SUPREME COURT – STATE OF NEW YORK
I.A.S. PART XXXVI SUFFOLK COUNTY
PRESENT:
HON. PAUL J. BAISLEY, JR., J.S.C.

GMAC v. JOSEPH A. REMKUS

The note itself reflects that it was executed and delivered by the mortgagor to E*Trade. MERS is not mentioned in the note and is given no rights therein. Accordingly, the court is unable to discern from the submissions a factual or legal basis for MERS’ purported assignment of‘the underlying note to plaintiff. Moreover, even if the purported assignment were valid in all respects, plaintiffs submissions establish that at the time of the commencement of this action plaintiff was not the owner of the mortgage and note sued upon.

The Court notes that the questionable validity of the purported assignment is further reflected by the fact that it appears to have been executed on behalf of MERS by the same person, Jeffrey Stephan, who executed the “affidavit of merit” on behalf of the plaintiff in this action.

In light of the foregoing, the motion to appoint a referee is denied.

Proposed ex-parte order marked “not signed.”

Dated: July 28, 2008
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Contiune reading the NY Case below…I have others similar

[ipaper docId=37996746 access_key=key-279npgf582mdsw8wg1g9 height=600 width=600 /]

I can tell you there is MAJOR, MAJOR panic happening “behind the scenes” since I have started this site I have not seen this kind of activity! All I can say is don’t stop what ever you are doing GMAC or not…

Foreclosure Mess

At least two officials who signed documents indicating that they had reviewed the accuracy of thousands of foreclosure proceedings have testified in sworn depositions that they didn’t actually perform at least some of the reviews.

If you have documents signed by either of the officials – Ally Financial’s Jeffrey Stephan or Chase Home Finance’s Beth Ann Cottrell — or were involved in a foreclosure whose documentation they reviewed, we’d like to know about it as we continue to report on the foreclosure legal issues.

Do you think your foreclosure documents may have been processed by Stephan or Cottrell? If you have a copy of a foreclosure document signed by Stephan or Cottrell, please post it here. Or send us information on your foreclosure using the form below.

LINK TO FORM

This bombshell just hit the wires….EFFECTIVE IMMEDIATELY GMAC HAS SUSPENDED ALL FORECLOSURES IN 23 STATES!

HMMMM could this have something to do with this?? Key word JEFFREY STEPHAN

Ally’s GMAC Mortgage Halts Home Foreclosures in 23 States

By Denise Pellegrini – Sep 20, 2010 9:43 AM ET

Ally Financial Inc.’s GMAC Mortgage unit told brokers and agents to halt evictions tied to foreclosures on homeowners in 23 states including Florida, Connecticut and New York.

GMAC Mortgage may “need to take corrective action in connection with some foreclosures” in the affected states, according to a two-page memo dated Sept. 17 marked “urgent.” Ally Financial spokesman James Olecki confirmed the contents of the memo. Brokers were told to immediately stop evictions, cash- for-key transactions and lockouts, according to the document, addressed to GMAC preferred agents.

The lender will also suspend sales of properties on which it has already taken possession. The letter tells brokers to notify buyers that the company will extend closing dates by 30 days. Buyers will be able to cancel their agreement to purchase and get their deposit back, according to the letter.

Continue Reading…. BLOOMBERG

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Following is a table of the affected states.

Connecticut
Florida
Hawaii
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Nebraska
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
South Carolina
South Dakota
Vermont
Wisconsin

To contact the reporter on this story: Denise Pellegrini in New York at dpellegrini@bloomberg.net.

Image credit: The office complex of GMAC Mortgage, located in Fort Washington, Pennsylvania. Photographer: Bradley C. Bower/Bloomberg

Related articles:

JEFFREY STEPHAN: MANY CORPORATE HATS

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HIGHLIGHTS FROM A DEPOSITION OF JEFFREY STEPHAN |By Lynn E. Szymoniak, Esq. Ed., Fraud Digest

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DEPOSITION OF JEFFREY STEPHAN

Deposition_of_Jeffrey_Stephan

UNIFORM COMMERCIAL CODE COMMITTEE

WHERE’S THE NOTE, WHO’S THE HOLDER: ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE

HON. SAMUEL L. BUFFORD
UNITED STATES BANKRUPTCY JUDGE
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES, CALIFORNIA

(FORMERLY HON.) R. GLEN AYERS
LANGLEY & BANACK
SAN ANTONIO, TEXAS

AMERICAN BANKRUPTCY INSTUTUTE
APRIL 3, 2009
WASHINGTON, D.C.

WHERE’S THE NOTE, WHO’S THE HOLDER

INTRODUCTION

In an era where a very large portion of mortgage obligations have been securitized, by assignment to a trust indenture trustee, with the resulting pool of assets being then sold as mortgage backed securities, foreclosure becomes an interesting exercise, particularly where judicial process is involved.  We are all familiar with the securitization process.  The steps, if not the process, is simple.  A borrower goes to a mortgage lender.  The lender finances the purchase of real estate.  The borrower signs a note and mortgage or deed of trust.  The original lender sells the note and assigns the mortgage to an entity that securitizes the note by combining the note with hundreds or thousands of similar obligation to create a package of mortgage backed securities, which are then sold to investors.

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

UCC SECTION 3-309

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

WHO’S THE HOLDER

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

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

BRIEF REVIEW OF UCC PROVISIONS

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

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

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

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

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

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

THE RULES

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

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

STANDING

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

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

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

A BRIEF ASIDE: WHO IS MERS?

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

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

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

RULES OF EVIDENCE – A PRACTICAL PROBLEM

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

FORECLOSURE OR RELIEF FROM STAY

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

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

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

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

SOME RECENT CASE LAW

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

Massachusetts

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

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

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

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

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

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

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

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

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

Ohio

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

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

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

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

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

Illinois

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

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

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

New York

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

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

California

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

and

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

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

Texas

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

and

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

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

SUMMARY

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

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

(1)               It is the holder of this note original by transfer, with all necessary rounds;

(2)               It had possession of the note before it was lost;

(3)               If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be          prepared to post a bond;

(4)               If the person seeking to enforce is an agent, it must show its agency status and that its principal is the holder of the note (and meets the above requirements).

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

JOHN KENNERTY, a/k/a HERMAN JOHN KENNERTY

JOHN KENNERTY a/k/a Herman John Kennerty has been employed for many years in the Ft. Mill, SC offices of America’s Servicing Company, a division of Wells Fargo Bank, N.A. He signed many different job titles on mortgage-related documents, often using different titles on the same day. He often signs as an officer of MERS (“Mortgage Electronic Registration Systems, Inc.”) On many Mortgage Assignments signed by Kennerty, Wells Fargo, or the trust serviced by ASC, is shown as acquiring the mortgage weeks or even months AFTER the foreclosure action is filed.

Titles attributed to John Kennerty include the following:

Asst. Secretary, MERS, as Nominee for 1st Continental Mortgage Corp.;

Asst. Secretary, MERS, as Nominee for American Brokers Conduit;

Asst. Secretary, MERS, as Nominee for American Enterprise Bank of Florida;

Asst. Secretary, MERS, as Nominee for American Home Mortgage;

Asst. Secretary, MERS, as Nominee for Amnet Mortgage, Inc. d/b/a American Mortgage Network of Florida;

Asst. Secretary, MERS, as Nominee for Bayside Mortgage Services, Inc.;

Asst. Secretary, MERS, as Nominee for CT Mortgage, Inc.;

Asst. Secretary, MERS, as Nominee for First Magnus Financial Corporation, an Arizona Corp.;

Asst. Secretary, MERS, as Nominee for First National Bank of AZ;

Asst. Secretary, MERS, as Nominee for Fremont Investment & Loan;

Asst. Secretary, MERS, as Nominee for Group One Mortgage, Inc.;

Asst. Secretary, MERS, as Nominee for Guaranty Bank;

Asst. Secretary, MERS, as Nominee for Homebuyers Financial, LLC;

Asst. Secretary, MERS, as Nominee for IndyMac Bank, FSB, a Federally Chartered Savings Bank (in June 2010);

Asst. Secretary, MERS, as Nominee for Irwin Mortgage Corporation;

Asst. Secretary, MERS, as Nominee for Ivanhoe Financial, Inc., a Delaware Corp.;

Asst. Secretary, MERS, as Nominee for Mortgage Network, Inc.;

Asst. Secretary, MERS, as Nominee for Ohio Savings Bank;

Asst. Secretary, MERS, as Nominee for Paramount Financial, Inc.;

Asst. Secretary, MERS, as Nominee for Pinnacle Direct Funding Corp.;

Asst. Secretary, MERS, as Nominee for RBC Mortgage Company;

Asst. Secretary, MERS, as Nominee for Seacoast National Bank;

Asst. Secretary, MERS, as Nominee for Shelter Mortgage Company, LLC;

Asst. Secretary, MERS, as Nominee for Stuart Mortgage Corp.;

Asst. Secretary, MERS, as Nominee for Suntrust Mortgage;

Asst. Secretary, MERS, as Nominee for Transaland Financial Corp.;

Asst. Secretary, MERS, as Nominee for Universal American Mortgage Co., LLC;

Asst. Secretary, MERS, as Nominee for Wachovia Mortgage Corp.;

Vice President of Loan Documentation, Wells Fargo Bank, N.A.;

Vice President of Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. f/k/a Norwest Mortgage, Inc.

The yellow in the picture represents all the hard work and sweat Mr. Nguyen encountered for this victory.

Quiet Title, Rescission and Damages, and Unfair Business Practices

JUDGMENT

1. This Court has jurisdiction over the subject matter of this case and over the Defendants.

2. Venue as to the Defendants in the Central District of California is proper.

3. Default judgment is hereby entered against Chase Bank USA, N.A. and Chase Home Finance, LLC and in favor of Plaintiffs Paul Nguyen and Laura Nguyen on all claims in Plaintiffs’ SecondAmended Complaint.

4. IT IS THEREFORE ORDERED that the Deed of Trust recorded with Orange County Recorder as instrument No. 2007000731120 on 12/12/2007 is wholly voided as to plaintiff Laura Nguyen.

5. IT IS FURTHER ORDERED that Defendant First American Loanstar Trustee Services record a DEED OF RECONVEYANCE to reconvey unto Plaintiffs thereto all right, title and interest which was heretofore acquired by First American Loanstar Trustee Services under deed of trust recorded with Orange County Recorder as instrument No. 2007000731120 on 12/12/2007.

6. IT IS FURTHER ORDERED that all adverse claims against property known as 16141 Quartz Street, Westminster, CA 92683 are quieted.
The legal description of said property is:

LOT 44 TRACT NO. 8977, IN THE CITY OF WESTMINSTER, COUNTY OF ORANGE, STATE OF  CALIFORNIA, AS PER MAP RECORDED IN BOOK 369, PAGE(S) 46 AND 47 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Assessor’s Parcel No.: 107-903-44.

7. IT IS FURTHER ORDERED that the Promissory Note dated 12/12/2007 executed by Plaintiff Paul Nguyen in favor of Chase Bank USA, N.A. rescinded pursuant to 15 U.S.C. §1635(i).

8. IT IS FURTHER ORDERED that pursuant to 15 U.S.C. §1635(b), Plaintiffs had made offer to tender the loan evidenced by promissory note dated 12/12/2007 and Defendant Chase Bank USA, N.A. did not take possession within 20 days after tender by the Plaintiffs. Therefore, ownership of the loan proceed is vested in the Plaintiffs without obligation on their part to pay for it.

9. IT IS FURTHER ORDERED that Defendant Chase Bank USA, N.A. within 20 days after entry of judgment shall return to the Plaintiffs any money or property given as earnest money, down payment, or otherwise pursuant to 15 U.S.C. §1635(b).

10. IT IS FURTHER ORDERED that Plaintiffs are awarded their costs of suit, to be paid by Defendants Chase Bank USA, N.A. and Chase Home Finance, LLC, in an amount to be determined by the Clerk of the Court.

DATED: September 15, 2010
____________________________
The Honorable A. Howard Matz
JS-6 United States District Judge

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I was wondering why this site blew up with hits today!

THIS INVOLVES 65 MILLION LOANS…it was ’62’ !!! I have a source that confirmed this.

“The Curse Of The MERS”

READ ALL ABOUT MERS HERE…MERS 101

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Katherine M. Porter
College of Law, University of Iowa

Abstract

The greatest fear of many families in serious financial trouble is that they will lose their homes. Bankruptcy offers a last chance for families save their houses by halting a foreclosure and by repaying any default on their mortgage loans over a period of years. Mortgage companies participate in bankruptcy by filing proofs of claims with the court for the amount of the mortgage debt. In turn, bankruptcy debtors pay these claims to retain their homes. This process is well established and, until now, uncontroversial. The assumption is that the protective elements of the federal bankruptcy shield vulnerable homeowners from harm.

This Article examines the actual behavior of mortgage companies in consumer bankruptcy cases. Using original data from 1700 recent Chapter 13 bankruptcy cases, I conclude that mortgage servicers frequently do not comply with bankruptcy law. A majority of mortgage claims are missing one or more of the required pieces of documentation for a bankruptcy claims. Fees and charges on claims often are poorly identified and do not appear to be reasonable. The bankruptcy data reinforce concerns about the overall reliability of the mortgage service industry to charge homeowners only the correct and legal amount of the debt and to comply with applicable consumer protection laws. Mistakes or misbehavior by mortgage servicers can have grave consequences. Bloated claims can jeopardize a family’s ability to save their home in bankruptcy. On a system level, mistakes or misbehavior by mortgage servicers undermine America’s homeownership policies for all families trying to buy a home.

The data also reinforce concerns about whether consumers can trust financial institutions to adhere to applicable laws. The findings are a chilling reminder of the limits of formal law to protect consumers. Imposing unambiguous legal rules does not ensure that a system will actually function to safeguard the rights of parties. Observing the reality that laws can under perform or even misfire has crucial implications for designing legal systems that produce acceptable and just behavior. *

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LAW OFFICES OF MOSES S. HALL, APC
2651 East Chapman Avenue, Suite 110
Fullerton, California 92831
Telephone (714) 738-4830
Facsimile (714)992-7916

September 9, 2010

Attorney General’s Office
California Department of Justice
Attn:  Edmund G. Brown Jr.
1300 “I” Street
Sacramento, CA 95814

Benjamin G. Diehl
Office of the California Attorney General
300 S. Spring Street,. Ste 1702
Los Angeles, CA  90013

Kathrin Sears
Office of the California Attorney General
455 Golden Gate Ave., Ste 1702
San Francisco, CA  94102

Re: Civil Code §§ 2923.52 and 2923.53
The People of The State of California vs. Countrywide et. al. LC093076
Petition for Writ of Mandamus

Dear Colleagues and Attorney General Edmund G. Brown Jr:

As you are aware, my office represents homeowners caught up in the foreclosure crisis currently occurring in the California housing market.

You may recall that my office sought your assistance in the matter of Mabry vs. Aurora Loan Services. Wherein the 4^th Appellate District Division Three acknowledged a private right of action to prevent foreclosures on a citizen’s primary residence, when the bank and/or mortgage holder has not complied with Civil Code § 2923.5. However, your office opted not to participated in what I believe was a landmark decision for homeowners in the battle against foreclosure prevention here in California.

Notwithstanding the Stipulated Judgment and Injunction that your office had obtained against Countrywide/Bank of America in the above referenced case, Bank of America filed an Amicus Curia Brief in the Mabry action espousing no private right of action and no obligation to modify distressed loans.

I am fully aware, grateful and commend your office for its attempts to crackdown on loan modification schemes that have swindled millions of dollars out of frightened and frustrated homeowners. Some homeowners who were and still are willing to believe against all logic or reason that the companies, whom practiced such schemes, could actually get the mortgage holder to give them some sort of State or Federal assistance that could prevent the losing of their homes and becoming homeless.

I further commend your office for its 2008 lawsuit against then Countrywide Financial, Countrywide Home Loans, Inc., and Spectrum Lending, Inc., who are now commonly referred to as Bank of America N.A. and BAC Home Loans (BAC).  An action which ultimately resulted in the successful acquiring of a Stipulated Judgment and Injunction against (BAC) on October 14, 2008.

The BAC lawsuit’s primary focus was on the predatory lending practices of the Defendants. The Stipulated Judgment and Injunction provides a remedy that creates yet another avenue for BAC borrowers to find relief and even the possibility of preventing the loss of their homes. The loss of a home is a threat that is ever too common, albeit avoidable with help from BAC, for numerous California BAC borrowers in this foreclosure crisis.

I wish this letter could end here or at least continue to praise your efforts and accomplishments as the present Attorney General of California. However, unfortunately, it must now turn to the present state of affairs and your lack of aggressiveness in the pursuit against the foe you identified and successfully prosecuted in the People vs. Countrywide, et.al. action.

I believe judgment obtained against BAC was merely the tip of the iceberg.  You may or may not be aware that IndyMac Bank, now OneWest Bank, has been sued by their investors for providing false and misleading appraisals along with committing many underwriting violations, which gave thousands of Californians their present unconscionable loans [a copy of the court’s opinion is attached for your edification].

There are presently hearings scheduled on September 21, 2010 and September 22, 2010, that involve issues that would substantially curtail the foreclosures in California:

• September 22, 2010 at 9:00 a.m. in Department 68 of the Los Angeles Superior Court, Mabry vs. Preston Dufauchard, Commissioner For the California Dept of Corporations, Real Party in Interest Aurora Loan Services, LLC, Case No: BS 127903. Petition for Writ of Mandamus.
• • The issue: Whether possessing a HAMP program equates as compliance with California Civil Code § 2923.53.

• September 21, 2010 at 9:00 a.m. at the California 4^th Appellate Court Division Three Vuki vs. Superior Court of California, Orange County Case No: GO43533, Real Party in Interest HSBC. Oral Argument.
  • The issue: Whether a bad faith compliance with Civil Code § 2923.53 makes the foreclosing beneficiary (HSBC) a bona fide purchaser pursuant to Civil Code §2923.54.

• September 21, 2010 at 9:00 a.m. at the California 4^th Appellate Court Division Three Sanchez vs. Superior Court of California, Orange County Case No: G043300, Real Party in Interest Litton Loan Servicing LLC.. Oral Argument.
• • The issue: Whether a fully executed and performed loan modification is terminated by the lender’s inadvertent sale of the subject real property in lieu of Civil Code § 2923.54.

These decisions are being sought by my office to help clarify citizens’ rights under the present Foreclosure Prevention Statutes.

My office has been very instrumental in not only the prosecution of these issues, on behalf of my clients, but all citizens of the State of California.

Unfortunately, the BAC Stipulated Judgment and Injunction does not provide a component for a private right of enforcement.  Thus, with respect to possible violations by BAC, such Stipulated Judgment and Injunction can only be enforced by your office.

My office would love to step into your shoes and be granted permission and the rights to enforcement under the Stipulated Judgment and Injunctions. That way we may stop all the Countrywide loan foreclosures presently scheduled and being conducted in California until each

prior Countrywide and/or BAC California borrower is offered the benefits under the Stipulated Judgment and Injunction your office obtained.

I do not believe that you could or are able to assign such a right, but I make it as a gesture of sincerity as to my conviction and belief of the wrongdoings of BAC.

I ask that you immediately seek Court intervention enjoining all Countrywide and/or BAC foreclosures proceedings that fall within the auspices of the Stipulated Judgment/Injunction.

Alternatively, you leave my office no choice but to seek a Writ of Mandamus asking the Court to instruct you and your office on your obligations as Attorney General of our great State.  I realize your business and acknowledge that this may not be your primary priority, but if I do not receive a response indicating your intent by September 17, 2010, I will deem you have no intent to respond, investigate this matter, or take other appropriate action and at that time will seek the Writ of Mandamus.

Notwithstanding the aforementioned paragraph, I wish you well on your campaign to return to the position of Governor of our great State.

Sincerely
Moses S. Hall;
Msh:
Attachments.

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Our friend in California Brian Davies recently got a “Golden Ticket” in the mail. Below are certified copies of the Pooling & Servicing Agreement of his loan including the Prospectus for RAST 2007-A5, pass thru 2007E, psa 03-01-07.

Via: Brian Davies

GET THESE INTO THE COURT RECORD FOR THE DEFINITIVE WAY THE RECORD NEED TO BE JUDICIALLY NOTICED–B.DAVIESMD@GMAIL .COM

How you can get these:

http://www.scribd.com/doc/36801952/The-Securities-and-Exchange-Commission-How-to-File-to-Get-Certified-Copies-of-the-Prospectus-and-Polling-and-Servicing-Agreements

We can learn a thing or two about a simple game called Monopoly!

In the end .. it all goes back in the box …

Editing done by me.

“What we do for ourselves dies with us. What we do for others and the world remains and is immortal.” -Albert Pine

Speech is by John Ortberg

On June 23, 2009, MERS substituted MTC Financial Inc., d.b.a. Trustee Corps, as trustee. (See Id., Ex. B.) Trustee Corps recorded a notice of trustee’s sale (“NOS”) on or about September 15, 2009, indicating that it would sell the Property on October 5, 2009, (see Id., Ex. C), but Plaintiff claims to have never received notice of the NOS, (see id. ¶ 63).

The most obvious potential defect in this foreclosure stems from the fact that Trustee Corps was substituted as trustee after it recorded the NOD, but before it recorded the NOS. In Nevada, the power of sale cannot be exercised until one of two particular entities–the beneficiary or the trustee–or an agent thereof, records the NOD. Nev. Rev. Stat. § 107.080(2)(c). Trustee Corps was not such an entity when it recorded the NOD. Thus, unless Trustee Corps can provide evidence indicating that the beneficiary–Taylor–or the trustee–Equity Title–caused Trustee Corps to file the NOD, it may be liable for wrongful foreclosure.
Further complicating matters, some other unusual events occurred prior to the filing

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ANTICIPATING DEBTOR’S CHALLENGES AND WITHSTANDING LITIGATION

Via: Brian Davies

GREAT LOOK AT THE BANKS WAY OF TRYING TO GET AROUND THE BANKRUPTCY. HERE IS THE WAY THEY LOOK AT THE ASSIGNMENTS AND TRANSFERS. NOTE THE POOLING AND SERVICING AGREEMENTS ARE IMPORTANT. IT ALSO SCREWS THEM WHEN THEY TRY TO TRANSFER AFTER THE CLOSE OF THE TRUST.

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via: Brian Davies

The SEC is the regulator who allowed the Prospectus for many Mortgage Backed Securities to be filed. The Indymac MBS Residential Asset Securitization Trust 2007-A5, mortgage pass through 2007-E, with the Pooling and Servicing Agreement dated 3-1-2007 outlines proper assignment protocols and is the document that is needed for the court record. The SEC will do requests so you may judicially notice these documents for the record.

Your request was received in the certification office on 8/3/10; the time frame is 14+ working days to process

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Via: b.daviesmd6605

July 9, 2010
The United States Bankruptcy Court for the Eastern District of California has issued a ruling dated May 20, 2010 in the matter of In Re: Walker, Case No. 10-21656-E-11 which found that MERS could not, as a matter of law, have transferred the note to Citibank from the original lender, Bayrock Mortgage Corp. The Court’s opinion is headlined stating that MERS and Citibank are not the real parties in interest.

The court found that MERS acted “only as a nominee” for Bayrock under the Deed of Trust and there was no evidence that the note was transferred. The opinion also provides that “several courts have acknowledged that MERS is not the owner of the underlying note and therefore could not transfer the note, the beneficial interest in the deed of trust, or foreclose on the property secured by the deed”, citing the well-known cases of In Re Vargas (California Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of authority of MERS), LaSalle Bank v. Lamy (New York), and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court).

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DinSFLA Here: Now if we just put these time frames such as ‘1999’ with all that is happening today we arrive to some answers…Don’t we?

Electronic communications make it possible to conduct old transactions in new forms.  Some of the oldest kinds of transactions governed by law are transactions in real estate:  for example, sales, leases and mortgages.  In the Middle Ages transactions in real estate were conducted symbolically, without paper or signatures.  Writing, printing and more universal literacy brought paper deeds, mortgages and leases, memorialized by words on paper with manual signatures.   These were filed in public records to establish who had rightful title to any piece of land.  Several centuries have gone by since that initial migration to the then-new technology of paper documents and manual signatures.  A new technology of computers, software to run them, and electronic communications has come to replace paper.  The law of real property must now make a transition to accommodate the new technology.  The efficiency of real estate markets makes this imminently necessary.

This long dependence on paper, however, casts up certain barriers to using electronic communications to carry on real estate transactions.  The law of the states of the United States has many “statute of fraud” requirements that inhibit the use of electronic communications.  Statute of fraud requirements put total and express reliance upon paper documents and manual signatures to make transactions enforceable.  No paper, no enforcement.  These same requirements have also made it more difficult to develop electronic analogues to transactions in paper that are equally enforceable.

The first step to remedy the problem took place in 1999 when the Uniform Law Commissioners promulgated the Uniform Electronic Transactions Act (UETA).  This act adjusted statute of fraud provisions to include electronic “records” and “signatures” for the memorialization of all kinds of transactions, including basic transactions in real estate.  It is possible to have sale contracts, mortgage instruments (in whatever form a jurisdiction uses) and promissory notes memorialized in electronic form with electronic signatures that will now be treated the equal of the same paper documents with manual signatures.  This is the result of the widespread enactment of UETA and of the subsequent enactment of the Electronic Signatures in Global and National Commerce Act (E-Sign) by Congress.

Real estate documents must be recorded on public records to be effective.  Recording takes place in most states in a county office devoted to keeping these records.  Recording protects current interests in real estate by clarifying who holds those interests.  The chain of title leading to the current title-holder, meaning the historic record of documents relating to transactions for a specific piece of real estate, establishes the marketability of that piece of real estate by the current owner of interests in it.  The real estate records establish this chain of title.  State law governs these local recording offices, and there are requirements in the law of every state relating to the originality and authenticity of paper documents that are presented for recording.  UETA included optional provisions dealing with governmental authority, including that of local governments, to accept and utilize electronic records.  However, not all states adopted these optional provisions, and confusion still persisted whether these provisions, coupled with the rest of UETA, authorized recordation of electronic records.

The Uniform Real Property Electronic Recording Act (URPERA) removes any doubt with regard to the ability of a local recording office to accept and otherwise process electronic documents and signatures for recording.  Further, there must be an orderly conversion of every recording office in the United States for electronic recording to become accepted universally.  That will be a complex process, but it needs a starting point in the law.  URPERA, promulgated by the Uniform Law Commissioners in 2004, provides that essential start.

The act does three fairly simple things that will have monumental effect.  First, it establishes that any requirement for originality, for a paper document or for a writing manually signed before it may be recorded, is satisfied by an electronic document and signature.  This is essentially an express extension of the principles of UETA and E-Sign to the specific requirements for recording documents relating to real estate transactions in any state.  Second, it establishes what standards a recording office must follow and what it must do to make electronic recording effective.  For example, the office must comply with standards set by the board established in a state to set them.  It must set up a system for searching and retrieving electronic documents.  There are a minimum group of requirements established in URPERA.  Third, URPERA establishes the board that sets statewide standards and requires it to set uniform standards that must be implemented in every recording office.

These may be simple steps in the law, but the entire process of implementing electronic recording of electronic real estate documents will be complex from state to state.  Inserting URPERA in the law of a state requires careful scrutiny of its real estate law.  If paper documents are effective, for example, when they are time-stamped when delivered to a recording office, when should electronic documents that may be delivered electronically when an office is closed be considered effective?  Answers to questions like this one will take some work and some complex decisions as URPERA is considered for enactment in any state.

Notwithstanding this need for careful effort, it is important to make the start on electronic recording of real estate documents.  Real estate transactions involve billions of dollars in the United States.  The efficiency of real estate markets depends upon the adoption of technology to make them faster and more competitive.  After UETA and E-Sign, the key is URPERA.  Every state needs to consider it as soon as possible.

More info…ElectronicRecording.org

RELATED ARTICLE:

Electronic Property Document Recording (ERDS)

Via: b.daviesmd6605

Does a lender’s failure to explore options to prevent foreclosure in clear violation of Civil Code section 2923.5 affect title to foreclosed property when the property is purchased — not by a bona fide purchaser for value — but by the very lender who violated the statute?

NATURE OF THE CASE AND PROCEDURAL HISTORY
This case arises under the recently enacted Civil Code section 2923.5 which requires residential mortgage lenders to explore alternatives to foreclosure with borrowers before initiating non-judicial foreclosure proceedings
The is a Plaintiff Petition for review of cc 2923.5 regarding reversal of all violations of the act. The decision in the Appeal Court IV. Division 3 has shown no tender, no preemption etc. This goes for all people regardless if they have been foreclosed. If foreclosed with sale asking Court to review reversal for all.

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SHOW ME THE LOAN

A legal doctrine developed by: John Chester; of the family Stuart

The government did not want to end prohibition. It was great for the politicians. Over a period of time, over 70,000 lawsuits were filed against prohibition. The government could not fight them anymore and got rid of prohibition.

The new concepts are based on these concepts of law which fall under contract law. Specific performance in real estate: You go to buy a house, they screw up and you don’t get the house. Under specific performance you can refuse to take another house or your money returned – you want that house. You have to go into a replevin concept where they give you some reasonable value. Those are fights that you have in contract law, which is what we want to use.

The nice aspect of it is that we have come along this far to the documentation and everything we are going to be claiming here, they have already confessed to by fighting us. Now they cannot change their minds. A lot of what kind of blackballed me from the guru aspect of this was the fact that I was right. But, they don’t need to be right. They just need to make money. A lot of it was based on the concept, in law, that most people do not really understand. It is the difference between a covenant and a contract.

There is a difference between a contract and a covenant. If you read the law and the legal definitions, they are substantially different. If you remember when you were in school, you said the Pledge of Allegiance. “I pledge allegiance to the flag of the united States of America.” Exactly what was that flag giving in return? Nothing. That is a pledge. “I pledge allegiance.” A pledge is a covenant. It’s unilateral.

When you do a covenant:
Go through your Deed of Trust, your Mortgage, etc., they use the word “covenant.” They do not use the word “contract.” There is a reason for it. They are never going to give you anything. You already have everything. It is legalese for, “I’m going to shaft you really bad and you’re going to thank me later.” You have to understand the difference between a contract and a covenant. The laws are so applicable that you enter into it believing it was a contract.

Here is the issue: We go through this whole thing, and the whole time the banks are yelling and screaming that, “We never separated the Note and the Deed of Trust.” Are they telling the truth or are they lying? They are telling the truth because those two documents were never together. That is where they have you. They were never intended to be together. They can never be together in law. The Deed of Trust got recorded and the Note went to the lender.

We have all kinds of evidence of that. The first thing they do with the Note is they give it over to someone to cash it. The first thing they do with the Deed of Trust is they run it over to the County Recorder’s Office. Did they separate them which would invalidate everything, or were they never together? They were never together to begin with. They never lied about that. They tricked us.

The Deed of Trust (Mortgage) – that contractual agreement which is truly a covenant says, “This Deed of Trust is evidenced by the Note.” There is no note. That is all a separate deal. What is the Deed of Trust evidenced by? Nothing. It does not exist in law. It is a mortgage. It is dead. You eventually bring it back to life because you send them a check or cash or money order every month. In law, if you make someone an offer, and behind that offer is written ‘in valuable consideration’ (in this instance, it would be cash) and they accept that cash, then we have brought that deal back to life.

The mortgage was dead. There were two deals. You sold them a Promissory Note, i.e., you are buying a house for $500,000. You give them a Promissory Note, they give you the $500,000 or they give it to the home builder and now you have the house. That is a fair and even exchange, lawful and legal. You are done.

Now, for some reason, you wanted to borrow $500,000 from them. That is a separate deal. This deal (Promissory Note) is done, now you want to do this other deal. If you pay them, when did you get the $500,000? There is a bit of an issue there. Here is what happened in law and in reality, and here is what the law has to say about this… Example/concept: Now that we are here and now that the banks say, “It is our note.” Okay, it is your note. You bought it fair and square.

If I sell you my car, can I come back yelling at you saying, “You can’t take the doors off it, you can’t paint it pink, you can’t do anything.” Do I have a legal right to say that? No. They can do whatever they want. They don’t even need to bring it to court.

When you sold them the Note, what did they do with it? They stamped the note: “Paid to the Order of __________ (put a third party name on it) without recourse.” According to the Federal Reserve, what is that Note now? It’s a check. Did they cash the check? It is a bearer instrument payable to the holder. Do we have a name for that? Check. It’s a bearer’s instrument. It’s a check. What is a check? A check is a bearer’s instrument. If I have a check given from you by you to me, am I the bearer of that? Yes. They cashed the check.

Do you understand what happened here? If I sell you this book for $1.00 and you go away with this book, is that all right? Yes. What does this other book have to do with that deal? Nothing. It is a separate book. We now want to make a deal over this book. How do we know this for certain?

We have to start talking about the Mortgage. You sold them the check (Note), that deal is done. Now we have to talk about the other deal. What is happening is, everyone is saying, “Show me the note.” We should be saying, “Show me the Loan.” Because you sold them your check for $500,000. You got the $500,000. That Note is completed and perfected. It’s done.

Now we are over here talking about a Mortgage – a Deed of Trust – a loan – a contract that is really a covenant where you are borrowing $500,000. You are paying them every month. When did they loan you the $500,000? They never did. Who, by law, is in default? They are. Who is responsible to inform the Court when the other party is in default? You are. If you don’t inform the Court the other party is in default, what must the Court therefore presume? They are not in default. The Court and law are very clear on these aspects. It is not the Court’s job to come and do your job for you. The Court does not know who is in default. The bank says you are in default through the non-judicial process. You don’t argue it – that’s it. In Connolly v. General Accounting and numerous other cases: acquiescence is agreement. If you don’t say anything, you are in agreement.

Credit card companies operate on this concept. They send you a note or a letter stating you owe us this much money, and you don’t respond. By the time you respond, you are already being garnished. Do you understand why? Because you never argued. Affidavits stand in law if un-rebutted. If somebody says something and you don’t rebut it, you are in agreement with it. That is not in all cases.

For instance, in this case of the last couple of weeks. I don’t deal with the plaintiff who was not at all prepared to get on trial. She gets up on the stand and says that the bank says, “Well, didn’t we loan you the money?” And, she said, “Well, yes.”

Part of learning how to do this is going to be very direct and honest. There are all kinds of maxims of law and court rulings where, if you don’t have clean hands, then they have an argument. If one side of the hands are dirty, then there is your claim. You just win by default.

They asked her a simple question: “Did you get a loan from the bank?” It was over with for her. She said “yes.”

She never got a loan from the bank. Not only is she a liar, but she destroyed her own case. If she had said, “I never got a loan from the bank. I sold them the Promissory Note, they gave me the money, I bought the house with the money and I paid them for the loan, but they never gave me loan.” That would have been it. There is one sum certain, one lump of money (in this case, $500,000). Where did it go? It’s only one lump sum. You sold them the Promissory Note.

This is about winning. It is about doing the right thing. It is very simple. You sold them the Promissory Note, they gave you the cash, you went over and bought the house. Do you all understand that? I don’t care about the Note.

There is a thing in law called res judicata. Those that are attorneys or paralegals understand res judicata. Once it’s done, once it has been decided, it is over with. Res judicata means, “Shut the hell up. Don’t bring it in my Court.”

I can give you a million arguments on this. Do you know which one of them matters? The one that proves whether or not this happened. Nothing else happened. Everything in the documents, the banks have confessed this happened. They cannot argue about this any more. They have already tried to bitch-slap us in thirty different ways to say, “This is over with.” Ok. You bought the Note. This is done.

Now we must discuss this. Did you make your payments for an extended period of time? Shannon and I have a deal. Shannon, I need to borrow $1,000. Shannon agrees and says, “I’ll tell you what. I have plenty of money. You send me $10 a week for the next two years; that’s $1,040. I will lend you the $1,000 now and I will make $40 in the two years after. I am way under the usury laws, etc.” We are both happy. How many $10 payments do I have to make before I say, give me my $1,000? None. If I made a few payments, what number of payments that I have made can I come back and take him into court if he does not give me that $1,000? One-third. That’s it. He is in total default. If I made three payments and he does not give me the money, who is in default? He is.

How many people understand there are two difference cases here? They confessed they bought the Note. This is all done. So we only have the Deed of Trust argument. On their side of the Deed of Trust it says says: “This Deed of Trust is evidenced by the Note.” What Note? It’s sold. It’s gone. So what is the Deed of Trust evidenced by? Nothing. They have no evidence. So what did you do? You paid them. Even though the Mortgage/Deed of Trust has negotiations, that deal is dead. When you pay them, under the law of acceptance (equity chancery law), when this is on the table and no one has actually picked it up. If you go ahead and you start sending them the payment, did you pick it up and hand it to them by giving them payment? In law, if they accepted by payment, what did they also accept? The check. So what must they also do? They have to give you that $500,000 loan. There is only one $500,000 lump sum.

When you look at this deal, you see what is called a “specific performance.” You had a job to do. Did the bank have a job to do? What was your job to do? Make the monthly payments. What was the bank’s job to do? Loan you. Did you specifically perform your duties in pursuance of this convenant/contract?

You performed your job. You sent them a check. They cashed it.

This whole thing is a scam. How can you tell if a bank or a lawyer or a politician is lying? There are two rabbit holes. Everyone is going down the wrong rabbit hole. You are not going to find any rabbits down there. You are going to find snakes and worms, etc. Here is the rabbit. That is what you need to argue. That is what it is all about. Inside of there is the right to take your house. In the covenant, they have all kinds of rights. You don’t have any rights. Fraud in the factum; fraud in the inducement. When you believe it is a contract because you do not understand legalese, but it was a covenant, so they really are not tied in to be punished if they fail. Isn’t that the reason they probably made it a covenant and not contract? It’s all there. They did not lie to you, verbally. They did not make a misstatement and they had a liable mission so you can use that against them.

Militia/patriot groups sprung up. The most famous being the Posse Comitatus. Posse Comitatus was an Act by Congress after the Civil War. It states the United States will never use the military against its own people. That was the United States, not the corporate entity of the United States of America. We all remember Waco. That whole Act has some issues. When the Posse Comitatus sprung up, they used the legal doctrine of filing documents which we call liens. What these different groups did was they put liens on sheriffs and judges and government employees creating a nightmare. The way the government attacked these groups through the law was under certain aspects of the law that says when you record something and it is not correct, that is a crime. They had a lot of recordings to deprive people of their property so that it fell into terrorism. They did it in mass quantities to deprive whole areas of their land.

This is important. If you look up Arizona Revised Statutes §13-2301 and read it through (D)(4)(b)45, it defines filing false documents to deprive people of their lands as terrorism. It is terrorism for a group of people to get together and file false, fraudulent or forged documents in a public office. It is defined in Arizona law as one type of criminal act: terrorism.

Under terrorist laws, they do not have to prove you are a terrorist. The onus probandi is extrapolated from the Patriot Act to all acts of terrorism. The terrorists must disprove they were a terrorist. When you get charged as a terrorist and there is any evidence therein, you have to dispute it. There are all kinds of people in Guantanamo Bay who don’t have anything to do with anything, but they had some kind of association somewhere where they got charged as terrorists. They are there waiting to dispute that they are terrorists.

The law states that if you record documents that are fraudulent, forged or false, to deprive people of property, you are a terrorist. How many people have looked at the documents that the banks have filed and recorded? How many people have found one that is not false, fraudulent or forged? It goes a prima facie evidence.

The nuclear option
There is no way, under Arizona or U.S. law, that a CEO of any bank in this country can disprove that he is not a terrorist. They cannot. The law defines every CEO of every bank in this country as a terrorist. There are judicial notices of case law in support of this. That will get posted. Read it. It shows this. The banks did this about a thousand times every day.

It is ground in legal fact. We’ve got the recorded documents and I have the laws. They cannot state they accidentally recorded it. Accident a thousand times a day throughout the country?

For all of these people, it is imprisonment for life. If you read the Posse Comitatus, the banks are following their playbook. The only difference in the laws between the bankers and the so-called terrorists that are doing life imprisonment in recording this stuff is they wore camping t-shirts and the bankers are in Armani suits. You talk about whether or not you can prove this or whether or not it is factual: they have already admitted to it. They gave us all the evidence we need. It really is this simple. They have done everything we need to do to jump over to the nuclear option and go against them. They have already said they own the note, they have already recorded the documents – all those documents are fraudulent.

The documents that they record that lead to the criminal acts that Arizona law defines as terrorism are: a substitution of trustee. In other words, this person gets to steal that property because we have a financial interest, etc. That is what the bank does. The other one is an assignment of rights where that leads to who has the rights to do what. They are going to record those documents. Some of them now they are stamping that they are recorded and not recording them. The crime happens when you record. Either way, they are still claiming it and using it to steal your property.

In criminal law, after the prosecution rests, you claim Rule 20, that they have not proved their prima facie case. They may have proved a lot of things, but they did not prove you did the act. That case gets dismissed, with prejudice.

In civil law you do not get it dismissed, but you get summary judgment in favor of the plaintiff or the defendant. That, basically, is reliant on the same concepts of the prima facie case. Then someone proves, prima facially, a certain concept. When we say, “Here is the law that says you are a terrorist and it states that if you do this, you are a terrorist.” And we put all the other with it; that is a prima facie evidence. They are a terrorist. How many times do you think we have done a prima facie case? Under the law, you only have to do it once. We have about a dozen cases.

That is the nuclear option.

There is a little confusion that I am going to clear up.

When the banks bought your Promissory Note, they did not actually give you money. When the banks bought your Promissory Note from you, they stamped it, “paid to the order of (the third party name) without recourse” and turned it into a check. They took that check and cashed it. They bought the house and you got the house. It is just the same as if you got the money. Here is the fraud: they bought everything in their name. You sold them the Promissory Note, yes, they paid you. They paid the builders, the builder gave you the house. The thing is, they bought everything in their name. That is illegal. That is a criminal act in and of itself.

If they upheld the law and did things not as a criminal enterprise – you sold them the Promissory Note, they took the money, they paid for the builder in your name, you were given the house in your name – this would not have generated the fraud. They were not supposed to purchase anything with that money using their name. They got the Promissory Note. They should have just given you the money, but they did all these little tricks to confuse everyone. They did everything in their name to make it look like they were doing the purchase, but they were using your money. They were really just an agent for you.

The money that they were supposed to give you, instead of giving it to you, they took that money and bought your old lien or bought your house with the money. It is spelled out in the handout.

Under the adjustable rate note, “In return for the loan that I have received, I promise to pay… ” Now we are playing a game of legalese: “In return for a loan that I received” is past tense, not current tense. We are talking about something that is extraneous. Whether it did or did not happen is not intrinsic to our argument.

They are playing these games and you are falling for it. You are making assumptions that you have got to get away from. What if you never had a loan before? Then that is just a fraudulent statement. What if you had a loan before? That would be what they are talking about. No where do they really claim that they were. You just read it, took it for granted, because you were doing this all at the same time. The whole thing is: where is the loan? Everyone is screaming, “Where is the Note?”, show me the loan. The loan I had received was in past tense, why are we bringing that up? That is intrinsic to the argument, but it is not substantial when we get into the case. It will be brought up. It is just evidence in the process.

Image Credit: Jerry Maguire

Via: perfectreign

Introduction

As a manager with the Los Angeles County Registrar Recorder, I am in charge of the software development team who creates applications to handle property document recording. Whenever one buys, sells or refinances a house or land, property documents are generated. These documents must be submitted to a County Recorder for storage and indexing to be made available as a public record. Los Angeles County – having well over 10 million residents – is the most populous county in the United States and contains 88 separate cities. As such, my office records – or processes – over 2 million property document recordings per year.
Until now, each one of those documents must be brought in by hand, looked over, entered into our application and then scanned for permanent storage. (The current system was brought online in January 2007, as documented by this video: ELECTRONIC RECORDING ARCHIVE – 2007)The transport, handling and mailing back of paper documents is an overwhelming task. It is also very expensive both in terms of labor and time. For years, the various county Recorder offices wished to pursue something more streamlined. With the advent of newer, less expensive and more accessible technology, the possibility of scanning in documents at the title company (http://en.wikipedia.org/wiki/Title_insurance) offices and electronically sending these documents to the county offices is a reality. State law, however, impeded the process for many years. Up until today, only Orange and San Bernardino counties were allowed by law to electronically record title company documents.
In order to change this, several County Recorders worked with the State Legislature and Attorney General office to pass a law (AB 578 – http://ag.ca.gov/erds1/) entitled the Electronic Recording Delivery Act, which enabled a statewide standard and governance for an Electronic Recording Delivery System (ERDS). Los Angeles decided to partner with Orange, Riverside and San Diego counties to move forward with an in-house developed system, which allowed for economies of scale, flexible implementation and leveraged the 10-year electronic recording experiences of the Orange County Clerk-Recorder. The new system was dubbed, SECURE. It was developed by in-house staff, along with a contractor, who also maintains (as a vendor) the current Orange County recorder system. All four counties own the software and work together to move forward with improvements.[CLICK ABOVE FOR LARGER IMAGE]The above screen shows the common submitter client to be used by title companies, service providers and other institutions in order to submit documents. In this case a Deed is being prepared to be sent to Los Angeles County. The submitter – if authorized – is able to send these documents to any county in the system.Each county participating in the SECURE system is able to leverage the infrastructure built for the system and hosted at the Orange County data center. This data center is a purpose-built facility designed for extreme reliability and high availability. All title companies and other submitters – such as banks – will submit documents through an encrypted Internet connection to the Orange County data center. The documents will be held there until the various participating county recorders pick them up and process them.The structure will look similar to this:All submitters – Financial Institutions such as banks, Title Companies and eventually governmental departments such as the IRS and SSA –are able to use the common client, submit to the common data center and be assured that their documents are routed to the appropriate County Recorder.The system started out on December 1, 2009 with only Orange and Los Angeles counties active. Within six months, it is expected that other counties will be brought online. As the system is enhanced and developed title companies will be allowed to submit more documents and eventually scale back their paper handling processes altogether.This will result in a decrease in costs to the title companies as well as to the counties as a result of paper handling efficiencies. Of the two million annual documents recorded and by the Los Angeles County Recorder, 60% will be able to be processed eventually through this system. Since each document must currently be mailed back to the customer by the recorder, an annual savings in postage and mail handling is expected to show efficiencies.Once the document has been submitted to the Recorder office, it will be examined and – if valid – accepted for recording. The document will be stored in the recording archive and is available for further activities as needed by the general public.[CLICK ABOVE FOR A LARGER IMAGE]After the document has been recorded, the lead sheet (in the case of LA County, who attaches a separate sheet to the front of each document) and the first page are returned to the submitter. They are then able to print and mail the document back to the customer.[CLICK ABOVE FOR A LARGER IMAGE]As seen in the above image, the recorded document has been automatically returned to the submitter. At this stage, the process is complete for the county recorder.Since the SECURE (www.secure-erds.com) group owns the software, the counties will be free to upgrade and enhance the software to fit future needs. These future processes will include an interface to allow banking institutions direct access to send documents such as reconveyances and liens directly from their internal systems. This will further reduce costs as those documents are currently delivered via certified mail. Further enhancements will include electronic delivery of notary signatures, when that becomes allowed in the state. Because the system is built to abstract the back-end recording system from the delivery system, any number of California counties are able to join as participants and leverage the infrastructure already built by Orange, LA, Riverside and San Diego counties.

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