorneys are expensive.
Truth: Not True! It’s more cost effective and adventitious to defend the foreclosure than to seek a Loan Modification or walk away. Fighting is the ONLY way you will win. And you CAN win!

Trap 9: There are no defenses against foreclosure.
Truth: NOT True! Foreclosure defenses are available because of the securitization of the Notes to Trusts, who sold unregulated securities to investors for three times the value of your Note. Like any Ponzi Scheme, it has holes.

You CAN win!

There are Forged notes, lost notes, intentional destruction of notes, unauthorized people signing mortgage assignments or endorsing notes, missing documentation, fraudulently fabricated documents, and different plaintiffs foreclosing on the same property, plaintiffs who do not exist and the inability or refusal to provide proof of purchase and/or ownership of the promissory notes.

These are some of the situations I have encountered in my practice of over 24 years.

In addition, there are more and more claims arising from predatory lending practices of the Plaintiffs bank; including, violations of state and federal law, deceptive trade practices, and unfair or abusive dept collection.

Fighting the bank is advantageous to you. The goal of any good litigation attorney is to utilize all defenses/strategies in order to obtain the best possible outcome for the borrower. Depending on the evidence, litigation may even lead to a home free and clear of any mortgage. It is all about giving you options and creating leverage against the banks.

You need to have a plan of action, a direction, and understanding of why that plan is good for you

Here is her website www.FightTheBanksNow.com

Thanks again Carol, keep up the good fight. Together we can stop and fight illegal foreclosures and hopefully stop this mortgage mess!Homeowners need to know their legal rights!

An Amazing Case of Loan and Mortgage Fraud

Loan and mortgage fraud is becoming big business across the country and crooks continue to find new ways to take advantage of almost anyone and steal any identity. The reality is…Loan and mortgage fraud is becoming big business across the country and crooks continue to find new ways to take advantage of almost anyone and steal any identity. Read more

How Can I Stop Foreclosure?

Here are some Ideas: American homeowners need to come together and scream out loud, “We’re not gonna take it!” through filing predatory lawsuits alleging fraud and demanding quiet title actions.

While there is quite a self-serving underground movement aimed at suppression, (think Deep, Deep Throat, the sequel), we still have, on our side, a little document called the United States Constitution which assures us that “Citizens of the United States shall not be deprived of life, liberty or property without due process of law.”

This is the  biggest question we hear from Loan Audit Clients

So how do you find your own due process?

If you are a victim of the Loan Fraud and part of their conspiracy, follow my ten step war plan of engagement

(Specia lThanks to  Iris Martin, Autor of Mortgage Wars For this)

1. Get out those dusty closing documents and peruse them; they actually make for fascinating reading. You will learn all sorts of facts that your mortgage broker and lender did not want you to know, as in how they committed mortgage fraud.

2. Check your credit rating. If you have fallen to the bottom of the class and your loan is fraudulent, there is hell to pay. Your lender has violated the Fair Credit Reporting Act.

3. Compare the current value of your home to the stated appraised value at your closing. If your value has dropped significantly, it may have been fraudulently inflated to increase the loan amount, so your broker and lender could reap higher fees. Again, a major no no.

4. Is your debt to income ratio was over 35%? Oops, they did it again. It is against the law to put borrowers into loans that they cannot pay back.

5. Does your income reported to the IRS match the income on your loan application? If not, check to see if your data was fudged and your signature was forged.  This was a common  practice which also happens to be a crime.

6. Go online and Google your lender’s 10K and 8K filings for the year that you signed your loan documents. See how your lender has gleefully bragged to its investors about how efficiently it securitized loans such as your own. Most lenders even go as far as to claim that no loans sold into pools were predatory in any way! (Think investor fraud.) And don’t get me started on the accounting firms who certified these blatant lies. Or the credit rating agencies who stepped up to the plate with inflated ratings and outstretched palms.

7. Get a Forensic Loan Audit. It is the first step in building a winning lawsuit. We provide State of the art, comprehensive Forensic Loan Audits

8. Get a qualified attorney to file your “Qualified Written Requests” and your legal complaint. We have access to  some of the best ones in the country who will not rip you off. No point in jumping from predatory lending to predatory lawyer.

9. Demand your loan be extinguished or Rescinded. After you have been defrauded, it is your legal right to demand that the predators be held accountable. Toward that end, don’t waste time attempting to modify a securitized loan. Go right for the jugular, just as your lender has.

10. Break out the champagne. You have tamed the wolf. Maybe in time, you can transform him into a lovable canine companion, maybe a Wall Street born-again Marley.

Stand up for yourself. Don’t fall for the media’s pre-emptive attacks on your character. An examination of recent history paints an entirely different picture of a conspiracy of politicians, regulators, investment bankers, mortgage brokers and nominal lenders that would do anything — including bankrupting the country and the globe — to profit from the derivatives explosion.

Get your Loan Audit, Get Informed Know your homeowner legal rights, and Get Help. It’s time for this karmic cycle to reverse and for homeowners to take back their American dream, one lawsuit at a time. It’s time to Stop Illegal Foreclosures

Bad Loans|Predatory Lending|Wall Street Knew!

Bad Loans Were Common on Wall Street

and on Your Street!

I am not surprised by the foreclosure crisis and you shouldn’t be either.  I spent over 17 years in the Mortgage and Financial industries watching this mess growing.
It is a known fact that the banks, lenders, wall street often hired quality-control contractors that reviewed sub prime loans for investment banks before they were sold off on Wall Street. Or they had “In House” Q.C. as employees doing the work, or at least trying to do the work.  You know, to not have loan fraud (LOL)

It was  the QC  persons job to dig into the loans and find the problems or “Red Flags”.  Believe me between 2002 through 2006, Bad Loans were easy to find. The Financial Industry wanted VOLUME! After all, they were giving the Securities a bogus rating to begin with all in the name of progress! (can you say ponsi scheme?)

There were hotel workers in California claiming that they made,$15,000 a month so that they could qualify for a $500,000 home!
Had I known this I would have become a hotel worker is making $15,000 a month changing sheets at the Days Inn, WHO WOULDN’T want to do it. It just really made no sense.  Here is another example: I saw a Lawn Service Owners application in Florida claiming to make $20,000 per month, That is a lot of grass and trees to maintain, I think I will stick with the hotel Job!

The Key Factor For Mortgage Fraud

The key factor for mortgage fraud was that the investors  didn’t want the supervisors to have the auditors to do their job. If they would reject, or kick out, a loan, they usually would overrule the auditor and approve it.

I witnessed first hand a QC reviewer, at a “Now Defunct Lender” who reviewed the kicks would say, ‘Well, I thought it had merit.’  I thought to myself What? Their credit score was below 580.
And if it was an income verification, a lot of times they weren’t making the income.What kind of merit could you have determined, how can it get funded? The response would be something like ‘Oh, it’s fine. Don’t worry about it.’ ”
The main issue is: About 75 percent of the time, loans that should have been rejected were still put into the pool and sold!

A Smoking Gun?

All of this suggests that auditors working for Wall Street investment bankers knew how preposterous these loans were, and that could mean Wall Street liability for aiding and abetting fraud. …Any one speak with Bear Stearns About this Lately?

If you ask any loan-auditing firm (if they will speak with you) they will reply that the company has no incentive to give loans a passing review if they fail to meet underwriting criteria and that it uses additional quality-control measures to further check up on loan reviews.
I ask you to consider this their had to be breakdowns in quality control at a lot of companies. How else did millions of people wind up in loans that they can’t pay?
(Can you say Forensic Loan Audit for your mortgage to find the violations??)

Is There Accountability on Wall Street?

You have to understand that the auditors  were hired to find the bad apples in the barrel and pull them out: borrowers with payments they couldn’t afford, houses with inflated appraisals, people lying about their income. But the investment banks had such a strong financial incentive that  “They put the bad apples back in the barrel because they knew that they could sell the bad apples along with the good apples and, at least in the short term, nobody would know the difference. That’s why they put them back in — because they made more money that way, the age old bundling od credit risk as used in the Auto Sales Business

“There’s a name for this — it’s called ‘passing the trash,’ ” says David Grais of Super Lawyers Fame, an attorney getting ready to sue Wall Street firms on behalf of investors — big pension funds and others — who bought the bad loans.

“These were immensely profitable deals. One study showed that the investment banks were making a 40 percent return on equity every two months on these securitizations, which is an eye-popping number,” he says.
Grais says many people on Wall Street make huge bonuses when their business unit is making big money. So the faster they could package up loans — good, bad or ugly ones — and sell them to investors, the more money that they made, he says.

I know in speaking with a friend who was an outside wholesale representative  that the managers got bonuses for how quickly they reviewed loans, not for how many bad loans they caught.

Did The Banks Agree to Limit Loan Rejections?

Other evidence is emerging….. A bankruptcy examiner in the case of the collapsed subprime lender New Century ( oops I said the name) recently released a 500-page report, and buried inside it is a pretty interesting detail. According to the report, some investment banks agreed to reject only 2.5 percent of the loans that New Century sent them to package up and sell to investors.

If that’s true, it would be like saying no matter how many bad apples are in the barrel, only a tiny fraction of them will be rejected. I have also heard that the attorney general in New York and other prosecutors are taking a look at all of this. They, too, want to know whether Wall Street firms were covering up bad loans and selling them to investors.

Think about how  amazing it is... if any investment bank agreed to a maximum number of loans they would kick back for defects. That means that they were willing to accept junk. There’s no other way to put it, they got greedy and now they are going to PAY FOR IT!
In your Fight Against Foreclosure and Predatory Lending, protect yourself, get your personal forensic loan audit. Give your attorney something to work with and Stop an Illegal Foreclosure in it’s tracks!

WHERE’S THE NOTE, WHO’S THE HOLDER

WHO HAS YOUR MORTGAGE NOTE?

This Fight Against Home Foreclosure….

Is Constantly Getting more interesting (If I can Use the word “interesting” ) Here is a recent article from our friend in Southern California.

INTRODUCTION

In an era where a very large portion of mortgage obligations have been securitized, by assignment to a trust indenture trustee, with the resulting pool of assets being then sold as mortgage backed securities, foreclosure becomes an interesting exercise, particularly where judicial process is involved. We are all familiar with the securitization process. The steps, if not the process, is simple.

A borrower goes to a mortgage lender. The lender finances the purchase of real estate. The borrower signs a note and mortgage or deed of trust. The original lender sells the note and assigns the mortgage to an entity that securitizes the note by combining the note with hundreds or thousands of similar obligation to create a package of mortgage backed securities, which are then sold to investors.

Unfortunately, unless you represent borrowers, the vast flow of notes into the maw of the securitization industry meant that a lot of mistakes were made. When the borrower defaults, the party seeking to enforce the obligation and foreclose on the underlying collateral sometimes cannot find the note. A lawyer sophisticated in this area has speculated to one of the authors that perhaps a third of the notes “securitized” have been lost or destroyed. The cases we are going to look at reflect the stark fact that the unnamed source’s speculation may be well-founded.

UCC SECTION 3-309

If the issue were as simple as a missing note, UCC §3-309 would provide a simple solution. A person entitled to enforce an instrument which has been lost, destroyed or stolen may enforce the instrument. If the court is concerned that some third party may show up and attempt to enforce the instrument against the payee, it may order adequate protection. But, and however, a person seeking to enforce a missing instrument must be a person entitled to enforce the instrument, and that person must prove the instrument’s terms and that person’s right to enforce the instrument. §3-309 (a)(1) & (b).

WHO’S THE HOLDER

Enforcement of a note always requires that the person seeking to collect show that it is the holder. A holder is an entity that has acquired the note either as the original payor or transfer by endorsement of order paper or physical possession of bearer paper. These requirements are set out in Article 3 of the Uniform Commercial Code, which has been adopted in every state, including Louisiana, and in the District of Columbia. Even in bankruptcy proceedings, State substantive law controls the rights of note and lien holders, as the Supreme Court pointed out almost forty (40) years ago in United States v. Butner, 440 U.S. 48, 54-55 (1979).

However, as Judge Bufford has recently illustrated, in one of the cases discussed below, in the bankruptcy and other federal courts, procedure is governed by the Federal Rules of Bankruptcy and Civil Procedure. And, procedure may just have an impact on the issue of “who,” because, if the holder is unknown, pleading and standing issues arise.

BRIEF REVIEW OF UCC PROVISIONS

Article 3 governs negotiable instruments – it defines what a negotiable instrument is and defines how ownership of those pieces of paper is transferred. For the precise definition, see § 3-104(a) (“an unconditional promise or order to pay a fixed amount of money, with or without interest . . . .”) The instrument may be either payable to order or bearer and payable on demand or at a definite time, with or without interest.

Ordinary negotiable instruments include notes and drafts (a check is a draft drawn on a bank). See § 3-104(e).

Negotiable paper is transferred from the original payor by negotiation. §3-301. “Order paper” must be endorsed; bearer paper need only be delivered. §3-305. However, in either case, for the note to be enforced, the person who asserts the status of the holder must be in possession of the instrument. See UCC § 1-201 (20) and comments.

The original and subsequent transferees are referred to as holders. Holders who take with no notice of defect or default are called “holders in due course,” and take free of many defenses. See §§ 3-305(b).

The UCC says that a payment to a party “entitled to enforce the instrument” is sufficient to extinguish the obligation of the person obligated on the instrument. Clearly, then, only a holder – a person in possession of a note endorsed to it or a holder of bearer paper – may seek satisfaction or enforce rights in collateral such as real estate.

NOTE: Those of us who went through the bank and savings and loan collapse of the 1980’s are familiar with these problems. The FDIC/FSLIC/RTC sold millions of notes secured and unsecured, in bulk transactions. Some notes could not be found and enforcement sometimes became a problem. Of course, sometimes we are forced to repeat history. For a recent FDIC case, see Liberty Savings Bank v. Redus, 2009 WL 41857 (Ohio App. 8 Dist.), January 8, 2009.

THE RULES

Judge Bufford addressed the rules issue this past year. See In re Hwang, 396 B.R. 757 (Bankr. C. D. Cal. 2008). First, there are the pleading problems that arise when the holder of the note is unknown. Typically, the issue will arise in a motion for relief from stay in a bankruptcy proceeding.

According F.R.Civ. Pro. 17, “[a]n action must be prosecuted in the name of the real party in interest.” This rule is incorporated into the rules governing bankruptcy procedure in several ways. As Judge Bufford has pointed out, for example, in a motion for relief from stay, filed under F.R.Bankr.Pro. 4001 is a contested matter, governed by F. R. Bankr. P. 9014, which makes F.R. Bankr. Pro. 7017 applicable to such motions. F.R. Bankr. P. 7017 is, of course, a restatement of F.R. Civ. P. 17. In re Hwang, 396 B.R. at 766. The real party in interest in a federal action to enforce a note, whether in bankruptcy court or federal district court, is the owner of a note. (In securitization transactions, this would be the trustee for the “certificate holders.”) When the actual holder of the note is unknown, it is impossible – not difficult but impossible – to plead a cause of action in a federal court (unless the movant simply lies about the ownership of the note). Unless the name of the actual note holder can be stated, the very pleadings are defective.

STANDING

Often, the servicing agent for the loan will appear to enforce the note. Assume that the servicing agent states that it is the authorized agent of the note holder, which is “Trust Number 99.” The servicing agent is certainly a party in interest, since a party in interest in a bankruptcy court is a very broad term or concept. See, e.g., Greer v. O’Dell, 305 F.3d 1297, 1302-03 (11th Cir. 2002). However, the servicing agent may not have standing: “Federal Courts have only the power authorized by Article III of the Constitutions and the statutes enacted by Congress pursuant thereto. … [A] plaintiff must have Constitutional standing in order for a federal court to have jurisdiction.” In re Foreclosure Cases, 521 F.Supp. 3d 650, 653 (S.D. Ohio, 2007) (citations omitted).

But, the servicing agent does not have standing, for only a person who is the holder of the note has standing to enforce the note. See, e.g., In re Hwang, 2008 WL 4899273 at 8.

The servicing agent may have standing if acting as an agent for the holder, assuming that the agent can both show agency status and that the principle is the holder. See, e.g., In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008) at 520.

A BRIEF ASIDE: WHO IS MERS?

For those of you who are not familiar with the entity known as MERS, a frequent participant in these foreclosure proceedings:

MERS is the “Mortgage Electronic Registration System, Inc. “MERS is a mortgage banking ‘utility’ that registers mortgage loans in a book entry system so that … real estate loans can be bought, sold and securitized, just like Wall Street’s book entry utility for stocks and bonds is the Depository Trust and Clearinghouse.” Bastian, “Foreclosure Forms”, State. Bar of Texas 17th Annual Advanced Real Estate Drafting Course, March 9-10, 2007, Dallas, Texas. MERS is enormous. It originates thousands of loans daily and is the mortgagee of record for at least 40 million mortgages and other security documents. Id.

MERS acts as agent for the owner of the note. Its authority to act should be shown by an agency agreement. Of course, if the owner is unknown, MERS cannot show that it is an authorized agent of the owner.

RULES OF EVIDENCE – A PRACTICAL PROBLEM

This structure also possesses practical evidentiary problems where the party asserting a right to foreclose must be able to show a default. Once again, Judge Bufford has addressed this issue. At In re Vargas, 396 B.R. at 517-19. Judge Bufford made a finding that the witness called to testify as to debt and default was incompetent. All the witness could testify was that he had looked at the MERS computerized records. The witness was unable to satisfy the requirements of the Federal Rules of Evidence, particularly Rule 803, as applied to computerized records in the Ninth Circuit. See id. at 517-20. The low level employee could really only testify that the MERS screen shot he reviewed reflected a default. That really is not much in the way of evidence, and not nearly enough to get around the hearsay rule.

FORECLOSURE OR RELIEF FROM STAY

In a foreclosure proceeding in a judicial foreclosure state, or a request for injunctive relief in a non-judicial foreclosure state, or in a motion for relief proceeding in a bankruptcy court, the courts are dealing with and writing about the problems very frequently.

In many if not almost all cases, the party seeking to exercise the rights of the creditor will be a servicing company. Servicing companies will be asserting the rights of their alleged principal, the note holder, which is, again, often going to be a trustee for a securitization package. The mortgage holder or beneficiary under the deed of trust will, again, very often be MERS.

Even before reaching the practical problem of debt and default, mentioned above, the moving party must show that it holds the note or (1) that it is an agent of the holder and that (2) the holder remains the holder. In addition, the owner of the note, if different from the holder, must join in the motion.

Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder. See, e.g., Tex. Prop. Code §51.0001. However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments. This status is certainly open to challenge. The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act. If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note. See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y. Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008. In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.

SOME RECENT CASE LAW

These cases are arranged by state, for no particular reason.

Massachusetts

In re Schwartz, 366 B.R.265 (Bankr. D. Mass. 2007)

Schwartz concerns a Motion for Relief to pursue an eviction. Movant asserted that the property had been foreclosed upon prior to the date of the bankruptcy petition. The pro se debtor asserted that the Movant was required to show that it had authority to conduct the sale. Movant, and “the party which appears to be the current mortgagee…” provided documents for the court to review, but did not ask for an evidentiary hearing. Judge Rosenthal sifted through the documents and found that the Movant and the current mortgagee had failed to prove that the foreclosure was properly conducted.

Specifically, Judge Rosenthal found that there was no evidence of a proper assignment of the mortgage prior to foreclosure. However, at footnote 5, Id. at 268, the Court also finds that there is no evidence that the note itself was assigned and no evidence as to who the current holder might be.

Nosek v. Ameriquest Mortgage Company (In re Nosek), 286 Br. 374 (Bankr D Mass. 2008).

Almost a year to the day after Schwartz was signed, Judge Rosenthal issued a second opinion. This is an opinion on an order to show cause. Judge Rosenthal specifically found that, although the note and mortgage involved in the case had been transferred from the originator to another party within five days of closing, during the five years in which the chapter 13 proceeding was pending, the note and mortgage and associated claims had been prosecuted by Ameriquest which has represented itself to be the holder of the note and the mortgage. Not until September of 2007 did Ameriquest notify the Court that it was merely the servicer. In fact, only after the chapter 13 bankruptcy had been pending for about three years was there even an assignment of the servicing rights. Id. at 378.

Because these misrepresentations were not simple mistakes: as the Court has noted on more than one occasion, those parties who do not hold the note of mortgage do not service the mortgage do not have standing to pursue motions for leave or other actions arising form the mortgage obligation. Id at 380.

As a result, the Court sanctioned the local law firm that had been prosecuting the claim $25,000. It sanctioned a partner at that firm an additional $25,000. Then the Court sanctioned the national law firm involved $100,000 and ultimately sanctioned Wells Fargo $250,000. Id. at 382-386.

In re Hayes, 393 B.R. 259 (Bankr. D. Mass. 2008).

Like Judge Rosenthal, Judge Feeney has attacked the problem of standing and authority head on. She has also held that standing must be established before either a claim can be allowed or a motion for relief be granted.

Ohio

In re Foreclosure Cases, 521 F.Supp. 2d (S.D. Ohio 2007).

Perhaps the District Court’s orders in the foreclosure cases in Ohio have received the most press of any of these opinions. Relying almost exclusively on standing, the Judge Rose has determined that a foreclosing party must show standing. “[I]n a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time that the complaint was filed.” Id. at 653.

Judge Rose instructed the parties involved that the willful failure of the movants to comply with the general orders of the Court would in the future result in immediate dismissal of foreclosure actions.

Deutsche Bank Nat’l Trust Co. v. Steele, 2008 WL 111227 (S.D. Ohio) January 8, 2008.

In Steele, Judge Abel followed the lead of Judge Rose and found that Deutsche Bank had filed evidence in support of its motion for default judgment indicating that MERS was the mortgage holder. There was not sufficient evidence to support the claim that Deutsche Bank was the owner and holder of the note as of that date. Following In re Foreclosure Cases, 2007 WL 456586, the Court held that summary judgment would be denied “until such time as Deutsche Bank was able to offer evidence showing, by a preponderance of evidence, that it owned the note and mortgage when the complaint was filed.” 2008 WL 111227 at 2. Deutsche Bank was given twenty-one days to comply. Id.

Illinois

U.S. Bank, N.A. v. Cook, 2009 WL 35286 (N.D. Ill. January 6, 2009).

Not all federal district judges are as concerned with the issues surrounding the transfer of notes and mortgages. Cook is a very pro lender case and, in an order granting a motion for summary judgment, the Court found that Cook had shown no “countervailing evidence to create a genuine issue of facts.” Id. at 3. In fact, a review of the evidence submitted by U.S. Bank showed only that it was the alleged trustee of the securitization pool. U.S. Bank relied exclusively on the “pooling and serving agreement” to show that it was the holder of the note. Id.

Under UCC Article 3, the evidence presented in Cook was clearly insufficient.

New York

HSBC Bank USA, N.A. v. Valentin, 21 Misc. 3D 1124(A), 2008 WL 4764816 (Table) (N.Y. Sup.) November 3, 2008. In Valentin, the New York court found that, even though given an opportunity to, HSBC did not show the ownership of debt and mortgage. The complaint was dismissed with prejudice and the “notice of pendency” against the property was cancelled.

Note that the Valentin case does not involve some sort of ambush. The Court gave every HSBC every opportunity to cure the defects the Court perceived in the pleadings.

California

In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008)

and

In re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008)

These two opinions by Judge Bufford have been discussed above. Judge Bufford carefully explores the related issues of standing and ownership under both federal and California law.

Texas

In re Parsley, 384 B.R. 138 (Bankr. S.D. Tex. 2008)

and

In re Gilbreath, 395 B.R. 356 (Bankr. S.D. Tex. 2008)

These two recent opinions by Judge Jeff Bohm are not really on point, but illustrate another thread of cases running through the issues of motions for relief from stay in bankruptcy court and the sloppiness of loan servicing agencies. Both of these cases involve motions for relief that were not based upon fact but upon mistakes by servicing agencies. Both opinions deal with the issue of sanctions and, put simply, both cases illustrate that Judge Bohm (and perhaps other members of the bankruptcy bench in the Southern District of Texas) are going to be very strict about motions for relief in consumer cases.

SUMMARY

The cases cited illustrate enormous problems in the loan servicing industry. These problems arise in the context of securitization and illustrate the difficulty of determining the name of the holder, the assignee of the mortgage, and the parties with both the legal right under Article 3 and the standing under the Constitution to enforce notes, whether in state court or federal court.

Interestingly, with the exception of Judge Bufford and a few other judges, there has been less than adequate focus upon the UCC title issues. The next round of cases may and should focus upon the title to debt instrument. The person seeking to enforce the note must show that:

(1) It is the holder of this note original by transfer, with all necessary rounds;
(2) It had possession of the note before it was lost;
(3) If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be prepared to post a bond;
(4) If the person seeking to enforce is an agent, it must show its agency status and that its principal is the holder of the note (and meets the above requirements).

Then, and only then, do the issues of evidence of debt and default and assignment of mortgage rights become relevant.

Thanks,
Mortgage Audits

Thank you Robert, your efforts on the Fight For Homeowners Rights, and The Foreclosure Mess is invaluable, Together we will help Homeowners Get Educated  One  At A Time!

Lender Can’t Produce The Note? | Homeowner Foreclosure Defense

The Homeowner Foreclosure Defense

Produce The Note

If you have watched or listened to the News, I am sure you have heard the term “Produce The Note”

A growing number of homeowners around the country are using a foreclosure defense that has been kicked around since about June of last year.  I want you to know that this defense and method of discovery is not just  technicality that will be handled “ho hum” by your lender or by the Court.

You have to understand the importance of this subject. When your lender can not “produce the note,” and the court to proceeds your  foreclosure, it will put you at risk of owing that debt again to another party.  The courts are being very conscientious with Lenders or Trustees claiming against you. You see, before a judge can allow any entity, who can not  “produce the note on your home” to cash in on your home there has to be “standing” that apply to the case

So What Is The Result IF they Can’t Produce the Note?

If Your Lender (Plaintiff) tells the Court it can’t produce the original note, because it is lost?
Foreclosure Basics 101:  If your lender wants to foreclose on your property, it has to be able to show that it is, in fact, they are the one to whom the money is owed. That right to foreclose belongs ONLY to the “Holder IN Due Course”  and who has legitimate POSSESSION OF THE ORIGINAL NOTE

Not a copy, not an electronic entry, YOUR original note itself with your signature, because you allegedly owes them the money.

As I have written before, what are the odds that your documents were lost? Pretty good considering the securitization of loans that were broken up into stocks, bonds etc… ALSO considering tha fact that WELL OVER 82% OF ALL LOANS WRITTEN Between 2002 through 2006 and beyond HAD MISTAKES (TILA Violations) that your foreclosing Lender does NOT WANT YOU TO DISCOVER!

So if you are faced with a foreclosure, you have every right to demand that the company or entity trying to take your home, make them prove to the Court that it is “The Holder In Due Course” and that they  have possession of the original promissory note. (while you are at it, get all of your closing documents in discovery, and really make them “Squeel!”)

Here Is What They MUST DO!
The lender Must  prove according to The “Uniform Commercial Code” or UCC  you will see  this over and over while reading and researching. (UCC laws  govern commercial transactions that many states, such as Florida, have adopted). It contains a specific provision on this subject (Section 3-309) which states that a person can enforce a promissory note without having the original, BUT only under certain limited circumstances.  All of the following must be proven:

• The plaintiff has to claim that it no longer has the original note;

• The plaintiff has to prove that it was properly in possession of the note and had standing to enforce it WHEN they  lost possession of the note; (they really try to do this!)

• The Plaintiff has to prove it didn’t “lose” the Note simply because it transferred it to someone else (it’s lost but…it’s not really lost)

• The Plaintiff has to prove that it cannot produce the original note, because the instrument was destroyed, or its whereabouts cannot be determined, or it was stolen by someone who had no right to it. (or that it was abducted by aliens)

All of this has to be proven by the person trying to foreclose on your home. It is your obligation as the borrower/ defendant to prove or disprove any of this.  YOU can challenge the right of the Company trying to foreclose and demand proof that they have posession!I Know I did in my case!
What is The Role of the Court?

It is up to the Court to determine whether the lender has satisfactorily explained why it no longer can produce the original note. The Court also has to be satisfied that when the original note was lost, the person trying to foreclose on the property had possession of the note at the time it was lost. Until the Court has been satisfied of all of this, they can not foreclose on you!
The  Courts are really starting to understand that this is not merely a “technicality,” and the judge should not be satisfied with anything less than full proof of “Holder in Due Course” (notice I keep saying that phrase?).  Why? Because the Court itself needs to appreciate the fact that if it agrees that the original note has been legitimately lost and it allows the foreclosure to proceed without the original note, it is you the borrower, who could still be at risk!

Why you may ask?? If  the Court has found that the original note was lost and the foreclosure sale is finalized, then later an entity shows up with the original note and proves that it is the “Holder in Due Course”of the note, You are STILL LIABLE. (That’s Why you need to insist on Quiet Title as well!)

I’m Not Kidding here: If you lose your your home in foreclosure, and the Court allowed it because it believed that the lender proved that the note truly was lost and they had standing. Then the Actual Lender shows up later, with the actual note you could owe that them the money even though your property was illegally given to the company that Originally Filed against you won, with the blessing of the Court.That Stinks and is one of the main reasons we Fight to Stop Home Foreclosure

If you are going to use the resources we suggest, (such as the 32 Ways Book) please understand that there are Procedures that the Court will insist you adhere to.  The Judge is Not your Friend or Advocate, you will need to ally yourself with an expert or get an attorney if all of this seems overwhelming. But, at Least you can Protect yourself early, get the discovery process done effectively and have a way to win in your fight against Home Foreclosure!

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Discover 32 Ways to Resolve Any Foreclosure Immediately, You Will Receive Step-by-Step,Day-by-Day, Hour-by-Hour Solutions To Your Foreclosure Problem..AND 12 Ways For You To Make Money Even If You Lose Your Home OR Have Lost It To Foreclosure As Much As 15 Years Ago!
(This Information Is Not Known By Many)
You Can Save Your Home And Your Credit By Getting Immediate Access To Proven Techniques That Will Completely Eliminate Your Foreclosure Problem.
Hundreds of thousands of foreclosure victims are annually ROBBED of an estimated $32,746,380,000 (that’s Billions!) because of greedy Individuals who take advantage of homeowners just like YOU!

The Information Including Alerts And Warnings That You Will Receive In Addition To The Text In Your EBook That Discloses 32 Ways To Stop Foreclosure, 12 Ways To Make Money
(even if you lose your home), and
42 Ways To Repair Your Credit.

Foreclosure is a national crisis that destroys families, ruins their credit for years to come, and is both embarrassing and humiliating. But whether you want to keep your home or just want to sell and get out, the information disclosed in this EBook will put you back in control of your situation and give you options to stop your foreclosure.

If you over speculated in the real estate market and are facing multiple foreclosures, there are also solutions for you.

“We purchased our first pre-foreclosure property in 1975. As a very experienced real estate investor, I have seen the tragedy of foreclosure thousands of times and I can tell you there are numerous solutions! Lenders, investors, and mortgage brokers will not tell you the real solutions because then they won’t make money from your situation.”

Stealing equity from homeowners by advertising to help “resolve” their foreclosure problem, by doing little or nothing that benefits the homeowner, is a multi-billion dollar industry

It’s Just Not Right! This is money that homeowners could keep by using the tactics, techniques and secrets revealed in this EBook.

“It is truly worth investing in the low cost of this Ebook for what you will get by using these techniques.”

Because few people expect to go into foreclosure, most are not prepared for the seemingly complicated legal process, the gut-gripping fear of the unknown, the constant paralyzing indecision because of the uncertainty of what happens next, and the endless amount of advertising from lenders, credit counselors, mortgage brokers, attorneys, realtors, and investors wanting to “help” them with saving their home and/or their credit.

The reality is that the majority of these people simply want to make money off the homeowners’ problems.

If you feel embarrassed and alone you should know that over 2,000,000 homeowners will go into foreclosure in the next two years. Whether you are just thinking about foreclosure or have already been served with a default notice, you have the ability to take control of your situation so you can “Save or Sell” your home and stop the embarrassment.

THERE ARE NUMEROUS SOLUTIONS FOR FORECLOSURE and you will see them unfold shortly. You will be getting the information needed to stop your foreclosure very quickly, often in as little as a few hours!

Remember! This Ebook also reveals twelve ways to make money off your foreclosure – even if you have already lost your home. There are techniques to recover equity in this Ebook that may apply to you, even if you lost your home years ago. “These techniques of profiting from your foreclosure have never been put together and disclosed to the public in this easy to follow format.”

“Time is your worst enemy in foreclosure and now is the time to take action to solve your foreclosure forever!”
The Information Below Are Alerts And Warnings That You Will Receive In Addition To The Text In Your EBook That Discloses 32 Ways To Stop Foreclosure, 12 Ways To Make Money
(even if you lose your home), and42 Ways To Repair Your Credit.

The Information In This ebook , you see the banners on the right and left on this site, will enable you fo fight foreclosure and stop foreclosure and will Give You Knowledge That Most People Don’t Have Without Years Of Experience.

Stop Foreclosure Option|Produce the Note

Who Owns Your Mortgage Note?

How to Stop Foreclosure

Do you know who owns your mortgage? Can you be  certain the institution trying to Foreclose on your Mortgage is, in fact, the owner of the note?

When you got your mortgage you signed a note for your mortgage , remember that (along with all of the other signatures you did, whew). This NOTE is the ONLY document that proves you owe the debt. Lenders have been losing promissory notes, and that spells troubles for the lenders!

As I have previously written during the years of 2002-2006 the “Boom Years” ,  the great majority of mortgages were  sold to other lenders or servicers, often times mortgages were sold 2 to 3 times of more! .

There  was URGENCY for the Originating Lender  to turn these over as quickly as possible to make the most money from their “investors”, many of the new lenders did not get the necessary paperwork to show they own the note and mortgage.

This is a big part of Our Fight against illegal home foreclosures…. Now Let’s discuss the Sick Truth of Motrgage  Secutitization, Mortgages  that sliced up and sold to investors as securitized packages on Wall Street.

This entire process of “securitization” developed since the 1980s into a practice that has come to define modern finance. In an effort to hedge against the risk of directly holding loans and to make a profit as a “reseller”, the bank will often package the loan along with several thousands of others, and sell the rights to investors across the world.

DID YOU KNOW that Your home loan, in fact, might be owned by a foreign government, or it could be owned by a state pension fund – virtually any investment institution could own your mortgage if you could directly trace its path. But that has proven to be more of a rocket science, rather than a simple check with the county recorder.

This is the key to the produce the note strategy. Now, many lenders are filing for forecloseure on homeowners, resulting mainly from problems they created! They don’t have the proper paperwork to prove they have a right to foreclose.

When you get a copy of the foreclosure suit, many lenders now automatically include a count to re-establish the note. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose. This is an Illegal Foreclosure!

This  “produce the note” strategy  is a Weapon for all homeowners facing foreclosure on their home. If you believe you’ve been treated unfairly, fight back.

NON JUDICIAL STATES

In some states,  lenders can foreclose on your home without going to court.  These are called non-judicial foreclosure states.  You can still use the “Produce the Note” strategy in these states, but it takes a few more steps on your part. We will cover them on the next posting

If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their lack of concern for contract law . This is the your Home!  It’s just a piece of paper to them, and one they likely either lost or destroyed. Make them Produce the Note,  It will force them to Modify Your Loan if you wish to do so, get a Forensic Loan Audit!

Most of all with all of the mortgage lender violations of the law, you can stop an illegal home foreclosure and protect your legal rights

Stop Foreclosure Option|Produce the Note

Who Owns Your Mortgage Note?

Do you know who owns your mortgage? Can you be  certain the institution trying to Foreclose on your Mortgage is, in fact, the owner of the note?

When you got your mortgage you signed a note for your mortgage , remember that (along with all of the other signatures you did, whew). This NOTE is the ONLY document that proves you owe the debt. Lenders have been losing promissory notes, and that spells troubles for the lenders!

As I have previously written during the years of 2002-2006 the “Boom Years” ,  the great majority of mortgages were  sold to other lenders or servicers, often times mortgages were sold 2 to 3 times of more! . There  was URGENCY for the Originating Lender  to turn these over as quickly as possible to make the most money from their “investors”, many of the new lenders did not get the necessary paperwork to show they own the note and mortgage.

This is a big part of Our Fight against illegal home foreclosures…. Now Let’s discuss the Sick Truth of Motrgage  Secutitization, Mortgages  that sliced up and sold to investors as securitized packages on Wall Street.

This entire process of “securitization” developed since the 1980s into a practice that has come to define modern finance. In an effort to hedge against the risk of directly holding loans and to make a profit as a “reseller”, the bank will often package the loan along with several thousands of others, and sell the rights to investors across the world.

DID YOU KNOW that Your home loan, in fact, might be owned by a foreign government, or it could be owned by a state pension fund – virtually any investment institution could own your mortgage if you could directly trace its path. But that has proven to be more of a rocket science, rather than a simple check with the county recorder.

This is the key to the produce the note strategy. Now, many lenders are filing for forecloseure on homeowners, resulting mainly from problems they created! They don’t have the proper paperwork to prove they have a right to foreclose.

When you get a copy of the foreclosure suit, many lenders now automatically include a count to re-establish the note. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose. This is an Illegal Foreclosure!

This  “produce the note” strategy  is a Weapon for all homeowners facing foreclosure on their home. If you believe you’ve been treated unfairly, fight back.

NON JUDICIAL STATES

In some states,  lenders can foreclose on your home without going to court.  These are called non-judicial foreclosure states.  You can still use the “Produce the Note” strategy in these states, but it takes a few more steps on your part. We will cover them on the next posting

If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their lack of concern for contract law . This is the your Home!  It’s just a piece of paper to them, and one they likely either lost or destroyed. Make them Produce the Note,  It will force them to Modify Your Loan if you wish to do so, get a Forensic Loan Audit!

Most of all with all of the mortgage lender violations of the law, you can stop an illegal home foreclosure and protect your legal rights