Why Fabrications & Forgeries of Mortgages Loan Documents?
In an increasing number of foreclosure cases, homeowners are going head to head with the lawyers who file claims on behalf of entities on the basis off fabricated and/or forged instruments that in many cases were also recorded in county records. Lawyers like Dan Khwaja in Illinois are getting clearer and clearer about it. They hire experts who understand exactly how the notes are mechanically created and the endorsements are not real signatures.
The key question is why would the notes have been fabricated and forged when there actually was a closing and a note was actually signed? We're talking about the financial industry whose reputation depends upon safeguarding all signed documents. If they didn't safeguard the documents and instead destroyed them or "lost" them, why was that allowed to happen?
So we have case in Illinois where lawyers filed a judicial foreclosure on behalf of Bank of New York/Mellon (BONY) as trustee (i.e. representative of)"holders" of certificates. The lawyers attach a copy of a note and endorsements. Khwaja hired an expert who found quite definitively that the note and the endorsements were all fabricated (forged). Khwaja has filed a motion for summary judgment.
Here is my analysis:
The lawyers who filed the claim have a serious problem. If they cannot convince the judge that they have no need to respond they are dead in the water.They must either pay someone to commit perjury or seek to amend with an actual original note. In view of prior studies that show that most (or at least half) of all notes were "lost or destroyed" immediately following the "closing"combined with your expert on hand, coming up with the original note is not an option.
And that brings us to the question of "why?" If there really was a closing at which the borrower signed documents, why do they need fabricated documents? To me, the answer is simple. In order to sell the same loan multiple times they needed to convert from actual to imaged documents. The actual one had to disappear. And the handful of mega banks who had a virtual monopoly on tens of millions of mortgage transactions made it "custom and practice" to use images rather than actual documents. [This practice has spilled over to property sale contracts where neither party gets an original].
And we have the additional issue which is presented by the foreclosure complaint. It says that BONY appears on behalf of the holders of certificates.The simple question is "so what?"
Being holders of certificates means nothing. It leaves out any assertion that the holders of the certificates are owners of the certificates, or anything that might identify those "holders". So the proceeds of foreclosure could then go to whoever was chosen by the parties actually pulling the strings.
They are asking the court to fill in the blanks. They want the court to draw an inference without ever stating the fact to be inferred, to wit: the holders of the certificates are owners of the certificates who are therefore owners of the debt,note and mortgage. There simply is no such allegation nor any exhibit indicating that is true. The reason is that it is not true.
So who is really the Plaintiff? Supposedly not BONY who is appearing in a representative capacity.
So then is it the certificate holders, represented by BONY? But they don't have any right, title or interest to the subject debt, note or mortgage. The prospectus and certificate indentures make that abundantly clear in most cases.
Examining what happens after a foreclosure is "successful" provides clues.Neither BONY nor any certificate holder ever receives the actual money from the proceeds of the purported sale of the property.
So who does?
As the one party with actual control over the loan receivable, the investment bank that created the "securitization" scheme is the only party that comes close to being an actual creditor. But here is their problem: that loan receivable has been sold multiple times. This not only leaves them with no claim to the debt,but a surplus of funds over and above the amount due on what was the loan receivable. It's basic accounting and bookkeeping. And if that were not true the banks would not be doing it.
So in the real world it is the investment bank that gets the proceeds of a foreclosure sale. But they do it as the
"Master Servicer" of an implied (and nonexistent) trust. The money simply disappears.
In order to get away with selling the debt multiple times they had to make each sale a non recourse sale. And they did that. So the buyers of the debt, note and mortgage had no actual legal title to the debt, note and mortgage and no recourse to the borrower to collect on the unpaid debt.
THAT leaves NOBODY as owner of a debt that has probably been extinguished and reveals the paper issued to buyers/investors as essentially the issuance of cash equivalent instruments (also known as currency). And THAT is the reason the banks, after two decades of this nonsense, have yet to come to court and simply say "here is proof of our funding of the origination or purchase of the debt, note and mortgage."
If they did, they would be admitting to lying in millions of foreclosure cases over at least a 15 year period of time. Their scheme effectively concentrated the risk of loss on investors and borrowers while literally retaining all the benefits of supposed loan transactions for the sole benefit of the intermediaries, who then leveraged loans multiple times.
This translates as follows: the money taken from investors is an unsecured liability of the investment bank. To be sure that has a value --- but not a value derived from loans to homeowners. THAT value was taken by the investment bank who cashed in on it already.
Note: For certain second tier investment bankers there were transition periods in which they were at actual risk. Examples include Lehman and Bear Stearns.But the top tier was able to sell forward on the certificates and never commit a single dime of their own money into the securitization scheme even in transition. But by pointing to Lehman and Bear Stearns they were able to convince policy makers that they were in the same position. This produced the"bailout" which was essentially the payment of even more money for losses that did not exist.
In an odd twist of irony, Wells Fargo was the only party (2009) that admitted to no loss but was forced to take bailout money so that other "less fortunate"parties would not be singled out as weak institutions.
In truth the AIG bailout and similar bailouts were merely payments of extra profits to Goldman Sachs and some other players, leaving investors and borrowers stranded with nearly worthless investments and collapsed markets for both homes, whose prices had been inflated by over 100% over value, and a nonexistent market for the bogus certificates that the Fed chose to revive by its purchasing program of "mortgage bonds" that were neither bonds nor backed by mortgages.
Stop Foreclosure | Sue for Fraud
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Stop Foreclosure, Sue for Breach of Contract
Now is the perfect time to stand up for your legal rights and sue for beach of contract, mortgage fraud, and foreclosure fraud because the legal tide is beginning to turn, and homeowners are starting to win! In 2016 the California Supreme Court ruled in Yvanova v. New Century Mortgage Corporation (Case No. S218973, Cal. Sup. Ct. February 18, 2016) that homeowners have legal standing to challenge an assignment of the mortgage loan contract in an action for wrongful foreclosure on the grounds that the assignment(s) is/are void. Obviously if the court had ruled differently, the banks would have had carte blanche to forge mortgage assignments with wild abandon. In fact, without a system of endorsements and assignments it would be impossible to determine who has a legitimate interest in the property!
In THE PAPER CHASE: SECURITIZATION, FORECLOSURE, AND THE UNCERTAINTY OF MORTGAGE TITLE ADAM J. LEVITIN writes "the mortgage foreclosure crisis raises legal questions as important as its economic impact. Questions that were straightforward and uncontroversial a generation ago today threaten the stability of a $13 trillion mortgage market: Who has standing to foreclose? If a foreclosure was done improperly, what is the effect? And what is the proper legal method for transferring mortgages? These questions implicate the clarity of title for property nationwide and pose a too- big-to-fail problem for the courts.
The legal confusion stems from the existence of competing systems for establishing title to mortgages and transferring those rights. Historically, mortgage title was established and transferred through the “public demonstration” regimes of UCC Article 3 and land recordation systems. This arrangement worked satisfactorily when mortgages were rarely transferred. Mortgage finance, however, shifted to securitization, which involves repeated bulk transfers of mortgages.
Like many other cases, current trial court decisions are getting reversed because the courts are waking up to the reality of the rule of law. What they have been following is an off the books rule of “anything but a free house.” However a recent Yale Law Review Article eviscerates the assumptions of a free house for the homeowners and destroys the myth that somehow that policy has saved the nation. You can read the Yale Law Review article “In Defense of “Free Houses” for more information on this tide change.
To facilitate securitization, deal architects developed alternative “contracting” regimes for mortgage title: UCC Article 9 and MERS, a private mortgage registry. These new regimes reduced the cost of securitization by dispensing with demonstrative formalities, but at the expense of reduced clarity of title, which raised the costs of mortgage enforcement. This trade-off benefited the securitization industry at the expense of securitization investors because it became apparent only subsequently with the rise in mortgage foreclosures. The harm, however, has not been limited to securitization investors. Clouded mortgage title has significant negative externalities on the economy as a whole.
If your loan contains fraud or it was securitized then your lender may have breached your mortgage loan contract, and therefore your mortgage loan contract could be legally challenged in a court of law. If your mortgage loan contract is declared legally void, then any assignments of the mortgage loan contract, or subsequent assignments, could also be declared legally void.
Securitization is the process of taking an asset and transforming them into a security. A typical example of securitization is a mortgage-backed security (MBS), which is a type of asset-backed security that is secured by a collection of mortgages. Keep in mind that it is perfectly legal for banks to create mortgage-backed securities (MBS's); however there are significant legal ramifications that will either harm you, or benefit you, depending on what actions you take in response to the fact that your mortgage or deed of trust is legally void resulting in your property, in reality, being unsecured, just like a unsecured credit card debt. What's in your wallet?
This is why we recommend that you take immediate action and sue for the remedy the law entitles you to, and that you deserve. Treble damages and clear and free title to your home. Not sure if your loan contains mortgage fraud or if it was securitized, no problem, we will do a free mortgage fraud analysis and free Bloomberg securitization search for you.
Many of the programs that had modest success in the early days have fallen into disfavor as banks have enacted strategies to counter their progress. The banks are not going to go down without a serious fight. They have a large arsenal of tools to use, and the legal muscle to keep the industry off balance. This is not a static game. The reason that banks have been successful, for the most part, in protecting the large number of mortgages that were securitized is that there is an intricate web of legal theories that they hide behind to justify what they have done. In effect, they have created a shell game where the ball seems to move around in defiance of the laws of physics.
The banks are relying on a complex interaction between UCC 3 commercial paper law, UCC 9 securitization law, bailment law, agency law and local laws of the jurisdiction where the property is located. They would have us believe that what they have been doing since the 1970’s is perfectly legitimate. Many lawyers who have challenged the banks have gotten close to exposing the scheme only to find that judges retreat away from the complexity of the legal theories involved and fall back on procedural barriers under the auspices of protecting the equitable interests of the banks and their agents.
FRAUD STOPPERS Foreclosure Defense Program has moved the bar forward in many substantial ways:
- Our Private Administrative process is a targeted approach to Informal Discovery:
- 3-501. PRESENTMENT or States equivalent
- Mortgage Error Resolution/Request for Information: If you believe there is an error on your mortgage loan statement or you’d like to request information related to your mortgage loan servicing, you must exercise certain rights under Federal law related to resolving errors and requesting information about your mortgage loan. If you think your credit report, bill or your mortgage loan account contains an error, or if you need more information about your mortgage loan, you send a written letter concerning your error and/or request.
- Cutting edge mortgage fraud examination and court ready lawsuits and trial ready evidence to win your case
- Nationwide foreclosure defense attorneys and Pro Se litigation education and support products and services
Subsection of Presentment (example Covenant 8 of UCC3 Note) shows NOTE and under paragraph 1 states: “BORROWER’S PROMISE TO PAY: In return for a loan that I have received, I promise to pay….
MULTI STATE FIXED RATE NOTE--Single Family--Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3200 1/01 (page 1 of 3 pages) Covenant:
I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. “Notice of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.
- 15 U.S. Code § 1692g - Validation of debts
Often a debt collector cannot validate a debt and therefore cannot legally enforce collections.
- Truth In Lending Act (TILA RESCISSION) codified in 12 CFR Part 226 (Regulation Z); particularly§ 226.34 Prohibited acts and §226.32 sub-paragraph (ii) et seq. predatory lending practices
A mortgage loan covered by the Truth in Lending Act may be rescinded by mailing a Rescission Letter to the purported lender, forcing the purported lender/creditor to oppose that rescission with a lawsuit within 20 days or lose all opposition rights.
- The primary focus of the legal aspect of our program revolves around taking the theories and best practices that have been most successful around the country and make refinements.
“Here, the specific defect alleged is that the attempted transfers were made after the closing date of the securitized trust holding the pooled mortgages and therefore the transfers were ineffective.
- Our program seeks to avoid getting mired in the complexity of the various areas of law involved, instead focusing on a simple, focused approach that makes it harder for judges to avoid the strength of our core arguments.
- The PMA trustees and executive team have a diverse set of skills and significant experience in the core areas that will improve the success factors for our operations.
We have spent an exhaustive amount of time analyzing all of the cases that have been successful in resolving mortgage securitization problems. We have designed our legal information litigation strategy to hit the banks hard and fast where they are most vulnerable.
Our primary focus is on getting clear and marketable title to the property by arguing that the actions of the banks have made the security provisions of the mortgage/deed of trust unenforceable.
Instead of fighting the foreclosure itself head-on, we argue that none of the banks or their agents has the right to enforce the foreclosure provisions of the Mortgage/Deed of Trust. In effect, if none of the banks have standing to enforce the foreclosure provision, we are entitled AS A MATTER OF LAW to a declaratory judgment of Breach of Contract (Security Agreement) that is res judicata, i.e., a permanent ban on foreclosure.
The Stand & Fight Program is a complete program that provides you with everything you need:
- Administrated Process
- Court Ready Chain of Title Investigation and Signed Affidavit
- Complaint along with all exhibits
- Legal Research
- Legal Briefs
- Case Management for Local Civil Rules of Procedures
- Training and Support
How to Respond to a Notice of Default
Now let’s talk about the foreclosure laws as they relate to everybody. If you have received a Notice of Default (NOD) or Notice of Acceleration (NOA), then time is short and you need to do something. And the only thing that will get the banks attention is a lawsuit. If you have an impending sale there are a number of things you can do. If you haven’t done anything concerning the foreclosure process as yet, there are some things you have to do simultaneously.
The first thing you want to do is send out a number of letters. Whoever is attempting to foreclosure on you, on that person you should send a debt validation letter (DVL). Often, a debt validation letter (DVL) will stall the foreclosure. Because when a debt validation letter is filed, the lender is obligated by the Fair Debt Collections Practices Act (FDCPA) to validate the debt.
A presentment under the Uniform Commercial Code (UCC) is defined as a demand for payment on a debt in us dollars. If your sent a presentment (a demand for payment) from anyone, you may dispute the debt with that person, and if you send them a letter stating that you dispute the debt and a demand that the claimant prove up their claim, then the debt collector is required to seize all collection efforts until they have proved up the claim.
So if your lender is in the process of foreclosure, and you send them a debt validation letter, they’re going to claim that in this case they are not debt collectors, but in fact they are merely attempting to recover collateral. The courts across the country are split on this issue. Some states say yes they are a debt collector, and some say no they are not a debt collector. For our purpose we don’t care either way, because we’re going to make the claim and by law once the demand is made they must prove up their position either way. The issue that we’ve been making with the lawsuits we’ve been helping people produce is that they are a debt collector until they show that they are not a debt collector. Usually they like to reply with a Rule 12 (motion to dismiss for failure to state a claim), alleging that they are NOT debt collectors and therefore they do not fall under the FDCPA.
So the argument that we’re making here is that in order to implement the intent of the legislator (and that intent was to prevent someone with no claim on a debt from collecting on a debt), you are demanding they prove their position.
If you have a debt with GMAC and I call you from Joe Blow collections, or send you a letter claiming I’m collecting for GMAC and you need to send all your future payments to me. Well if you send your payments to them and they are not collecting for GMAC the payments you send to them do not extinguish the debt; and that’s in the Uniform Commercial Code.
You see the foreclosure mills and the banks agents are trying to squeeze in under that exclusion, and claim that they are not trying to collect money; rather they are attempting to recover property. But in order to recover the property you have to get a notice of intent to foreclose in the form of a notice of default (NOD) and opportunity to cure the default (by paying money). This is stated in the mortgage.
Now we are saying that makes you a debt collector. Because the bank is saying you better pay a certain amount in U.S. dollars, or else they will become a collateral collections agent, and take the property as collateral. So the argument you will be making to the court is even if the jurisdiction says that the debt collector, and the foreclosure agent falls under the exclusion, until such time as they prove that they are actually in that position, they fall under the FDCPA.
If you get a phone call, you will use the: “Let’s Play a Little Q & A” on them. YOU must take control of the situation.
Write down their name, and the time and date they called. This is very important. (If you can record the conversation it will help you to transcribe to a ledger, the reason for this is that generally a recorded conversation is not admissible in a court room (the Judge will not allow it) however a transcript is admissible with no problem).
- What is the name of the company that you work for (where you work)
- What is their address
- What state are they in
- What is the zip code
- What is the phone number
- What is the name of the creditor (originally claims the debt)
- What is their address
- What state are they in
- What is the zip code
- What is their phone number
- What is the Account number
- What is the amount that you (or they) claim that I owe
The purpose of this is that there are certain things they must do during the telephone conversation and the primary one is as follows. The very first thing they must do after identifying themselves is to read you your consumer warning.
This is also referred to the “Mini-Miranda” “This is an attempt to collect a debt and any information obtained will be used for that purpose”.
If they do not inform you of your rights they have violated section § 807 of the DCPA and is a $1,000.00 violation.
On top of that, in your Debt Validation Letter you should request that they only contact you by U.S. Mail. This way each phone call could result in you being paid up to $1,500.00 for each violation of the Federal Telephone Consumer Protection Act 47 U.S.C. § 227.
Moving along! Think about this, if someone could be excluded from proving their position, just by making the claim that they weren’t a debt collector, and not have to prove it up the claim, then the statute requiring someone’s to prove their position would have no force in fact. In other words the law would be meaningless. So you’re saying that the bank is a debt collector, until they prove they are not. So now the burden of proof shifts to them proving they are not.
Either way it does not matter because this is just round one. In your lawsuit you can stipulate that IF they prove up their position you will dismiss this issue.
What you’re claiming here is you don’t know who the real holder of the note is, and for good reason. With all this robo-signing, and loan securitization, and transferring these loans, mortgages, and deeds of trust all over the place, you don’t have a clue to who the real holder of the note is. So you don’t know who has the actual authority to perform the foreclosure, so you’re asking that they prove up their position. Until they do this the foreclosure should be halted. Some people have been able to stop the foreclosure for years with this one simple step.
Remember your lender or loan servicer sent you a notice of default (NOD) and opportunity to cure; and you just need to make sure that if you send the amount necessary to cure that it will actually cure the debt; and you won’t have somebody coming back next week trying to foreclose again.
So the first thing you need to do is send the a good Debt Validation Letter; because when your lender or loan servicer receives it they are essentially statutory estopped from any and all further collection efforts until they answer.
After you mail your Debt Validation Letter, if they send you an answer, more than likely it will be a “non-responsive answer”. They may send you a copy of the deed of trust/mortgage, and maybe a copy of the note (if they have one). But they will not send you the originals that you requested, and they will not make originals available for your inspection, because in all likelihood they do not have them.
In fact the Bankers Association testified to the Florida Supreme Court in CASE NO.:09-1460 that “The reason many firms file lost note counts as a standard alternative pleading in the complaint is because the physical document was deliberately eliminated to avoid confusion immediately upon its conversion to an electronic file.”
So in order to address that issue in the debt validation letter you demand that they produce the original note for inspection by you; as is your right under Federal law. Now this is governed by Uniform Commercial Code 3-501; and it says that when a creditor sends a presentment to a debtor, and the debtor demands production of the original security instrument, the creditor must make the instrument available for inspection by the debtor. They do not have to give it to you; they just have to show it to you. If they fail to do so, the debtor can cease all payments without dishonor.
Now this creates Statutory Estoppel on two different fronts, and it will almost always stop the foreclosure, at least the first time you send them it. It usually takes them a little bit of time to get regrouped. Once they send you this bogus answer they may try to go ahead and start the foreclose process again. And there are things you can do if and when they do that.
But first things first, send the debt validation letters. Then as soon as you can you want to get a suit filed under the Fair Debt Collections Practice Act (FDCPA). When you send in your Debt Validation Letter (DVL) and then file suit for the same purpose. File suit demanding that the person claiming authority to foreclosure prove up their position; demand that they prove they are actually a bonafide agent for the true holder of the note.
Now this could be a big problem for the bank. The bank may actually be, or whoever the alleged principal for the agent is, may actually be the true holder of the note. But their problem is, in the last 13 years or so, after the repeal of the Glass Steagall Act and the repeal of the prohibition against derivatives, it sort of unleashed the money changers on us and they got themselves into such a glut of swallowing all of the equity of this country, that they just didn’t take care of business. They didn’t take care of the bookkeeping very well and usually they cannot legally prove up their position.
So when you file suit for this, and we’ve done a bunch of them, you have to understand that the courts are absolutely totally corrupt. They will dismiss your case no matter what, even if you have an attorney. Because the banks have money and power, and they can apply political pressure. And don’t forget that some of the federal judges are dirty rotten scoundrels. Maybe they can’t help it, maybe their position depend on them being dirty rotten scoundrels, but in the end…..they’re dirty rotten scoundrels; and they will rule against the Pro Se at every turn. So you have to expect that, and be prepared for that.
But don’t worry because the How to Win in Court Course will teach you how to argue your case, for the record, so you can win on appeal. Get this amazing course right now at https://fraudstoppers.org/education/
And keep in mind that you have some things you can do as Pro Se to tilt the scales of justice in your favor. As a Pro Se you don’t have to worry about that scoundrel judge pulling your bar card, because you don’t have one! Generally you don’t have to worry about the judge sanctioning you, because for the most part, the things that will get someone sanctioned only apply to lawyers. As long as you don’t curse the judge out, and you put on the appearance of civility, they’ll have no way to sanction you.
When you start filing judicial conduct complaints against a judge every time they squeak, every time they do something to deserve it, they can do nothing to stop you. If you file a judicial conduct complaint against the judge, and the judge says one word to you, that’s obstruction of justice and tampering with a witness and that can get them into big trouble real fast.
The same goes for bar grievances against attorneys. Bar grievances can affect attorney’s malpractice insurance. So these are just a few of the things that you can do to them as a Pro Se, which lawyers can’t do. If you have a lawyer, they can’t do any of these things, because if they do anything the judge doesn’t like, the judge can jerk their bar card away, almost at whim. But you’ll have to worry about that, and we will show you how to take some actions that will make up for a lot of these problems we have with corrupt judges and courts. I’m hoping that if we can get enough people doing this, that we can put enough pressure on the judges, that they will stop playing these shenanigans, in order to get us to stop filing judicial conduct complaints against them every time they turn around. But that is a discussion for another day.
Once you file your lawsuit you can expect a rule of 12 motion (dismiss for failure to stay to claim); and they will have 21 days to file that answer. So if you’re facing foreclosure they generally have to give you 21 days notice; and they generally time it so it’s exactly 21 days notice. So you will want to file a federal (or state) lawsuit fast, and that will almost certainly stop the sale.
Now it may NOT statutorily stop the sale. The only thing you can do to legally stop the bank from foreclosing on your property is to get a court order; like a temporary restraining order signed by a judge. Or you can also file for bankruptcy to temporarily stop the sale!
However, once you sue them, the reality is that win lose or draw, you’ll probably come out ahead because civil litigation takes time; and time is money!
So once you file an action against them, if the bank goes ahead and forecloses on the property while the litigation is going on, they could have opened themselves up for even more damages. Plus nobody in their right mind would purchase the property; because there would be a Lis Pendens filed against the property; and we’ll show you how to file a Lis Pendens (Latin for “suit pending”) later.
So after you mail your debt validation letter, you want to go to the local register of deeds (or your county recorder of deeds office) and get a copy of every document that has been filed in the county records for your property, from the date you purchased the property to present.
You’ll look for a deed of trust, or a mortgage, depending on what state you live in. If you live in a judicial state you have a mortgage. If you live in a non-judicial state you have a deed of trust.
If you are not sure if your state is a judicial or non-judicial, here is a list: https://www.fraudstoppers.org/foreclosure-laws-by-state/
You should get a copy of every page of each document recorded against your properties chain of title, from the time you purchased the home until present. Print the Search Results, with your name as GRANTOR and GRANTEE, and your wife’s name as GRANTOR and GRANTEE, then search the property address, and print the search results.
Take your camera and take a picture of every page starting with the index or the cover page of your deed record file and save each picture by:
Yr-mo-day, YOUR LAST NAME, Name of Doc, Page of Doc:
[Example: 2013-07-04, Smith, Original Deed of Trust, 17 Pages]
You should end up with copies of your Original Warranty Deed, Deed of Trust (or Mortgage, as it is called in some states).
While looking at the Deed of Trust or Mortgage, click on the button or link for “RELATED DOCUMENTS” and print the search results, then get a copy of any “Assignments of Deed of Trust or Mortgage” and any “Releases of Liens”,” Appointments of Substitute Trustees”, “Trustee Deeds”, and Law Firm Letters, like Default or Acceleration Letters from Attorneys who are hired to collect the debts from you.
Get a copy of everything in the file to the present date. You’ll also look for an assignment of substitute of trustee, an appointment of the note, and an appointment of the deed of trust or mortgage.
You may be able to get free copies of your county recorder of deeds documents online. Here is some information on how to do that: https://www.fraudstoppers.org/how-to-get-free-online-copies-of-your-county-recorder-of-deeds-land-record-documents/
These are the primary documents you’ll look for. And you may see a notice of default, or notice of intent to foreclose. Basically you want to get a copy of every document filed against your property from the time you purchased it until the present.
Then once you get a copy of these documents look at the authentication, which is the notary. Documents filed in the county record are not self authenticating. Since these documents are filed by someone that just comes down to the court, or hands it to the court, or they send it by mail, someone has to sign the document for it to be valid.
An authentication is when a person goes before someone who is authorized to do this, authorized to verify that the person who is claiming to sign the document, is in fact the person they claim to be. Essentially that’s all the authentication is. The notary will authenticate that this person came before me, and either I knew them personally or they identified themselves to me by this method; and I made the determination that this person is who they say they are.
This is one of the biggest areas of fraud in the whole foreclosure issue and it is absolutely the dumbest place to commit fraud. It’s arrogance beyond belief, its total reckless disregard for our laws and our courts. To file a document with a fraudulent identification is a felony; and the banksters have filed millions of them!
If you remember back to the 60 Minutes’ episode The Next Housing Shock a young guy got on television and bragged that he could sign Linda Green’s name, something like 360 times an hour. Think about it, in just one hour he committed enough felonies to put him in a federal penitentiary for several life sentences. This guy was no rocket scientist, but he could write fast! And the notaries, it’s a relatively minor thing, and its standard business procedure. But these guys are cranking out foreclosures so fast that having to wait for a notary, or having to wait for a notary to sit across the table from you as your signing these documents, and take the time to fill out their ledger and have you sign the ledger, while that’s inconvenient, and it’s not efficient.
So the foreclosure mills will hire somebody, at the entry level position who doesn’t know anything, and they come to them and say: “Hey we need a notary, and if you want to be a notary we can pay for your application fee, and your bond, and everything you need like your stamp and your ledger, and we’ll make you a notary.” And the new entry level clerk says “wonderful, I’ll be a notary”. And then the company comes to them with a big stack of documents and says “here you go, we need you to notarize these for us.” And generally this is a law firm, so the entry level clerk believes that this must be legal, and they do what there told and they notarize the stack of fraudulent documents. So now when the foreclosing agency needs a notarized document they just pull one off the shelf and fill it out.
What the notary is required to do in a number of states is to keep a sequential ledger. Anybody who has taken a document to get it notarized will recognize the procedure. You sign your document in front of the notary, after you have identified yourself to the notary, and then the notary will fill out some stuff on this ledger, and turn around and have you sign it. And now they even have a fingerprint pad where they will have you put your fingerprint or thumbprint on it. And that’s so if anyone ever has a question about the authentication, the notary can prove up the authentication.
Well the first thing you need to do is to pull every notary name off of every document that’s been filed in the county records office against your house, and send them a letter requesting a copy of their sequential ledger, from the day before to the day after any authentication appears in the record. And we suggest that you do not send it yourself. Have someone you know send it. And be sure to send its certified mail. Anything that you cannot conclusively prove that you sent and was received will go into the trash. Now that may not be right, but that’s the way it works. So always send all of your legal correspondences Certified Mail Return Receipt Requested!
The Post Office will give you a tracking number. Write that tracking number on the top of your letters & correspondences. Make a copy of the letter with the tracking number written on the top, then mail the letter. This provides you proof when they sign for the letter, and what the substance of the letter was.
You may get an answer back from them, but it will most likely be non-responsive. If they send you an answer and it is not the sequential ledger, or if the record shows that the ledger is incomplete, then the answer is non-responsive! To date, we have yet to receive a single responsive answer to this request. If you don’t receive a responsive answer, you will have a valid reason to believe that the authentication is invalid.
Now there is one particular notary that most people will have a question about, and that’s the one on the deed of trust or the mortgage. When you signed that at closing there was a notary sitting at the table across from you, as a rule. There’s required to be, but not always. Sometimes the lender will come to your house and have you fill out all the documents at your kitchen table. Well, that’s not quite legal because that deed of trust or mortgage must be authenticated; because that document is intended to be filed with the county register. And documents filed at the county register or are not self authenticating and they must be authenticated by a notary.
If there was no notary, than the document is not authenticated; but if there was a notary, you have to ask “was that a notary?” Because you don’t really know, they look like notaries and they act like notaries; but what we have found in sending these letters out, is that they are not necessarily notaries. Or even if they were notaries often they’re not notaries any longer. And when a notary cases to be a notary, the notary is required to send their substantial ledger to the clerk of the court, or county clerk. We’ve never found the county clerk who has one.
What we have found more often than I would have expected, is that we send a request from a notary on the deed of trust, and would get a letter back saying that our letter is undeliverable. So we contact the secretary of state who oversees notaries and who issues the notary authority and we asked the secretary of state for an address on the notary; and the secretary states because we don’t know who this person is. Now we are not exactly sure what is going on here. It may be that once a notaries’ commission expires, and it hasn’t been renewed, the secretary state may not maintain information on them. We don’t know if that’s the case or not, or if the secretary of state never had any information on the person. We don’t know what the deal is!
But what we do know is that the secretary of state says to us, “we don’t know anything about this person, and they’re not a notary, and we don’t have any record of them.” And for us, that works GREAT! We can live with that; because that creates an adverse inference that whoever sat across from us at the closing table, posing as a notary, was not in fact a notary.
Now maybe they were, but there’s no evidence to indicate that. So you can go back to the court, and say that you have reason to believe, and you do believe, that this document was never properly authenticated, and that the acknowledgement on the document was fraudulent, and you ask that the document be stricken from the record. Now what the court is likely to come back and say is: “well did you sign it?” To which you should reply: “Objection relevance!”
It’s irrelevant because the document must be authenticated, or proven, and it is not. You do not know if that is precisely the document that you signed at closing. Your bank may have made up another one. You can never know what the document your bank is reporting to have is, unless they bring you the original; and they will NEVER do that!
But you raise the issue so that if you can get the deed of trust, or mortgage, to be declared by the judge to be of no force and effect; your bank will have a real big problem! But generally the one that we can go after is not good deed of trust, or mortgage, in this particular regard. There are other places to go after the validity of the deed of trust, or mortgage.
But for now the documents that were really looking for, is the assignment of substitute trustee and the assignment of deed of trust. Now that one, we don’t know who signed at one, and this is the issue that goes to robo-signers. The problem with going to the court and accusing somebody being robo-signers, is you can go to the judge and say this person is a robo-signer and his name is splattered all over the Internet. And the judge is going to say “so, what does that have to do with this issue? Just because he’s accused of being a robo-signer doesn’t mean he didn’t have authority to sign this document. What evidence do you have to show that he did not have authority to sign this document?”
To which you can reply while Your Honor, this guy is a robo-signer and his name is all over the Internet. So I sent a letter to the company, for whom this person acted as an agent, and I requested evidence of the power of attorney for this person, and on these letters we have never received a responsive answer yet.
So after you complete the above mention step, you can then go to the court and say your Honor, I think this guy is a robo-signer (his name is splattered all over the internet), so I sent a letter to the company for whom he signed, asking them for proof of power of attorney, and I didn’t get any response. And this creates the adverse inference that the guy did not have power of attorney.
Furthermore, you’ve looked in the county record and expected to find evidence of power of attorney, as is required by law for anyone who files this type of document, that is specifically referenced by our state law, and I did not find any such evidence that he had power of attorney.
This creates a prima fascia case for this document being insufficient for filing in the record and I ask the court to rule that it’s insufficient, and is therefore void and of no force and effect.
This is all you want the judge to rule on at this time, and this is where you’re filing a petition for declaratory judgment. You’re not asking for any damages, at this time. You’re only asking that the judge make a declaration; and the only declaration we want the judge to make is that this document, as it exist by looking at the four corners, is insufficient for filing. Doing these steps as soon as possible can cause big problems for your bank and their foreclosure efforts.
Remember these steps are only the start to defeating your fraudulent mortgage or foreclosure. The banks have paid lobbyist to help Congress pass laws that benefit the banks and their foreclosure efforts, so you will need to do more to reach a successful outcome and a happy ending.
For more information on what you should do if you receive a notice of default or foreclosure complaint watch this video: https://www.fraudstoppers.org/how-to-respond-to-a-notice-of-default-or-foreclosure-complaint
If you are thinking about filing a lawsuit against your lender or current loan servicer for mortgage or foreclosure fraud register for a free mortgage fraud analysis and we will help you determine what legal options your loan qualifies for.
How to Conduct a Property Lien Search on a House
A lien on a house can inconveniently delay a home sale. Learn what a lien on a house means and how to find liens on a property before listing or putting in an offer.
Picture this: You list your home and find the perfect buyer. Right before the buyer signs on the dotted line, a lien comes up during the house lien search. The buyer pulls out, the deal falls through and you’re left to investigate the mysterious lien on your home.
Attempting to buy or sell a house that has an undiscovered (or forgotten) property lien can bring a real estate transaction to a halt. Conducting a property lien search on a house before attempting to buy or sell can help you avoid an unpleasant surprise. Here’s what to know about liens and how to search for liens on a property.
What is a lien on a house?
A lien on a house is a legal claim put on a property by a creditor, government agency or business to show they have a financial stake in a home because of an outstanding debt. There are two types of liens—involuntary liens and voluntary liens.
Voluntary liens are liens where a debtor voluntarily agrees to put up an asset as collateral to back a loan. Mortgages or car loans are instances where a debtor enters an agreement with a voluntary lien. The borrower signs a contract agreeing to let the lender take possession of the home or car if the loan isn’t paid.
An involuntary lien is what the name suggests—It’s involuntarily placed on a property in an attempt to collect money owed. Unpaid taxes, child support and consumer debt are common reasons why an involuntary lien may be placed on a home.
Involuntary liens can become a thorn in the side of homeowners trying to sell. If a lien for unpaid taxes or credit card debt comes up during a search, a lender will likely be unwilling to lend money to a buyer to purchase the home until the debt is repaid or settled.
Keep reading at: https://www.ownerly.com/real-estate/property-lien-search/
What’s in a Qualified Written Request (QWR) Letter
- “Qualified Written Requests” under RESPA put mortgage servicers in a troublesome place. But there’s law on their side to help distinguish legitimate issues from abuse and harassment
- A bank will receive a letter from a mortgage borrower, or from an attorney or other agent purporting to act on behalf of that borrower. The letter will generally demand that the lender provide the inquirer with a wide-ranging amount of information concerning the borrower’s loan and the transaction in general.
- The communication may assert that there is a defect or mistake in the borrower’s account, and then demand that immediate action be taken to correct that mistake.
- Asserting only slight oversights in the borrower’s escrow account calculation.
- The letters are marked as “Qualified Written Request” under Section 6 of RESPA.
- The “QWR” label stirs legal consequences that servicers and lenders cannot ignore.
What the law says:
- QWRs are special and important because they arise under specific consumer protection law contained in Section 6 of the Real Estate Settlement Procedures Act (RESPA). Section 6 was added to RESPA in 1990, and generally imposes standards and requirements regarding the assignment sale or transfer of mortgage loan servicing. (12 U.S.C. Section 2605.) Under Section 6 of RESPA, borrowers are afforded a dispute resolution mechanism that gives rise to specific duties on the part of servicers where certain conditions are met.
- RESPA’s Section 6 and Section 3500.21(e) of RESPA’s implementing regulations (Regulation X), provide that consumer inquiries would constitute QWRs where:
- They are submitted in writing.
- They include, or allow the servicer to identify, the name and account of the borrower.
- They include a statement of the reasons for the borrower’s belief that the account is in error or must provide sufficient detail to the servicer about other information the borrower is seeking. (12 U.S.C. Section 2605(e)(1)(B)(ii))
- Where all such items are included in correspondence to a mortgage loan servicer, the servicer must then provide written acknowledgment to the consumer within 20 business days of receipt of the request. The receipt of a QWR triggers an affirmative duty to investigate the problem identified by the consumer, which must be rectified or explained not later than 60 business days after the receipt of the request.
Unlike other inquiries from consumers, the duties that arise from inquiries that qualify as a QWR have potent legal consequences.
- Under RESPA, borrowers can institute a private lawsuit for a Section 6 violation. They can potentially then recover actual and statutory damages (up to $1,000 per violation), plus attorney’s fees.
- Furthermore, class-action lawsuits are available in instances of pattern and practices of non-compliance, within three years, of the violation against a loan servicing company who refuses to comply with Section 6.
- Lawsuits for violations of Section 6 may be brought in any federal district court in the district in which the property is located or where the violation is alleged to have occurred.
- Finally, either HUD, a state attorney general, or state insurance commissioner may bring an injunctive action to enforce violations of Section 6 within three years.
- Clearly then, any correspondence received by a bank that is marked as “QWR” should not be ignored.
- The important question for compliance professionals is, therefore, how should an institution respond to the QWR, and equally important, how should the institution handle requests that are plainly abusive or harassing?
How do you spot a true QWR?
- As a preliminary matter, a request must specify the particular errors or omissions in the account, along with an explanation from the borrower of why he believes an error exists, in order to qualify as a QWR. A list of unsupported demands for information is not sufficient.
- “A qualified written request must … include a statement of the reasons for the belief of the borrower that the account is in error.” Walker v. Equity 1 Lenders Group, 2009 WL 1364430 *4-5 (S.D.Cal. 2009).
- Please note that if your institution is not a mortgage loan servicer, these provisions do not apply to you.
- By coverage and definition, the RESPA provisions under Section 6 apply to only “servicers” as defined by the statute. If you do not service mortgage loans, the requirements described herein are inapplicable to your institution.
- The QWR provision applies only to mortgages secured by a first lien, thereby excluding subordinate-lien loans and open-end lines of credit.
- RESPA requires a QWR to request information “relating to the servicing of the loan.” (See 12 U.S.C. Section 2605(e)(1)(A)).
- “Servicing” is defined as “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in Section10 [of RESPA], and making the payments of principle and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the loan.”
- A QWR which requests no information related to servicing is not a valid QWR. In particular, requests related to origination do not qualify as QWRs.
- A leading case discussing this issue, MorEquity v. Nameem (118 F. Supp. 2d 885 (N.D. Ill. 2000), reached the important conclusion that borrowers fail to state a claim where the borrower’s request merely seeks information concerning the validity of the underlying loan and mortgage documents, but does not seek any information as to the status of the account balance.
Requests made in a QWR must relate to servicing and escrow matters; those requests that relate to extraneous issues dealing with the items relating to the loan’s settlement or secondary market information, for instance, are simply outside the proper scope of the QWR process.
- As a final, critical, note, if after considering all the elements listed above, a bank discards a request as not qualifying under RESPA’s QWR provisions, most legal experts recommend that the bank’s rationale should be well explained, and that the bank should document the reasons for rejecting the supposed QWR. Such rejections should, where possible, be sent back in writing. Legal counsel should be involved in ensuring that this procedure meets legal standards.
Dealing with the legitimate QWR
- When a servicer receives and properly identifies a valid QWR, the servicer must, by law, both acknowledge receipt of a QWR and respond to the substance of any claims or requests included in the QWR.
- In addition, the law directs servicers not to provide information to a consumer reporting agency during the 60 days following receipt of the QWR concerning overdue payments related to that period or to the QWR. (See RESPA Section 2605(e)(3) )
- In establishing procedures to comply with RESPA’s QWR provisions, banks should keep in mind that, contrary to some claims, the QWR process does not require a lender or servicer to stop foreclosure proceedings or other legal action on the loan.
- To properly respond to the QWR:
- A servicer must, within 20 business days, provide a written response acknowledging receipt of the QWR. (12 U.S.C. Section 2605(e)(1)(A))
- Within 60 business days the servicer must investigate the account, make any appropriate corrections, and provide the consumer with a report of their action. (Id. at Section 2605(e)(2)(A))
- If the servicer corrects the account, the servicer must provide a written explanation of the corrections. (Id.)
- If the servicer does not correct the account, it must provide an explanation or clarification that includes a statement of reasons why the account is correct and the name and telephone number of an employee of the servicer who can be contacted to further assist the borrower.
You can get a FREE Qualified Written Request (QWR) Letter at https://fraudstoppers.org/free
MERS and the problem of false agency
Posted on April 19, 2022 by Neil Garfield
Since the beginning of this century, The initial transaction with homeowners was the product of multiple layers of paperwork, most of which were neither identified nor accessed by consumers or their professional advisers.
Here is the deal:
As was typical during the “securitization” era, the application for a loan is received as the commencement of the transaction. It is not the “closing.”
From your perspective, you asked for a loan, and you were given false paperwork for you to read and sign. From the perspective of the disclosed counterparty to your transaction, the originator was merely paid a fee for the service of selling the transaction to you as a “loan.”
The funding for your transaction is an elaborate scheme unto itself. Once the paperwork is completed by the investment bank, the investment bank borrows the amount of money needed to pay homeowners at or near the time of closing. There is frequently a waiting period after what the homeowners perceive as a loan closing. This is the final check to make sure that there are not multiple entities named as Plaintiffs or beneficiaries on mortgages and deeds of trust respectively.
The loan from, for example, Credit Suisse, is collateralized by the impending sale of certificates to investors. The certificates do NOT represent any status as beneficiaries of a trust nor any status as a creditor to whom the homeowners ‘payments set forth on the homeowners’ note are payable.
Payments of money to the investors are discretionary but they usually are made by the investment bank regardless of whether or not any homeowner makes a scheduled payment on the schedule described in the promissory note issued by the homeowner. Investors were sold and contractually accepted the idea that they and no right, title or interest to any homeowner payment, legal debt, underlying obligation, note, or mortgage (or deed of trust).
So investors are paid not by homeowners but by various undisclosed intermediaries who have access to the funds paid by homeowners and access the funds generated by sales of certificates that are frequently mislabeled as Mortgage-Backed Securities. The fact the payments are frequently made as “Servicer advances” (as though the money came from companies who were named as “servicers” is the foundation for framing this deal — taken as a whole — as at least part of the PONZI scheme.
The sale of the certificates pays back the loan to Credit Suisse, plus a fairly large (e.g. 30%) profit partly directly arising from a yield spread premium (the difference between the amount of money paid by investors for unsecured IOUs from the investment bank and the amount paid to homeowners. Additional money is generated as the proceeds or revenue of either sale of the additional derivatives securities created and issued by the investment bank.
The problem for laypeople or even lawyers is that there is a choice between whether to analyze your transaction from the perspective of what you were seeking or whether to analyze the group of transactions from the perspective of the securitization scheme, without which there would have been no homeowner transaction. The consensus in the media and courtrooms is to simply analyze the transaction from the perspective of what the consumer wanted when he or she applied for a loan, regardless of where that is an accurate description of the transaction.
Contemporaneously with the origination of the transaction, several things are happening. In broad strokes, they are divided into the money trail and the paper trail. In the paper trail, none of the documents correctly identify or describe a transaction much less “memorialize” any transaction. Because everyone has received all the money they intended from participation in the “securitization” scheme the essential ingredient of a loan account receivable is eliminated thereby making nobody the “lender.”
Simply stated, since there isn’t anyone who maintains any record on the accounting ledger of an account receivable owed by you, there is no creditor. Nonetheless, in order for the securitization scheme to work (justifying more sales of certificates and other derivatives to investors), it must appear as though (a) an underlying obligation is created, owed to a specifically named lender and (b) that it has been transferred to a named business entity with caveats on the sale — namely that there is no warranty of title to the claims against homeowners.
When the origination cycle is complete, the status of the transaction is that there is no counterparty who has a stake in the viability or success of that transaction because nobody loses money if the homeowner does not make a scheduled payment — one that I maintain is simply not due to anyone. The absence of a lender — and all that entails under law — means there is no loan. The finance side of the transaction knows this but sets out to create a false paper trail to make it seem like “this is a standard mortgage loan” or ” this is standard foreclosure action.”
The financial community in coordination with lawyers willing to play the “game” used strategies and tactics to not only make it appear that the transaction was a loan but to actually have the court presume that the transaction was a loan and that the complaining party has hired counsel to seek a remedy. The status of such claims is always this: there is no obligation, loan account, or other claims for money allegedly due from the homeowner.
The primary tactic utilized by the financial community is the volume of paperwork. the thicker the pile of paperwork the more likely it is that a layperson sitting on the bench, will conclude that the transaction was real as a “loan.” And that is why we witnessed the birth of a major industry — creating false, fabricated, backdated documentation making it appear that several brand name institutions were trading, purchasing, and selling the “loans”. In reality, no such transactions existed, but the paperwork said the t transactions had occurred.
Considerable effort and coordination were devised by the financial sector to mislead the court system and they did so successfully in most cases. But even a casual look at your chain of title for the mortgage or deed of trust reveals inconsistencies in the paperwork especially when one realizes that the signature block one each document is on behalf of entities that (a) don’t exist at all, (b) exist but are irrelevant to the transaction and (c) are unclear from the face of the document.
Your case is almost certainly closely aligned with the typical playbook of strategies and tactics. Examining the document assignment of mortgage you find what is typical:
No consideration. the law requires that value be paid by the claimant before it can file suit to enforce the claim. But that law does not impact the ability of the foreclosure players to make false claims of authority to administer, collect or enforce in correspondence, notices, and statements.
“Corrective instruments” that correct nothing in order to establish more paper volume.
Execution of assignment by a business entity that has no right, title or interest in the alleged obligation. For example, MERS is used to launder titles.
People from FINTECH companies regularly access the main servers that are maintained by MERS for the sole purpose of getting themselves automatically appointed, without board resolution, as an officer of MERS.
MERS always is described as the nominee for the specifically named “lender” who is just an originator selling a financial product as described above. MERS is used as a cover-up. It effectively hides the title gap in plain sight.
The execution of an assignment or corrective assignment presumes that it is acting as an agent for whoever is currently named as the current claimant, beneficiary, or Plaintiff. But no such agency exists in fact or at law.
The execution of a security instrument (mortgage or loan) by a self-proclaimed “servicer” (which performs no servicing duties with respect to receipts data processing and disbursement of money from homeowners) on behalf of a new entity appointed to be the claimant, beneficiary or Plaintiff. But the execution of the assignment by MERS on behalf of Countrywide after the collapse of countrywide. it does not exist.
And Bank of America did not acquire any ownership interest in any homeowner transactions because countrywide didn’t own any such interest.
So while Bank of America was a successor to Countrywide, the foreclosure team is relying on appearances — in order to get the court to presume that the merger created a transfer of the ownership of the unpaid nonexistent loan account receivable of the mortgage rights from Countrywide as originator to Bank of America.
In such mergers, there is no Mortgage Loan Schedule, nor any written assignment of mortgage. Since the law requires the assignment, the presumption that the transfer could occur without an assignment of mortgage is erroneous. But that fact will not stop foreclosure unless it is aggressively contested.
The document is supposedly executed by someone calling themselves an “assistant secretary.” But note that it does not say that the signor was the assistant sectary of MERS.
Every time there is mention of MERS it includes the phrase “its successors and assigns” such that it is unclear from the grammar utilized whether there is a successor to MERS or a successor for the principal in the agency agreement between MERS and the originator (Countrywide in this scenario).
But there is no succession to either one unless (a) someone bought or merged with MERS or (b) someone bought loan accounts receivable from Countrywide. Such a sale would’ve been impossible because, by the time of the merger, Countrywide had only reserved “servicing rights” which really only meant the claim to receive “servicer advances” upon liquidation of a foreclosed property. So there is no MERS successor and there is no Countrywide successor as it relates to either the actual pr presumed transfer of the alleged underlying obligation.
Any endorsements are undated. Under current law, this means that parole evidence must be offered to prove that the promissory note was transferred and delivered to the party named as claimant, beneficiary, or Plaintiff.
Documents requiring the signature of the homeowner are in most cases completely fabricated even if the homeowner did sign similar documents. This has been sued to change the fact relevant to execution and delivery of the promissory note that in approximately 95% of all cases is destroyed within days of the time of closing that transaction with the homeowner.
This becomes clearer when the homeowner is able to lay hands on the original note at least as an original, and when the original note contains coloration of signature or other marks that do not appear on the refabricated note made by electronic manipulation of images.
The foreclosure mill will often utilize such fabricated documents even when they contain glaring facially invalid errors. For example, where a parent was the owner of the property and signed the “mortgage” paperwork, the instructions received by the law firm are turned into correspondence, notes, statements, and pleadings that reflect the grantors under a deed of trust or the mortgagors under a mortgage instrument become the heirs or successors to liability under the note.
Facts About Bad Mortgage Loans
How significant a risk is noncompliance with consumer protection laws?
The mortgage industry is struggling to comply with consumer protection laws. A remarkable report published by the FDIC Office of the Inspector General reveals that during 2005 (which was the peak year of the mortgage boom measured by number of loans originated), 83% of federally supervised banks that made loans were cited for patterns of "significant compliance violations." The percentage was presumably higher for state-licensed, non-depository lenders who were responsible for originating 52% of subprime mortgages and are subject to a much broader patchwork of state regulation. Violations of consumer protection laws can result in rescission (effectively canceling the loan), defense against foreclosure, fines, penalties and (both civil and criminal) damages that can exceed the original principal balance of the loan.
You may download the report (Report Number 06-024) from the FDIC website. There are also additional reputational risks associated with charges of predatory and discriminatory lending. Investors - including anyone in the chain of title for whole loans and the securitization trust for securities - can be liable, even though the violator waste broker or originating lender. In other words, the investor can be held liable and suffer damages for actions outside its control and for which had no knowledge. What consumer protection laws does FRAUD STOPPERS PMA cover and how are these compliance requirements applied to a mortgage loan?
FRAUD STOPPERS PMA provides a comprehensive analyzes of electronic loan data to determine whether a mortgage transaction complies with over 300 federal and state consumer protection laws related to mortgage lending. Specifically, FRAUD STOPPERS PMA automated mortgage compliance audits reviews mortgage loans for compliance with the following consumer credit issues: truth-in-lending disclosures, usury, predatory lending, impermissible fees, interest rate accrual restrictions (such as negative amortization and balloons payments) and prepayment penalty enforceability.
It is important to understand that any number of laws may apply to a particular mortgage transaction. Knowing which laws apply is not a simple task, since it depends on how the lender is licensed or chartered. Licensed lenders operate under the licensing authorities of the various states with which they do business. Most states have multiple licenses granting lenders the authority to make loans. Each such license imposes different substantive requirements governing loan terms. For instance, certain licenses allow subordinate lien loans while others govern loans with higher interest rates.
In some states, more than one license may authorize lenders to make the same loan, although subtle differences in the consumer protection requirements apply to the loan terms. FRAUD STOPPERS PMA determines if lenders and brokers are properly licensed (and in good standing) or exempt, and then applies the correct laws based on that licensing status. It does this by leveraging its proprietary nationwide licensing database, described in the License Verification and Monitoring section of this site.
Chartered financial institutions—such as state and national banks and federal savings banks—are subject to different regulatory requirements. For instance, most chartered institutions “export” interest rates from their home state to the target state in which the loan is made. This results in a complex synthesis of both the home state’s and target state’s consumer protection laws —an analysis that is difficult to perform efficiently without automation. Likewise, chartered institutions may in certain cases preempt states laws and in other instances must observe them. Again, FRAUD STOPPERS PMA bases its reviews on how an institution is chartered and what permissible regulatory elections it is making.
Once the lender’s license or charter authority is known, as well as its elections, the review must consider the specific transaction terms—such as the APR, interest rate, loan balance, lien position, occupancy type, etc.—to determine which out of the several laws that might apply to the lender govern a particular mortgage loan. No other automated compliance solution provides this degree of detail and precision to its analysis, and this is the reason no other provider equals FRAUD STOPPERS PMA in quality.
Learn how Cancel Secured and Unsecured Debt Obligations through Strategic Litigation
Scope of the FRAUD STOPPERS Bloomberg Securitization Audit
FRAUD STOPPERS Evaluation for Violations of “RESPA” The Real Estate Settlement Procedures Act (RESPA) is a consumer protection statute, first passed in 1974. It requires lenders to give a good faith estimate (GFE) of all closing costs that borrowers must pay. It was designed to help borrowers from being forced to pay “hidden fees” at closing. Typical violations of RESPA include (1) Statutory Damages, (2) Attorney’s fees, and in many cases (3) Treble Damages [i.e., 3 times the amount.]
FRAUD STOPPERS Evaluation for Violations of “TILA” The Truth in Lending Act (TILA) requires lenders to disclose the terms of a loan, including the total amount of the loan, the annual interest rate, and the number, amount, and due dates of all payments necessary to repay the loan. The TILA also requires additional disclosures and places many restrictions on mortgages. The most often sought remedy under TILA is rescission of the loan.
FRAUD STOPPERS Evaluation for Violations of “FCRA” The Fair Credit Reporting Act (FCRA) was designed to prevent inaccurate or obsolete information from entering or remaining on a credit report. The law requires credit bureaus to adopt reasonable procedures for gathering, maintaining, and disseminating information. Commons remedies for violating FCRA are (1) statutory damages and (2) Attorney fees
FRAUD STOPPERS Evaluation for Violations of “ECOA” The Equal Credit Opportunity Act (ECOA) was designed to ensure that all qualified people have access to credit and prohibits discrimination based on sex, marital status, age, race, national origin, or public assistance benefits received.
FRAUD STOPPERS Evaluation for Violations of “HOEPA” Home Ownership Equity Protection Act state and local high costs. Federal (HOEPA), state and local high-cost thresholds.
FRAUD STOPPERS compares the loan data collected during a forensic loan audit to the calculated high-cost thresholds as defined by the Home Ownership and Equity Protection Act (HOEPA) and applicable state and local jurisdictions.
FRAUD STOPPERS Evaluation for Violations of “Underwriting Standards” The purpose of an underwriter is to determine whether the borrowers can qualify for a loan and if the borrowers can repay the loan. This determination of the ability to repay a loan is based upon employment and income in large measure, which is proved by getting pay stubs, 1040’s, W-2’s and a Verification of Employment and Income on the borrowers.
If an underwriter has evaluated the loan properly, then there should be no question of the ability of the borrower to repay the loan. Debt ratios will have been evaluated, credit reviewed, and a proper determination of risk made in relation to the loan amount. Approvals and denials would be made based upon a realistic likelihood of repayment.
The terms “abusive lending” or “predatory lending” are most frequently defined by reference to a variety of lending practices. Although it is generally necessary to consider the totality of the circumstances to assess whether a loan is predatory, a fundamental characteristic of predatory lending is the aggressive marketing of credit to prospective borrowers who simply cannot afford the credit on the terms being offered. While such disregard of basic principles of loan underwriting lies at the heart of predatory lending, a variety of other practices may also accompany the marketing of such credit.
Targeting inappropriate or excessively expensive credit products to older borrowers, or to persons who are not financially sophisticated or who may be otherwise vulnerable to abusive practices, and to persons who could qualify for mainstream credit products and terms
Loan Flipping & Equity Stripping
Repeated refinancing of borrowers into loans that have no tangible benefit to the borrower. Can be the same lender or different ones. Loans and refinances whereby equity is removed from the home through repeated refinances, consolidation of short-term debt into long term debt, negative amortization, or interest only loans whereby payments are not reducing principle, high fees and interest rates. Eventually, borrower cannot refinance due to lack of equity.
High Debt Ratios
This is the practice of approving loans with high debt ratios, usually50% or more, without determining the true ability of the borrower to repay the loan. Can often be seen with Prime borrowers approved through the Automated Underwriting Systems.
High Loan to Value loans
Loans offered to a borrower having little or no equity in the home. Usually, adjustable-rate mortgages that the borrower will not be able to refinance out of when the rate adjusts due to lack of equity.
Fraudulently Caused to Execute Loan Documents
Adjustable-rate mortgage loan was an inter-temporal transaction on which Plaintiffs had only qualified at the initial teaser fixed rate and could not qualify for the loan once the interest rate terms change.
Deception, Fraud, Unconscionable
Is marketed in a way that fails to fully disclose all material terms. Includes any terms or provisions which are unfair, fraudulent, or unconscionable. Is marketed in whole or in part based on fraud, exaggeration, misrepresentation, or the concealment of a material fact. Includes interest only loans, adjustable-rate loans, negative amortization and HOEPA loans.
Stated or No Income/No Assets
Is based on a loan application that is inappropriate for the borrower. For instance, the use of a stated-income loan application from an employed individual who has or can obtain pay stubs, W-2 forms and tax returns.
Lack of Due Diligence in Underwriting
Is underwritten without due diligence by the party originating the loan. No realistic means test for determining the ability to repay the loan. Lack of documentation of income or assets, job verification. Usually with Stated Income or No documentation loans but can apply to full documentation loans.
Inappropriate Loan Programs
Is materially more expensive in terms of fees, charges and/or interest rates than alternative financing for which the borrower qualifies. Can include prime borrowers who are placed into subprime loans, negative or interest only loans. Loan terms whereby the borrower can never realistically repay the loan.
All claims and defenses the borrower may have against the mortgage lender, mortgage broker, or other party involved in the loan transaction.
FRAUD STOPPERS Evaluates Each File for Violations of “Common Law Principles”
Material facts include the terms of the loan, whether there is a prepayment penalty, or any other information which a reasonable borrower would want to know before accepting the loan. Did the broker or loan officer or anyone working for the broker or loan officer fail to disclose any material facts to the borrower?
FRAUD AND NEGLIGENT MISREPRESENTATION
Were any representations, statements, or comments, written or made by the loan officer, broker, notary or anyone else who contradicted the terms of the documents?
When a mortgage professional makes errors which a reasonably diligent mortgage professional would not have made, he or she may have made a negligent misrepresentation.
BREACH OF CONTRACT
The note and its attachments are a contract. The broker must follow all the terms of the contract such as the way the interest is calculated, and the penalties it assesses. Were there any terms in the contract which the lender failed to follow?
BREACH OF FIDUCIARY DUTY
And many, many, more…….
This is a court ready trial evidence audit & expert witness affidavit that you and your attorney can use to win your case.
Breaking News - What the Bank Does Not Want You to Know:
CONFIDENTIAL SETTLEMENT AFTER ORDER ON JUDGMENT inFlorida - CFLA Client Gets Huge Damage Award against JPMCB and WellsFargo for multiple fraudulent misrepresentations in loan documents and bylender[s] to homeowner[s]. The following is an exert from the Court's Orderin Florida. This case has reached CONFIDENTIAL SETTLEMENT andtherefore some information is redacted:
"Defendants JPMCB and Wells Fargo were involved in fraudulent recordeddocuments in violation of 15 USC §1611, and is entitled to damages forclouding title and to cure/Quiet Title. Plaintiffs are entitled to the reliefrequested herein to quiet title and for award of costs under FS §57.041"
Homeowner Quiets Title to Real Property in Florida Court and Liable forDamages for Fraudulently Recording Documents, Fraud, Misrepresentation
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Pig in a Poke
(Or is it?)
SO, WHERE DO WE BEGIN?
Let us start with “I really don’t understand this”. Be honest with yourself. If you did, I would have seen headlines by now.
Let’s look at [who][what][where][when][how]
[who] – Mortgage Bankers Association and its cronies. [what] – Faulty Security Instruments
[where] – Just about everywhere [public land records][judicial systems][stock market]
[when] – Beginning of design and creation of electronic promissory note registry [eNote] Registry.
[how] – Utilizing Transferable records [payment intangibles] as lawful [tangible] real property records
[ Not necessarily in that order]
CAN’T SAY ENOUGH ABOUT THIS ONE
I mentioned this many times that James McGuire explained this stuff years back in “Have A Note”. That document is full of education. There are also many other documents and charts providing educational information in regards to this MERS/GSE scheme. Actually James goes deeper than that. So, there is nothing new with my information, this is just my attempt to help others better understand what most appear not to.
MORAL OF THE STORY
Ever heard of the phrase “Pig in a Poke”? It dates back to the middle ages. Maybe it will help you better understand what the banks have done and are continuing to do. This “pig in a poke” scheme utilized a “pig” and a “bag” which purportedly contained the pig. However, clever buyers failed to look in the bag to see if it really was a live pig. Instead, the clever buyer found out after the purchase, that there was no pig, only a cat. Pigs were a source of meat to eat. The cat was not. Hence “Buyer Beware”.
As for the banks and their associates, I think the phrase “Cat in a Bag” used in other particular countries fits this Intangible scheme more suitably because now the “Cat is out of the Bag”.
Take the pig in a poke scenario, and replace the [word] pig with a [tangible] Real Property mortgage, replace the [word] bag with MERS and replace the [word] cat with a Transferable Record [eNote]. Investors can see the eNote assuming it is a [tangible] real property mortgage, and just like the clever buyer, they too invested in a pig in a poke. The cat in the bag reveals that it is not a pig. The [transferable record][cat] reveals that it is not the [tangible promissory note obligation][pig]. The real property mortgage like the pig was something of value, where the eNote[transferable record] like the cat was not worth value as like the pig was.
Hence “Buyer Beware”.
CRAFTING THE WORD
Ever hear of the phrase “word crafting”? You have realized the banks lawyers, attorneys etc, whom are looked upon as artists in a sense, have honed their skills and have a tool chest full of ways to craft words to fit their needs in the “mortgage scheme”. Mark Twain once wrote; “The difference between the almost right word & the right word is really a large matter -- it's the difference between the lightning bug and the lightning.” The banks “word crafters” and their “almost right” words have deceived many.
THE CONCEPT [Money via Wall Street Secondary Market]
It starts with an evil mind to create design and implement an illusionary scheme that would involve many deceptions. When the can spills over, only then will you know how many and whom these worms are.
The National eNote Registry is a compliance vehicle to satisfy certain requirements imposed by the Uniform Electronic Transactions Act (UETA) and the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) so that the owner of an eNote (the
Controller) would have legal rights similar to those that a “Holder in Due Course” has with a paper negotiable promissory note. – National eNote registry Requirements, 2003.
Did the “legal rights similar” part confuse you? “so that the owner of an eNote (the Controller) would have legal rights similar to those that a “Holder in Due Course” has with a paper negotiable promissory note.”
If you are only looking at the tangible world, you don’t see anything. If you realize there is a [tangible] world and an [intangible] word, you probably understand that the [Controller] of the [eNote] has similar legal rights as if the [eNote] were a [tangible] paper negotiable promissory note. This does not mean the “Controller”[servicer] is a “Holder in Due Course” of a
[tangible] paper promissory note. The eNote has only similar characteristics. Since skills of word crafting are in action here, the clever representative of the “Lender” can bravely state or claim “So and so is the holder of the Note”. Sure they can say that. What is not being asked is “What Note is so and so the holder of? Is so and so the holder of a tangible promissory Note or the holder of an Intangible Electronic Promissory Note?”
With an intent to deceive whomever believes in these “payment intangibles”, these evil minds created a crime largest in U.S. history. Only time will tell. What is worse is the possibility of many people working in the corporate American government may be caught up in it also.
Duh? What is even worse than that is so many unsuspecting pension plans and 401k’s are invested in these [payment intangibles][transferable records] as [investments].
TOO BIG TO FAIL?
To begin with, it is probably a general consensus that that banks failed to keep up with the tangible mortgage paperwork. Especially the tangible stuff which makes up the secured obligation and also the collateral to secure that obligation which the courts and the banks say the
“mortgage follows the note” for a debt to be considered secured.
What seems to be the clog in the wheel as I see it is that most people only understand or possibly assume an understanding of a [tangible] mortgage [pig], but do not realize that an [intangible] mortgage is being used instead Hence a [Pig in a Poke][Cat in a Bag]. It appears that since the banks have slid under the radar since 2000 or even prior with a “thing” they call an
eMortgage, which is an electronic mortgage [cat] that is not the same as a tangible paper mortgage obligation [pig].
THE REAL DEAL [Real Property]
A real property mortgage starts with a [tangible] paper promissory Note [in writing] and collateral, probably a security instrument [paper mortgage][in writing]. There are (2) two party’s involved, a [borrower] and a [lender]. Both instruments together are purported to be a secured indebtedness. Prior to expiration of temporary perfection, the security instrument would be recorded in the county where the real property is located to continue perfection of that secured indebtedness. In Texas, this satisfies §192.001, Tex. Loc. Govt. Code requirement. Look at your state code if in different state. Each state has laws that govern real property. Any need to look at the UCC? Nope.
So, now you have the [borrower] and the [lender]. Also known as [obligor] and [obligee]. Also known as [debtor] and [creditor]. Also known as [grantor] and [grantee]. So many words for supposedly the same entities? Why? But what about [account debtor]? Did you realize there was an account debtor involved?
Through trickery another party somehow got involved to provide an additional illusion. A Bankruptcy Remote called MERS [Mortgage Electronic Registration Systems, Inc.] Could you possibly call it “Mutilated Every Recordation System”? It did a good job at it.
In Carpenter v. Longan, the U.S. Supreme court made it clear in stating the “mortgage follows the note”. The Texas Supreme Court again repeated this statement back in the 1930’s in
West v. First Baptist Church of Taft. Back then it was paper. Electronic mortgages were not around back then.
AN ILLUSION [The Transferable record called an eMortgage]
So why MERS? Electronic mortgages are eMortgages as the mortgage bankers association [mba] calls them. But the big problem with these eMortgages is that they are electronic. The way the [mba] has allowed its banks to apply ESIGN and UETA are absurd. Illegal at the most. Securities fraud too if you understand. Let me explain.
IN THE BEGINNING [ TANGIBLE mortgage loan]
The [originating lender] supposedly loans a [potential homeowner] money to purchase real property [paper mortgage loan]. The [potential homeowner][grantor] provides collateral in the form of title to real property that is conveyed to the [grantee] [potential homeowner] from the [seller][grantor] of the real property. Then the [grantor] [potential homeowner] conveys the real property to the [originating lender][grantee]. The [originating lender][grantee] provides title to real property to [trustee] until obligation extinguished. This was all accomplished with tangible paperwork involved. This should still be true today.
IN THE BEGINNING, PART II [ INTANGIBLE mortgage loan]
Take the above scenario and add an electronic twist to it.
When the [potential homeowner] originally and [tangibly] signed the paper promissory note or a contract with the [originating lender] to start the purported loan process, the [originating lender] scoured its electronic cloud [network] to locate a [warehouse lender] [could be another entity] that the [originating lender] as a [borrower] can obtain a line-of-credit. In turn the [originating lender][borrower] would pledge the [potential homeowner][borrower][grantor] [tangible] mortgage loan as a security to the [warehouse lender][lender] from the [originating lender][borrower] payment stream. The [payment stream] is monies that the [potential homeowner][borrower] would be paying to the [originating lender][lender].
For the [originating lender][borrower] eMortgage [eNote] to be considered acceptable to a government sponsored entity [GSE], specific guidelines must be met. One of the requirements is to use an electronic registration system for tracking eNotes. MERS is mentioned in GSE eMortgage implementation guideline books as the registration system to use.
All of this activity so far is accomplished prior to the [potential homeowner][borrower] closing on the [tangible] [paper mortgage loan]. Without the knowledge of hypothecation, the [potential homeowner][borrower] unknowingly signed a [tangible] security instrument that unbeknownst to the [potential homeowner][grantor] also included a third party that only functions in the [electronic transactions] world. In fact it only tracks [eNotes] called [transferable records]. The mba clearly described the “National eNote Registry”[NeR] back in 2003 that stated
this eRegistry does not track [tangible] paper promissory Notes. So why use MERS for paper mortgages? The “Pig in a Poke” eMortgage illusion.
PREMEDITATED ENOTE [ intangible mortgage loan]
Once the [originating lender][lender] holds a [potential homeowner][borrower] signature, the [originating lender][lender] as a premeditated act, determines a Mortgage Identification Number [MIN] to apply the [potential homeowner][borrower] paper mortgage loan to give the illusion to [everyone] that the [tangible] [paper mortgage] is registered and being tracked in a
“book entry system” called MERS orchestrated by members of this NeR.
Upon agreement between the [originating lender][borrower] and the [warehouse lender][lender] and in consideration for GSE requirements for eMortages [eNotes], these NeR entities register these premeditated MINS [eNotes] in the NeR, and through the agreement such as a MERS Warehouse Lender/Electronic Tracking Agreement, the [originating lender][borrower] will service such MINS in the NeR. This MIN [eNote] is then purchased and sold by investors either by the [eNote] or a partial interest in the [eNote].
In essence what you just read explains the loan process [eNote] an [account debtor][originating lender][borrower] created between itself and the [creditor][warehouse lender][lender][other Ner entity] in an intangible goods and services environment. This is not a [tangible] real property environment.
There is a very big difference. Real property is not governed by the Uniform Commercial Code [UCC]. Neither is real property governed by ESIGN and UETA.
Transferable records are personal property [payment intangibles] and not real property. Transferable records that are allegedly secured by real property are [payment intangibles] and governed by the UCC. Goods and Services are governed by the UCC. Hence the problem.
If the “Lenders” had followed the law, it might not be too bad, but the “Lenders” didn’t follow the laws. Instead the “Lenders” followed their lust for “greed”.
ACCOUNT DEBTOR [ intangible mortgage loan]
So what is a MERS member who registers and sells its [eNotes] called? They are called an Account Debtor according to UCC § 9-102. Definitions And Index Of Definitions
(3) "Account debtor" means a person obligated on an account, chattel paper, or general intangible. The term does not include persons obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper.
If the MIN[eNote] information is viewed from something like a MERS Milestone;
In the image above, the [account debtor] American Mortgage Network, Inc is the party obligated on the MIN [eNote] which is held in an account [Org ID] registered on MERS eRegistry, which is by definition a [general intangible].
(42) "General intangible" means any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas, or other minerals before extraction. The term includes payment intangibles and software. - UCC § 9-102. Definitions
(61) "Payment intangible" means a general intangible under which the account debtor's principal obligation is a monetary obligation. UCC § 9-102. Definitions
From this example image above which reflects that American Mortgage Network, LLC registered an [eMortgage][eNote][payment intangible] in the MERS eRegistration System with a registration date of November 3, 2004. This example is proof of the [transferable record][eNote][payment intangible][electronic record].
The example would also show that American Mortgage Network, LLC would be considered the [account debtor] of the [payment intangible]. More on this later in the document.
Proof of this [payment intangible] scheme is clearly written in any security instrument involving MERS or a GSE. Public land records historically provides prime facie proof of the chain of title. Any [entity] involved in a lawful negotiation of the [potential
homeowner][borrower][grantor] [tangible] paper mortgage loan note, from originator to each subsequent purchaser would be identified in public land records via constructive notice to reflect a lawfully perfected chain of title.
What you do see in public land records is something the banks and the courts say can’t happen, bifurcation. Separation of the [tangible] note and [tangible] deed of trust [security instrument]. So, how did it happen. Answer is easy, simple ignorance. And it shows. Else this would have already been brought to light way before now.
IT TOOK TIME TO MAKE THIS WORK
How did it work you ask? It took some time to put this scheme in place, it didn’t just happen recently. The elevator version goes like this;
HYPOTHECATION [Pledging something they don’t have]
The “Lenders” decided to create a security instrument that was designed to give an illusion that the security instrument was a contract according to law <where ever>. What the security instrument actually accomplished was that it helped these “Lenders” in some demented state of mind, devise a way to confuse everyone with a combination of tangible and intangible, paper and electronic with a twist of law manipulation, making it the perfect “poke”.
This MERS/GSE security instrument simply allows the unsuspecting [potential homeowner][borrower][grantor] to unknowingly [tangibly] indenture the [tangible] security instrument and thus agreeing by ignorance with the [originating lender][lender] to separate the [tangible] security instrument from the [tangible] paper promissory note the [potential homeowner][borrower] indentured.
Through trickery, the [originating lender][lender] led the [potential homeowner] [borrower] to believe that the [tangible] mortgage would be registered with MERS. This is not true. What the [originating lender][lender] did was make scanned copies of the original [tangible] [mortgage] in an deceptive manner and [Offer] an identical MIN [eNote] [transferable record] electronically to investors in the secondary “payment intangible” market by claiming a value to the eNote.
There are severe problems with this MERS/GSE “eMortgage follows the eNote” scheme.
There is no eMortgage to follow the eNote. The “Lenders” themselves destroyed the [tangible] mortgage simply by “word crafting” within the four corners of the security instrument contract. Check it out for yourselves. It has been explained with many articles and charts along with where to find those sources to support it. What more could you ask for?
HOW IT WORKED
What happened in the eMortgage world is this. The [originating lender][lender] registered a MIN [eNote] with the MERS eRegistry. This MIN [eNote] is an electronic promissory note that is an intangible electronic record, called a transferable record. This [eNote] [MIN] is supposed to be governed by ESIGN and UETA. The illusion to this [eNote] is the misrepresentation that it is a [potential homeowner][borrower] tangible obligation when it is not. It is information retrieved from scanned copies of the once [potential homeowner][borrower] tangible paper instruments now attached to an [eNote] [MIN].
Let us look at the [eNote] transferable record that MERS members rely upon.
First the “Scope” of the law. [Texas Business and Commerce Code]; [See also 15 USC 7003]
Sec. 322.003. SCOPE. (a) Except as otherwise provided in Subsection (b), this chapter applies to electronic records and electronic signatures relating to a transaction.
- This chapter does not apply to a transaction to the extent it is governed by:
- a law governing the creation and execution of wills, codicils, or testamentary trusts; or
- the Uniform Commercial Code, other than Sections 1.107 and 1.206 and Chapters 2 and 2A.
- This chapter applies to an electronic record or electronic signature otherwise excluded from the application of this chapter under Subsection (b) when used for a transaction subject to a law other than those specified in Subsection (b).
- A transaction subject to this chapter is also subject to other applicable substantive law.
Section §322.03 does not apply to a transaction governed by the Uniform Commercial Code [UCC] because there is no real property securing it. So are transferable records out when it comes to the UCC? Don’t worry, real property is not governed by the UCC either.
Sec. 322.016. TRANSFERABLE RECORDS. (a) In this section, "transferable record" means an electronic record that:
- would be a note under Chapter 3, or a document under Chapter 7, if the electronic record were in writing; and
- the issuer of the electronic record expressly has agreed is a transferable record.
- A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.
Is this what confuses you? Is it that the “Lenders” point more to (a)(1) claiming the [eNote] was the [potential homeowner][borrower] obligation? It is not. Section 322.03(a) contains “and”. (a)(1) “and” (a)(2) “the issuer of the electronic record expressly has agreed is a transferable record”. So, the [eNote] is actually an [intangible debt obligation] created by the
“registrar” of the [eNote] and not the [potential homeowner][borrower] tangible note obligation. This is a separate [electronic] obligation and not a [tangible] paper mortgage obligation.
The [eNote] is the only electronic record registered in the MERS eRegistry. MERS members use the MERS [eRegistry] to track the [eNote]. MERS does not track [tangible] paper promissory notes. So who tracks a [tangible] paper promissory note? They didn’t.
REALIZING IT NOW?
By now you are realizing that the [originating lender][lender][borrower] is an “account debtor” of the [eNote] according to the [UCC]. The [subsequent purchaser] of the [eNote] only receives the value the [eNote] is worth. But the [Enote] has no value. The only value reflected for the [eNote] is whatever value that was keyed in at the time of the creation of the [eNote].
Besides that, the “Lenders” stripped the monetary value from the [tangible] promissory note and somehow created the same value in an eNote. Can’t do that. Not lawfully anyway.
THE “MORTGAGE SERVICER” IS A SERVICER
OF AN ENOTE MORTGAGE
The [originating lender][lender] basically claims that it is the holder of the [original mortgage loan]. Through this claim, the [originating lender][lender] registers an [eMortgage] in the MERS eRegistry. The [originating lender][lender] sells the [eNote] to a [subsequent purchaser] [change of servicer notice]. The [subsequent purchaser][change of servicer notice] then sells the [eNote] to another [subsequent purchaser] [change of servicer notice] whom through the cycle of trading stocks continues the process. Until some [determined] time, the [subsequent purchaser] of the eNote somehow determines a default. Next step foreclosure.
If you read “Alvie Explains It”, I mentioned our original loan started out with American Mortgage Network, Inc. dba AMNET Mortgage as purportedly the Originating Lender. Then a month past and I received a notice from Wells Fargo Home Mortgage [WFHM] that is was the
“mortgage servicer” of my alleged loan. I also noticed the loan number had changed. That mystery is now solved. The original loan number was the [tangible mortgage loan] and the new number provided by [WFHM] reflected the [eNote] [subsequent purchase] and not the negotiation of the [tangible mortgage loan] as I was led to believe that [WFHM] was [servicing].
So we find that when the alleged [mortgage servicer] changes, the eNote was transferred to another MERS eMember although nothing is reflected in public land records. Why should it? It has nothing to do with the [tangible][paper promissory note]. It is only an electronic transaction with an [eNote]. For a negotiation of the [tangible mortgage loan], the Note would be indorsed and per governing laws, an [assignment of mortgage] would be reflected in public land records to provide constructive notice of a new secured creditor change. But that did not happen.
THE DEAD / ZOMBIE FILE
ASS IGNMENTS? [Movement of the eNote or “Electronic negotiation of the eNote”]
A MERS Milestone provides the proof of an “actual notice” MERS members refer to.
Through MERS eDelivery, and according to the above MERS Milestone, the [eNote] was transferred to Wells Fargo Home Mortgage [electronic eNote transfer from one investor to another investor]. But this [eNote] is not the [tangible] paper promissory Note [tangibly] indentured by the [potential homeowner][borrower]. MERS does not track a paper promissory note. MERS only tracks eNotes. Wells Fargo Home Mortgage never recorded its lien continuation in public land records. So who tracks the paper?
PUBLIC LAND RECORDS [ Messed with almost Every Record in the System]
What did happen in public land records was some “Vice President” or “Assistant Secretary” allegedly claiming to be a MERS officer records something typically called
“Assignment of Note and Deed of Trust” in public land records. This was and is still a distraction to lure many into the “Robo-Signer” scandal? It is a cover up. Why waste time on it. There are bigger fish to fry. This colorable [recordation] is only an illusion because the fraudulent
“Assignment of Note and Deed of Trust” which is an electronic record has nothing to do with the
[potential homeowner][borrower][grantor] tangible mortgage loan. This “Assignment of Note and Deed of Trust” is proof that there was an electronic transfer [electronic negotiation of the eNote] in the MERS eRegistry, but it does not prove neither negotiation of the [tangible promissory note] or the transfer of the tangible [security instrument]. Because neither of the contracts can legally or lawfully exist now. The design of the tangible [security instrument] removed all legality to such contract even before it was recorded in public land records. Then the value was stripped from the [tangible] promissory note and that [tangible] value was somehow placed into the eNote. How can that legally happen? It can’t according to laws of negotiation.
Here lies the confusion to the MERS/GSE scheme. MERS members have made a serious mistake when it comes to defaults. As it is clear that MERS members conduct business with
eNotes and not tangible paper promissory Notes. More “Lenders” claiming title to a security instrument that was defeated before it was ever recorded into public land records. More than that,
“Lenders” are using the “Account Debtor” Obligation to confiscate the real property of owners whom lawfully own it [potential homeowner][borrower][grantor]. The security instrument, called a Deed of Trust in Texas, is not anything the “Lender” can lawfully use for enforcement. These “Lenders” will actually have a time trying to collect upon a tangible promissory Note when it is shown that the “Lender” actually stripped the value from that tangible note and claimed it in a transferable record. There is no value to a Note if the amount was taken away.
What should have happened when the “default” was declared was that the current
“Controller” should have foreclosed upon the Account Debtor. In the example above, it would be AMNET. The eNote [intangible obligation] was not created by the [potential homeowner][borrower], it was created by a MERS member who became the account debtor responsible for a payment stream that does not lawfully exist anymore. Actually it didn’t before.
It is amazing how a [potential homeowner] can become an unsuspecting victim at the beginning and can later become a “deadbeat” in the eyes of the court and of the people. Its amusing to hear people whom have very little knowledge of this scheme then pass judgment upon these unsuspecting victims of the largest crime in U.S. history. What is even more amusing is the fact that these “typical” people do not even realize they are involved in this also. They pay taxes. The banks get the last laugh.
Again, all you need to do is read the articles and charts created by James McGuire. He did all the leg work so you don’t have to. All you need to do is go and verify what’s already been verified. A challenge was put to the world a few years back about this “mishap” and it has not been proven wrong anywhere yet.
“O daughter of Babylon, doomed to be destroyed, blessed shall he be who repays you with what you have done to us!”
Peace be with you,
Lack of Standing to Foreclose
The requirements set forth in the pooling and servicing agreements were not followed, and they were not followed in the following way.
The pooling and servicing agreements says that when the notes are transferred to the trust there needs to be an endorsement in blank to the trust, as well as a complete chain of endorsements for all proceeding transfers.
That means that the originator of the loan has to have a specific endorsement transferring it from the securitization sponsor, the sponsor to the depositor, and then the depositor in blank to the trust.
What I am told is that in the majority of the cases that chain of endorsements is not there. There is simply a single endorsement in blank. That creates a problem because it does not comply with the trust documents.
That is a severe problem because most pooling and servicing agreements are trust that are governed by New York law, and New York law says that if you are not punctilious in following the trust documents for a transfer, the transfer is void.
It doesn’t matter if you intended it or not, it’s void.
That transfer is void even if that transfer would have otherwise complied with law.
And if the transfer is void that would mean that the trust does not own the mortgages, and therefore lacks standing to foreclose.
It’s axiomatic that in order to bring a foreclose action the plaintiff must have legal standing.
Only the mortgagee has such standing.
Thus various problems like false or faulty affidavits, as well as back dated mortgage assignments, and altered or wholly counterfeited notes, mortgages, and assignments all relate to the evidentiary need to prove standing.
Who Has The Burden of Proof in a Foreclosure Case?
Who Has Legal Standing to Foreclose?
Who has legal standing to foreclose? Only the mortgagee has standing to foreclose. Look, if you are planning to sue someone and you accuse them of some wrong doing, you better have proof. The person doing the accusing (the Plaintiff) has the burden of proof. Before you can go to court, you must have some sort of grievance that you are seeking relief on; in other words you must have legal standing. For example, if you had a contract and the other person broke that contract causing you to suffer as a result of that breach. This is called a Cause of Action. In other words, “why are you suing this guy? What wrong did he do to you?” You must have a valid reason to bring your suit.
There are a number of different causes of action you can accuse the other party of. For example, breach of contract, fraud, tortious interference, etc. Another very special type of cause of action is called a Quiet Title Action. These types of “Actions” (an “Action” is just legal jargon for a civil action…or a civil suit) are done when there is a cloud of title issue that needs to be resolved. As a title owner, you have an obligation to defend your title against encroachments. For example, if I started to build a fence three feet into your land and you say nothing… then five years later, I sell my land, and change the legal description to include that extra three feet…and you say nothing, then that extra three feet is mine.
Let’s discuss the Deed of Trust and Mortgage to see how this all fits in.
The Deed of Trust or Mortgage:
The Deed of Trust is a special Trust that is created specifically so that you (the landlord) temporarily grant your title in trust to the new Trust to secure against the promissory note. When you create a Trust, you appoint a Trustee. You also give that Trustee the power to sell your property in the event of a default of the promissory note. This is the vehicle and mechanism your “lender” uses to foreclose and sell your house. The same goes with a Mortgage in a Judicial State, except there is no need for a Trustee.
In the event that there is a problem with the promissory note or deed of trust, then there is an issue called “cloud of title”. When a title is clouded, you will have a problem selling your house. Let me give you an example.
Let’s say the County places an imminent domain claim on a strip of land on your property to lay down some pipes. They then record this on your county records. But because of budget cuts, they decided not to lay the pipes, but forgot to give you your land back. 2 years later, you are trying to sell your house. It will be stopped because you are selling part of a land you don’t own (i.e. the strip for the un-laid pipes). In order to un-cloud the title, you will need to seek a Quiet Title Action.
As we discussed, your promissory note has been permanently converted into a stock. It has also been fully discharged. The language on your Deed of Trust says “This Deed of Trust secures a promissory note”, and if the promissory note is destroyed through permanent conversion, then the Deed of Trust secures nothing. This is just like the situation with the strip of land with the un-laid pipes. It’s lost property. It’s unclaimed land. As the Title owner, you have an obligation to defend your land and title.
This is why we need to do a Quiet Title Action to reclaim our land to resolve the controversy. In a Quiet Title Action, you basically issue a challenge to all parties wishing to lay a claim on our property to come forth and provide the proof of their claim(s).
However, remember the rule of court is the Plaintiff has the burden of proof. In the following parts, we will go into uncovering proof. If you haven’t done so, we recommend that you purchase a chain of title & securitization analysis because once you have real evidence that your mortgage contains fraud, legal violations, and or has been securitized you will have a much better chance at beating your foreclosure and saving your house.
Federal Rules of Evidence:
You can sue your lender in federal court and/or state court (this is called circuit court). Typically, the State Rules of Civil Procedure and State Rules of Evidence will govern state courts. However, since we don’t know which State you are in, and for the most part, these rules are pretty similar, we’re going to talk about the Federal Rules of Evidence governing the admissibility of photocopies. Specifically, we want to talk about Rule 1002 and Rule 1003. Please click on these and read up on them. These should be similar with your State Rules of Evidence. You should consult your own State’s Rules of Evidence to confirm.
Basically, what will happen is your “lender” will bring to court photocopies of the Deed of Trust and Promissory Note to claim their rights as proof of claim in your Quiet Title Action.
These are admissible, unless you learn to object!
The rules of evidence are simple. A photocopy is admissible unless it is unfair to admit the photocopy in lieu of the original. What you need to know is, under Uniform Commercial Code, your promissory note is a one of a kind negotiable instrument, just like a check. You cannot go down to a bank and cash a photocopy of a check. It has to be the real thing. Your promissory note contains the only legally binding chain of title. A photocopy made years ago does not contain the chain of title.
Basically, the argument is “sure, I signed a loan with you then, but we know you sold it. Can you prove that you still own it?”
Opposing Counsel will say, “But Your Honor, the plaintiff has the burden of proof. They are alleging that we sold the note. Where’s the proof?”
And that’s where most Pro Se Litigants get stuck!
If you do not have the proof (evidence) when you file your civil action, your case will be tossed out, and classified as “failure to state a claim”.
What typically happens when you file an action is opposing counsel (the dirty rotten lawyer working for the bank) will file a Motion to Dismiss. They ALWAYS DO IT; so expect it. In order to survive the Motion to Dismiss, you must have sufficient proof.
If you haven’t already purchased your copy of Jurisdictionary, do it now because you have no chance of winning your case if you don’t know the rules of the game. This is a mandatory resource if you’re serious about defeating your foreclosure and saving your house. I cannot stress how much you need this product!
Evidence of Movement:
The first and simplest evidence we can bring to court is called Evidence of Movement. In an Evidence of Movement situation, you closed with Bank A (let’s say Stearns Lending), who sells it to Countrywide (Bank B), who then got acquired by Bank of America (Bank C) ….who then securitizes the note into New York Mellons Bank Trust Series 12345.
So, the Deed of Trust names Bank A as the Beneficiary. But Bank C wants to foreclose. Bank C comes to the court with a Deed of Trust pointing at Bank A (Stearns Lending). Where is the Chain of Title on the Promissory Note that gives Bank C (BofA) the Right to enforce the note?
If you have a situation like this, you might not need to get a securitization audit, although getting one may make your case stronger and more likely to succeed.
Often times, Bank C would come to the Court claiming “Your Honor, we have reacquired the note and now have the right to foreclose.” If you encounter this situation, you must learn to object.
1) Show me the perfected chain of title. If you have sold it, then you lost your right to enforce.U.S. Code Title 12: Banks and Banking PART 226—TRUTH IN LENDING (REGULATION Z), a servicer does not have the rights of a lender if it has acquired the note for the purposes of administration.
2) Please stipulate for the record whether the note is part of a pooling and servicing agreement. Please stipulate whether the note has been securitized. Please stipulate who “New Your Big Bad Bankers Trust Series 12323 (of course yours will be different)” is, are they a REMIC?
3) If the loan has been securitized, did you reacquire the note as an unsecured debt in the secondary securities market? Are you acting in the capacity of a debt collector as governed under 15 U.S.C. §1692?
Remember, this is fraud at its greatest. Only the top echelon bankers know this scam. Even their Counsel does not know the scam that is being perpetrated here. He is just taking his client’s word at face value. He is hearing “we bought the note back” and accepts that the bank now has the right to foreclose. They don’t. Most homeowners who are confronted with this situation don’t know the scam either and run out of juice.
Do you see how we structure our arguments here? It was never “Show me the note”. We are attacking them on the “show me standing” and “show me that you are the real and beneficial party of interest who has the right to enforce the note”.
What is MERS?
MERS is Mortgage Electronic Registration Systems it was created by banks in order to “streamline” the warehousing of loans and mortgage documents. Basically MERS is a front organization that was created to defraud homeowners and government agencies. It pretends to hold your note, but in fact holds nothing. Banks set up MERS in the 1990s to help speed the process of packaging loans into mortgage-backed bonds by easing the process of transferring mortgages from one party to another. But ever since the housing crash, MERS has been besieged by litigation from state attorneys general, local government officials and homeowners who have challenged the company’s authority to pursue foreclosure actions. Recently there have been many court decisions delivering death blows to MERS and their 70,000,000+ mortgages they claim to hold.
For example in MERS Is Dead: Can Be Sued For Fraud: WA Supreme Court we learn that the Washington State Supreme Court dealt a death blow to MERS: “The highest court in the state of Washington recently ruled that a company that has foreclosed on millions of mortgages nationwide can be sued for fraud, a decision that could cause a new round of trouble for the nation’s banks.
The ruling is one of the first to allow consumers to seek damages from Mortgage Electronic Registration Systems, a company set up by the nation’s major banks, if they can prove they were harmed.
Legal experts said last month’s decision from the Washington Supreme Court could become a precedent for courts in other states. The case also endorsed the view of other state courts that MERS does not have the legal authority to foreclose on a home.
“This is a body blow,” said consumer law attorney Ira Rheingold. “Ultimately the MERS business model cannot work and should not work and needs to be changed.”
A spokeswoman for MERS said the company is confident its role in the financial system will withstand legal challenges. The Washington Supreme Court held that MERS’ business practices had the “capacity to deceive” a substantial portion of the public because MERS claimed it was the beneficiary of the mortgage when it was not.
This finding means that in actions where a bank used MERS to foreclose, the consumer can sue it for fraud. If the foreclosure can be challenged, MERS’ involvement would make repossession more complicated.
On top of that, virtually any foreclosed homeowner in the state in the past 15 years who feels they have been harmed in some way could file a consumer fraud suit.
“This may be the beginning of a trend,” says Elizabeth Renuart, a professor at Albany Law School focusing on consumer credit law. The company’s history dates back to the 1990s, when banks began aggressively bundling home loans into mortgage-backed securities. The banks formed MERS to speed up the handling of all the paperwork associated with recording the filing of a deed and the subsequent inclusion of a mortgage in an entity that issues a mortgage-backed security. MERS allowed the banks to save time and money because it permitted lenders to bypass the process of filing paperwork with the local recorder of deeds every time a mortgage was sold.
Instead, banks put MERS’ name on the deed. And when they bought and sold mortgages, they just recorded the transfer of ownership of the note in the MERS system.
The MERS’ database was supposed to keep track of where those loans went. The company’s motto: “Process loans, not paperwork.”
But the foreclosure crisis revealed major flaws with the MERS database.
The plaintiffs in the Washington case, homeowners Kristin Bain and Kevin Selkowitz, argued that the problems with the MERS database made it difficult, if not impossible; to determine who really owned their loan. It’s an argument that has been raised in numerous other lawsuits challenging the ability of MERS to foreclose on a home.
“It’s going to be very easy for consumers to say they were harmed because it’s inherently misleading,” says Geoff Walsh, an attorney with the National Consumer Law Center. If consumers can’t identify who owns their loan, then they don’t know whom to negotiate with, and can’t even be certain of the legitimacy of the foreclosure.
In a statement, MERS spokeswoman Janis Smith noted that banks stopped using MERS’ name to foreclose last year. She added that the opinion will “create confusion” for homeowners in the state of Washington while the trial courts consider its effect on pending cases.
Meanwhile, MERS is attempting to remake itself. The company has a new chief executive and a new branding campaign. In Washington D.C. federal lawmakers have recognized the need to create a national mortgage-recording database that would track all U.S. mortgages. MERS is lobbying to build it.
The case is Bain (Kristin), et al. v. Mortg. Elec. Registration Sys. et al., Washington Supreme Court, No. 86206-1.” (Reuters).
This information about MERS is very important for you to understand, if you are going to successfully defend your points in court. For a list of some FACTS about MERS check out https://www.fraudstoppers.org/a-few-facts-about-mers and also pay attention to: MERS-and-Citibank-are-not-real-parties-CA.pdf
IF you would like to see if your loan is serviced by MERS, click here: https://www.mers-servicerid.org/sis/.
Or you can also purchase a professional Securitization Audit, a Robo-Signing Check, or a Forensic Audit from Fraud Stoppers.
Who is the Investor?
There is a good chance Fannie Mae or Freddie Mac owns your loan. If you can find your properties here, then you can present this as evidence that your servicer (so called “lender”) is not a real party of interest. This is critical evidence to bring forth in your civil action. You must include this as a claim in your suit.
To find out whether Fannie Mae owns your note, please come here.
Freddie Mac’s database is here.
IMPORTANT: DO THIS NOW. Research whether these guys own your note. If so, then you have a vital piece of evidence to present to the court.
Carpenter v. Longan 83 US 271
Why is this so important? This is a US Supreme Court ruling that says the Deed of Trust is the peripheral, and the Promissory Note is the “Thing”. Imagine if you will, that the Deed of Trust is the tail, and the Promissory note is the dog. He who owns the dog controls the tail. He who controls the tail does not wag the dog.
Your lender will want to come in to lay claim on your title only showing ownership to the Deed of Trust without disclosing who the real and beneficial owner of the promissory note. This is admissible unless you know to object. If you quote this law when there is evidence of movement, then this will stop them in their tracks. Basically, it’s the same thing. ”Show me you have subject matter jurisdiction over this controversy”, “show your proof of claim and title”. He, who controls and owns the promissory note, controls the Deed of Trust.
Getting County Records:
Look, State Civil Code requires that every party of interest in your property must record their interest at County Records. So, any loan assignments must be recorded. Any notices must be recorded. To gather your evidence, you should head down to your local county recorder’s office and request for a complete printout of all recorded documents for your property from the date of subject loan. Go down and talk to your county recorder. They will usually be able to help you get the “title search dump”. You don’t need certified copies. Just the copies are fine, but it is a good idea to get all these documents handy so you can see what’s been recorded against your property.
What you are trying to find is instances where there is evidence of movement…i.e. the loan has been sold or securitized, but there was no corresponding evidence recorded at the County. So the next step is to go to the County Recorder’s Office for the DEED RECORDS and get a copy of every page of each document that is in the deed records of your home, since you got your last loan.
Print the Search Results, with your name as GRANTOR and GRANTEE, and your wife’s name as GRANTOR and GRANTEE, then search the property address, and print the search results.
Take your camera and take a picture of every page starting with the index or the cover page of your deed record file and save each picture by:
Yr-mo-day, YOUR LAST NAME, Name of Doc, Page of Doc:
[Example: 2013-07-04, Last Name, Original Deed of Trust received from ABC Brokers for Countrywide, 17 Pages]
You should end up with copies of your Original Warranty Deed, Deed of Trust (or Mortgage, as it is called in some states).
While looking at the Deed of Trust or Mortgage, click on the button or link for “RELATED DOCUMENTS” and print the search results, then get a copy of any “Assignments of Deed of Trust or Mortgage” and any “Releases of Liens”,” Appointments of Substitute Trustees”, “Trustee Deeds”, and Law Firm Letters, like Default or Acceleration Letters from Attorneys who are hired to collect the debts from you. Get a copy of everything in the file to the present date.
Calling a Title Company:
If you don’t want to do it yourself, then you can call a local Title company for a complete title research. A complete title research includes a report of all activities on your title from the date of sale. They will also print copies of these documents for you.
Writing a Foreclosure Timeline:
A timeline is a chronological structure and is frequently the way cases are presented to juries and judges of fact. Visual representations are important and they make it easy to share the details of you case with others. It sometimes becomes the underlying foundation for the flow of all information related to a case. Therefore, it is important that care be given in the creation of visual timelines. Here is a Sample Timeline.
The Chain of Title & Securitization Analysis:
For those of you who do not have clear evidence of movement, for example, you closed with Countrywide and the loan got acquired by Bank of America. Or your loan went through Chase and is now Chase is just a servicer, or GMAC (and GMAC is now servicing), then getting a Securitization Audit might be a way to go. Remember, as the Plaintiff, you have the burden of proof.
It will be like having a photo of a bank robber with a gun aimed at a teller. It’s them caught with their hands in the cookie jar…and it puts opposing counsel in a position of having to explain to the judge why he should not be sanctioned for bringing fraud before the court. Fraud Stoppers Foreclosure Defense System includes one of the most powerful Chain of Title & Securitization Analysis available today. Banks hate it because it’s preformed by licensed professionals and includes the admissible evidence that you need to save your house from foreclosure. Banks HATE these because it exposes their fraud.
In today’s world of securitized residential mortgages, a Secured Mortgage Loan consists of two parts: (A) the financial obligation (created by the Tangible Promissory Note) which operates in accordance with Federal and State Law, and (B) an enforceable contractual lien instrument (i.e. Tangible Security Instrument, Mortgage, Deed of Trust) intended to provide an alternate method of collection of payment to the Holder of the financial instrument in accordance with State Law. In reviewing the transfer and ownership history of a Secured Mortgage Loan, one must evaluate the negotiation of the financial instrument and consider the laws applicable to the Security Instrument upon said negotiation of the financial instrument.
Our Competent Evidence Package looks at the true sequential ownership of a Securitized Mortgage Loan Security Instrument as evidenced by the documents related to the client’s property filed with the County Recorder’s Office, and compares it to the claims of ownership made by the party attempting to foreclose. The Competent Evidence Package shows what steps SHOULD have been taken in the securitization process in order to become a proper party to enforce the mortgage contract, according to both statutory and case l aw. More importantly, the Competent Evidence Package shows what steps were ACTUALLY taken in the securitization process, and what steps were NOT taken, and the results of these actions/inactions on the Chain of Title as shown by the County Records.
Many times clients and their attorneys lack competent evidence. The term “competent evidence” is used to refer to evidence that is directly relevant and of such nature that it can be admitted into evidence in a court of law. For a client considering going into litigation, a prior assessment of the potential violations surrounding the Chain of Tit le of a Securitized Mortgage Loan is a much-needed tool for determining whether there is a valid basis for proceeding with a legal action.
The goal is to arm one’s self with indisputable evidence so they may clearly and accurately demonstrate that the claims made by the foreclosing party may be inaccurate and/or fraudulent. In addition to the written Chain of Title Analysis, our Investigators also create a customized infographic/flowchart/schematic to visually represent their findings regarding the path taken by the various parts of the client’s Mortgage Loan and the parties involved in the securitization process. This visual representation is invaluable in making the arguments indisputable and understandable to the clients, attorneys, and judges – A picture is truly worth a thousand words.
Now, let’s continue with a little role playing.
Opposing Counsel:”but Your Honor, the plaintiff has the burden of proof. They are alleging that we sold the note. Where’s the proof?”
You:”Your Honor, please see Exhibit C in our evidence as part of our initial complaint. On Page X, you will find our loan listed as a permanent fixture in an SEC filing for the New York Mellons Bank Trust Series 1232342 REMIC in which this loan has been securitized.”
Judge: “Counsel, what do you have to say to that?”
Opposing Counsel:”I don’t know about this you’re Honor; I was informed by my client that they bought back the loan.”
You: “Counsel, are you aware of FAS 140? Under the Financial Accounting Standard 140, it says that once a loan has been sold into a pooling and servicing agreement, the lender forever loses control of the asset.”
“Are you aware that this loan is a permanent fixture of the New York Mellons Bank Trust Series 1232342 REMIC?”
“Where is the Chain of Title that gives your client the right to enforce the promissory note?”
“Are you aware that the promissory note has been discharged in the REMIC as a bad debt and that the individual share holders have received tax credit for this loss?”
“Are you aware that once a debt has been discharged, it loses its ability to collect?”
“Are you aware that your client bought the note as a discharged debt and an unsecured instrument?”
“I motion the court to have Counsel stipulate that you know with firsthand knowledge that the note has not been discharged as a non-performing asset. “If he cannot, then say… “I move the court to sanction opposing counsel for bringing fraud before the court. Counsel misrepresents the facts in order to deceive the court.”
Keep in mind that the courts are absolutely corrupt and will try to rule against you at every opportunity. Therefore it is vital that you not only learn the rules of the game Jurisdictionary…but you must also learn how to land on them like a ton of bricks when they try to break the law and violate your legal rights!
FRAUD STOPPERS Private Members Association (PMA) has a PROVEN WAY to help you save time and money, and increase your odds of success, suing the banks for mortgage and foreclosure fraud.
Our primary focus is helping you get clear and marketable title to your property by arguing that the actions of the banks have made the security provisions of the mortgage/deed of trust unenforceable as a matter of law.
Take action right now and get the FACTS and EVIDENCE that you need to gain the legal remedy that you deserve!
What is MERS?
What is MERS? MERS is the Mortgage Electronic Registration System and it is an electronic database that holds digitized mortgage loan documents. You can search the MERS Database here: The MERS Servicer ID to identify the servicer associated with a mortgage loan registered on the MERS System.
Bankers Association testified to THE FLORIDA SUPREME COURT (in CASE NO.: 09-1460) that the physical loan documents were deliberately destroyed to avoid any confusion upon their conversion to electronic files. CASE 09-1460 COMMENTS OF THE FLORIDA BANKERS ASSOCIATION
In other words, the Banksters deliberately destroyed the wet ink signature loan documents for millions of mortgages in MERS the Mortgage Electronic Registration System.
A Few Facts about MERS
- Mortgage Electronic Registration Systems (MERS) is incorporated within the State of Delaware.
- Mortgage Electronic Registration Systems (MERS) was first incorporated in Delaware in 1999.
- The total number of shares of common stock authorized by MERS’ articles of incorporation is 1,000.
- The total number of shares of Mortgage Electronic Registration Systems (MERS) common stock actually issued is 1,000.
- Mortgage Electronic Registration Systems (MERS) is a wholly owned subsidiary of MERSCorp, Inc.
- MERS’ principal place of business at 1595 Spring Hill Road, Suite 310, Vienna, Virginia 22182
- MERS’ national data center is located in Plano, Texas.
- MERS’ serves as a “nominee” of mortgages and deeds of trust recorded in all fifty states.
- Over 50 million loans have been registered on the Mortgage Electronic Registration Systems (MERS) system. (UPDATE 9/11/2011: 70 MILLION American Mortgages)
- MERS’ federal tax identification number is “541927784”.
- Mortgage Electronic Registration Systems (MERS) does not take applications for, underwrite or negotiate mortgage loans.
- Mortgage Electronic Registration Systems (MERS) does not make or originate mortgage loans to consumers.
- Mortgage Electronic Registration Systems (MERS) does not extend any credit to consumers.
- Mortgage Electronic Registration Systems (MERS) has no role in the origination or original funding of the mortgages or deeds of trust for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) does not service mortgage loans.
- Mortgage Electronic Registration Systems (MERS) does not sell mortgage loans.
- Mortgage Electronic Registration Systems (MERS) is not an investor who acquires mortgage loans on the secondary market.
- Mortgage Electronic Registration Systems (MERS) does not ever receive or process mortgage applications.
- Mortgage Electronic Registration Systems (MERS) simply holds mortgage liens in a nominee capacity and through its electronic registry, tracks changes in the ownership of mortgage loans and servicing rights related thereto.
- MERS© System is not a vehicle for creating or transferring beneficial interests in mortgage loans.
- Mortgage Electronic Registration Systems (MERS) is not named as a beneficiary of the alleged promissory note.
- Mortgage Electronic Registration Systems (MERS) is never the owner of the promissory note for which it seeks foreclosure.
- Mortgage Electronic Registration Systems (MERS) has no legal or beneficial interest in the promissory note underlying the security instrument for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) has no legal or beneficial interest in the loan instrument underlying the security instrument for which it serves as “nominee”
- Mortgage Electronic Registration Systems (MERS) has no legal or beneficial interest in the mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) has no interest at all in the promissory note evidencing the mortgage indebtedness.
- Mortgage Electronic Registration Systems (MERS)is not a party to the alleged mortgage indebtedness underlying the security instrument for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) has no financial or other interest in whether or not a mortgage loan is repaid.
- Mortgage Electronic Registration Systems (MERS) is not the owner of the promissory note secured by the mortgage and has no rights to the payments made by the debtor on such promissory note.
- Mortgage Electronic Registration Systems (MERS) does not make or acquire promissory notes or debt instruments of any nature and therefore cannot be said to be acquiring mortgage loans.
- Mortgage Electronic Registration Systems (MERS) has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.
- Mortgage Electronic Registration Systems (MERS) does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).
- Mortgage Electronic Registration Systems (MERS) has no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.
- The note owner appoints MERS to be its agent to only hold the mortgage lien interest, not to hold any interest in the note.
- Mortgage Electronic Registration Systems (MERS) does not hold any interest (legal or beneficial) in the promissory notes that are secured by such mortgages or in any servicing rights associated with the mortgage loan.
- The debtor on the note owes no obligation to MERS and does not pay Mortgage Electronic Registration Systems (MERS)on the note.
- Mortgage Electronic Registration Systems (MERS) is not entitled to receive any of the payments associated with the alleged mortgage indebtedness.
- Mortgage Electronic Registration Systems (MERS) is not entitled to receive any of the interest revenue associated with mortgage indebtedness for which it serves as “nominee”.
- Interest revenue related to the mortgage indebtedness for which Mortgage Electronic Registration Systems (MERS) serves as “nominee” is never reflected within MERS’ bookkeeping or accounting records nor does such interest influence MERS’ earnings.
- Mortgage indebtedness for which Mortgage Electronic Registration Systems (MERS) serves as the serves as “nominee” is not reflected as an asset on MERS’ financial statements.
- Failure to collect the outstanding balance of a mortgage loan will not result in an accounting loss by Mortgage Electronic Registration Systems (MERS).
- When a foreclosure is completed, MERS never actually retains or enjoys the use of any of the proceeds from a sale of the foreclosed property, but rather would remit such proceeds to the true party at interest.
- Mortgage Electronic Registration Systems (MERS) is not actually at risk as to the payment or nonpayment of the mortgages or deeds of trust for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) has no pecuniary interest in the promissory notes or the mortgage indebtedness for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) is not personally aggrieved by any alleged default of a promissory note for which it serves as “nominee”.
- There exists no real controversy between MERS and any mortgagor alleged to be in default.
- Mortgage Electronic Registration Systems (MERS) has never suffered any injury by arising out of any alleged default of a promissory note for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) holds the mortgage lien as nominee for the owner of the promissory note.
- Mortgage Electronic Registration Systems (MERS), in a nominee capacity for lenders, merely acquires legal title to the security instrument (i.e., the deed of trust or mortgage that secures the loan).
- Mortgage Electronic Registration Systems (MERS) simply holds legal title to mortgages and deeds of trust as a nominee for the owner of the promissory note.
- Mortgage Electronic Registration Systems (MERS) immobilizes the mortgage lien while transfers of the promissory notes and servicing rights continue to occur.
- The investor continues to own and hold the promissory note, but under the MERS® System, the servicing entity only holds contractual servicing rights and MERS holds legal title to the mortgage as nominee for the benefit of the investor (or owner and holder of the note) and not for itself.
- In effect, the mortgage lien becomes immobilized by Mortgage Electronic Registration Systems (MERS) continuing to hold the mortgage lien when the note is sold from one investor to another via an endorsement and delivery of the note or the transfer of servicing rights from one Mortgage Electronic Registration Systems (MERS) member to another Mortgage Electronic Registration Systems (MERS) member via a purchase and sale agreement which is a non-recordable contract right.
- Legal title to the mortgage or deed of trust remains in MERS after such transfers and is tracked by Mortgage Electronic Registration Systems (MERS) in its electronic registry.
- Mortgage Electronic Registration Systems (MERS) holds legal title to the mortgage for the benefit of the owner of the note.
- The beneficial interest in the mortgage (or person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note and/or servicing rights thereunder.
- Mortgage Electronic Registration Systems (MERS) has no interest at all in the promissory note evidencing the mortgage loan.
- Mortgage Electronic Registration Systems (MERS) does not acquire an interest in promissory notes or debt instruments of any nature.
- The beneficial interest in the mortgage (or the person or entity whose interest is secured by the mortgage) runs to the owner and holder of the promissory note (NOT MERS).
MERS as Holder
- Mortgage Electronic Registration Systems (MERS) is never the holder of a promissory note in the ordinary course of business.
- Mortgage Electronic Registration Systems (MERS) is not a custodian of promissory notes underlying the security instrument for which it serves as “nominee”.
- Mortgage Electronic Registration Systems (MERS) does not even maintain copies of promissory notes underlying the security instrument for which it serves as “nominee”.
- Sometimes when an investor or servicer desires to foreclose, the servicer obtains the promissory note from the custodian holding the note on behalf of the mortgage investor and places that note in the hands of a servicer employee who has been appointed as an officer (vice president and assistant secretary) of MERS by corporate resolution.
- When a promissory note is placed in the hands of a servicer employee who is also an Mortgage Electronic Registration Systems (MERS) officer, Mortgage Electronic Registration Systems (MERS) asserts that this transfer of custody into the hands of this nominal officer (without any transfer of ownership or beneficial interest) renders Mortgage Electronic Registration Systems (MERS) the holder.
- No consideration or compensation is exchanged between the owner of the promissory note and Mortgage Electronic Registration Systems (MERS) in consideration of this transfer in custody.
- Even when the promissory note is physically placed in the hands of the servicer’s employee who is a nominal Mortgage Electronic Registration Systems (MERS) officer, Mortgage Electronic Registration Systems (MERS) has no actual authority to control the foreclosure or the legal actions undertaken in its name.
- Mortgage Electronic Registration Systems (MERS) will never willingly reveal the identity of the owner of the promissory note unless ordered to do so by the court.
- Mortgage Electronic Registration Systems (MERS) will never willingly reveal the identity of the prior holders of the promissory note unless ordered to do so by the court.
- Since the transfer in custody of the promissory note is not for consideration, this transfer of custody is not reflected in any contemporaneous accounting records.
- Mortgage Electronic Registration Systems (MERS)is never a holder in due course when the transfer of custody occurs after default.
- Mortgage Electronic Registration Systems (MERS) is never the holder when the promissory note is shown to be lost or stolen.
MERS’ Role in Mortgage Servicing
- Mortgage Electronic Registration Systems (MERS) does not service mortgage loans.
- Mortgage Electronic Registration Systems (MERS) is not the owner of the servicing rights relating to the mortgage loan and Mortgage Electronic Registration Systems (MERS) does not service loans.
- Mortgage Electronic Registration Systems (MERS) does not collect mortgage payments.
- Mortgage Electronic Registration Systems (MERS) does not hold escrows for taxes and insurance.
- Mortgage Electronic Registration Systems (MERS) does not provide any servicing functions on mortgage loans, whatsoever.
- Those rights are typically held by the servicer of the loan, who may or may not also be the holder of the note.
MERS’ Rights To Control the Foreclosure
- Mortgage Electronic Registration Systems (MERS) must all times comply with the instructions of the holder of the mortgage loan promissory notes.
- Mortgage Electronic Registration Systems (MERS) only acts when directed to by its members and for the sole benefit of the owners and holders of the promissory notes secured by the mortgage instruments naming Mortgage Electronic Registration Systems (MERS) as nominee owner.
- MERS’ members employ and pay the attorneys bringing foreclosure actions in MERS’ name.
MERS’ Access To or Control over Records or Documents
- Mortgage Electronic Registration Systems (MERS) has never maintained archival copies of any mortgage application for which it serves as “nominee”.
- In its regular course of business, Mortgage Electronic Registration Systems (MERS) as a corporation does not maintain physical possession or custody of promissory notes, deeds of trust or other mortgage security instruments on behalf of its principals.
- MERS as a corporation has no archive or repository of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
- Mortgage Electronic Registration Systems (MERS) as a corporation is not a custodian of the promissory notes secured by deeds of trust or other mortgage security instruments for which it serves as nominee.
- Mortgage Electronic Registration Systems (MERS) as a corporation has no archive or repository of the deeds of trust or other mortgage security instruments for which it serves as nominee.
- In its regular course of business, Mortgage Electronic Registration Systems (MERS) as a corporation does not routinely receive or archive copies of the promissory notes secured by the mortgage security instruments for which it serves as nominee.
- In its regular course of business, Mortgage Electronic Registration Systems (MERS) as a corporation does not routinely receive or archive copies of the mortgage security instruments for which it serves as nominee.
- Copies of the instruments attached to MERS’ petitions or complaints so not come from MERS’ corporate files or archives.
- In its regular course of business, Mortgage Electronic Registration Systems (MERS) as a corporation does not input the promissory note or mortgage security instrument ownership registration data for new mortgages for which it serves as nominee, but rather the registration information for such mortgages are entered by the “member” mortgage lenders, investors and/or servicers originating, purchasing, and/or selling such mortgages or mortgage servicing rights.
- Mortgage Electronic Registration Systems (MERS) does not maintain a central corporate archive of demands, notices, claims, appointments, releases, assignments, or other files, documents and/or communications relating to collections efforts undertaken by Mortgage Electronic Registration Systems (MERS) officers appointed by corporate resolution and acting under its authority.
Management and Supervision
- In preparing affidavits and certifications, officers of Mortgage Electronic Registration Systems (MERS), including Vice Presidents and Assistant Secretaries, making representations under MERS’ authority and on MERS’ behalf, are not primarily relying upon books of account, documents, records or files within MERS’ corporate supervision, custody or control.
- Officers of Mortgage Electronic Registration Systems (MERS) preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf, do not routinely furnish copies of these affidavits or certifications to MERS for corporate retention or archival.
- Officers of Mortgage Electronic Registration Systems (MERS) preparing affidavits and certifications, including Vice Presidents and Assistant Secretaries, and otherwise making representations under MERS’ authority and on MERS’ behalf are not working under the supervision or direction of senior Mortgage Electronic Registration Systems (MERS) officers or employees, but rather are supervised by personnel employed by mortgage investors or mortgage servicers.
This should be a pretty good start for those of you faced with a foreclosure in which Mortgage Electronic Registration Systems (MERS) is falsely asserting that it is the owner of the promissory note. Whether Mortgage Electronic Registration Systems (MERS) is or was ever the holder is a FACT QUESTION which can be determined only by ascertaining the chain of custody of the promissory note. When the promissory note is lost, missing or stolen, Mortgage Electronic Registration Systems (MERS) is NOT the holder.
By William A. Roper, Jr. Excerpted from the MSFraud Forum thread “Facts about MERS / MERS Unmasked”
Is Your MERS Mortgage Status Designated Inactive?
Many homeowners find out their existing mortgage is listed as “inactive.” An inactive status can refer to the transfer of their mortgage to another loan servicer, or to a few other factors as noted below.
The difference between having an inactive or an active MERS (Mortgage Electronic Registration System) loan may determine if the property owner has any improved or worsened home equity, or a truly saleable asset.
What is MERS?
MERS functions as a centralized electronic registry of mortgages, and it was supposed to track the ownership of these mortgages, which are typically sold multiple times during the loan’s life. MERS potentially affects upwards of 70 million residential mortgage loans nationwide, and almost completely crashed the U.S. housing market by itself because of so many problems with the packages.
MERS was created by lenders and title insurance companies, so it would be easier to transfer the beneficial interests to other secondary market lenders. Yet, some mortgages ended up significantly discounted due to packaging problems, which made them inactive.
Where’s the “IOU” for the mortgage debt?
The MERS Scandal
Missing documents, notary fraud, and “robo-signing” led the way.
There was a lot of chaos involved with MERS mortgage packets, which contained no original promissory notes (the “IOU” for the mortgage debt) in these same MERS files.
Knowledgeable homeowners were able to completely stop their home foreclosures by pointing out that the foreclosing entity, such as the mortgage servicing company, didn’t have a legal right to foreclose on their homes, since they didn’t have all of their valid mortgage paperwork in their files.
These questionable ownership interests in the mortgages led to foreclosure moratoriums, court settlements, and inactive statuses.
There were a large number of allegations of notary fraud in which real or fake notaries such as “Linda Green” were allegedly part of the massive “Robo-Signing Scandal” nationwide.
It has been suggested that promissory notes, deeds of trust or mortgages, and other loan or title documents were forged, left blank, or illegally assigned to numerous mortgage investors. Since MERS was set up to become as paperless, speedy, and efficient as possible, there was not enough third party oversight to check whether these documents were valid.
Questionable Beneficial Interests
“No Note = No Debt” became the mantra for homeowners who were in the midst of their own foreclosures due to the weaker U.S. economy. Some savvy property owners were able to legally void their existing mortgage debt altogether by proving that the foreclosing mortgage company had no valid beneficial interests in the existing mortgage, and thus had to legal right to collect any payments.
Other homeowners were able to show that their MERS files had fraudulent notary signatures signed on behalf of both owners and lenders, which moved their file designations over to “inactive” as well.
Mortgage lenders that have collapsed or imploded since the official start of the Credit Crisis back in 2007, such as Countrywide, Indy Mac, Lehman Brothers, World Savings, Downey Savings, and Washington Mutual still figuratively exist by way of their asset or beneficial interest transfers to the “strawman” named MERS.
MERS may pay no taxes or employ anyone. Without the proper assignment of these MERS mortgages, these same imploded mortgage companies’ loans could have ceased to exist.
The Shadow Inventory & MERS
Instead of upwards of 60 million residential MERS mortgages becoming inactive or possibly even completely voided and worthless, many of the largest banks and mortgage service companies worked closely with the U.S. government to create the National Mortgage Settlement in early 2012. This insanely small $25 billion settlement is but a mere fraction of the potentially trillions of dollars of MERS mortgages nationwide.
The National Mortgage Settlement of 2012 and MERS Scandal were two of the primary reasons why home listings nationally dropped dramatically.
There were potentially millions of Shadow Inventory homes (mortgage payments are more than 90 days late), which may not have valid promissory notes, or other mortgage or title instruments or documents, in the files. The lack of listed home inventory led to a rapid increase of home prices between 2011 and 2013 (also partly due to the record low mortgage rates).
The “Inactive” MERS Designation
An inactive MERS designation may relate to the loan having been refinanced or paid off, discounted, or completely voided due to the invalid mortgage documents in the file. Or, the mortgage loan was assigned out of the MERS system to a completely new mortgage servicing company.
A property owner with a MERS mortgage can find the status of their loan by searching for their 18-digit Mortgage Identification Number (MERS MIN). Then, the same person may search online for the MERS Servicer ID system in order to check the status of their mortgage.
Before attempting to pay off a MERS loan, it’s very important to find out if all of the mortgage payments have been properly applied to the account. The vast majority of MERS mortgages have been assigned to multiple mortgage investors over the years, so it is very important to check your own payment history over the years in order to determine if all of your payments have been credited to every mortgage servicing lender’s accounts.
It’s imperative that the owner pays off the correct amounts, which may mean more money back to the owner and much less money for the current mortgage loan servicer. As such, a little research and loan analysis by a property owner on their personal payment histories can save them a lot of money and headaches.
Here is some additional information on MERS:
- MERS Is Dead
- MERS Admits NO Interest in Mortgage and No Loss on Default
New York's U.S. Bankruptcy Court Rules MERS's Business Model Is Illegal
- Consent Order for MERSCORP and Mortgage Electronic Registration Systems, Inc. (MERS)
Take action right now and get the FACTS and HELP that you need to gain the legal remedy that the law entitles you to, and that you deserve!
MERS Is Dead
MERS Is Dead: Can Be Sued For Fraud: WA Supreme Court
Countdown to banks forcing Congress to protect MERS in 3,2,1...
State Court Ruling Deals Body Blow to MERS
(Reuters) - The highest court in the state of Washington recently ruled that a company that has foreclosed on millions of mortgages nationwide can be sued for fraud, a decision that could cause a new round of trouble for the nation's banks.
The ruling is one of the first to allow consumers to seek damages from Mortgage Electronic Registration Systems, a company set up by the nation's major banks, if they can prove they were harmed.
Legal experts said last month's decision from the Washington Supreme Court could become a precedent for courts in other states. The case also endorsed the view of other state courts that MERS does not have the legal authority to foreclose on a home.
"This is a body blow," said consumer law attorney Ira Rheingold. "Ultimately the MERS business model cannot work and should not work and needs to be changed."
Banks set up MERS in the 1990s to help speed the process of packaging loans into mortgage-backed bonds by easing the process of transferring mortgages from one party to another. But ever since the housing crash, MERS has been besieged by litigation from state attorneys general, local government officials and homeowners who have challenged the company's authority to pursue foreclosure actions.
A spokeswoman for MERS said the company is confident its role in the financial system will withstand legal challenges.
The Washington Supreme Court held that MERS' business practices had the "capacity to deceive" a substantial portion of the public because MERS claimed it was the beneficiary of the mortgage when it was not.
This finding means that in actions where a bank used MERS to foreclose, the consumer can sue it for fraud. If the foreclosure can be challenged, MERS' involvement would make repossession more complicated.
On top of that, virtually any foreclosed homeowner in the state in the past 15 years who feels they have been harmed in some way could file a consumer fraud suit.
"This may be the beginning of a trend," says Elizabeth Renuart, a professor at Albany Law School focusing on consumer credit law.
The company's history dates back to the 1990s, when banks began aggressively bundling home loans into mortgage-backed securities. The banks formed MERS to speed up the handling of all the paperwork associated with recording the filing of a deed and the subsequent inclusion of a mortgage in an entity that issues a mortgage-backed security.
MERS allowed the banks to save time and money because it permitted lenders to bypass the process of filing paperwork with the local recorder of deeds every time a mortgage was sold.
Instead, banks put MERS' name on the deed. And when they bought and sold mortgages, they just recorded the transfer of ownership of the note in the MERS system.
The MERS' database was supposed to keep track of where those loans went. The company's motto: "Process loans, not paperwork."
But the foreclosure crisis revealed major flaws with the MERS database.
The plaintiffs in the Washington case, homeowners Kristin Bain and Kevin Selkowitz, argued that the problems with the MERS database made it difficult, if not impossible; to determine who really owned their loan. It's an argument that has been raised in numerous other lawsuits challenging the ability of MERS to foreclose on a home.
"It's going to be very easy for consumers to say they were harmed because it's inherently misleading," says Geoff Walsh, an attorney with the National Consumer Law Center. If consumers can't identify who owns their loan, then they don't know whom to negotiate with, and can't even be certain of the legitimacy of the foreclosure.
In a statement, MERS spokeswoman Janis Smith noted that banks stopped using MERS' name to foreclose last year. She added that the opinion will "create confusion" for homeowners in the state of Washington while the trial courts consider its effect on pending cases.
Meanwhile, MERS is attempting to remake itself. The company has a new chief executive and a new branding campaign. In Washington D.C. federal lawmakers have recognized the need to create a national mortgage-recording database that would track all U.S. mortgages. MERS is lobbying to build it.
The case is Bain (Kristin), et al. v. Mortg. Elec. Registration Sys., et al., Washington Supreme Court, No. 86206-1.
Why You Should Never Make an Admission to a Contract of Indebtedness
We understand the operating documents of the Pooling and Servicing Agreement and if the security evidence by the mortgage security instrument, conveyed with the tangible note negotiation, before the cut off data of the REMIC.
We are absolutely familiar with how you would sit down and break down a true sale from party A from party B to convey the security and to maintain the fiduciary duty under the Common Law Deed of Trust to release and reconvey, release and reconvey, to maintain clear and marketable title.
So, we know the foundation under the UCC for that.
Then, we also understand the underlying arguments that the banks and their attorneys use against people making securitization foreclosure defense arguments, which may have done a proper statement of fact as to what’s required to accomplish a true sale between all these parties and maintain perfection over the lien.
However the banks and their attorneys are going to succeed by not having a Chain of Title, by stating that they negotiated the note in Bearer Form under Article UCC 3205 Sub section B with no payee named as a bearer instrument.
This essentially gives them a purported temporary perfection of the original holder, while they physically transfer the instrument, by daisy chain, which doesn't require for them to maintain a Chain of Title, until the instrument is specially endorsed.
This is how the banks and their attorneys beat almost everybody from New York to California on standing, and whether or not they had a secured interest over the lien; because nobody has a the way to argue against whether or not they made the instrument of bearer paper and physically negotiated it, because they weren’t required to maintain a Chain of Title in that aspect.
So that’s how the banks and their attorneys are able to win nine times out of ten. Because what they're saying is that in the negotiation under 3205 B, the security followed the note, whenever the custodian of record received the instrument prior to the cut-off date, making the note and the security securing trust property before the cut-off date.
That's how the banks and their attorneys are able to beat you.
So let’s reverse engineer this, let's take that note all the way back to the closing, and reverse the whole concept and transaction.
What you have to be able to show is that you have one purported transaction, concealing the realistic transaction.
Did the lien’s beneficial interest maintain perfection, and was it therefore eligible to be negotiated with the note in that capacity, as statutorily required?
However what that would require that you were the actual creditor and that you actually made that note as a maker issuer, for the purposes of being the beneficiary of the debt that was created.
This is what the banks and their attorneys want you to believe in the matter of equity:
- That your signature was as a maker issuer and therefore created value to the instrument
- You negotiated with the party that you sat down at closing with
- They accepted the instrument by negotiation
- They were a federal reserved depository institution that could accept article three instruments by deposit
- They gave you consideration in the form of cash, not Ultra Vires, for your promise to pay instrument executing an underlying indebtedness contract
Well in an IRC 1031 Like Kind Exchange, Table Funded Securitized Mortgage Loan Transaction that didn't happen. That did not happen; that negotiation, acceptance and consideration is not what a table funded securitization transaction is!
So the money is not created from your signature, negotiated and then the note negotiated between state to state physically, that doesn’t happen in a table funded transaction. Rather it's in direct reverse engineer - the money was created from the sale of the certificates and the special deposit, special purpose vehicle on Wall Street.
They take the certificate holders funds to the securities to special deposit the pool of assets. That pool of assets is used in the SPV alternative investment opportunity through the warehouse line of credit, and that's what the sponsor bank is using as the table funding credit in the transaction itself.
So yes, we would have some arguments like robo-signing and the improper negotiation, transfer, and delivery of the mortgage loan contract all the way through the securitization scheme, as part of the material defects found in the transactional scheme itself - but what we don't want to do is provide any language as an admission to you being the account debtor.
You also want to make sure you understand what is meant by using terms like the “alleged debt”, because you're going to piss the Judge off, really badly; a lot of people do it. Because, they don't know how to speak to the transaction as it relates to what that means.
So let me give you the perspective that the Judge is going to have. The Judge is only looking at the intent of the contract. So all the little details, the semantics of this right now, the first thing the Judge is going to do, is look at it from a cursory equity standpoint.
Q: Did you intend to get a home
Q: Are you in a home?
Q: Okay, so you're in the collateral.
Q: Okay and did you intend whenever you went to go get the home to get an obligation or a loan associated to that.
Okay, yes that's obvious or else you wouldn't be in the collateral
Q: Okay so you're in the collateral - an obligation exists - and you also pledged a lien to encumber your property to secure that obligation, so that if you couldn't perform on the contractual payment obligation the holder of the obligation would have the lien to enforce, do a foreclosure sale to enforce an ultimate means of collection.
Okay. So just looking at the intent of the contract, you are in the collateral, you know that you signed something at the closing- there's an obligation – and it's in default.
The institutions claiming to be the holder of that obligation and to be the secured party of record via an assignment of the security instrument perfected in public record.
Are there any other parties that are involved in this transaction?
And if some other financial institution was holding an obligation and saw that deed of trust or signed with a deed of trust recorded on public record, they would immediately file to acquire the title and they would be there defending their right to the obligation and the collateral itself.
So because there's no other financial institution showing up claiming to be the holder and to having a subsequent assignment of deed of trust or mortgage recorded for enforcing through a foreclosure action - than nine times out of ten - the Judge is going to give the party holding the obligation the benefit of the doubt as a matter of the intent of the contract.
So, in terms of the intent of the contract, this is where it becomes so viable for you to understand, what your capacity into the transaction is.
When the judge ask you:
“Did you sign the note - in the effort to get the collateral?”
Your answer is “Yes.” - But you need to be able to specify the answer to yes as “well yes your honour but I’m not the account debtor. I signed into this transaction as an accommodation party or guarantor. The party that I signed as a guarantor for, made available the obligation through a securitization transaction without my knowledge and purportedly negotiated the security evidence by the deed of trust/mortgage lien that I pledged to them, uniquely, to secure these receivables in this transaction as well.
What I need to know your honour is does my lien secure the tangible contractual obligation or does it secure the receivables?”
The answer to the receivables is no. You cannot attach article 9 to the UCC receivables (securities) to enforce a lien on real property. A lien on real property under revised article nine is not secured by a lien on real property, so article nine does not fit the common law argument that the transfer of an obligation carries the beneficial interest of the lien and the lien itself.
Here is the lie that the banks almost always defeat homeowners with.
"Here's a copy of the note your honour, the security follows the obligation we all know that."
Yes, that’s accurate, under common law and U.S. Supreme Court. Carpenter v. Longan (1872) the note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.
Furthermore under revised article 9 of the Uniform Commercial Code (UCC) the banks do not necessarily have to record each transfer of the mortgage loan contract in public records; all they have to do is, in essence, be in possession of the note and they can claim rights to enforce it.
Therefore you need to be able to be able to explain (and prove) how your capacity is to the obligation. “Your honour I am not the account debtor. I was a guarantor to this party. I am not a guarantor to everybody else that claims to be the holder of the obligation"
And it’s their capacity of an accommodated party to the certificate holders on Wall Street. They're not the real creditors. Their job is to put the certificate holders into funds associated to your payment string.
All of this is predicated on laying the proper order of operations, in line with statutory capacities, that clearly part and parcel and separate the root question of: Does revised article nine and liens on real property secured defaulted receivables in a securitization transaction?
That's your root question.
You just have to be able to have it all put in the proper sequence in statutory capacities, as it relates to your state, and what took place in order to defend the lien itself the property.
How have you been harmed?
In pre-foreclosure it's not so much that you've actually been harmed, it's whether or not they have clean hands in the transaction. So this, at its root is an Equitable Estoppel issue. In the like kind exchange transactional scheme there is a senior secured party and a junior secured party – the originator of the loan (named on the note as the lender) is the senior secured party, and the trustee for the REMIC trust is the junior secured party.
But it's one transactional scheme, its one organism, so you have to be able to show that they - in the race of diligence - that the junior secured party made sure that the originator recorded that underlying security of trust, so they could perform the rest of the transaction. But ten years later upon default of the receivables, to cause an assignment of the beneficial interest of evidence about your underlying security instrument, that security instrument doesn't maintain perfection from now, until infinity. You can lose perfection over that lien.
So, having the proper capacity, order of operations, and then statement of facts of how they lost perfection, and to show that it is inequitable for the holder of the receivables to attempt to cause an assignment of the underlying security instrument, because they were only negotiated the receivables, with unclean hands. That’s what you have to show that they don't have an equitable claim to.
Hypothecation is a third party pledging collateral on your behalf. So, let's say for instance, if you pledged the real property to the originator party on the ten thirty one exchange transaction scheme you specifically gave legal title to that party. Not to the trustee under that instrument, and the beneficiary of the security instrument. The beneficiary of the security instrument then in turn pledged a separate and subsequent value - which is the proceeds of the real property.
Let me give you an example. Consider a wheat field. The land is the real property, but the Wheat and the Harvest are the proceeds of the real property.
In this securitization transaction the original secured party is granting the proceeds, the actual required collateral to the real property and hypothecating that proceed as the payment intangible, which is the transferable record on the obligation.
So, you have to be able to show that it's under revised article nine; it does not apply to liens on real property. It may apply to title loans, student loans, and unsecured obligations, but it does not apply to liens on real property.
Remember, it's either you sold the contract in its entirety to a successor and interest through a true sale; or you sold the underlying tangible value of the contract.
Remember when people paid off their loans and they received their notes and their deed back, and they would have deed burning parties?
That doesn't happen anymore because that transactional scheme where that was your note, that you made and negotiated with a bank that could accept it, deposit it, and give you real money for a loan so you could purchase the property. That’s the savings and loan model.
In that transaction the bank you contracted with actually risked giving you real money, and was going to hold that thirty year instrument until its full rate of return. Its portfolio division wanted to buy that obligation and they underwrote you as your credit worthiness and they gave you the loan. You had skin in the game, you qualified financially and they were willing to take a risk on you. That was a real contract between you and the bank.
But what happened with the securitization bubble is they lifted the Glass–Steagall Act and the Gramm Bliley Leach Act and they made way for this transactional scheme were they could divert the risk of creating the money, which was done by lying and cheating the certificate holders through a perspective supplement which was pre-fabricated on the yield spread of those securities, under the nineteen thirty three, thirty four Security and Exchange act.
So they went to Standards & Poor’s and they got all those credit enhancements and they pre-sold those securities. Well that’s what the special deposit is for the REMIC trust, the trust vehicle; the special purpose vehicle. So, through special deposit, they generated those funds with the sale of the securities, that’s what makes the credit swaps available for the sponsor bank, to work with the originator to the table fund transaction.
Once you’re able to understand the blue print of the transaction and then you set the order of operations in place, and then you couch the interested parties, and then couch their capacity, and then what are they negotiating and what’s its statutory intangible interest, and what governs that, and once you set the mouse trap in place, and it can follow the order of operation it’s not that complicated.
To get to the root question you just have to be able to see all of that and to be able to understand the root question.
The root question is “in what capacity did you sign the note (as maker/issuer) or as an (accommodation party/guarantor)?
Notice of Default and Paragraph 22 of the Standard Mortgage
Some think that there has been a dry spell for wins of homeowners beating the big banks. However the decision below shows otherwise and is very important for a couple of reasons. First it gives us more of a confirmed road map of how to make defenses in certain cases that have facts similar to this case…i.e. violations of Paragraph 22 of the mortgage, in regards to a notice of default (NOD), which we knew about but this decision emphasizes the importance of this type of defense. But also important…..Judge Gantz is back in full swing helping borrowers fight against illegal foreclosures. You will recall that he wrote the Freemont decision, Ibanez, and others…but then he seemed to have lost some momentum. However, with this decision, Judge Gantz is back in full stride protecting us from the criminal banks and their illegal foreclosure practices.
FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. ELVITRIA M. MARROQUIN & others
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12139
FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. ELVITRIA M. MARROQUIN & others.1 Essex. January 9, 2017. – May 11, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage, Sale. Notice, Foreclosure of mortgage. Summary process. Complaint filed in the Northeast Division of the Housing Court Department on June 18, 2012. The case was heard by David D. Kerman, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Cody J. Cocanig for the plaintiff. Dayne Lee (Eloise P. Lawrence also present) for Elvitria M. Marroquin. Joshua T. Gutierrez, Daniel D. Bahls, & Andrew S. Webman, for Lewis R. Fleischner & another, amici curiae, submitted a brief.
1 Julio E. Vasquez and Christopher Vasquez. GANTS, C.J. In Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 227, 232 (2015), we held that a foreclosure by statutory power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11- 17C, is invalid unless the notice of default strictly complies with paragraph 22 of the standard mortgage, which informs the mortgagor of, among other things, the action required to cure the default, and the right of the mortgagor to bring a court action to challenge the existence of a default or to present any defense to acceleration and foreclosure.
We applied this holding to the parties in Pinti but concluded that our decision “should be given prospective effect only.” Id. at 243. We therefore declared that the decision “will apply to mortgage foreclosure sales of properties that are the subject of a mortgage containing paragraph 22 or its equivalent and for which the notice of default required by paragraph 22 is sent after the date of this opinion,” which was issued on July 17, 2015.Id. We did not reach the question whether our holding should be applied to any case pending in the trial court or on appeal. Id. at 243 n.25.
We reach that question here, and conclude that the Pinti decision applies in any case where the issue was timely and fairly asserted in the trial court or on appeal before July 17, 2015. Because we conclude that the defendants timely and fairly raised this issue in the Housing Court before that date, and because the notice of default did not strictly comply with the requirements in paragraph 22 of the mortgage, we affirm the judge’s ruling declaring the foreclosure sale void.
Background. In December, 2005, the defendants2 secured a mortgage loan in the amount of $312,000 from American Mortgage Express Corporation (American Mortgage) and, as security for the loan, granted a mortgage on their home to Mortgage Electronic Registration Systems, Inc. (MERS), which American Mortgage had designated as the mortgagee in a nominee capacity. MERS subsequently assigned the mortgage to Bank of America, N.A. (Bank of America), as successor by merger to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP. After the defendants failed to make their mortgage payments, the loan servicer, Countrywide Home Loans Servicing, LP, on October 17, 2008, mailed the defendants a notice of intention to foreclose (notice of default). The notice informed the defendants that they were in default and set forth the amount due to cure the default. The notice warned in relevant part:
2 The mortgage loan was secured by the defendants Elvitria M. Marroquin and Julio E. Vasquez. The limited record before us suggests that Christopher Vasquez is Marroquin’s son, and that a motion filed by the Federal National Mortgage Association to amend the summons and complaint to include him was granted by the Housing Court judge. For convenience, we refer to “the defendants” throughout this opinion.
“If the default is not cured on or before January 15, 2009, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time. As such, the failure to cure the default may result in the foreclosure and sale of your property. . . . You may, if required by law or your loan documents, have the right to cure the default after the acceleration of the mortgage payments and prior to the foreclosure sale of your property if all amounts past due are paid within the time permitted by law. . . .Further, you may have the right to bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure.”
The defendants did not cure the default, and in March, 2012, Bank of America gave notice and conducted a foreclosure sale by public auction of the mortgaged home. Bank of America was the high bidder at the foreclosure auction and subsequently assigned its winning bid to the Federal National Mortgage Association (Fannie Mae or plaintiff), which properly recorded the foreclosure deed conveying title of the property in May, 2012. On June 18, 2012, Fannie Mae initiated a summary process action in the Housing Court to evict the defendants from the property. On June 19, 2012, the defendants, representing themselves but assisted by counsel, filed an answer in which, by checking a box, they proffered as a defense to the eviction that “[t]he plaintiff’s case should be dismissed because it does not have proper title to the property and therefore does not have standing to bring this action and/or cannot prove a superior right to possession of the premises.”
For reasons not apparent from the record, Fannie Mae did not move for summary judgment until June, 2015, where, among other arguments, it contended that Bank of America had complied with the terms of the mortgage in exercising the power of sale, and specifically asserted that the notice of default had complied with paragraph 22 of the mortgage.3 On September 23, 2015, the defendants filed a cross motion for summary judgment in which they argued that the notice of default failed to strictly comply with the terms of paragraph 22 of the mortgage and that the defendants should be entitled to the benefit of our decision in Pinti even though the notice of default was sent well before the issuance of that opinion. In October, 2015, the judge granted the defendants’ cross motion for summary judgment and denied the plaintiff’s motion.
3 Paragraph 22 of the mortgage provides that in the event the borrower commits a breach of any term of the mortgage, prior to acceleration of the loan the lender must notify the borrower of “(a) the default; (b) the action required to cure the default; (c) a date, not less than [thirty] days from the date the notice is given to [the defendants], by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the mortgage].”
Paragraph 22 further provides that such notice must inform the borrower “of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of the borrower to acceleration and sale.” It also declares that, if the default is not timely cured, the lender “may invoke the statutory power of sale.”
The judge found that the issue in Pinti had been “timely and fairly raised,” and concluded that our decision in Pinti should apply to all cases similarly situated that were pending in the trial court or on appeal where the issue had been timely and fairly raised before July 17, 2015. The judge also concluded that the notice of default failed to strictly comply with the requirement in paragraph 22 of the mortgage that the notice shall inform the borrower “of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of the borrower to acceleration and sale.”The judge found that, by stating, “You may, if required by law or your loan documents, have the right to cure the default after the acceleration of the mortgage payments and prior to the foreclosure sale of your property . . . ,” and “you may have the right to bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure” (emphasis added), the notice “significantly, and inexcusably, differed from, watered. . . down, and overshadowed the notice that was contractually and legally required by the mortgage.” He added that “there was no excuse for the difference in language “and that it was impossible to imagine any purpose for drafting a notice that failed to track the language of the mortgage “unless, of course, the purpose was to discourage [b]orrowers from asserting their rights.”4 After the judge issued his decision, the Appeals Court held in Aurora Loan Servs., LLC v. Murphy, 88 Mass. App. Ct. 726, 727
(2015), that the Pinti decision applies to cases pending on appeal where the claim that the notice of default failed to strictly comply with the notice provisions in the mortgage had been “raised and preserved” before the issuance of the decision. Although the issue was not before it, the Appeals Court declared that “the Pinti rule” did not extend to cases pending in the trial court. Id. at 732. Relying on this dictum, the plaintiff moved to vacate the judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The judge denied the motion, and the plaintiff appealed. We allowed the defendants’ application for direct appellate review. Discussion. 1. Application of the Pinti decision to pending cases. Our decision in Pinti was grounded in the requirement in G. L. c. 183, § 21, that, before a mortgagee may
4 The judge analogized the warning in the notice of default to a Miranda warning that informed a suspect before interrogation: “You [may] have the right to remain silent. If you give up the right [and if you have that right], anything you say or do [may] can and will be used against you in a court of law. You [may] have the right to an attorney. If you cannot afford an attorney [and if you have that right], one [may] will be appointed for you. Do you understand these rights as they have been read to you?”
exercise the power of sale in a foreclosure, it must “first comply with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale.”Because the power of sale is a “substantial power” that permits a mortgagee to foreclose without judicial oversight, we followed the traditional and familiar rule that “‘one who sells under a power [of sale] must follow strictly its terms’; the failure to do so results in ‘no valid execution of the power, and the sale is wholly void.'” Pinti, 472 Mass. at 232-233, quoting U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011). See Pryor v. Baker, 133 Mass. 459, 460 (1882) (“The exercise of a power to sell by a mortgagee is always carefully watched, and is to be exercised with careful regard to the interests of the mortgagor”).
Although it had long been established in law that the failure to strictly comply with the terms of a mortgage renders void an otherwise valid foreclosure sale, we gave our decision “prospective effect only, because the failure of a mortgagee to provide the mortgagor with the notice of default required by the mortgage is not a matter of record and, therefore, where there is a foreclosure sale in a title chain, ascertaining whether clear record title exists may not be possible.” Pinti, 472 Mass. at 243. Our concern was that a third party who purchases property that had once been sold at a foreclosure auction would not, through a title search, be able to determine whether the notice of default strictly complied with the terms of the mortgage. It would therefore be nearly impossible to eliminate the risk that the foreclosure sale would later be declared void and that the title would be returned to the foreclosed property owner. See id. We presumed that, after our decision in Pinti, mortgagees “as a general matter” would address this uncertainty by executing and recording “an affidavit of compliance with the notice provisions of paragraph 22 that includes a copy of the notice that was sent to the mortgagor pursuant to that paragraph.” Id. at 244.
However, we applied our ruling to the parties in Pinti, id. at 243, citing Eaton v. Federal Nat’l Mtge. Ass’n, 462 Mass. 569, 589 (2012), and deferred the question whether our holding “should be applied to any other class of cases pending on appeal.” Id. at 243 n.25. In Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 167-170 (2014), we addressed that same issue in a closely parallel context. In Eaton, 462 Mass. at 571, we declared that a foreclosure by power of sale is invalid unless a foreclosing party holds the mortgage and also either holds the underlying note or acts on behalf of the note holder.
We applied this rule to the parties in Eaton, but otherwise gave the ruling prospective effect only. Id. In Galiastro, supra at 168, we extended the benefit of our decision in Eaton to litigants who had preserved this issue and whose cases were pending on appeal at the time that Eaton was decided. We declared that “[w]here multiple cases await appellate review on precisely the same question, it is inequitable for the case chosen as a vehicle to announce the court’s holding to be singled out as the ‘chance beneficiary’ of an otherwise prospective rule.” Galiastro, supra at 167-168, citing United States v. Johnson, 457 U.S. 537, 555 n.16 (1982), and Commonwealth v. Pring-Wilson, 448 Mass. 718, 736 (2007).
Limiting the application of prospective rulings to such a “chance beneficiary” would mean that something as arbitrary as the speed at which a case is litigated might determine its outcome, as only the first case raising this issue to reach the Supreme Judicial Court would get the benefit of the ruling. It would also greatly diminish the “incentive to bring challenges to existing precedent” by depriving similarly situated litigants “of the benefit for the work and expense involved in challenging the old rule.” Galiastro, supra at 169, quoting Powers v Wilkinson, 399 Mass. 650, 664 (1987).
The same principles underlying our decision in Galiastro to extend the Eaton rule to cases pending on appeal cause us to extend the Pinti rule to cases pending in the trial court where the Pinti issue was timely and fairly raised before we issued our decision in Pinti. In such cases, the homeowner-mortgagors are similarly situated to the plaintiffs in Pinti, because they presented the same arguments in the trial court that the Pinti plaintiffs presented to this court on appeal. All that distinguishes the homeowners in Pinti from the homeowners in this case is the pace of the litigation. The summary process complaint in this case was first filed in June, 2012; the complaint in Pinti seeking a judgment declaring that the foreclosure sale was void was filed in January, 2013. If this case had proceeded to judgment more promptly in the Housing Court, this appeal, rather than Pinti, might have been the one that established the so-called Pinti rule.5
Having so ruled, we now consider whether the homeowner defendants in this case timely and fairly raised a Pinti defense before the issuance of our Pinti decision. The judge found that they had, and we conclude that he was not clearly erroneous in so finding. We recognize that the defendants did not specifically allege that the mortgagee’s notice of default failed to strictly comply with the terms of paragraph 22 of the mortgage until they filed their cross motion for summary judgment on September 23,
5 We recognize that this ruling will increase the impact our Pinti decision may have on the validity of titles, but we expect the increase to be modest and that it will simply be part of the inherent “unevenness [that] is an inevitable consequence of any change in doctrine.” Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 170 (2014), quoting Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 283 n.4 (1980).
2015, more than two months after the issuance of our opinion in Pinti. But more than three years before that opinion, in June, 2012, they filed an answer as self-represented litigants where they checked the box proffering as a defense to the eviction that the plaintiff did not have “superior right to possession of the premises.”6 We need not consider whether the assertion of this affirmative defense alone was sufficient to give fair notice of a Pinti defense, because it is apparent from the plaintiff’s memorandum in support of its motion for summary judgment, which was filed one month before the issuance of our Pinti decision, that the plaintiff recognized that the defendants had alleged that the notice of default failed to comply with the terms of paragraph 22 of the mortgage. In that memorandum, the plaintiff argued that it had complied with the requirements of paragraph 22 and that it would be “irrational and fundamentally unfair” to declare the foreclosure proceeding void because of the purported minor differences between the language of the notice of default and that of the mortgage.
6 The full text of the defense, marked box no. 67 on the answer, states:”The plaintiff’s case should be dismissed because it does not have proper title to the property and therefore does not have standing to bring this action and/or cannot prove a superior right to possession of the premises. Wayne Inv. Corp. v. Abbott, 350 Mass. 775 (1966) (title defects can be raised as defense in summary process); G. L.239, § 1 (summary process available to plaintiff only if foreclosure carried out according to law).
“Where the plaintiff recognized that the defendants had raised the Pinti issue as a defense before our Pinti decision, the judge did not err in finding that the defendants fairly and timely raised the issue and therefore were entitled to the benefit of the Pinti decision.
Obligation of strict compliance. Having determined that the defendants are entitled to the benefit of our holding in Pinti, we must now address whether the notice of default strictly complied with paragraph 22 of the mortgage. It did not. Once a borrower has defaulted on a mortgage, G. L. c. 183, 21, authorizes the mortgagee to foreclose and sell the premises, provided it “first compl[ies] with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of the power of sale.” Pinti, 472 Mass. at 232, quoting G. L. c. 183, § 21. As we explained in Pinti, supra at 236, “the ‘terms of the mortgage’ with which strict compliance is required — both as a matter of common law under this court’s decisions and under § 21 — include not only the provisions in paragraph 22 relating to the foreclosure sale itself, but also the provisions requiring and prescribing the preforeclosure notice of default” (footnote omitted). See Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, 322-324 (1913).
The notice of default in this case communicated much of what paragraph 22 requires but fell short in several crucial respects. Paragraph 22 requires that the notice “inform [the borrower] of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of [the borrower] to acceleration of sale.” Despite this language in the plaintiff’s own uniform mortgage instrument, the notice declared that the borrower “may, if required by law or [the borrower’s] loan documents, have the right to cure the default after the acceleration of the mortgage payments and prior to the foreclosure sale of [the borrower’s] property if all amounts past due are paid within the time permitted by law” (emphasis added). Similarly, the notice declared that the borrower “may have the right to bring a court action to assert the non-existence of a default or any other defense [the borrower] may have” (emphasis added).
We agree with the judge that this language in the notice “significantly, and inexcusably, differed from” the language in paragraph 22 of the mortgage, and “watered . . . down” the rights provided in that paragraph to the mortgagor homeowner. The phrase, “you may, if required by law or your loan documents, have the right to cure the default after acceleration,” suggests that the right to cure and reinstate is not available to every mortgagor, and that any such right is contingent upon the law or the provisions of other loan documents. But paragraph 19 of the mortgage specifically grants a mortgagor the right to reinstatement after acceleration, and sets forth the steps required to do so.This phrase instead suggests that the homeowner may need to perform legal research and analysis to discern whether the right to cure and reinstate is available.
Similarly, rather than unequivocally inform the borrower of the right to bring a court action to attempt to prevent a foreclosure by asserting that there was no default or by invoking another defense, the notice of default stated that the borrower may have the right to bring such an action. Here, too, the implication is that the right is merely conditional, without specifying the conditions, and that the mortgagor may not have the right to file an action in court.
The defendant contends that it accurately informed borrowers that they “may have” the right to bring a court action because they would have no such right if their court action lacked a good faith basis. But neither paragraph 22 of the mortgage nor the notice identified a bad faith exception to this right and we cannot reasonably infer that a borrower would understand that the “may have” language referenced such an exception.7
7 Because we find that the notice of default was not in strict compliance with paragraph 22, we need not address the We agree with the judge that, because the Pinti decision applies to this case and because the notice of default did not strictly comply with the requirements of paragraph 22 of the mortgage, the foreclosure sale is void.
8 Conclusion. The allowance of the defendants’ cross motion for summary judgment, as well as the denials of the plaintiff’s motions for summary judgment and for relief from judgment, are affirmed.
defendants’ contention that the plaintiff waived its argument that the notice was in strict compliance when it conceded that it was only in substantial compliance in the memorandum in support of its motion for summary judgment and at the hearing in the Housing Court.
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