Judge Murphy deserves an applause for the great job of questioning all facts and making no assumptions.
SUPREME COURT – STATE OF NEW YORK
TRIAL TERM. PART 17 NASSAU COUNTY
Honorable Karen V. Murphv
Justice of the Supreme Court
ONEWEST BANK, FSB
155 North Lake Avenue
Pasadena, CA 91101,
ALEXADER ROTH, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.
AS NOMINEE FOR E*TRADE WHOLESALE
LENDING CORP., ET AL.,
In this matter Plaintiff failed to establish that it is entitled to the relief sought. It is well settled that a foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of mortgage is a nullity. (Kluge v. Fugazy, 145 A. 2d 537 538536 N. 2d 92 (2d Dept. , 1988)). While Plaintiff alleges that it is the holder of both the note and mortgage, the record before the Court suggests otherwise and raises factual issues as well as issues of credibility that can not be determined herein. (see .J Capelin Assoc. v. Globe Mfg. Corp. 34 N. 2d 338 341 313 N. 2d 776 357 N. 2d 478 (1974)).
The Complaint filed September 4, 2009 stated that Plaintiff is “the owner and holder of a note and mortgage being foreclosed.” Bald assertions of possession of the original note without more, in light of the conflicting evidence, is not sufficient to establish a prima facie case.
Furtermore, the assignment recorded on October 1 , 2009 specifically states that it is an “assignment of mortgage ” and makes no reference to the note. Thus, a question of fact exists as to whether the note was ever assigned or delivered to Plaintiff. It may well be that the note was neither assigned nor delivered to Plaintiff prior to commencement of this action and Plaintiff would then be without authority to bring this action.
A stamp on the copy of the note provided by Plaintiff appears to be an indorsement of the note in blan, by the original lender, and is not dated (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 890 N. 2d 578 (2d Dept. , 2009)). Additional issues regarding the timing of that indorsement on the note and whether MERS, at the time it executed the Assignment of Mortgage had authority, let alone the abilty, to assign the note and/or whether, in fact the note had already been assigned at the time of the purported assignment of the mortgage exist (id).
ORDERED that movant shall serve a copy of this Order upon all parties, or their attorneys if represented by counsel and shall there after file affidavits of service with the County Clerk and it is further,
ORDERED that a copy of this Order and proof of service of same be anexed as exhibits to any future applications regarding the subject mortgage and note.
The foregoing constitutes the Order of this Court.
Dated: September 1 , 2010
LOXAHATCHEE, Fla.—Israel Machado’s foreclosure started out as a routine affair. In the summer of 2008, as the economy began to soften, Mr. Machado’s pool-cleaning business suffered and like millions of other Americans, he fell behind on his $400,000 mortgage.
But Mr. Machado’s response was unlike most other Americans’. Instead of handing his home over to the lender, IndyMac Bank FSB, he hired Ice Legal LP in nearby Royal Palm Beach to fight the foreclosure. The law firm researched the history of Mr. Machado’s loan and found two interesting facts.
First, the affidavits IndyMac used to file the foreclosure were signed by a so-called robo-signer named Erica A. Johnson-Seck, who routinely signed 6,000 documents a week related to foreclosures and bankruptcy. That volume, the court decided, meant Ms. Johnson-Seck couldn’t possibly have thoroughly reviewed the facts of Mr. Machado’s case, as required by law.
Secondly, IndyMac (now called OneWest Bank) no longer owned the loan—a group of investors in a securitized trust managed by Deutsche Bank did. Determining that IndyMac didn’t really have standing to foreclose, a judge threw out the case and ordered IndyMac to pay Mr. Machado’s $30,000 legal bill.
Mr. Machado and his lawyer, Tom Ice, say they now want to convince the owners of the mortgage to cut Mr. Machado’s loan balance to between $150,000 and $200,000—the current selling price for comparable homes in his community near West Palm Beach. “The whole intent was to get them to come to the negotiating table, to get me in a fixed-rate mortgage that worked,” Mr. Machado said.
INDEX NO. 16 150-2008
SUPREME COURT – STATE OF NEW YORK
I.A.S. PART 17 – SUFFOLK COUNTY
P R E S E N T :
Hon. PETER H. MAYER
Justice of the Supreme Court
BENEFICIAL HOMEOWNER SERVICE CORPORATION,
TODD L. MASOTTI
In this foreclosure action, the plaintiff filed a summons and complaint on April 24, 2008, which essentially alleges that the defendant-homeowner(s), Todd L. Masotti and Michelle Casey, defaulted in payments with regard to a mortgage, dated September 20,2004, in the principal amount of $311,842.43, for the premises located at 38 Crestwood Lane, Farmingville, New York. Although the plaintiff annexes a power of attorney permitting “LPS Default Solutions, Inc.” to act on its behalf, the affidavit of merit is by an employee of “Lender Processing Services, Inc.” According to the court’s database, a foreclosure settlement conference was held on June 23,2010. The plaintiff now seeks a default order of reference and requests amendment of the caption to remove the “Doe” defendants. The plaintiffs application is denied for the following reasons:
(1) failure to submit evidentiary proof of compliance with the requirements of CPLR 3215(f), including but not limited to a proper affidavit of facts by the plaintiff [or by plaintiffs agent, provided there is proper proof in evidentiary form of such agency relationship], or a complaint verified by the plaintiff and not merely by an attorney or non-party, such as a servicer, who has no personal knowledge; and
(2) failure to submit an affidavit in support, which is in a properly sworn form, as required by CPLR 15 2 3 0 9( b) .
This constitutes the Decision and Order of the Court.
Dated: August 6, 2010
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?
Below is a document that Lender Processing Services, Inc. or it’s many subsidiaries submits by wire transmission to the foreclosure mill with instructions NOT to name the actual owner of the note on the foreclosure but in the name of the servicer!
“FORECLOSURE SHOULD BE IN THE NAME OF ”
It clearly states the names of the real parties:
A foreclosure is rarely commenced under the “Real Entity.” So why do they keep this from us when they knew all along the real parties of interest? This was only discovered during an actual case or we would have never found this.
This is what this site is about…”ClOUDED TITLES”! This quote below should have added that it was in 65 Million mortgages not in some. I hope you all read my NO. THERE’S NO LIFE AT MERS…I highly recommend it because it came the heart.
In some cases, mortgages were conveyed using the Reston, Virginia-based Mortgage Electronic Registration System, or MERS, designed to cover transfers among system members. Promissory notes also often were endorsed as payable to the bearer to avoid the need for multiple transfers. Both practices have been challenged in court.
Foreclosure Errors Cloud Homeownership With `Blighted Titles’
By Kathleen M. Howley – Oct 1, 2010 12:00 AM ET
U.S. courts are clogged with a record number of foreclosures. Next, they may be jammed with suits contesting property rights as procedural mistakes in those cases cloud titles establishing ownership.
“Defective documentation has created millions of blighted titles that will plague the nation for the next decade,” said Richard Kessler, an attorney in Sarasota, Florida, who conducted a study that found errors in about three-fourths of court filings related to home repossessions.
Attorneys general in at least six states are investigating borrowers’ claims that some of the nation’s largest home lenders and loan servicers are making misstatements in foreclosures. JPMorgan Chase & Co. is asking judges to postpone foreclosure rulings, while Ally Financial Inc. said Sept. 21 its GMAC Mortgage unit would halt evictions. The companies said employees may have completed affidavits without confirming their accuracy.
Such mistakes may allow former owners to challenge the repossession of homes long after the properties are resold, according to Kessler. Ownership questions may not arise until a home is under contract and the potential purchaser applies for title insurance or even decades later as one deed researcher catches errors overlooked by another. A so-called defective title means the person who paid for and moved into a house may not be the legal owner.
“It’s a nightmare scenario,” said John Vogel, a professor at the Tuck School of Business at Dartmouth College in Hanover, New Hampshire. “There are lots of land mines related to title issues that may come to light long after we think we’ve solved the housing problem.”
Almost one-fourth of U.S. home sales in the second quarter involved properties in some stage of mortgage distress, RealtyTrac Inc. said yesterday. In August, lenders took possession of record 95,364 homes and issued foreclosure filings to 338,836 homeowners, or one out of every 381 U.S. households, according to the Irvine, California-based data seller.
The biggest deficiency in foreclosure suits is missing or improperly handled documents, Kessler found in his study of court filings in Florida’s Sarasota County. When home loans are granted, borrowers sign a promissory note outlining payment obligations and a separate mortgage that puts an encumbrance on the property in the lender’s name. If mortgages are resold, both documents must be properly conveyed to prevent competing claims.
Most of the document errors involved mortgages that had been bundled into securities sold to investors, Kessler said. At the end of the U.S. real estate boom in 2005 and 2006, about 70 percent of the $6.1 trillion in mortgage lending was packaged into bonds, according to the Securities Industry and Financial Markets Association in New York.
It was a very sad day for Floridians yesterday when the Florida Supreme Court issued a statement that it does not have authority to intercede while a fraud investigation is pending. Although we may not agree with the decision, we must respect procedures that must be followed.
Florida, do not quit what you are doing because there are many states that we must continue to focus on. Judges need to put themselves in the homeowners situation and understand we cannot make these fraudulent documents up. These documents are sworn statements, under perjury of law and notarized. As officers of the court they must be held accountable. No ifs, ands, buts or suppose here. These are not errors.
Rest assured that The Florida Bar still has many pending investigations with these foreclosure firms and they have authority overseeing the misconduct of their members.
I am your voice, America. I share your fears, read your concerns and do try my best to reach out to you.
I have to apologize to Mr. Martinez as I normally do not post full content unless it is one of those post that you must read without being navigated to another place or distracted. Please visit the link below as it is a great source from an insider stand point.
Ok I get it… ….Attorney’s are to hold themselves to a higher standard…professionalism…professional courtesy…courtroom edicate…yada yada yada! I get it I really do! But my fellow legal advocates…it really is time to take off the gloves.
In hearing after hearing I’m seeing these defense attorneys walk in with the same timid attitude of sorts trying to be nice, trying to maintain their professionalism while across the table I’m seeing these foreclosure mill runners (I call them runners because they’re not even the attorney on the case just the runner appearing before the judge on behalf of the foreclosure mill) being extremely flagrant, arrogant and flat-out bully like to a large degree. And what I’ve noticed is that the moment they get tripped up by the more aggressive defense lawyer, they tend to quickly tell the judge how they’re not the attorney assigned to the case and how they’re just present for the hearing and will have to check back or ask for a continuance or make the defense feel like they’ve won something by postponing the sale. Amazing how on the fly these runners are making decisions for their clients about postponements without making a call.
Quite frankly for those who know me personally I give you what you dish out. If you act like a bully I’m going to treat you like a bully. I personally don’t like these foreclosure mills and what they stand for on a moral and ethical front. I believe that any attorney that can stomach putting families in masses in the street for money is morally challenged and any lawyer that’s willing to commit fraud upon the court doesn’t deserve my professional courtesy. Defense attorneys need to stop treating these foreclosure mill attorneys as their equal brothers and sisters of the profession and start treating them like enemies of the state. That may seem a bit harsh but for every homeowner that seeks our assistance does so with a passion unseen or felt by our profession. We need to harvest that same passion, translate it into legal argument and bring it right into the courtroom. We cannot allow for families to lose their home as a matter of course through runners! RUNNERS!!! Are you kidding me! We should be kicking their ass’s right out the courtroom down out to the street and we aren’t. We are giving them professional courtesy.
I think it’s time to get aggressive and outright scary in these courtrooms. Why should a judge take us seriously when we’re not bringing the passion and seriousness of the issues to the forefront? I walk into courtrooms and see judges laughing, I see lawyers talking while waiting their turn and a hearing is going on. I see judges making jokes and then saying your motion to dismiss is denied. I am nothing short of AMAZED at how unimportant kicking a family out of their home is. Let me tell you that it’s one thing to see an adult client in front of you but it is something completely different to visit their home and see a child 4 or 5 holding a toy or a 12-year-old ask you if you’re going to save his family. I recently traveled to New York on another case and let me tell you that in these judges courtroom, intimidation is not the word. NO ONE is talking in the courtroom. These judges in New York are not playing and neither are the defense attorneys. I see great passion and argument and I see judges looking squarely at the merits of the case. So why is this not happening in Florida courts?
When I see my legal associates like Matt Weidner put up a post of frustration and fear that we are losing the battle I get angry and begin calling members of my legal team to have a strategy session and figure out new ways to take back the momentum. Defense attorneys need to silence the courtroom with their passion and sound legal arguments. They need to create the platform in which judges and other defense attorneys stay quiet to learn. We need to own the room when we’re in it and speaking and we need to spank these little foreclosure mill runners and make them run back to daddy Stern or daddy Watson. Walk into court every time knowing they’ve committed fraud. Stop being so scared to say it and use every other word you know to describe it. Say it loud…FRAUD FRAUD FRAUD!!! Move for sanctions! They’re crooks…treat them like it! Stop treating them like your equal, stop giving them professional courtesy and start treating them like they deserve to be treated!
The Florida Constitution and court rules did not give the Chief Justice authority to intercede in pending cases involving attorney misconduct, or to investigate allegations of fraud or misconduct in foreclosure cases. The fraud cases must first beadjudicated in trial courts.
Congressman Grayson has asked the Florida Bar to take action.
Florida Default Law Group has been added as the fourth law firm under investigation along the Law offices of David J. Stern, Shapiro & Fishman and Law Office of Marshall Watson.
Please welcome Ericka Johnson Seck to the ROBO-SIGNER Hall of Sham!
MERS & LPS once again the “Common Thread”
Here is a list of her many Corporate Hats:
Vice President of Mortgage Electronic Registration Systems Inc. (MERS)
Vice President of Deutsch Bank National Trust
Vice President of Bank of New York
Attorney in Fact of IndyMac
Attorney in Fact of ONEWEST
Attorney in Fact of FDIC
I must confess, she was my first study because she signed two assignments for “one” of my properties using “two” different employers. 🙂 ‘<blush> I even created my very first youtube video in her honor (see below)!
Thanks to Judge Arthur Schack and Tom Ice from Ice Legal in Palm Beach County, we all became familiar with Erica for wearing too many corporate hats.
She is the “Robo-Signer” Judge Schack called out in three particular cases in NY and made her an instant foreclosure household name. I don’t think she ever emerged in NY soon after this. Also see the HSCB v. Yasmin case.
Excerpt of DEUTSCHE BANK NATIONAL TRUST v. HARRIS
The Court is perplexed as to why the assignment was not executed in Pasadena, California, at 46U Sierra Madre Villa, the alleged “principal place of business” for both the assignor and the assignee. In my January 3 1, 2008 decision (Deutsche Bank National Tr (1st Canpuny v Maraj, – Misc 3d – [A], 2008 NY Slip Op 50176 [U]), I noted that Erica Johnson-Seck, claimed that she was a Vice President of MERS in her July 3,2007 INDYMAC to DEUTSCHE BANK assignment, and then in her July 3 1,2007 affidavit claimed to be a DEUTSCHE BANK Vice President. Just as in Deutsche Bank National Trust Company v Maraj, at 2, the Court in the instant action, before granting itn application for an order of reference, requires an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years.
Further, the Court requires an explanation from an officer of plaintiff DEUTSCHE BANK as to why, in the middle of our national subprime mortgage financial crisis, DEUTSCHE BANK would purchase a non-perferforming loan from INDYMAC, and why DEUTSCHE BANK, INDYMAC and MERS all share office space at 460 Sierra Madre Villa, Pasadena, CA 91 107.
24,000 Monthly Documents executed by her team
Now Lets move on to this below… according to this deposition her office signs 24,000 mortgage related documents out of the this figure she signed about “750” a week making it approximately 3000 mortgage documents used in foreclosure cases. Anything from Affidavits of Debt, Lost Note Affidavits, Assignment of Mortgages, Declarations pretty much anything having to deal with Bankruptcy and Foreclosures.
This is what she signs without any notary present.
Is It Time to File Quiet Title Actions on Foreclosed Homes?
THIS IS NOT Intended to Be Construed or Relied upon as COMPETENT LEGAL ADVICE—it is an academic paper discussing various perceptions of evolving potential facts and law, which may differ state by state and within jurisdictions within states. Readers are urged to obtain competent legal representation to review their facts.
In the past, foreclosed homeowners and their attorneys have discussed the utility of filing quiet title actions where homes have been seized and deficiency judgments entered by various foreclosure claimants that purport to unknowingly rely on faulty documentation. There are dangers. A buyer that has acquired a foreclosed home—or the foreclosing entity itself—may bring an action against a dispossessed person seeking redress. A pro se plaintiff or an attorney that represents the wronged homeowner may be subject to sanctions for raising a spurious or improperly supported claim. Today facts appear to put a defense attorney at risk of malpractice if he does not preserve his clients’ interest—even post foreclosure—unless he apprises the client of the opportunity to regain title to the family home. Courts have notice of these defects by reason of withdrawals of support documents—beyond GMAC.
Recent disclosures and admissions by document creation groups, together with widespread newspaper reported facts open avenues to additional discovery and formulation of academic legal opinion. These will open the door for claims to set aside erroneous judgments and/or pursue damages against those servicers, Indenture Trustees and document preparers that either knowingly, negligently, or acted with willful disregard to perpetrate fraud on the courts and the hapless home-owners. Mortgage-backed securities investors may also find an interest in these activities. Failed documentation may disguise outright fraud. Attestations and sworn affidavits serve a fundamental purpose—prevention of fraud. These are not mere technicalities as propounded by some industry apologists. Certainly, homeowners with continuing duties of enforced silence may have opportunity to re-open their settlements in light of these possible fraudulent impositions and inducements.
There are at least two sets of circumstances raised to date whereby potentially void or voidable documents have been used to push homeowners into the streets and into bankruptcy;
Complaints in foreclosure supported by assignments of mortgage from purported representatives of MERS to various entities
Motions for Summary Judgment supported by Affidavits of Claimants—most notably GMAC’s Jeffrey Stephan
On September 23, 2010 the Washington Post added to the furor surrounding the (majority) federal government owned [ALLY] GMAC’s revelations from earlier this week. GMAC used affidavits executed by an employee, Jeffrey Stephan, who admitted in deposition testimony in December 2009 and June 2010, that he did not actually verify the mortgage foreclosure information to which he was testifying in connection with the foreclosures of two families.
In addition, he admitted signing these “affidavits,” and passing them for later notarization in bulk, a violation of proper notary procedure. Mr. Stephan signed off on 10,000 mortgage documents per month according to his June deposition and the Post article. GMAC, in this instance, took the honest and safe course of “temporarily suspending” some foreclosure-related activities in 23 states – as reported by several large newspapers, including the New York Times, Bloomberg and The Washington Post. The “temporary suspension” allows for evaluation of the impacts of this admitted breakdown in the system, rather than blatantly defrauding foreclosure courts in judicial foreclosure states. The New York Times on the 22nd speculated that: [GMAC] “actions suggest concern about potential liability in evicting families and selling houses to which it does not have clear title.” [Emphasis added] The same article notes that; “The lender said it was also reviewing completed foreclosures where the same unnamed procedure might have been used.” [Emphasis Added]. The step referred to in these articles, preparation and filing of an affidavit in support of a Motion for Summary Judgment—along with the Motion itself –occur well into the foreclosure process.
However, there is another critical document created and filed by a claimant with the foreclosure court at the beginning of foreclosure. This document, the Assignment of Mortgage, is supposed to support the claimant’s right or legal “standing” to press the Complaint in Foreclosure. The Complaint is the basis for the foreclosure and creation of a “deficiency judgment” – the amount left owing by the homeowner after the claimant sells the house for less than the amount owed and includes added fees and charges. The claimant uses the deficiency judgment to seize the homeowner assets and future paychecks. In most instances the assignment is the only document before the court that associates the claimant with the borrower. The complaint and supporting assignment frequently surprise and confuse the homeowner by naming an entity or sham “trust” that the homeowner has never heard of before.
The Assignment of Mortgage is significantly more important than the affidavit in support of the Motion for Summary Judgment, if for no other reason sheer numbers. Typically most homeowners have undergone a psychological bruising and beating from the loan servicer by the time the actual Complaint in Foreclosure is filed. Often the family has lost the pay of one, if not both, wage earners and seeks some relief from one of the high cost, predatory loans created 2003-2007. Unfortunately the servicer typically refuses to discuss modification or any relief unless the homeowner has fallen behind in payments. The servicers may rely on terms limiting its authority within the securitization documents in respect of this hard-nose approach.
The hard-nose response gives the servicer cover for actions or abuses that often characterize its subsequent conduct. At that point, the servicer transfers the loan to the default department or outsources to a “default management” operation. This is an aggrandized term for collection agency. The “department” or collection agency often calls the family up to six or more times a day demanding money—rarely the same caller twice. Typically, this will throw the family into confusion and despair. Pleas for relief fall on deaf ears unless the family meets demands to “make up late payments and added fees.” It’s just the beginning of a process that has the effect, if not the purpose, of destroying the family’s morale. The servicer may follow up with notices tacked on the homeowner’s door, a barrage of ominous if not outright threatening letters and other actions aimed at driving the homeowner to abandon the home and neglect a legal defense.
If the homeowner is either naïve enough to believe that the touted voluntary [for servicers] relief programs actually operate, or desperate to keep a roof over the family’s head, the loan modification dance begins. Under the guise of compliance with HAMP, the collection agency demands an array of homeowner financial and employment information. Irrespective of the use that the homeowner desires for that information, it will be of great help to the collection agency to locate assets and paychecks down the road to collect the looming deficiency. But today the information rarely satisfies the servicer in respect of moving towards a modification. The demanded documents are often purportedly “lost” by the servicer, or deemed inadequate—anything to drag out the nightmare and break the family’s spirits. After submitting and resubmitting documents, explanations, and hours on the telephone day after day, week after week, any false hopes that are raised are destroyed by a denial. Homeowners often will be told to try again-with the same results.
After about 3-4 months, perhaps even while the family thinks that a modification is soon to be forthcoming, the ax falls instead. An assignment is “created” and the Complaint is filed. Usually the family gives up without opposition at this point. The servicer may go so far as to place a note on the door offering to further discuss modification leaving a phone number. When the number is called by the confounded homeowner, the servicer representative may explain: “we didn’t really mean that; we just wanted to see if you have left yet!”
In some cases born of desperation, the struggling family may contact an attorney who demands $1000-$5000 just to open the case. The family has 30 days to raise the money to cause someone to simply look at the demands in the Complaint and the Assignment. In the vast majority of cases still remaining, the family gives up now, abandons the property, and no response is ever filed to the Complaint—a default judgment is entered in favor of the claimant. Most often, the family is not even aware that the demands seek more than just the home. That realization may take years to occur—when another collector knocks on the door demanding the long-forgotten deficiency. The process is aimed at breaking the family’s will, at winnowing out the homeowners. The servicer wants the home!
The articles printed prior to Sep 23, 2010 in connection with GMAC’s “unnamed procedure” did not focus upon the issue of potential forgery or related systemic fraud on the courts in connection with preparation of Assignments of Mortgage. By way of background, by reference to numerous anecdotes, it appears that often a claimant in possession of a list of homeowner loans in default provides superficial information to a default services company in respect of the borrower and property. One of the largest default service providers, by its own admission, is two-year old publicly traded Lender Processing Services (“LPS”), a spin-off from FINS. “Approximately 50 percent of all U.S. mortgages by dollar volume are serviced using LPS’ Mortgage Servicing Package (MSP)” The lender, a servicer or Indenture Trustee contracts with LPS for creation and delivery of an Assignment of Mortgage to the requesting entity. (see exhibit at end) This document is often sent directly by LPS through the mail to County Recorders to be file-stamped and recorded in the county property records. These steps lend false authenticity to the piece of paper. By the time the targeted family sees the Complaint and attached Assignment, the assignment has been file-stamped by their local County Recorder, the Clerk of Courts and probably was attached to a subpoena “served” upon them by their County Sherriff. The family is thoroughly intimidated by the Assignment of Mortgage, which has been used to convert the family’s local authorities into apparent agents and enforcers of the distant claimant. The assignment is a powerful weapon in the war of intimidation.
The Washington Post, September 23, 2010, correlated the GMAC admitted breakdown in verification of loan files and notarization process with the assignment creation process operated by LPS. LPS’ document creation division in Alpharetta, Georgia operating under LPS’ DOCX trademark, churned out thousands of assignments. The Post identified one prolific signatory, Linda Green. The article set out in its body several examples of Ms. Green’s signature—which differ dramatically one to another. The Post stated the likely observation that the signatures were made by other LPS employees in addition to Ms Green. She is but one example at one LPS office: there are others with similar handiwork including Tywanna Thomas and Korrel Harp at that office. Mr. Harp has the added dubious distinction of having been jailed for and plead guilty to “Knowingly Possessing False Identification” relating to an arrest in Oklahoma in 2008. At the age of 24, Mr. Harp was signing as Vice-President of Mortgage Electronic Services Inc., aka MERS. MERS has been nominal owner of 65 million home mortgages—and receives mortgage title to 60% of all new mortgages.
As a VP of MERS the 24 year-old Harp, like Ms. Green and Thomas, purportedly possessed the power to transfer mortgages with questionable oversight to LPS’ clients—perhaps others? Based on the signatures of Harp, Green, Thomas— and other varied, yet purportedly notarized signatures, Courts across the country have foreclosed on homes and granted deficiency judgments. One of the in house LPS notaries was only 18 years old at the time she notarized signature for Harp, Thomas and others at DOCX. Michelle Kersch, a senior vice president for Lender Processing Services, made limited explanations by email in the Post article but did not elaborate “due to the pending criminal investigation”.
Like GMACs Stephan, LPS’ stamp and sign department was a high volume operation. Powers of attorney were not consistently attached to the crucial assignments—if at all.
In the case of Linda Green, there was no power of attorney to represent MERS on an original “assignment of mortgage dated October 17, 2008 and filed on October 13, 2009”. This technicality was disclosed in a corrective filing of assignment by Florida foreclosure firm Shapiro and Fishman dated August 11, 2010 in Lee County, Florida in support of a foreclosure by servicer AHMSI. The POA status of other prolific signers such as Harp seems equally uncertain—but as Harp has emphatically stated “I’m sure everything is legal.” There seems to be little observable difference between the conduct of GMAC’s Stephan and the LPS’ high volume signers—but for the possible failure of the LPS signers to have representative capacity to sign at all.
LPS has also made admissions that GMAC seems to echo in terms of problematic “processes”. In the company’s 2009 Annual Report on file with the Securities and Exchange Commission, published in March 2010, under “regulatory matters”–“Recently, during an internal review of the business processes used by our document solutions subsidiary, we identified a business process that caused an error in the notarization of certain documents, some of which were used in foreclosure proceedings in various jurisdictions around the country.”
Subsequently, April 3, 2010, the Wall St. Journal published an article regarding the issues with LPS and notary deficiencies; “US Probes Foreclosure-Data Provider”. Foreclosure activists in Florida did not let the admission pass. These persons identified and brought to light signed and notarized Assignments that actually conveyed mortgages to named entities, “Bogus Assignee” and “Bad Bene”. These clearly established undeniable proof that LPS’ internal controls were compromised and virtually any name could be inserted as a claimant in a foreclosure action.
LPS’ CEO Jeffrey Carbiener authored a Letter to the Editor of the Florida Times-Union responding to an article published May 14, 2010 referring to “bad bene” and “bogus assignee”. In his open letter admissions in the press Carbiener asserted that the bogus names were “placeholders” put in the signed and notarized assignment documents “…until the missing information [claimant name] was provided…” Carbiener noted that the forms, as well as the data inserted, were based on instructions from clients with the “placeholders” used until more data is provided. This amounts to a Nuremberg Defense.
The Carbiener comments attempt to place the onus of error in naming mortgage claimants on his clients—but for the obvious so-called placeholders. However, Carbiener’s comments have great significance beyond LPS role. This explanation is an admission that assignments were prepared in blank based on client information. According to Carbiener, it would appear thatthe named claimant was subsequently determined by the client and inserted. This process allows substantial opportunity for abuse, suggesting that a servicer determined that a loan was in default, and then someone engaged in a separate process to identify a claimant to whom the proceeds of foreclosure would be awarded.
The difficulties, or opportunities, for a servicer and his client Indenture Trustees to shift the benefits among potential investor beneficiaries are more apparent when one reviews the SEC filings of now bankrupt mortgage note originators such as American Home Mortgage group (“AHM”) and Option One.
Both originated loans that were supposedly stuffed into trusts. On paper the trusts supposedlyissued mortgage-backed securities to trusting investors. However, purported trust-sponsors AHM and Option One and the Indenture Trustees were at best haphazard in meeting basic commitments and representations that were plainly stated in the securitization documents they themselves filed. The trust documents clearly state that the lists of loans included in the trusts were filed with the SEC and the appropriate Secretary of State (UCC). The securitization documents provided detailed descriptions of the information to be included in the filed list. This information was sufficient that a homeowner could determine if the trust owned his/her loan and was the proper party to receive his payments. Investors in the trust MBS could look to the list to determine the principal amount of the loans that “backed” the investment, as well as loan to value ratios and other relevant information that would indicate the value of the loans—and provide information adequate to determine if the same loan was placed in multiple trusts. However, for AHM, 7 of the 12 investment trusts filed with SEC lacked the lists. The schedule stated, “manually filed”, but the manual filing was not made in many instances. The actual manual filings made are identified on the SEC dockets for the trusts as “SE” for “scanned exhibit.” Under the “SE” docket entry, the list would be found in specificity. One such example of a trust with a proper loan list was American Home Mortgage Investment Trust 2005-2.
In motion practice in connection with a homeowner’s motion to dismiss a naked claim by one of Korrel Harp’s or Linda Green’s appointed mortgage assignment beneficiary trusts, one could note that the trust lacked a loan list and ownership of the loan could not be independently verified by reference to government records as intended. In so doing, it was possible to refer the court to the properly filed loan lists to note the clear distinction and value of the list. It was possible to prove that the lists were not intentionally missing due to some overriding concern for homeowner privacy—a common speculation. It was also useful to prove that missing loan lists were not customary “industry practice”. The filed list was a government record freely accessible to the public online. That changed between July 21, 2010 and September 02, 2010. Loan lists that had been on file and available for investors and homeowners to view online on the SE site were unceremoniously deleted. The lists are no longer freely accessible. A demand is now necessary under Freedom of Information Act—the proper loan lists can no longer be referenced in motions to dismiss. The effect was equivalent to, if not the same as, intentional destruction of evidence by the SEC. It is of interest that on the same day as the Washington Post detailed the LPS similarity to GMAC in terms of uncertain document authenticity, the WSJ also ran a front-page article detailing questionable actions taken in recent months by SEC. Washington Post, September 22, 2010, SEC Blasted on Goldman.
In summary, SEC failed to require actual filing of loan lists by the trust sponsors and the Indenture Trustees. This failing has lead to LPS and GMAC transfers of claims to unverifiable beneficiaries. This the Times suggests, creates a cloud on the title of the new home buyers of foreclosed properties. Then to complete the injury and remove opportunity for homeowners to defend unsupported claims, SEC destroys evidence that could be useful to homeowners being foreclosed and investors seeking to prove fraud. The mortgage fiasco has roots in SEC failure to regulate and its continuation and concealment of potential fraud is an abuse of discretion by SEC, which is supposed to support disclosure of information—not hide it.
Excerpted from: DOCX eAssignTM brochure (no longer found online)
eAssign utilizes theindustry’s most robust property recordsdatabase and data capture capabilities tosignificantly reducetimelines and costs for lienholders when creating(emphasis added)and recording lienassignment documents.
Ally’s GMAC unit withdraws foreclosure affidavits signed by second employee
By Ariana Eunjung Cha | September 25, 2010; 11:34 AM ET
Was Kristine Wilson another “robo-signer”?
Attorneys for homeowners in Florida say Ally Financial’s GMAC mortgage unit has begun to withdraw affidavits submitted in support of foreclosures that were signed by a second employee. Like Jeffrey Stephan–the document processor who admitted in sworn testimony that he signed 10,000 documents a month without reviewing them–Kristine Wilson signed as a “limited signing officer” for GMAC.
In a request to withdraw an affidavit listing debts owed by a homeowner that was signed by Wilson in a Palm Beach County Circuit Court case, lawyers for GMAC say that “information in the affidavit may not have been properly verified.”
THIS IS HUGE! Coming in… Florida might halt all Foreclosures…While pending investigation of MILLS!
Do what is right and protect these families. This involves children that do not understand what is going on. I lost my home to this fraud and they do not have to go through my stressful experience. You set new rules and these foreclosure mills continued to ignore you. What is it going to take?
I revere the law, the judicial system, and the legal profession and will at all times in my professional
and private lives uphold the dignity and esteem of each.
I will further my profession’s devotion to public service and to the public good.
I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent
that the law permits and will at all times be guided by a fundamental sense of honor, integrity, and fair
play. I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will not
improperly permit my silence or inaction to mislead anyone.
I will conduct myself to assure the just, speedy and inexpensive determination of every action and
resolution of every controversy.
I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act
with dignity, decency, and courtesy.
I will respect the time and commitments of others.
I will be diligent and punctual in communicating with others and in fulfilling commitments. I will exercise independent judgment and will not be governed by a client’s ill will or deceit.
My word is my bond.
Oath of Admission to The Florida Bar
The general principles which should ever control the lawyer in the practice of the legal profession
are clearly set forth in the following oath of admission to the Bar, which the lawyer is sworn on
admission to obey and for the willful violation to which disbarment may be had.
“I do solemnly swear:
“I will support the Constitution of the United States and the Constitution of the State of Florida;
“I will maintain the respect due to courts of justice and judicial officers;
“I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor
any defense except such as I believe to be honestly debatable under the law of the land;
“I will employ for the purpose of maintaining the causes confided to me such means only as are
consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false
statement of fact or law;
“I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no
compensation in connection with their business except from them or with their knowledge and approval;
“I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation
of a party or witness, unless required by the justice of the cause with which I am charged;
“I will never reject, from any consideration personal to myself, the cause of the defenseless or
oppressed, or delay anyone’s cause for lucre or malice. So help me God.”
California officials today demanded that Ally Financial Inc. stop foreclosing on homes in the state, citing reports indicating the big mortgage lender is violating the law.
The cease-and-desist letter, issued by Attorney General Jerry Brown, came as officials in several other states began investigating Ally’s operations.
The controversy stems from a Florida court case in which an Ally official reportedly testified that he signed thousands of documents in foreclosure cases without even reviewing the homeowners’ loan documents.
By The Palm Beach Post
Updated: 7:45 p.m. Thursday, Sept. 23, 2010
Posted: 7:33 p.m. Thursday, Sept. 23, 2010
Last month, Palm Beach County Senior Judge Roger Colton opened his afternoon foreclosure session by telling homeowners that he’d heard all their stories before, and he would give them a maximum of five months before letting lenders take their homes.
“I know all about the Chinese drywall problems. I know all about sickness,” Judge Colton said. “I know all about divorce. I know all about anything else as to why we find ourselves in this position today.”
In the first case, Judge Colton signed a final summary judgment giving Everhome Mortgage Co. the right to foreclose on a Lake Worth couple’s home despite their attorney’s objections that Everhome had failed to prove that it owns the note. Foreclosure defense lawyers cite the case as an egregious example of Florida’s so-called “rocket docket,” the process of expediting foreclosure cases through the courts by siding with lenders.
That was not the intent of state legislators this year when they appropriated $9.6 million to reduce the foreclosure backlog. Though the state has set a goal of reducing the more than 500,000 cases by 62 percent within a year, that goal should be met by handling each case based on its merit and not by watching the clock. That’s particularly important given the fraud perpetrated by lenders – many of which knowingly issued loans to buyers who couldn’t afford them – and their attorneys.
Tampa-based Florida Default Law Group has been withdrawing legal affidavits in its GMAC Mortgage foreclosure cases, acknowledging that information it gave to courts may have been inaccurate. The affidavits supposedly attest to the validity of documents submitted to verify that a lender has the right to foreclose. Florida law requires that lenders prove ownership of the note underlying the mortgage.
In the case before Judge Colton, attorney Loretta Bangor questioned the validity of affidavits submitted by Everhome’s attorney, a lawyer with Shapiro & Fishman, one of three firms under investigation by the Florida attorney general for “unfair and deceptive actions” in foreclosure cases. Judge Colton, one of two retired judges hired to handle foreclosures under the new state program, did not ask to see the documents. Nor did he question Shapiro & Fishman about the validity of the documents.
Ally Said to Tell Freddie Mac of Faulty Foreclosures Weeks Ago
By Lorraine Woellert and Dakin Campbell – Sep 24, 2010 12:01 AM ET
Ally Financial Inc.’s GMAC Mortgage unit told Freddie Mac that foreclosures by the auto and home lender might have been faulty weeks before halting its own evictions, according to two people briefed on the matter.
Ally informed Freddie Mac on Aug. 25 that affidavits for court proceedings might not be valid, according to a person with direct knowledge of the matter. By Sept. 1, Freddie Mac had notified its network of lawyers and stopped related foreclosures and evictions, said the person, who declined to be identified because the matter hasn’t been formally disclosed. GMAC told agents to halt evictions in 23 states on Sept. 17.
Fannie Mae, the largest government-backed mortgage firm, said it notified lawyers of flaws in GMAC documentation after it was alerted. Fannie Mae spokesman Brian Faith declined to say when GMAC contacted the company, and Gina Proia, the spokeswoman for Detroit-based Ally, said she couldn’t comment.
“We are obviously dismayed by reports of document problems,” Freddie Mac spokesman Brad German said in an interview. “The practices described in these reports are clearly not in compliance with Freddie Mac guidelines and servicer directives.” German wouldn’t say how many of the McLean, Virginia-based firm’s holdings were affected by the freeze.
Fannie Mae said in a statement that its servicers must adhere to all legal requirements. “It is their responsibility to put processes in place that ensure they are fulfilling this requirement, and they are accountable for rectifying any issues that may arise in this regard.”
STEVEN J. BAUM, P.C.
P.O. Box 1291
Buffalo, New York 14240- 1291
Wells Fargo v. Oleg Dmitriev
Plaintiffs application is defective because there is no “affidavit made by the party” of “the facts constituting the claim, the default and the amount due” as required by CPLR §3215(f). The proffered “affidavit of merit and amount due” of Jeffrey Stephan identifies him as “the Limited Signing Officer of GMAC MORTGAGE LLC, servicer,” but no proof of Mr. Stephan’s authority to execute such affidavit on behalf of plaintiff is offered. The proffered affidavit does not otherwise comply with the requirements of CPLR $2309(c) for an out-of-state affidavit. In addition, the facts and dates recited in the affidavit regarding the consolidated mortgage and consolidated note that are the subject of this floreclosure action are at variance with the underlying documents.
In light of the foregoing, the motion for an order of reference is denied, without prejudice to renewal on proper papers.
Proposed order of reference marked “not signed.”
Dated: March 16, 2009
Now if this isn’t another means to a massive mandatory recall for any of this robo-signer’s documents, then our judicial systems are playing with an enormous fire getting ready to ignite even more angry individuals who has his documents sworn into court!
“Over the past few years, Bly has signed countless mortgage assignments as either a notary public or “vice president” of various lenders.
In reality, Bly works for Nationwide Title Clearing, a Palm Harbor company. And he was recently reprimanded by state regulators after acknowledging in a sworn statement that Nationwide Title had him notarizing so many documents that he scribbled his initial instead of signing his full name as required by law.
Such a pace, critics say, shows that Bly and other so-called “robo signers” can’t possibly be sure that what they’re signing is accurate.”
Just by these statements alone why aren’t any of these assignments or any documents executed by Mr. Bly being pulled out from court shelves?
It’s quite simple and you don’t need to be an Einstein.
If there is a product that is shown to cause human any harm there is a mandatory recall. So where is this recall on these products? Where on earth is the government to put a stop to all this assembly line?
Does it have to take a Chinese toymaker with toxic paint, a drywall that deteriorates the guts of a home and possibly lead to possible health issues or how about a Japanese car manufacturer that makes faulty brakes? Again, where is the authority looking into these claims? And why are they NOT pulling these defective items out of our records in the court houses? Exactly who is being notified that these documents can cause harm to you or that if you were a victim of such irresponsibility to come forward?
My point is these documents are making one extremely ill, homeless and even in some cases suicidal. If this isn’t harm than what is?
This is just wrong in every possible way! Fraud is Fraud.
SUPREME COURT – STATE OF NEW YORK
I.A.S. PART XXXVI SUFFOLK COUNTY
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
Contiune reading the NY Case below…I have others similar