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Max Gardner’s Rules for the Examination Of The Electronic Document Custodian

Max Gardner’s Rules for the Examination Of The Electronic Document Custodian

Written on June 22, 2010 by admin

State your full name and current position.
Provide us with your definition of a document custodian.
What is your exact job title?
What are your responsibilities?
Where are you employed?
Where does your company store original documents?
How are they stored?
If you outsource this storage, who is the outsource provider?
How do you confirm delivery to the outsource provider?
How do you retrieve original documents?
How long do you save original documents?
Do you have a written original document destruction policy?
Please explain it and produce a copy of the policy.
Do you retain images of original of all documents?
How are they retained?
Where are they retained?
How long are they retained?
What type of computer system is used for the image retention?
Do you have a Records Compliance or Management Department?
Explain how it works, who is employed there, and where it is located.
Describe all information that you store electronically.
Do you have an ESI manager?
Who, where does he or she work, what does he or she do?
What is your policy on the retention of electronically stored documents?
Do you have a written policy for ESI documents?
Do you have any automated archiving systems?
If yes, then explain how they work and how documents are achieved.
Where are the archived documents stored?
How do you save data to a file that has already been achieved?
State the name of the director or manager of your document archiving operation.
How do you store data acquired through mergers or acquisitions?
How do you retrieve historical data from the archives?
Explain the process in detail.
Do you have an organizational-wide data map or inventory of all electronically stored data?
Can you produce a copy of that map?
Do you have any litigation ready data files?
Where are they stored?
How are they created?
Who is in charge of creating these files?
Why are they created?
Is there such a file in this case?
Where is the data stored?
Do you have any electronic data stored on tapes?
Describe the data and the type of tapes?
Where are these tapes stored?
Do you maintain a disaster recovery location?
Where is it?
Do you store electronic data at this location?
How is it stored?
How long is it stored?
What types of servers are used to store the data at this location?
How long is the data stored?
Do you have a data destruction policy at the disaster location?
Please explain and produce all written protocols.
Explain how you retrieve data from the disaster location?
Explain the time and expenses involved in securing date from the disaster recovery location?
State if any data related to this case has been destroyed?
Describe the data in detail and when and under what circumstances it was destroyed.
Have you seen any notice in this case to preserve all of the ESI?
When, where and how did you see it?
Has any data related to this case been destroyed since you saw it?
Who is your Media Destruction Manager?
Where is this person located?
What are the responsibilities of this person?
Explain all of the steps your company has taken in this case to preserve ESI evidence?
Have you created a data file of ESI for this case?
When was it created?
Name all parties involved in the creation?
Where is that data filed now?
Explain all of the steps that were taken to create the ESI file for this case.
Are there any ESI that you could not find or include in the file?
If so, please explain.
If any of the data still exists, have you or anyone in your company investigated the restoration of any deleted or damaged data?
When, who did this and what did they do?
If not, then why not?
With respect to the ESI file that has been created for this case, have the documents been scrubbed for metadata?
If yes, then when, who ordered, and why?
Who was involved in the scrubbing?
Was a scrubbed metadata file created?
Who created the file and who has custody of the file?
Do you backup your data every day?
How and where is the backup data?
Who is in charge of your backup operations?
What data is backed up?
Do you back up programs and systems or just the data?
What is the difference between your backup data system and your archived data storage system?
How long is backup data retained?
What is the format for the media in the ESI file created for this case?
Did you ever stop backing up or archiving data in this case in anticipation of litigation?
If so, when, why, and who ordered such actions?
When was a litigation hold placed on the destruction of any of the ESI data related to this case?
Who issued the hold and how was it implemented?
Do you have any type of dormant document liability policy?
If so, then please explain in detail how it works?
Has any of the ESI data in this case been destroyed or deleted pursuant to a dormant document liability policy?
If so, can you identify who took such action, when it was taken, who ordered it taken, and why it was taken?
Name all parties who have access to any of the data related to this case.
Explain all security features employed by your company to prohibit the unauthorized access to any of your ESI data?
Do you keep any type of catalogue of information on tapes or other media related to historical ESI?
If so, please explain how this system works?
Where are the catalogues filed and how are they maintained?
State the names of all of the servers and the location of all such servers that contained any ESI data related to this case.
State your current policy on saving company email.
State your current archiving and backup programs with respect to email.
State all of your email format types, date ranges for retention of email, and the names of all custodians.
Please identify all types of files used by your company, the capacity of such files, the creation dates and how those dates are preserved, the modification dates and how they are recorded, and the maximum size of each file.
Does your company employ a de-duplication policy as to ESI data?
If so, please explain how it works?
Has any data in this case been subject to destruction pursuant to any such policy?
If so, identify all such ESI data.
Do any lawyers representing you in this case have access to any of your data files?
IF so, please explain the extent of such access, how it is tracked, and purpose of the same?
Have you migrated any ESI data in this case from older, disparate media sources into modern managed tools?
If so, explain in detail the older data systems, how the migration occurred, and explain the new storage media used?
Name all of the parties on the data migration team or group.
Do you have a Legal Records Management Team?
Name all of the Team members and the location?
Was the Team involved in this case?
If yes, then explain in detail the extent of their involvement.
Do you use a third-party IT vendor for ESI data capture, storage and archiving?
If so, who and how long have they been used?
Who is the on-site representative for your ESI vendor?
Does your backup vendor use DLT4, LT01 or 4MM tapes?
What type of backup software does the vendor use?
Do they use Backup Exec, NetBackup, Legato Net Worker, Trivoli Storage Manager, ArcServe, CommVault Galaxy or HP Omniback?
Describe all messaging systems used by your company.
Do you use Lotus Notes?
Do you use Novell GroupWise or any others?
How is the messaging data saved, backed up and archived?
Do you convert the messages media to any other type of media for storage?
If so, describe the media and how this is accomplished and by whom?
Explain all due diligence programs and procedures used to verify the integrity of your data?
Explain all due diligence programs and procedures used to secure and safeguard your data.
Do you maintain custody logs on the transfer of any ESI data?
What type of logs?
Who maintains and where are they located?
Do you have a “Best Practices” guide for of the operations described herein?
Can you produce it?

Source: Max Gardner Boot Camp Blog


© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bifurcate, bogus, chain in title, CONTROL FRAUD, corruption, deed of trust, deposition, foreclosure, foreclosure fraud, foreclosures, forgery, Max Gardner, mortgage, Notary, note0 Comments

Documents Show CitiMortgage and Wells Fargo Also Commit Foreclosure Fraud

Documents Show CitiMortgage and Wells Fargo Also Commit Foreclosure Fraud

More of MESCORPS “Shareholders”. Make sure you catch their “old evidence” below…and have a barf bag because this is going to make you sick!

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By ABIGAIL FIELD Posted 6:29 PM 10/01/10

Documents submitted to a court are supposed to be true as submitted. As an attorney, If I file a document with a court in which I swore I personally verified that the information contained within the document is true, and I didn’t actually do that, I’d get in real trouble. It’s simple: That’s fraud in the eyes of the court.

GMAC, JPMorgan Chase and Bank of America recently admitted that their employees routinely sign thousands of documents without verifying what they’re signing. Those documents are then submitted to courts as if the documents were true, to enable the banks to foreclose on delinquent properties. Wells Fargo and CitiMortgage told the New York Times their employees do not engage in similar practices. Yet new evidence shows they do.

Confusion at Wells Fargo
Herman John Kennerty of Wells Fargo has given a deposition describing the department he oversees for Wells Fargo. It’s a department dedicated to simply signing documents. Kennerty testified that he signs 50 to 150 documents a day, verifying only the date on each. What else might he want to verify? Well, in one document he signed, he supposedly transferred the mortgage from Washington Mutual Bank FA to Wells Fargo on July 12, 2010. But that’s impossible, since Washington Mutual Bank FA changed its name in 2004, and by any name WaMu ceased to exist in 2008, when the FDIC took it over. Making the document even less comprehensible, the debtor had declared bankruptcy a month earlier, according to Linda Tirelli, who represented the debtor. Why would Wells Fargo want a mortgage from someone in bankruptcy? Finally, Tirelli pointed out that the papers Wells Fargo filed included a different transfer of the mortgage dated three days before the debtor took out the loan. The documents are a mess, yet Kennerty signed them regardless.

Legal Nonsense at CitiMortgage

Similarly, one M. Matthews signed a number of documents that CitiMortgage has used to try to foreclose on properties. While Matthews may or may not sign hundreds of documents a day — I have not yet found a deposition in which he swears that he does — he certainly does not verify the contents of the documents he’s signing. For example, he signed a document supposedly transferring a mortgage from Lehman Brothers to Citi in 2009. It’s hard to see how that’s possible, since Lehman had already ceased to exist. When confronted with its nonsensical filing, Citigroup decided not to foreclose. Instead, it gave the homeowner a meaningful mortgage modification–$15,000 principal reduction, plus a 30 year fixed mortgage at 3%. Tirelli, who represented the debtor in that case too, notes that she sees bad documents in the vast majority of cases, and she keeps files of “robosigned” documents.

It’s true that in both the WaMu and Lehman Brothers documents, the signers were officially representing an entity called MERS and acting as the “nominee” of WaMu and the “nominee” of Lehman Brothers. But that doesn’t change the fraudulent nature of the documents as filed. MERS can’t continue to be the nominee of an entity that doesn’t exist. Moreover, MERS can’t assign something it doesn’t have, and MERS itself will admit it doesn’t own the underlying note or mortgage.

Possible Sanctions for JPMorgan Chase
Wells Fargo and CitiMortgage aren’t the only big banks to misrepresent their practices in the media; JPMorgan Chase told the New York Times that it had not withdrawn any documents in a pending case. However, Chase has in fact withdrawn robosigned documents in a case Tirelli is currently defending. Chase now faces possible sanctions in the case.

Why are the big, sophisticated banks submitting such problematic documents to the courts? The key reason is that sometimes when a bank wants to foreclose, it has to prove it actually has the right to foreclose — that it owns the note and accompanying mortgage. Unfortunately for the banks, the securitization of mortgages and the changes in property ownership documentation that accompanied it make it hard for the banks to establish clean chains of title and produce original documents. Hard, that is, in an environment where a massive number of foreclosures must be started and completed in a timely manner.

See full article from DailyFinance: http://srph.it/amvWqK

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RELATED:

HEY NY TIMES…’NO PROOF’ JEFFREY STEPHAN HAS AUTHORITY TO EXECUTE AFFIDAVIT FOR WELLS FARGO

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Homeowner fights foreclosure in lawsuit claiming documents are fraudulent


THE ACTUAL DEPOSITION IN THIS CASE CITMORTGAGE v. BROWN

DEPOSITION OF NOTARY SHANNON SMITH OF THIS CASE

[ipaper docId=34340050 access_key=key-1eb2fh5kgjs1rbxhfwhq height=600 width=600 /]

MORE ON THIS CASE & FIRM BELOW

_________________

Take Two: *New* Full Deposition of Law Office of David J. Stern’s Cheryl Samons

_________________

Law Offices of David J. Stern, MERS | Assignment of Mortgage NOT EXECUTED but RECORDED

_________________

Cheryl Samons | No Signature, No Notary, 1 Witness…No Problem!

_________________

STERN’S CHERYL SAMONS| SHANNON SMITH Assignment Of Mortgage| NOTARY FRAUD!

_________________________________________________

MAESTRO PLEASE…AND THE WINNER OF THE “MOST JOB TITLES” CONTEST IS…

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.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, Beth Cottrell, bogus, chain in title, citimortgage, CONTROL FRAUD, corruption, deed of trust, erica johnson seck, Erika Herrera, fannie mae, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, herman john kennerty, investigation, linda green, LPS, Max Gardner, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., STOP FORECLOSURE FRAUD, wells fargo3 Comments

WHISTLE BLOWER | Report On Fraudulent & Forged Assignments Of Mortgages & Deeds In U.S. Foreclosures

WHISTLE BLOWER | Report On Fraudulent & Forged Assignments Of Mortgages & Deeds In U.S. Foreclosures

Pew family trusts which I am a beneficiary and/or remainderman have maintained
investments in various banks, mutual funds, and other entities that maintain
interests in various shares, mortgage backed securities and/or debt issuances and I
have been a shareholder in many mortgage companies including Fannie Mae,
Bear Stearns, JPMorganChase, Washington Mutual, MGIC, Ocwen and Radian,
many of which are members, owners and shareholders in Mortgage Electronic
Registration Systems, Inc. [MERS].

© 2010 Nye Lavalle, Pew Mortgage Institute
•10675 Pebble Cove Lane • Boca Raton, FL 33498
561/860-7632 • mortgagefrauds@aol.com

[ipaper docId=36753239 access_key=key-1xwnf3x33iwj6zod9965 height=600 width=600 /]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bear stearns, bogus, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forensic document examiner, forensic mortgage investigation audit, forgery, insider, investigation, Law Offices Of David J. Stern P.A., Lender Processing Services Inc., LPS, Max Gardner, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, neil garfield, notary fraud, note, OCC, R.K. Arnold, racketeering, RICO, robo signers, shapiro & fishman pa, STOP FORECLOSURE FRAUD, stopforeclosurefraud.com, trade secrets, Trusts, Violations, Wall Street0 Comments

Open Letter to all attorneys who aren’t PSA literate by April Charney

Open Letter to all attorneys who aren’t PSA literate by April Charney

Via: Max Gardner

Are You PSA Literate?

Written on August 16, 2010 by admin

We are pleased to present this guest post by April Charney.

If you are an attorney trying to help people save their homes, you had better be PSA literate or you won’t even begin to scratch the surface of all you can do to save their homes. This is an open letter to all attorneys who aren’t PSA literate but show up in court to protect their client’s homes.

First off, what is a PSA? After the original loans are pooled and sold, a trust hires a servicer to service the loans and make distributions to investors. The agreement between depositor and the trust and the truste and the servicer is called the Pooling and Servicing Agreement (PSA).

According to UCC § 3-301 a “person entitled to enforce” the promissory note, if negotiable, is limited to:

(1) The holder of the instrument;

(2) A nonholder in possession of the instrument who has the rights of a holder; or

(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 3-309 or section 3-418(d).

A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Although “holder” is not defined in UCC § 3-301, it is defined in § 1-201 for our purposes to mean a person in possession of a negotiable note payable to bearer or to the person in possession of the note.

So we now know who can enforce the obligation to pay a debt evidenced by a negotiable note. We can debate whether a note is negotiable or not, but I won’t make that debate here.

Under § 1-302 persons can agree “otherwise” that where an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, that the transferee is granted a special right to enforce an “unqualified” indorsement by the transferor, but the code does not “create” negotiation until the indorsement is actually made.

So, that section allows a transferee to enforce a note without a qualifying endorsement only when the note is transferred for value.? Then, under § 1-302 (a) the effect of provisions of the UCC may be varied by agreement. This provision includes the right and ability of persons to vary everything described above by agreement.

This is where you MUST get into the PSA. You cannot avoid it. You can get the judges to this point. I did it in an email. Show your judge this post.

If you can’t find the PSA for your case, use the PSA next door that you can find on at www.secinfo.com. The provisions of the PSA that concern transfer of loans (and servicing, good faith and almost everything else) are fairly boilerplate and so PSAs are fairly interchangeable for many purposes. You have to get the PSA and the mortgage loan purchase agreement and the hearsay bogus electronic list of loans before the court. You have to educate your judge about the lack of credibility or effect of the lifeless list of loans as the Uniform Electronic Transactions Act specifically exempts Residential Mortgage-Backed Securities from its application. Also, you have to get your judge to understand that the plaintiff has given up the power to accept the transfer of a note in default and under the conditions presented to the court (out of time, no delivery receipts, etc). Without the PSA you cannot do this.

Additionally the PSA becomes rich when you look at § 1-302 (b) which says that the obligations of good faith, diligence, reasonableness and care prescribed by the code may not be disclaimed by agreement, but may be enhanced or modified by an agreement which determine the standards by which the performance of the obligations of good faith, diligence reasonableness and care are to be measured. These agreed to standards of good faith, etc. are enforceable under the UCC if the standards are “not manifestly unreasonable.”

The PSA also has impact on when or what acts have to occur under the UCC because § 1-302 (c) allows parties to vary the “effect of other provisions” of the UCC by agreement.

Through the PSA, it is clear that the plaintiff cannot take an interest of any kind in the loan by way of an A to D” assignment of a mortgage and certainly cannot take an interest in the note in this fashion.

Without the PSA and the limitations set up in it “by agreement of the parties”, there is no avoiding the mortgage following the note and where the UCC gives over the power to enforce the note, so goes the power to foreclose on the mortgage.

So, arguing that the Trustee could only sue on the note and not foreclose is not correct analysis without the PSA.? Likewise, you will not defeat the equitable interest “effective as of” assignment arguments without the PSA and the layering of the laws that control these securities (true sales required) and REMIC (no defaulted or nonconforming loans and must be timely bankruptcy remote transfers) and NY trust law and UCC law (as to no ultra vires acts allowed by trustee and no unaffixed allonges, etc.).

The PSA is part of the admissible evidence that the court MUST have under the exacting provisions of the summary judgment rule if the court is to accept any plaintiff affidavit or assignment.

If you have been successful in your cases thus far without the PSA, then you have far to go with your litigation model. It is not just you that has “the more considerable task of proving that New York law applies to this trust and that the PSA does not allow the plaintiff to be a “nonholder in possession with the rights of a holder.”

And I am not impressed by the argument “This is clearly something that most foreclosure defense lawyers are not prepared to do.”?Get over that quick or get out of this work! Ask yourself, are you PSA adverse? If your answer is yes, please get out of this line of work. Please.

I am not worried about the minds of the Circuit Court Judges unless and until we provide them with the education they deserve and which is necessary to result in good decisions in these cases.

It is correct that the PSA does not allow the Trustee to foreclose on the Note. But you only get there after looking at the PSA in the context of who has the power to foreclose under applicable law.

It is not correct that the Trustee has the power or right to sue on the note and PSA literacy makes this abundantly clear.

Are you PSA literate? If not, don’t expect your judge to be. But if you want to become literate, a good place to start is by attending Max Gardner’s Mortgage Servicing and Securitization Seminar.

April Carrie Charney

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bankruptcy, chain in title, foreclosure, foreclosure fraud, foreclosures, Max Gardner, mbs, mortgage, note, psa, rmbs, securitization, trustee, Trusts, Wall Street1 Comment


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