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Full Deposition of Residential Funding/GMAC JUDY FABER: US BANK v. Cook

Full Deposition of Residential Funding/GMAC JUDY FABER: US BANK v. Cook

Make sure you read this carefully…This is a transcript of an employee of Residential Funding Company who is in charge of record keeping of original documents. Don’t miss the full deposition down below.

Follow the assets, don’t get lost in the trail…

17 Q. Now, when you said you’re the Director of
18 Records Management for the Minnesota office?

19 A. Uh-huh.

20 Q. Are there other offices of Residential
21 Funding that maintain records that you are
22 not responsible for?

23 A. There are records services sites in Iowa and
24 in Pennsylvania. Those deal mostly with the
25 GMAC mortgage assets.

<snip>

11 Q. And what, if anything, is your responsibility
12 with regard to those records?

13 A. To track the physical paper for those
14 assets — or that asset.

15 Q. Are you what you consider to be the keeper of
16 the records for those documents?

17 A. Sure, yep.

5 Q. Okay. And then when somebody wants to view
6 specific records from your system, is that
7 something that you’re responsible for
8 obtaining as part of your day-to-day
9 responsibilities?

10 A. The people that report to me, yes, or the
11 vendor that — that we have retained to do
12 those functions, yes. I don’t do that
13 myself.

14 Q. Who’s the vendor that you retain to do that?

15 A. A company called ACS.

16 Q. ACS?

17 A. Yep.

18 Q. And what does ACS do with regard to the
19 records?

20 A. They fulfill the request. So if somebody
21 needs a credit folder or a legal folder, they
22 research where those documents are, obtain
23 the documents and then provide that requestor
24 with either the paper documents or images.

<snip>

21 Q. There’s a file folder that shows it came from
22 the outside vendor?

23 A. Yes. Their sticker is affixed to the front
24 of the folder, so I know it came from them.

25 Q. Okay. And then is there anything on the
1 documents themselves that show where they
2 came from?

3 A. No.

4 Q. And by the outside vendor, do you mean ACS?

5 A. No. Actually, the vendor that stores the
6 actual folder is Iron Mountain.

7 Q. So there’s a sticker on that file that shows
8 it came from Iron Mountain?

9 A. Correct, yes.

10 Q. Does Iron Mountain maintain your system or do
11 they just maintain hard copies of documents?

12 A. They maintain the hard copies of the
13 documents.

14 Q. Not any records on your computer system,
15 correct?

16 A. No.

17 Q. Is that correct?

18 A. Correct.

<snip>

18 Q. What’s the relationship between Residential
19 Funding Company, LLC and U.S. Bank National
20 Association?

21 A. In — in this instance, U.S. Bank is the
22 trustee on the security that this loan is in.
23 And RFC was the issuer of the security that
24 was created.

25 Q. Who was the issuer of the security?

1 A. RFC was the issuer of the security.

2 Q. Oh, RFC is what you call Residential Funding
3 Company?

4 A. Yes.

5 Q. So RFC issued the security?

6 A. Right.

7 Q. Can you explain to me what that means?

8 A. No, I can’t.

9 Q. Okay. How do you know RFC issued the
10 security?

11 A. It’s the normal course of business as to how
12 our — our business works. RFC is in the
13 business of acquiring assets and putting them
14 together into securities to sell in the — in
15 the market.

16 MR. SHAW: I would like to
17 register a general objection to this line of
18 questioning. There’s not been a foundation
19 laid for Judy Faber being competent to reach
20 some of these conclusions that are being
21 stated on the record.

22 BY MR. HOLLANDER:
23 Q. So in this particular instance, do you have
24 any personal knowledge of the relationship
25 between RFC and U.S. Bank National
1 Association as trustee?

2 A. No.

3 Q. For whom is U.S. Bank National Association
4 acting as the trustee?

5 A. I believe it would be for the investors of
6 the — that have bought the securities.

7 Q. I’m sorry. Something happened with the phone
8 and I didn’t hear your answer. I’m sorry.

9 A. I believe it would be for the different
10 investors who have bought pieces of that
11 security that was issued.

12 Q. Are there different investors that have
13 purchased the Peter Cook note?

14 A. I don’t think I’m qualified to answer that.
15 You know, I can tell you from what my basic
16 understanding is from the process, but I’m
17 not an expert.

18 MR. SHAW: Once again, I’d like to
19 raise a continuing general objection that she
20 being — testifying with respect to what her
21 job is, and I believe you’re getting into
22 areas that is other than what her job is and
23 you’re asking for possibly even legal
24 conclusions here. So I would like to raise
25 that objection again.

[…]

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, bifurcate, conspiracy, deposition, foreclosure, foreclosure fraud, foreclosures, GMAC, mbs, securitization, STOP FORECLOSURE FRAUD, trade secrets, trustee, Trusts, us bank2 Comments

KABOOM BOOM BOOM!! ATTORNEY NICK WOOTEN CLASS ACTION AGAINST WELLS FARGO, LENDER PROCESSING SERVICES INC.

KABOOM BOOM BOOM!! ATTORNEY NICK WOOTEN CLASS ACTION AGAINST WELLS FARGO, LENDER PROCESSING SERVICES INC.

We all have come to know Mr. Wooten for his brilliant, outstanding, incredible job deposing the MERSCORP Executives.

This complaint will chip the concrete, titanium walls these corporations have  shielded behind for quite some time.

From: Brian Davies

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, LPS, lps default solutions Inc., MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Nick Wooten, STOP FORECLOSURE FRAUD, stopforeclosurefraud.com, trustee, Trusts, wells fargo2 Comments

CASE EVERYONE SHOULD READ: DEUTSCHE BANK TRUST AMS. AS TRUSTEE v. McCoy, 2010 NY Slip Op 51664 – NY: Supreme Court, Suffolk

CASE EVERYONE SHOULD READ: DEUTSCHE BANK TRUST AMS. AS TRUSTEE v. McCoy, 2010 NY Slip Op 51664 – NY: Supreme Court, Suffolk

2010 NY Slip Op 51664(U)

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, Plaintiff(s),
v.
DEREK McCOY; EDYTA McCOY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR HOMECOMINGS FINANCIAL, LLC, (F/K/A HOMECOMINGS FINANCIAL NETWORK, INC.) BOARD OF MANAGERS OF THE SILVER CHASE CONDOMINIUM; “JOHN DOE #1-5 AND “JANE DOE #1-5” SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF Plaintiff TO DESIGNATE ANY AND ALL OCCUPANTS, TENANTS, PERSONS OR CORPORATIONS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES BEING FORECLOSED HEREIN, Defendant(s).

7782-2008. Supreme Court, Suffolk County.

Decided September 21, 2010. Fein, Such & Crane, LLP, 747 Chestnut Ridge Road, Chestnut Ridge, New York 10977-6216, Attorneys for Plaintiff.

Derek McCoy, Edyta McCoy, 35 Gibbs Road, Coram, New York 11727, Defendants Pro Se.

PETER H. MAYER, J.

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that plaintiff’s resubmitted application (seq. # 002) for an order of reference in this foreclosure action is considered under 2009 NY Laws, Ch. 507, enacted December 15, 2009, and 2008 NY Laws, Ch. 472, enacted August 5, 2008 (as amended), as well as the related statutes and case law, and is hereby denied without prejudice, and with leave to resubmit upon proper papers, for the reasons set forth herein; and it is further

ORDERED that, inasmuch as the plaintiff has failed to properly show that the homeowner-defendants are not entitled to a foreclosure settlement conference, pursuant to CPLR 3408 such conference is hereby scheduled for November 17, 2010, 9:30 a.m., in the courtroom of the undersigned, located at Room A-259, Part 17, One Court Street, Riverhead, NY 11901 (XXX-XXX-XXXX), for the purpose of holding settlement discussions pertaining to the rights and obligations of the parties under the mortgage loan documents, including but not limited to, determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing their home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the Court deems appropriate; and it is further

ORDERED that “Sherry Hall,” who purports, in this particular case, to be the Vice President of Homecomings Financial Network, Inc., the purported attorney-in-fact for the plaintiff, shall appear at the November 17, 2010 Foreclosure Settlement Conference; and it is further

ORDERED that “Nikole Shelton,” the individual who purportedly notarized Ms. Hall’s signature in this particular action, as well as in the action entitled GMAC Mortgage, LLC v Ingoglia, under Suffolk County Index Number XXXX-XXXX, shall appear at the November 17, 2010 Conference; and it is further

ORDERED that any attorney appearing at the conference on behalf of the plaintiff (including a per diem attorney) shall, pursuant to CPLR 3408, be fully authorized to dispose of the case; and it is further

ORDERED that the plaintiff shall bring to all future conferences all documents necessary for evaluating the potential settlement, modification, or other workout options which may be appropriate, including but not limited to the payment history, an itemization of the amounts needed to cure the default and satisfy the loan, and the mortgage and note; if the plaintiff is not the owner of the mortgage and note, the plaintiff shall provide the name, address and telephone number of the legal owner of the mortgage and note; and it is further

ORDERED that the plaintiff shall promptly serve, via first class mail, a copy of this Order upon the homeowner-defendants at all known addresses (or upon their attorney if represented by counsel), as well as upon all other appearing parties, and shall provide the affidavit(s) of such service to the Court at the time of the scheduled conference, and annex a copy of this Order and the affidavit(s) of service as exhibits to any future applications submitted to the Court; and it is further

ORDERED that in the event any scheduled court conference is adjourned for any reason, the plaintiff shall promptly send, via first class mail, written notice of the adjourn date to the homeowner-defendants at all known addresses (or upon their attorney if represented by counsel), as well as upon all other appearing parties, and shall provide the affidavit(s) of such service to the Court at the time of the subsequent conference, and annex a copy of this Order and the affidavit(s) of service as exhibits to any future applications submitted to the Court; and it is further

ORDERED that with regard to any future applications submitted to the Court, the moving party(ies) must clearly state, in an initial paragraph of the attorney’s affirmation, whether or not the statutorily required foreclosure conference has been held and, if so, when such conference was conducted; and it is further

ORDERED that with regard to any scheduled court conferences or future applications by the parties, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutory and case law, or without regard for the required proofs delineated herein, the Court may, in its discretion, strike the non-compliant party’s pleadings or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR §130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications.

In this foreclosure action, the plaintiff filed a summons and complaint on February 26, 2008. The complaint essentially alleges that the homeowner-defendants, Derek McCoy and Edyta McCoy, defaulted in payments with regard to a December 8, 2006 mortgage in the principal amount of $288,000.00 for the premises located at 35-34 Gibbs Road, Coram, New York 11727. The original lender, Homecomings Financial, LLC, had the mortgage assigned to the plaintiff by assignment dated February 28, 2008, two days after the commencement of the action. According to the court’s database, a foreclosure settlement conference has not yet been held. The plaintiff’s application seeks a default order of reference and requests amendment of the caption to remove the “Doe” defendants as parties. Plaintiff’s counsel contends that the “present application corrects the specified defects articulated in the [December 4, 2008]Short Form Order.” Notwithstanding counsel’s contention, plaintiff’s current application fails to correct several defects, and presents other grounds which preclude an order of reference in favor of the plaintiff.

By Order dated December 4, 2008, the plaintiff’s prior application for the same relief was denied without prejudice, and with leave to resubmit upon proper papers, to allow the plaintiff to properly show whether or not the subject loan is a “subprime home loan” or a “high-cost home loan” as defined by statute, thereby entitling the defendants to a foreclosure settlement conference pursuant to the then-applicable 2008 NY Laws, Chapter 472. In this regard, the plaintiff’s attorney has submitted a letter in which he claims that it is his “belief that the mortgage being foreclosed is not a sub-prime home loan and is not subject to the [foreclosure conference] requirements.” Counsel also submits an Affirmation of Compliance with CPLR 3408, which states that “[w]e have determined that this loan is not subprime,” and that the defendants “are not entitled to a court conference” (emphasis in original).

Despite counsel’s assertions, the plaintiff’s own affidavit of merit states that “[w]e have determined that this loan is subprime” and that “the defendants are entitled to court conference” (emphasis added). The direct contradiction between counsel’s “belief” and the assessment of one whose affidavit states, as in this case, that she has “first-hand knowledge of the facts and circumstances surrounding this action,” validates this Court’s approach in refusing to accept counsel’s assertions as fact in any given foreclosure action. The mistaken “belief” of an attorney who has no personal knowledge of the facts, yet opines in court documents that a homeowner-defendant is not entitled to a statutorily required court conference, may prejudice the homeowner’s rights while subjecting the attorney to otherwise avoidable court sanctions. Since the plaintiff has failed to adequately show that the homeowner-defendants are not entitled to a foreclosure settlement conference, such conference shall be held on November 17, 2010, 9:30 a.m.

The Court’s December 4, 2008 Order also specifically stated that “[w]ith regard to any future applications … plaintiff’s papers shall include … 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 plaintiff’s 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, with no personal knowledge.”

In an apparent effort to satisfy the requirements of CPLR §3215(f), the plaintiff submits an affidavit of merit from “Sherry Hall,” who purports in this particular case to be the Vice President of Homecomings Financial Network, Inc. (“Homecomings”), the purported attorney-in-fact for the plaintiff. The Limited Power of Attorney annexed to the affidavit, however, does not name Homecomings as the attorney-in-fact. Instead, it names Residential Funding Company, LLC. Therefore, the Court cannot conclude that the affidavit was “made by the party” as required by CPLR §3215(f) (emphasis added). Notably, the instructions on the power-of-attorney form also require the form to be recorded and returned not to the plaintiff bank, nor to Homecomings as the purported attorney-in-fact, but rather to “GMAC ResCap.” This raises certain concerns, particularly given the nature of the affidavit of merit submitted in this case, as compared to the affidavit of merit submitted to the Court by the same attorneys in an unrelated foreclosure matter, GMAC Mortgage, LLC v Ingoglia, under Suffolk County Index Number XXXX-XXXX.

In the Ingoglia case (which was recently discontinued), counsel submitted an affidavit of merit from “Sheri D. Hall” in her purported capacity as Vice President of GMAC Mortgage, LLC. That affidavit was notarized by Nikole Shelton on April 14, 2009. Just weeks earlier, on March 25, 2009, Ms. Shelton notarized an affidavit of merit from “Sherry Hall” in this case, in which Ms. Hall purports to be Vice President of Homecomings. It would appear, therefore, that Ms. Hall purports to be the Vice President of two different banks almost simultaneously. Furthermore, although the affidavit in this case appears to have been notarized by Ms. Shelton on March 25, 2009, it appears to have been signed by Ms. Hall five (5) days later, on March 30, 2009, after it was notarized.

The “Hall” affidavit in each case is accompanied by a Certificate of Acknowledgment notarized by “Nikole Shelton” in Montgomery County, Pennsylvania. Both Certificates state that the individual executing the affidavits “personally appeared” before Nikole Shelton. Both state that the affiant was “personally known to [Nikole Shelton] or proved to [Nikole Shelton] on the basis of satisfactory evidence to be the individual whose name is subscribed to the [affidavit].” Notwithstanding these assertions by Ms. Shelton in both cases, the affidavit submitted to the Court in Ingoglia was executed by one who printed and signed her name as “Sheri D. Hall,” while the affidavit submitted in this case was executed by one who printed and signed her name as “Sherry Hall.” Although the Court cannot function as a handwriting expert, the signatures in both affidavits appear virtually identical, despite the difference in the two names.

These facts raise questions concerning the true identity and veracity of the person signing the affidavits of merit, who swears to be the Vice President of two different banks almost simultaneously, as well as the veracity of Nikole Shelton, in notarizing both signatures. Accordingly, “Sherry Hall,” who submitted the affidavit of merit in this case, and “Nikole Shelton,” who purportedly notarized Ms. Hall’s signature in this case and purportedly notarized the signature of “Sheri D. Hall” in the Ingoglia case, shall appear at the November 17, 2010 conference, so the Court may determine whether or not it must conduct an evidentiary hearing on these issues.

Concerning assignment of the subject mortgage, this Court’s December 4, 2008 Order specifically required any resubmitted motion to include “evidentiary proof, including an affidavit from one with personal knowledge, of proper and timely assignments of the subject mortgage, if any, sufficient to establish the plaintiff’s ownership of the subject note and mortgage at the time the action was commenced, and that the assignment is not merely an invalid assignment or an assignment with an ineffectual retroactive date” (emphasis added). Despite this specific instruction, the plaintiff’s affidavit of merit merely states that the plaintiff “is still the holder of record of the … mortgage.” This statement fails to show that the plaintiff was the holder of the note and mortgage when the plaintiff commenced the action. The plaintiff filed the summons and complaint on February 26, 2008; however, the assignment of the mortgage to the plaintiff from the original lender, Homecomings Financial, LLC, is dated February 28, 2008, two days after the commencement of the action.

Only where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced does the plaintiff have standing to maintain the action (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 755 NYS2d 730 [2d Dept 2003]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]; First Trust Natl. Assn. v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]). An assignment executed after the commencement of an action, which states that it is effective as of a date preceding the commencement date, is valid where the defaulting defendant appears but fails to interpose an answer or file a timely pre-answer motion that asserts the defense of standing, thereby waiving such defense pursuant to CPLR 3211[e] (see, HSBC Bank, USA v Dammond, 59 AD3d 679, 875 NYS2d 490 1445 [2d Dept 2009]). It remains settled, however, that 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 the mortgage is a nullity (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]).

Indeed, a plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest (Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]; Katz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998]). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]).

Although the February 28, 2008 assignment states it is “effective January 19, 2008,” such attempt at retroactivity is ineffectual. If an assignment is in writing, the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated (see, Bankers Trust Co. v Hoovis, 263 AD2d 937, 938, 694 NYS2d 245 [1999]). A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]). Plaintiff’s failure to submit proper proof, including an affidavit from one with personal knowledge, that the plaintiff was the holder of the note and mortgage at the time the action was commenced, requires denial of the plaintiff’s application for an order of reference.

In its prior Order, the Court also gave specific directives concerning proof of compliance with RPAPL §1303 and § 1320 for any resubmitted motions. In this regard, the prior Order required “evidentiary proof, including an attorney’s affirmation, of compliance with the form, type size, type face, paper color and content requirements of RPAPL §1303 regarding foreclosure notices, as well as an affidavit of proper service of such notice,” as well as “evidentiary proof, including an attorney affirmation, of compliance with the form, content, type size, and type face requirements of RPAPL §1320 regarding special summonses in residential foreclosure actions, and proof of proper service of said special summons” (emphasis supplied). Despite these very specific directives, the attorney’s affirmation in support of this resubmitted motion fails to address those sections. While the affidavit of service does state that the summons and complaint were served with a Section 1303 notice on colored paper and a Section 1320 notice, such information, by itself, is not proper proof that those notices were compliant with the specific form, content, type size, and type face requirements set forth in those statutes.

Lastly, the Court notes that although service of process was made upon defendant Derek McCoy by substitute service pursuant to CPLR 308(2), the additional mailing required for such service was never completed. Instead, the process server sent the additional mailing to defendant Edyte McCoy who is alleged to have received a copy of the summons and complaint by personal service pursuant to CPLR 308(1). Such personal service does not require an additional mailing to complete service. Based on the foregoing, the plaintiff has established neither completion of service upon the defendant, Derek McCoy, nor jurisdiction of this Court over that defendant.

Based upon the foregoing, the plaintiff’s motion is denied.

This constitutes the Decision and Order of the Court.

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, conflict of interest, deutsche bank, foreclosure, foreclosures, Notary, trustee3 Comments

FORECLOSURES TO COME TO A HALT IN FLORIDA? WE WROTE THEY READ IT!

FORECLOSURES TO COME TO A HALT IN FLORIDA? WE WROTE THEY READ IT!

.

THIS IS HUGE! Coming in… Florida might halt all Foreclosures…While pending investigation of MILLS!

SUPREME COURT,

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?

Sincerely,

Damian-

Supreme Court spokesman Craig Waters said Friday that the court was preparing a response, but did not elaborate.

All anyone has to do is click the link below for all the evidence I included of this massive nationwide fraud of all of Fannie and Freddie Baron’s:

FORECLOSURE FRAUD LETTER TO FANNIE MAE FROM GRAYSON, FRANK and BROWN

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Creed of Professionalism

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.”

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, ben-ezra, bogus, chain in title, Cheryl Samons, class action, CONTROL FRAUD, corruption, Craig Waters, florida default law group, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, GMAC, investigation, jeffrey stephan, Kenneth Eric Trent, Law Offices Of David J. Stern P.A., law offices of Marshall C. Watson pa, mbs, MERS, MERSCORP, Moratorium, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, notary fraud, note, rmbs, securitization, shapiro & fishman pa, smith hiatt & diaz pa, stopforeclosurefraud.com, Supreme Court, Susan Chana Lask, trustee, Trusts, Wall Street5 Comments

‘SHITTY BANK BANKS’ Might Go Belly UP After Foreclosure Mess Hit The Fan- Secrets Of Traders

‘SHITTY BANK BANKS’ Might Go Belly UP After Foreclosure Mess Hit The Fan- Secrets Of Traders

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

By: Secrets Of Traders Wednesday, September 22, 2010 11:56 AM

I haven’t seen the following story get much national press (Ok, none. After all, isn’t Lindsey Lohan still in the news?) but if it continues to escalate, we will. The short & sweet of the matter is that it appears most banks do not have clear title to the homes they are foreclosing. In their mad rush to capitalize on the housing bubble, bankers skipped many of the legal steps necessary to have a clear title if things went badly, which is now, and the mortgages that were bundled then securitized as MBSs (mortgage backed securities) may actually belong to the homeowners.If this plays out as described below some banks will go belly-up, which should have happened a long time ago. Since the Treasury & the Federal Reserve will not let their buddies down, however, I am certain that it is already being sorted out in back room deals. “To hell with the LAW” they will say, Shitibank is on the brink of failure.

A member of Congress has already sent a letter to the Florida Supreme Court requesting it make an order to abate all foreclosure procedures until Florida can complete investigations into the matter. A portion of Representative Grayson’s letter is below.

I respectfully request that you abate all foreclosures involving these firms until the Attorney General of the state of Florida has finished his investigations of those firms for document fraud.

I have included a court order, in which Chase, WAMU, and Shapiro and Fishman are excoriated by a judge for document fraud on the court. In this case, Chase attempted to foreclose on a home, when the mortgage note was actually owned by Fannie Mae.

Taking someone’s home should not be done lightly. And it should certainly be done in accordance with the law.

This original post can be found here

Ok, we now appear to have a pattern of conduct here where organizations trying to foreclose on homeowners are in fact submitting forged (that is, willfully known to be false) affidavits to courts around the nation.

First we had GMAC, now it appears we have JPM/Chase. Everyone’s scrambling on this, of course.

But as I pointed out, the real panic is likely still to come, because I have reason to believe (but cannot yet prove) that many if not most of the non-agency securitizations were defective at the outset.

Worse, they’re now trying to cover it up. I am amassing more and more information on the mess, and what I’m seeing is increasingly looking like a pattern of conduct that may well go far beyond “innocent mistakes” or “accidents.”

So let’s take a close look at this problem, and how we can fix it.

There’s a real visceral outrage at letting people have a “free house.” But is it really a perversity of justice if that’s what happens in point of fact – or effect? Maybe not.

Look, if I want to write you a signature loan for $200,000, I have every right to do it. If you don’t pay I’m screwed in such a case, because I have no security interest.

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Posted in assignment of mortgage, bifurcate, chain in title, conflict of interest, CONTROL FRAUD, corruption, deed of trust, Economy, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, jeffrey stephan, jpmorgan chase, MERS, MERSCORP, Moratorium, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, rmbs, robo signers, securitization, stopforeclosurefraud.com, sub-prime, trade secrets, trustee, Trusts3 Comments

Judge Bufford, Judge Ayers, MERS & The UCC Committee

Judge Bufford, Judge Ayers, MERS & The UCC Committee

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 (11th Cir. 2002).  However, the servicing agent may not have standing: “Federal Courts have only the power authorized by Article III of the Constitutions and the statutes enacted by Congress pursuant thereto. … [A] plaintiff must have Constitutional standing in order for a federal court to have jurisdiction.”  In re Foreclosure Cases, 521 F.Supp. 3d 650, 653 (S.D. Ohio, 2007) (citations omitted).

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

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

A BRIEF ASIDE: WHO IS MERS?

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

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

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

RULES OF EVIDENCE – A PRACTICAL PROBLEM

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

FORECLOSURE OR RELIEF FROM STAY

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

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

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

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

SOME RECENT CASE LAW

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

Massachusetts

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

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

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

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

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

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

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

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

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

Ohio

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

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

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

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

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

Illinois

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

Not all federal district judges are as concerned with the issues surrounding the transfer of notes and mortgages.  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.


MORE INFO LINK

UNIFORM COMMERCIAL CODE AND NOTE TRANSFERS AND DEED OF TRUST-1


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Posted in conflict of interest, conspiracy, CONTROL FRAUD, corruption, deed of trust, foreclosure, foreclosure fraud, foreclosures, Judge R. Glen Ayers, judge samuel bufford, mbs, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, rmbs, securitization, servicers, trustee, Trusts, ucc, uniform commercial code committee1 Comment

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

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.

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Posted in chain in title, conflict of interest, conspiracy, CONTROL FRAUD, deed of trust, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, fraud digest, herman john kennerty, investigation, Lynn Szymoniak ESQ, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, note, robo signer, servicers, trustee, Trusts, Wall Street3 Comments

CALIFORNIA ‘QUIET TITLE’ VICTORY: PAUL NGUYEN V. CHASE et al

CALIFORNIA ‘QUIET TITLE’ VICTORY: PAUL NGUYEN V. CHASE et al

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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Posted in chain in title, chase, conspiracy, deed of trust, foreclosure, foreclosure fraud, foreclosures, mortgage, quiet title, securitization, trustee, Trusts, Unfair Business Practices7 Comments

EXTRA! EXTRA! FLORIDA APPEALS COURT REVERSES IT’S OWN OPINION: RUSCALLEDA v. HSBC BANK USA No. 3D09-997

EXTRA! EXTRA! FLORIDA APPEALS COURT REVERSES IT’S OWN OPINION: RUSCALLEDA v. HSBC BANK USA No. 3D09-997

RUSCALLEDA v. HSBC BANK USA

Glazy Ruscalleda and Jose Ruscalleda, Appellants,
v.
HSBC Bank USA, etc., Appellee.

No. 3D09-997.

District Court of Appeal of Florida, Third District.

Opinion filed September 15, 2010.

John H. Ruiz and Karen Barnet-Backer, for appellants.

Shapiro & Fishman and Heidi J. Weinzetl (Boca Raton), for appellee.

Before WELLS, ROTHENBERG, and LAGOA, JJ.

ON MOTION FOR REHEARING OR CLARIFICATION.

ROTHENBERG, J.

Upon consideration of the appellee’s motion for rehearing or clarification, we withdraw our previous opinion filed on June 9, 2010, and substitute the following opinion in its stead.

This is an appeal of a final summary judgment in a mortgage foreclosure action entered in favor of plaintiff, HSBC Bank USA (“HSBC”), and against the defendants, Glazy Ruscalleda and Jose Ruscalleda. Based on the unique circumstances of this case, we reverse and remand for further proceedings.

The unique circumstances surrounding this case involve a rather confusing situation caused by two banks—the appellee, HSBC, and American Home Mortgage Servicing, Inc. (“American Home Mortgage”)—because they were simultaneously attempting to foreclose the same mortgage. On October 8, 2008, American Home Mortgage filed a foreclosure action against the defendants.[ 1 ] A week later, HSBC filed an action to foreclose the same exact mortgage. The complaint filed by HSBC falsely alleged that it was the current owner and holder of the mortgage and note, when, in reality, American Home Mortgage was still the holder of the note and mortgage.[ 2 ] On October 28, 2008, due to the actions of American Home Mortgage and HSBC, the defendants, who were acting pro se at that time, filed an answer and affirmative defenses only in the foreclosure action filed by American Home Mortgage, which was the holder of the mortgage and note, because they mistakenly believed that the complaints involved the same foreclosure action.

After filing their pro se answer and affirmative defenses, the defendants retained counsel. Continuing in their mistaken belief, they did not inform their attorney of the action filed by HSBC. On November 13, 2008, counsel filed an amended answer and affirmative defenses on behalf of the defendants in the American Home Mortgage action, but took no action on the HSBC complaint.

Although the defendants did not file an answer in response to HSBC’s complaint, HSBC never moved for a default judgment.[ 3 ] Instead, on January 22, 2009, HSBC moved for summary judgment, scheduling the hearing for March 24, 2009. When the defendants received the motion for summary judgment in the HSBC action, it sent the motion to their counsel. It was at that point, that the defendants and their counsel realized that two separate banks were attempting to simultaneously foreclose on the same mortgage, but that they only had been defending the initial action filed by American Home Mortgage.

On February 23, 2009, the defendants filed a memorandum of law in opposition to the motion for summary judgment, the affidavit of Glazy Ruscalleda, and a motion to transfer the case to the division where the foreclosure action filed by American Home Mortgage was pending (“Motion to Transfer”). On February 25, 2009, the defendants filed a request for production, request for admissions, and notice of interrogatory. American Home Mortgage waited until the day before the scheduled hearing to file its notice of voluntary dismissal, although it had executed the assignment of mortgage almost three months earlier.

At the scheduled hearing, the trial court heard the arguments raised by HSBC in its motion for summary judgment and by defense counsel in his memorandum of law filed in opposition. Although it is undisputed that the defendants’ discovery was still pending, the trial court entered final summary judgment on the same day as the hearing, March 24, 2009, in favor of HSBC.[ 4 ]

Based on the unique circumstances set forth above, we conclude that the order under review must be reversed, and the cause remanded for further proceedings, with directions to allow the defendants to file an answer and affirmative defenses and to require HSBC to respond to the defendants’ discovery requests. The record clearly demonstrates that the defendants’ failure to file a timely answer and affirmative defenses in the action filed by HSBC was due to the confusion caused by American Home Mortgage and HSBC when they were simultaneously attempting to foreclose on the same exact mortgage in two different divisions of the circuit court.

Reversed and remanded with directions.

Not final until disposition of timely filed motion for rehearing.

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Posted in chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, HSBC, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, note, reversed court decision, stopforeclosurefraud.com, trustee, Trusts2 Comments

SECURITIZATION Might Be The Scope Of Mortgage Issues

SECURITIZATION Might Be The Scope Of Mortgage Issues

Again… look towards the “Common Thread” chances are MERS is involved if they’ve been securitized . Remember every loan needs a “MOM

FBI crackdown on fraudulent mortgages may underestimate scope of problem

by CHRISTINE RICCIARDI
Tuesday, September 14th, 2010, 1:00 pm

When the Federal Bureau of Investigation began Operation Stolen Dreams in March 2010, the government’s largest mortgage fraud takedown, the FBI estimated about $2.3 billion of fraudulent mortgages were originated in 2009. However, recent estimates from a source monitoring the operation indicates that number is now closer to $14 billion.

The numbers were put together recently by an European investment bank in the run-up to a mortgage fraud conference in the U.K. next month. It found that mortgage fraud in the U.K. stood at $120 million in 2009.  “The phenomenon, though worrying and one that certainly requires strong intervention from authorities, is not of the same scale as in the U.S.,” said the source. “Securitization is therefore well protected from this issue.”

Continue to…House Wire

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Posted in foreclosure, foreclosure fraud, foreclosures, investigation, mbs, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, originator, Real Estate, RICO, scam, securitization, servicers, sub-prime, trustee, Trusts, Violations, Wall Street1 Comment

Congress Needs To ZERO IN On A “Common Thread” To Fannie, Freddie Mortgage Crisis

Congress Needs To ZERO IN On A “Common Thread” To Fannie, Freddie Mortgage Crisis

Anyone can see the “Fiction” that was set into place from all the institutions in this article below. Each one of these named parties as a shareholder utilizes Mortgage Electronic Registration Systems, Inc., yet Washington never mentions this MERS device.

All this talk of false and misleading loans blah blah blah …I mean grab the bull by it’s nuts and put these criminals behind bars. Not just seek refunds! This clean up should also seek Racketeering Indictments.

Congress Seeks Fannie, Freddie Exit as Banks Eat Soured Loans

By Dawn Kopecki – Sep 15, 2010 1:00 AM ET

U.S. lawmakers will grapple today with how to end the bailout of Fannie Mae and Freddie Mac after two years and almost $150 billion, and who pays the bill for bad loans made during the housing boom.

Regulators who seized control of the two mortgage lenders in 2008 are under pressure to stem losses for taxpayers and recoup money from banks that sold faulty loans to Fannie Mae and Freddie Mac — all without hindering the housing market’s recovery. Assistant Treasury Secretary Michael Barr and Edward DeMarco, acting director of the Federal Housing Finance Agency, are scheduled to testify today on their progress at the House Financial Services Committee.

The Obama administration and Congress are weighing the future of the two companies as part of an overhaul of the U.S. housing finance system. Fannie Mae, based in Washington, and Freddie Mac, based in McLean, Virginia, lost $166 billion on guarantees of single-family mortgages from the end of 2007 through the second quarter, according to the FHFA. Treasury Secretary Timothy F. Geithner has promised a comprehensive proposal by early next year.

“The biggest problem in the economy is that we have three or four million too many homes,” said Chris Kotowski, a banking analyst at Oppenheimer & Co. The solution “will take another two or three years to work out until we sop up the excess supply,” Kotowski said.

Loan Clean-Up

The clean-up includes seeking refunds from lenders who sold loans based on false or misleading information, and the two government-backed firms aren’t the only ones demanding buybacks. The Federal Reserve, private mortgage investors and mortgage insurers are combing through loan documents for faulty appraisals, inflated borrower incomes and missing documentation that would support a refund request.

As of the end of the second quarter 2010, Fannie Mae had $4.7 billion in outstanding repurchase requests, and Freddie Mac had $6.4 billion in outstanding repurchase requests. DeMarco said in his prepared testimony that outstanding repurchase requests continue to be “of concern.”

Continue reading…BLOOMBERG

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Posted in bank of america, chain in title, CitiGroup, concealment, congress, conspiracy, CONTROL FRAUD, corruption, Credit Suisse, fannie mae, federal reserve board, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, investigation, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., RICO, scam, servicers, settlement, stopforeclosurefraud.com, sub-prime, trustee, Trusts, us bank, Wall Street2 Comments

FOR SALE: DEUTSCHE BANK NATIONAL TRUST CO CALIFORNIA BUILDING

FOR SALE: DEUTSCHE BANK NATIONAL TRUST CO CALIFORNIA BUILDING

I just got this tip that DBNT is selling it’s California address that is in many many SEC filings. I wish I can make more comments but am limited. I’ll leave it up to you all.

Source: Loopnet

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Posted in deutsche bank, foreclosure, foreclosures, Real Estate, trustee, trustee sale, Trusts0 Comments

MUST WATCH: ‘MERS’ ON FOX NEWS!!!

MUST WATCH: ‘MERS’ ON FOX NEWS!!!

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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Posted in chain in title, class action, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, deed of trust, Economy, fannie mae, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, investigation, mbs, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, Notary, notary fraud, note, quiet title, R.K. Arnold, racketeering, Real Estate, repossession, RICO, rmbs, robo signers, stopforeclosurefraud.com, sub-prime, trade secrets, trustee, Trusts, Wall Street4 Comments

NY SUPREME COURT: MERS “DEVOID OF PROOF” AS NOMINEE

NY SUPREME COURT: MERS “DEVOID OF PROOF” AS NOMINEE

Judge Thomas A. Adams knows exactly what he is doing! Watch for more of his slam dunks…

WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS FOR MERRILL LYNCH MORTGAGE INVESTORS TRUST, MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2005

– against –

STUART BRENNER, et aI.

INDEX NO. : 014812/09

AUGUST 20, 2010

Defendant’ s answer contains a defense of “lack of standing.” Plaintiff has failed to establish it was the holder of the note and the mortgage securing it when the action was commenced. In that regard, plaintiff relies on an undated assignment of the mortgage by MERS as nominee acknowledged by a Texas notary on July 18, 2009. The note sued on does not contain an indication it has been negotiated. The undated assignment by MERS contains a provision at the assignment of the mortgage is “TOGETHER with the notes described in said mortgage.” The record before me is devoid of proof that MERS as nominee for purposes of recording had authority to assign the mortgage. However, assuming it had such authority since it is a party to the mortgage and such authority might be implied , there has been a complete failure to establish MERS, as a non-party to the note, to negotiate its transfer. A transfer of the note effects a transfer of the mortgage MERS vs. Coakley, 41 AD3 674), the assignment of a mortgage without a valid transfer of the mortgage note is a nullity (Kluge vs. Fugazv, 145 AD2 537).

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Posted in chain in title, conspiracy, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosures, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, stopforeclosurefraud.com, trustee, Trusts0 Comments

CALL TO ACTION: MERS ASSIGNMENTS

CALL TO ACTION: MERS ASSIGNMENTS

The Time To Act Is NOW!

I am working on a special project & need your help to gather as many MERS Assignments as we can possibly get.

What is especially needed are the Certifying Officers signing these assignments for MERS. I don’t care if it’s old, new, signed, undated, unmarked, lender has gone bankrupt ages ago…I just want them ALL!


Click the Envelope to load up your MERS Assignment(s).

Or Info at stopforeclosurefraud.com

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in Bank Owned, bankruptcy, chain in title, concealment, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, investigation, mbs, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, Notary, notary fraud, note, quiet title, racketeering, Real Estate, REO, RICO, rmbs, robo signers, securitization, servicers, STOP FORECLOSURE FRAUD, stopforeclosurefraud.com, Supreme Court, trade secrets, trustee, Trusts, Wall Street1 Comment

Open Letter To California Attorney General Edmund G. Brown Jr.: Foreclosure Crisis

Open Letter To California Attorney General Edmund G. Brown Jr.: Foreclosure Crisis

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 4th 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 4th 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 4th 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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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of america, CONTROL FRAUD, corruption, countrywide, deed of trust, foreclosure, foreclosure fraud, foreclosures, injunction, investigation, mortgage, mortgage modification, Real Estate, securitization, servicers, TRO, trustee, trustee sale, Trusts, Violations2 Comments

MERS FAILS AS NOMINEE, AUTHORITY TO TRANSFER OWNERSHIP OF NOTE!

MERS FAILS AS NOMINEE, AUTHORITY TO TRANSFER OWNERSHIP OF NOTE!

NEW YORK SUPREME COURT NASSAU

In support of its standing to maintain the action when the action was commenced is an “Assignment of Mortgage” executed by MERS as nominee of Home Funds Direct which includes a provision indicating the assignment is TOGETHER with the bond or note. . . ” . Not only has plaintiff failed to establish MERS’ right as a nominee for purposes of recording to assign the mortgage, more importantly, no effort has been made to establish the authority of MERS, a non-party to the note, to transfer its ownership. Without establishing ownership of the note at the time the action was instituted, the plaintiff lacked a right to maintain the action.

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bank of new york, chain in title, concealment, conspiracy, CONTROL FRAUD, corruption, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, rmbs, securitization, servicers, stopforeclosurefraud.com, Supreme Court, trustee0 Comments

NY JUDGE SPINNER DENIES Deutsche & MERS for NOT Recording Mortgage, Make up Affidavit and Assignment!

NY JUDGE SPINNER DENIES Deutsche & MERS for NOT Recording Mortgage, Make up Affidavit and Assignment!

MERS ‘QUIET TITLE’ FAIL

NY SUPREME COURT: SUFFOLK COUNTY

INDEX NO. 09-3 1067

Excerpts:

MERS alleges that the mortgage was never recorded, and upon information and belief, has been lost or inadvertantly destroyed. MERS commenced this action on August 1 1, 2009, with the filing of the summons, verified complaint, and notice of pendency.

Also, in support of its cross motion, MERS submits, inter alia, copies of the alleged note and mortgage, and the affidavit of John Burnett ( “Burnett”), a Vice President of Deutsche Bank National Trust Company as Trustee for the MLMI Trust Series 2007-MLNI (“Deutsche Bank”) who alleges that Deutsche Bank is the current owner and holder of the mortgage that is the subject of this action. Burnett claims that MERS’ mortgage has been assigned to Deutsche Bank by an unrecorded assignment of the mortgage acknowledged on September 4,2009, a copy of which has been submitted to the court. Burnett states that the assignment will be recorded once the mortgage has been established of record. Further, Burnett alleges that out of the loan proceeds that were secured by the mortgage, $641,441.54 was paid to Downey Savings and Loan to satisfy a prior mortgage Torr had given on the property, and the amount of $34,833.22 was paid directly to Torr. Burnett submits a copy of the alleged HUD- 1 A Settlement Statement from Torr’s closing.

Additionally, Burnett asserts that it has been discovered that the original mortgage was never recorded, cannot be located, and is presumed to be lost or inadvertantly destroyed. He claims that the original mortgage is not in Deutsche Bank’s files, and only a copy has been located. Burnett states that Interactive Abstract (“Interactive”) a title abstract company, presided over the November 17, 2006 closing of the mortgage and took the executed original for the purpose of recording it in the Suffolk County Clerk’s Office. He states that, upon information and belief, the mortgage was lost, misplace or destroyed while in Interactive‘s possession or after it had been submitted to the Clerk’s Office for recording. Burnett alleges that he has been advised that Interactive has ceased operating as a title abstract company and is out of business.

MERS alleges that by submitting the affidavit of Burnett, and copies of the affidavits of service, together with the relevant documentary evidence, it has satisfied the proof required by CPLR 321 5 setting forth the facts constituting the claim against Torr and establishing his default. Moreover, MERS alleges that the relief sought herein, a declaratory judgment, is necessary to enable it to realize the security interest in the property that was bargained for when MLN made its $695,000.00 loan to Torr and Torr gave the mortgage to secure the loan. MERS requests that the court render a judgment declaring that the plaintiff is the holder of a mortgage encumbering the premises under the terms and conditions set forth in the unrecorded plaintiffs mortgage, and directing the Suffolk County Clerk’s Office to record such a declaratory judgment, together with a copy of the plaintiffs mortgage.

As to Torr’s motion to dismiss the complaint for failure to state a cause of action, MERS has established that such motion is untimely. Torr was served by two different methods of service. One of the affidavits of service submitted indicates that Torr was served pursuant to CPLR 308(2) on September 2, 2009, by leaving the summons and verified complaint with a person of suitable age and discretion; mailing them to Torr’s residence on September 8,2009; and then filing proof of service with the Suffolk County Clerk’s Office on September 18, 2009. Therefore, under this method of service, Torr would have had to have served an answer or a notice of appearance by October 28,2009 (see CPLR 308[2]; CPLR 320; and CPLR 3012). The other affidavit of service submitted indicates that Torr was served pursuant to CPLR 308( 1) on September 2,2009, by personal delivery of the summons and verified complaint, and then fiIing proof of service with the Suffolk County Clerk’s Office on September 10, 2009. Thus, under this method of service, Torr would have had to have served an answer or a notice of appearance by September 22, 2009 (see CPLR 320 and CPLR 30 12). Furthermore, this motion to dismiss the complaint was made by Torr on December 2 1,2009, the date upon which it was served (see CPLR 221 1). Inasmuch as this motion was not interposed within the time required for service of responsive pleadings (see CPLR 32 1 1 [e]), no matter which of the two afl’ldavits of service submitted herein is used, the motion is untimely. Therefore, Torr’s motion to dismiss is denied.

As to MERS’ cross motion, it is well settledl that when applying for a default judgment, a plaintiff must submit evidence sufficient to demonstrate a prima facie case (see CPLR 32 lS[fl; Silberstein v Presbyterinn Hosp. in the City of New York, 96 AD2d 1096,463 NYS2d 254 [1983]). Thus, if a court finds that the allegations in a complaint or affidavit of facts fail to establish a prima facie case, a movant is not entitled to the requested relief; even on default (Dyno v Rose, 260 AD2d 694,687 NYS2d 497 [1999]; Green v Dolplzy Construction Co., Inc., 187 AD2d 635, 590 NYS2d 238 [1992]). Consistent with the foregoing, and upon review of t.he papers submitted, the court finds MERS’ application for a default judgment to be deficient.

An action to compel the determination of a claim to real property may be maintained where a plaintiff claims an estate or interest in real property (RPAPL § 150 I [ 11). Although the interest had by a mortgagee of real property or its successor in interest is an “interest in real property”(RPAPL tj 150 1 [ 5 ] ) , here MERS has failed to meet its burden by demonstrating that it has standing to maintain this action to quiet title (see Soscin v Soscin, 35 AD3d 841, 829 NYS2d 543 [2006]). MERS has failed to make a prima facie showing that it was the owner or holder of the note and the mortgage at the time this action was commenced (cc Mortgnge Elec. Registration Sys., Inc. v Conkley, 41 AD3d 674, 838 NYS2d 622 [2007]). In addition, the purported mortgage describes MERS as the nominee of MLN, and that for purposes of recording the mortgage, MERS is the mortgagee of record. Thus, MERS as nominee, is the agent of MLN, for limited purposes, “and has only those powers which are conferred to it and authorized by” MLN (Bank of New York v Aldernzi, 201 0 NE’ Slip Op. 20 167,900 NYS2d 82 1, 823 [Sup Ct, Kings County, 20101). There is no evidence that MLN, who is not a party herein, authorized MERS to bring this action’.

Moreover, the effectiveness of the assignment dated September 4, 2009, is unclear as there is no evidence that MLN ever directly assigned the note to MERS or expressly gave MERS the authority to act as MLN’s authorized agent to assign the subject note to Deutsche Bank (see In re Stralern, 303 AD2d 120, 758 NYS2d 345 [2003]; Teitz v Goettler, 191 AD 924, 181 NYS 956 [1920]).Without an effective transfer of MLN’s interest in the note to MERS or express authorization from MLN for MERS to assign the note on its behalf, the assignment of the mortgage is a nullity (see Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [1988]). Thus, it is also iinclear whether Deutche Bank’s Vice President had the authority to act in terms of satisfying the proof of facts constituting this claim (see CPLR 3215[fl; Wells Fargo Barzk, NA v Davilmar, 16 Misc3d 1 13 3A, 847 NYS2d 906 [2007]).

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Posted in chain in title, conflict of interest, conspiracy, deutsche bank, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, quiet title, rmbs, servicers, stopforeclosurefraud.com, trustee, Trusts, Wall Street0 Comments

WHAT CERTIFIED POOLING & SERVICING AGREEMENTS LOOK LIKE

WHAT CERTIFIED POOLING & SERVICING AGREEMENTS LOOK LIKE

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

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in chain in title, deed of trust, foreclosure, foreclosures, insider, investigation, mbs, originator, pooling and servicing agreement, psa, rmbs, S.E.C., servicers, stopforeclosurefraud.com, trade secrets, trustee, Trusts, truth in lending act, Wall Street6 Comments

HSBC’s Irregularities: Mortgage Documentation and Corporate Relationships with Ocwen, MERS, and Delta

HSBC’s Irregularities: Mortgage Documentation and Corporate Relationships with Ocwen, MERS, and Delta

HSBC BANK USA v. THOMPSON

2010 Ohio 4158

HSBC Bank USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2007-1, Plaintiff-Appellant,
v.
Jamie W. Thompson, et al., Defendants-Appellees.

Appellate No. 23761.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on September 3, 2010.

Benjamin D. Carnahan, Atty. Reg. #0079737, Shapiro, Van Ess, Phillips & Barragate, LLP, 4805 Montgomery Road, Norwood, OH 45212 and Brian P. Brooks, (pro hac vice), O’Melveny & Myers LLP, 1625 Eye Street, N.W., Washington, DC 20006-4001, Attorneys for Plaintiff-Appellant, HSBC Bank.

Amy Kaufman, Atty. Reg. #0073837, 150 East Gay Street, 21st Floor, Columbus, Ohio 43215, Attorney for Appellee, Department of Taxation.

Andrew D. Neuhauser, Atty. Reg. #0082799, and Stanley A. Hirtle, Atty. Reg. #0025205, 525 Jefferson Avenue, Suite 300, Toledo, OH 43604, Attorneys for Amici Curiae, Advocates for Basic Legal Equality, et al.

Richard Cordray, Atty. Reg. #0038034, by Susan A. Choe, Atty. Reg. #0067032, Mark N. Wiseman, Atty. Reg. #0059637, and Jeffrey R. Loeser, Atty. Reg. #0082144, Attorney General’s Office, 30 E. Broad Street, 14th Floor, Columbus, OH 43215, Attorneys for Amicus Curiae, Ohio Attorney General Richard Cordray.

Andrew M. Engel, Atty. Reg. #0047371, 3077 Kettering Boulevard, Suite 108, Moraine, Ohio 45439, Attorney for Defendant-Appellee Jamie W. Thompson.

Colette Carr, Atty. Reg. #00705097, 301 W. Third Street, Fifth Floor, Dayton, OH 45422, Attorney for Appellee, Montgomery County Treasurer.

OPINION

FAIN, J.

{¶ 1} Plaintiff-appellant HSBC Bank USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2007-1 (HSBC), appeals from a judgment of the trial court, which rendered summary judgment and dismissed HSBC’s complaint for foreclosure, without prejudice. HSBC contends that the trial court improperly treated the date the assignment of mortgage was executed as dispositive of the claims before it. HSBC further contends that the trial court’s decision is erroneous, because it is premised on the court’s having improperly struck the affidavit of Chomie Neil, and having failed to consider Neil’s restated affidavit.

{¶ 2} Two briefs of amicus curiae have been filed in support of the position of defendants-appellees Jamie W. Thompson, Administratrix of the Estate of the Estate of Howard W. Turner, and Jamie W. Thompson (collectively Thompson). One brief was filed by the Ohio Attorney General Richard Cordray (Cordray). The other brief was filed by the following groups: Advocates for Basic Legal Equality; Equal Justice Foundation; Legal Aid Society of Southwest Ohio; Northeast Ohio Legal Aid Services; Ohio Poverty Law Center; and Pro Seniors, Inc. (collectively Legal Advocates). We have considered those briefs, all of which have been helpful, in deciding this appeal.

{¶ 3} We conclude that the trial court did not abuse its discretion in striking Neil’s affidavit, because of defects in the affidavit. We further conclude that the trial court did not abuse its discretion in failing to consider Neil’s restated affidavit, in the course of deciding objections to the magistrate’s decision, because HSBC failed to indicate why it could not have properly submitted the evidence, with reasonable diligence, before the magistrate had rendered a decision in the matter. Finally, we conclude that the trial court did not err in rendering summary judgment against HSBC, and dismissing the foreclosure action for lack of standing. HSBC failed to establish that it was the holder of a promissory note secured by a mortgage. Accordingly, the judgment of the trial court is Affirmed.

I

{¶ 4} On January 27, 2007, Howard Turner borrowed $85,000 from Fidelity Mortgage, a division of Delta Funding Corporation (respectively, Fidelity and Delta). Turner signed a note promising to repay Fidelity in monthly payments of $786.44 for a period of thirty years. The loan number on the note is 0103303640, and the property listed on the note is 417 Cushing Avenue, Dayton, Ohio, 45429.

{¶ 5} In order to secure the loan, Turner signed a mortgage agreement, which names Fidelity as the “Lender,” and Mortgage Electronic Registration Systems, Inc. (MERS) as a nominee for Fidelity and Fidelity’s successors and assigns. The mortgage states that Turner, as borrower, “does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, the following described property in the County of Montgomery, * * * which currently has the address of 417 Cushing Avenue, Dayton, Ohio 45429.” The mortgage was recorded with the Montgomery County Recorder on February 20, 2007, as MORT-07-014366.

{¶ 6} The entire amount of the loan proceeds was not disbursed. Fidelity placed $5,000 in escrow after closing, until certain repairs (roofing and heating) were made to the house. The required deposit agreement indicated that Turner had three months to make the repairs, and that if the items were not satisfactorily cleared, Fidelity had the option of satisfying the items from the funds held, of extending the time to cure, or of taking any other steps Fidelity felt necessary to protect the mortgage property, including but not limited to, paying down the principal of the loan with the deposit.

{¶ 7} Turner made timely payments through June 2007. However, he died in late July 2007, and no further payments were made. HSBC filed a foreclosure action on November 8, 2007, alleging that it was the owner and holder of Turner’s promissory note and mortgage deed and that default had occurred. HBSC sued Thompson, as administratrix of her father’s estate, and individually, based on her interest in the estate.

{¶ 8} HSBC attached purported copies of the note and mortgage agreement to the complaint. The note attached to the complaint is also accompanied by two documents that are each entitled “Allonge.” The first allonge states “Pay to the Order of _________ without recourse,” and is signed on behalf of Delta Funding Corporation by Carol Hollman, Vice-President. The second allonge states “Pay to the Order of Delta Funding Corporation” and is signed by Darryl King, as “authorized signatory” for Fidelity Mortgage.

{¶ 9} In January 2008, Thompson filed an answer, raising, among other defenses, the fact that the action was not being prosecuted in the name of the real party in interest. HSBC subsequently filed a motion for summary judgment in February 2007, supported by the affidavit of an officer of Ocwen Loan Servicing, LLC (Ocwen), which was a servicing agent for HSBC.

{¶ 10} Thompson filed a response to the summary judgment motion, pointing out various deficiencies in the affidavit and documents. Thompson further contended that HSBC was not the holder of the mortgage and note, and was not the real party in interest. In addition, Thompson filed an amended answer and counterclaim, contending that HSBC was not the real party in interest, and that HSBC had made false, deceptive, and misleading representations in connection with collecting a debt, in violation of Section 1692, Title 15, U.S. Code (the Fair Debt Collection Practices Act, or FDCPA).

{¶ 11} HSBC withdrew its motion for summary judgment in March 2008. In November 2008, the trial court vacated the trial date and referred the matter to a magistrate. HSBC then filed another motion for summary judgment in January 2009. This motion was supported by the affidavit of Chomie Neil, who was employed by Ocwen as a manager of trial preparation and discovery. Neil averred in the affidavit that he had executed it in Palm Beach, Florida. However, the notation at the top of the first page of the affidavit and the jurat both state that the affidavit was sworn to and subscribed to in New Jersey, before a notary public.

{¶ 12} Thompson moved to strike the affidavit, contending that it was filled with inadmissible hearsay, contained legal conclusions, and purported to authenticate documents, when no proper documentation had been offered. Thompson also questioned when the affidavit was executed, and whether it had been properly acknowledged, due to the irregularities in execution and acknowledgment. In addition, Thompson responded to the summary judgment motion, contending that HSBC was not the real party in interest and was not the holder of the note, because HSBC’s name was not on the note, and HSBC had failed to provide evidence that it was in possession of the note. In responding to the motion to strike, HSBC contended that the defects in the affidavit were the result of a scrivener’s error. HSBC did not attempt to correct the affidavit.

{¶ 13} In late March 2009, Thompson filed a motion for partial summary judgment against HSBC. The motion was based on the fact that under the allonges, Delta Funding Corporation was the payee of the note. Thompson also noted that MERS failed to assign the mortgage note to HSBC before the action was commenced. Thompson contended that HSBC was not the real party in interest when it filed the lawsuit, and lacked standing to invoke the court’s jurisdiction.

{¶ 14} In May 2009, the magistrate granted Thompson’s motion to strike the affidavit, because the affidavit stated that it had been sworn to in New Jersey, and the affiant declared that the affidavit was executed in Florida. The magistrate also overruled HSBC’s motion for summary judgment, and granted Thompson’s partial motion for summary judgment. The magistrate concluded that HSBC lacked standing because it was not a mortgagee when the suit was filed and could not cure its lack of standing by subsequently obtaining an interest in the mortgage. The magistrate further concluded that there was no evidence properly before the court that would indicate that HSBC was the holder of the promissory note originally executed by Turner. Accordingly, the magistrate held that HSBC’s foreclosure claim should be dismissed without prejudice. Due to factual issues regarding Thompson’s FDCPA counterclaim, HSBC’s motion for summary judgment on the counterclaim was denied.

{¶ 15} HSBC filed objections to the magistrate’s decision, and attached the “restated” affidavit of Neil. The affidavit was identical to what was previously submitted, except that the first page indicated that the affidavit was being signed in Palm Beach County, Florida. The jurat is signed by a notary who appears to be from Florida, although the notary seals on the original and copy that were submitted are not very clear. HSBC did not offer any explanation for the mistake in the original affidavit.

{¶ 16} In November 2009, the trial court overruled HSBC’s objections to the magistrate’s report. The court concluded that the errors in the affidavit were more than format errors. The court further noted that the document became an unsworn statement and could not be used for summary judgment purposes, because the statements were sworn to a notary in a state outside the notary’s jurisdiction. The court also held that, absent Neil’s affidavit, HSBC had failed to provide support for its summary judgment motion. Finally, the court concluded that HSBC failed to provide evidence that it was in possession of the note prior to the filing of the lawsuit, because the Neil affidavit had been struck, and a prior affidavit only verified the mortgage and note as true copies; it did not verify the undated allonges. Accordingly, the trial court dismissed HSBC’s action with prejudice, and entered a Civ. R. 54(B) determination of no just cause for delay.

{¶ 17} HSBC appeals from the judgment dismissing its action without prejudice.

II

{¶ 18} We will address HSBC’s assignments of error in reverse order. HSBC’s Second Assignment of Error is as follows:

{¶ 19} “THE LOWER COURT’S DECISION IS PREMISED ON IMPROPERLY STRIKING MR. NEIL’S AFFIDAVIT AND FAILING TO CONSIDER THE RESTATED AFFIDAVIT.”

{¶ 20} Under this assignment of error, HSBC contends that the errors in Neil’s affidavit were scrivener’s errors that have no bearing on the content of the affidavit. HSBC contends, therefore, that the trial court erred in refusing to consider the affidavit.

{¶ 21} The error, as noted, is that Neil averred that he signed the affidavit in Florida, while the first page and the jurat indicate that the affidavit was executed before a notary public in New Jersey.

{¶ 22} Thompson, Cordray, and Legal Advocates argue that the defect is not merely one of form, because the errors transform the affidavit into an unsworn statement that cannot be used to support summary judgment. The trial court agreed with this argument.

{¶ 23} Legal Advocates also stresses that HSBC was notified of problems with Neil’s affidavit, but made no attempt to cure the defect until after the magistrate had issued an unfavorable ruling. In addition, Cordray notes that the integrity of evidence in foreclosure cases is critical, due to the imbalance between access to legal representation of banks and homeowners. Thompson, Cordray, and Legal Advocates further contend that even if Neil’s affidavit could be considered, it is replete with inadmissible hearsay and legal conclusions, and is devoid of evidentiary value.

{¶ 24} Concerning the form of affidavits, Civ. R. 56(E) provides that:

{¶ 25} “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. * * *”

{¶ 26} The Supreme Court of Ohio has held that “An affidavit must appear, on its face, to have been taken before the proper officer and in compliance with all legal requisites. A paper purporting to be an affidavit, but not to have been sworn to before an officer, is not an affidavit.” In re Disqualification of Pokorny (1992), 74 Ohio St.3d 1238 (citation omitted). Accord, Pollock v. Brigano (1998), 130 Ohio App.3d 505, 509.

{¶ 27} The affidavit submitted to the magistrate contains irreconcilable conflicts, because the affiant, Neil, states that he executed the affidavit in Florida. In contrast, the jurat, as well as the first page of the affidavit, indicate that the affidavit was signed in New Jersey.

{¶ 28} In Stern v. Board of Elections of Cuyahoga Cty. (1968), 14 Ohio St.2d 175, the Supreme Court of Ohio noted that in common use, a jurat “is employed to designate the certificate of a competent administering officer that a writing was sworn to by the person who signed it. It is no part of the oath, but is merely evidence of the fact that the oath was properly taken before the duly authorized officer.” Id. at 181 (citations omitted).

{¶ 29} In light of the inconsistencies, Neil’s oath could not have been properly taken before a duly authorized officer. Under New Jersey law, a notary public commissioned in New Jersey may perform duties only throughout the state of New Jersey. See N.J. Stat. Ann. 52:7-15. Therefore, a New Jersey notary public could not properly have administered the oath in Florida. A New Jersey notary public also could not properly have certified that the writing was sworn to, when the person signed it in another jurisdiction.

{¶ 30} As support for admission of Neil’s affidavit, HSBC cites various cases that have overlooked technical defects in affidavits. See, e.g., State v. Johnson (Oct. 24, 1997), Darke App. No. 96CA1427 (holding that a “scrivener’s error” was inconsequential and did not invalidate an affidavit), and Chase Manhattan Mtg. Corp. v. Locker, Montgomery App. No. 19904, 2003-Ohio-6665, ¶ 26 (holding that omission of specific date of month on which affidavit was signed was “scrivener’s error” and did not invalidate affidavit, because notary public did include the month and year).

{¶ 31} In Johnson, the error involved a discrepancy between the preamble and the jurat.

{¶ 32} The preamble said the site of the oath was in a particular county, but the notary swore in the jurat that the affidavit had been signed in a different county. The trial court concluded that this was a typographical error, and we agreed. This is consistent with the fact that in Ohio, a notary public may administer oaths throughout the state. See R.C. 147.07. Therefore, even if a discrepancy exists between the location listed in the preamble and the notary’s location, the official status of the affidavit is not affected. In contrast, the affiant in the case before us stated that he signed the affidavit in a different state, where the notary did not have the power to administer oaths. The difference is not simply one of form.

{¶ 33} HSBC contends that the trial court should have accepted the “restated” affidavit that it attached to HSBC’s objections to the magistrate’s decision. The trial court did not specifically discuss the restated affidavit when it overruled HSBC’s objections. We assume, therefore, that the court rejected the affidavit. See, e.g., Maguire v. Natl. City Bank, Montgomery App. No. 23140, 2009-Ohio-4405, ¶ 16, and Takacs v. Baldwin (1995), 106 Ohio App.3d 196, 209 (holding that where a trial court fails to rule on a motion, an appellate court assumes that the matter was overruled or rejected).

{¶ 34} The trial court was not required to consider the restated affidavit, because HSBC failed to explain why the affidavit could not have been properly produced for the magistrate. In this regard, Civ. R. Rule 53(D)(4)(d) provides that:

{¶ 35} “If one or more objections to a magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.”

{¶ 36} Well before the magistrate ruled, HSBC was aware that objections had been raised to the affidavit. HSBC made no attempt to submit a corrected document to the magistrate, nor did it provide the trial court with an explanation for the cause of the problem. Accordingly, the trial court did not abuse its discretion in refusing to consider the original or restated affidavit. See Hillstreet Fund III, L.P. v. Bloom, Montgomery App. No. 23394, 2010-Ohio-2267, ¶ 49 [noting that trial courts have discretion to accept or refuse additional evidence under Civ. R. 53(D)(4)(d).]

{¶ 37} Because the trial court did not abuse its discretion in rejecting the Neil affidavits, we need not consider whether the contents of the affidavits are inadmissible.

{¶ 38} HSBC’s Second Assignment of Error is overruled.

III

{¶ 39} HSBC’s First Assignment of Error is as follows:

{¶ 40}THE COURT OF COMMON PLEAS IMPROPERLY TREATED THE DATE THE ASSIGNMENT OF MORTGAGE WAS EXECUTED AS DISPOSITIVE OF THE CLAIMS BEFORE IT.”

{¶ 41} Under this assignment of error, HSBC contends that the trial court committed reversible error by disregarding the ruling in State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 1998-Ohio-275, that defects in standing may be cured at any time before judgment is entered. According to HSBC, an assignment of mortgage recorded with the Montgomery County Recorder establishes that HSBC is the current holder of the mortgage interest, because the interest was transferred about one week after the action against Thomson was filed. HSBC further contends that the trial court improperly disregarded evidence that HSBC legally owned the note before its complaint was filed. Before addressing the standing issue, we note that the case before us was resolved by way of summary judgment. “A trial court may grant a moving party summary judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor.” Smith v. Five Rivers MetroParks (1999), 134 Ohio App.3d 754, 760. “We review summary judgment decisions de novo, which means that we apply the same standards as the trial court.” GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, ¶ 16.

{¶ 42} To decide the real-party-in-interest issue, we first turn to Civ. R. Rule 17(A), which states that:

{¶ 43} “Every action shall be prosecuted in the name of the real party in interest. * * * * No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

{¶ 44} “Standing is a threshold question for the court to decide in order for it to proceed to adjudicate the action.” Suster, 84 Ohio St.3d at 77. The issue of lack of standing “challenges the capacity of a party to bring an action, not the subject matter jurisdiction of the court.” Id. To decide whether the requirement has been satisfied that an action be brought by the real party in interest, “courts must look to the substantive law creating the right being sued upon to see if the action has been instituted by the party possessing the substantive right to relief.” Shealy v. Campbell (1985), 20 Ohio St.3d 23, 25.

{¶ 45}In foreclosure actions, the real party in interest is the current holder of the note and mortgage.” Wells Fargo Bank, N.A. v. Sessley, Franklin App. No. 09AP-178, 2010-Ohio-2902, ¶ 11 (citation omitted). Promissory notes are negotiable, and may be transferred to someone other than the issuer. That person then becomes the holder of the instrument. R.C. 1303.21(A). R.C. 1303.21(B) provides, however, that:

{¶ 46} “Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”

{¶ 47} R.C, 1301.01(T)(1) also states that a holder with regard to a negotiable instrument means either of the following:

{¶ 48} “(a) If the instrument is payable to bearer, a person who is in possession of the instrument;

{¶ 49} “(b) If the instrument is payable to an identified person, the identified person when in possession of the instrument.”

{¶ 50} In the case before us, the promissory note identifies Fidelity as the holder. The note, therefore, could have been negotiated only by Fidelity, through transfer of possession, and by either endorsing the note to a specific person, or endorsing the note to “bearer.”

{¶ 51} HSBC contends that it is the legal holder of the promissory note, and is entitled to enforce it, because it obtained the note as a bearer. A “bearer” is “the person in possession of an instrument, document of title, or certificated security payable to bearer or endorsed in blank.” R.C. 1301.01(E). HSBC’s claim that it is the bearer of the note is based on the “allonges” that were included as part of the exhibits to the complaint.

{¶ 52} The rejected affidavits of Neil do not refer to the allonges, nor were any allonges included with the promissory note that was attached to Neil’s affidavit. During oral argument, HSBC referred frequently to the Jiminez-Reyes affidavit, which was attached to a February 2008 summary judgment motion filed by HSBC. Jiminez-Reyes identified the exhibits attached to the complaint, but did not refer to the allonges. HSBC withdrew the summary judgment motion in March 2008, after Thompson had identified various deficiencies in the affidavit, including the fact that Jiminez-Reyes had incorrectly identified Thompson as the account holder. Since the motion was withdrawn, it is questionable whether the attached affidavit of Jiminez-Reyes was properly before the trial court. Byers v. Robinson, Franklin App. No. 08AP-204, 2008-Ohio-4833, ¶ 16 (effect of withdrawing motion is to leave the record as it stood before the motion was filed).

{¶ 53} Nonetheless, shortly after the complaint was filed, and prior to its first summary judgment motion, HSBC filed an affidavit of Jessica Dybas, who is identified in the affidavit as an “agent” of HSBC. The exact status of Dybas’s agency or connection to HSBC is not explained in the affidavit.

{¶ 54} Dybas states in the affidavit that she has personal knowledge of the history of the loan, that she is the custodian of records pertaining to the loan and mortgage, and that the records have been maintained in the ordinary course of business. See “Exhibit A attached to Plaintiff’s Notice of Filing of Loan Status, Military, Minor and Incompetent Affidavit and Loan History,” which was filed with the trial court in February 2008. Dybas’s affidavit also identifies Exhibits A and B of the complaint as true and accurate copies of the originals. Exhibit A to the complaint includes a copy of the promissory note of the decedent, Howard Turner, made payable to Fidelity, and a copy of two documents entitled “Allonge,” that are placed at the end of the promissory note. Exhibit B is a copy of the mortgage agreement, which names Fidelity as the “Lender” and MERS as “nominee” for Fidelity and its assigns. Dybas’s affidavit does not specifically mention the allonges. Like the affidavit of Jiminez-Reyes, Dybas’s affidavit incorrectly identifies Thompson as the borrower on the note. Thompson was not the borrower; she is the administratrix of the estate of the borrower, Howard Turner.

{¶ 55} Assuming for the sake of argument that Dybas’s affidavit is sufficient, or that the affidavit of Jiminez-Reyes was properly before the court, we note that Ohio requires endorsements to be “on” an instrument, or in papers affixed to the instrument. See R.C. 1303.24(A)(1) and (2), which state that “For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.”

{¶ 56} “The use of an allonge to add indorsements to an instrument when there is no room for them on the instrument itself dates from early common law.” Southwestern Resolution Corp. v. Watson (Tex. 1997), 964 S.W.2d 262, 263. “An allonge is defined as `[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.'” Chase Home Finance, LLC v. Fequiere (2010), 119 Conn.App. 570, 577, 989 A.2d 606, quoting from Black’s Law Dictionary (9th Ed. 2009).

{¶ 57} In Watson, a note and allonge produced at trial were taped together and had several staple holes. The president of the noteholder testified that when his company received the note, “the allonge was stapled to it and may also have been clipped and taped, but that the note and allonge had been separated and reattached five or six times for photocopying.” 964 S.W.2d at 263. The lower courts agreed with a jury that the allonge was not so firmly affixed as to be part of the note. But the Supreme Court of Texas disagreed.

{¶ 58} The Supreme Court of Texas recounted the history of allonges throughout various versions of the Uniform Commercial Code (UCC). The court noted that an early provision had provided that an endorsement must be written on the note or on a paper attached thereto. Id., citing Section 31 of the Uniform Negotiable Instruments Law. Under this law, an allonge could be attached by a staple. Id (citation omitted). The Supreme Court of Texas also noted that:

{¶ 59} “When the UCC changed the requirement from `attached thereto’ to `so firmly affixed thereto as to become a part thereof’, * * * the drafters of the new provision specifically contemplated that an allonge could be attached to a note by staples. American Law Institute, Comments & Notes to Tentative Draft No. 1-Article III 114 (1946), reprinted in 2 Elizabeth Slusser Kelly, Uniform Commercial Code Drafts 311, 424 (1984) (`The indorsement must be written on the instrument itself or on an allonge, which, as defined in Section ___, is a strip of paper so firmly pasted, stapled or otherwise affixed to the instrument as to become part of it.’).” Id. at 263-64 (citation omitted).

{¶ 60} The Supreme Court of Texas further observed that:

{¶ 61} “The attachment requirement has been said to serve two purposes: preventing fraud and preserving the chain of title to an instrument. * * * * Still, the requirement has been relaxed in the current code from `firmly affixed’ to simply `affixed’. Tex. Bus. & Com.Code § 3.204(a). As the Commercial Code Committee of the Section of Business Law of the State Bar of Texas concluded in recommending adoption of the provision, `the efficiencies and benefits achieved by permitting indorsements by allonge outweigh[] the possible problems raised by easily detachable allonges.'” Id. at 264 (citations omitted).

{¶ 62} The Supreme Court of Texas, therefore, concluded that a stapled allonge is “firmly affixed” to an instrument, and that the allonge in the case before it was properly affixed. In this regard, the court relied on the following evidence:

{¶ 63} “In the present case, Southwestern’s president testified that the allonge was stapled, taped, and clipped to the note when Southwestern received it. There was no evidence to the contrary. The fact that the documents had been detached for photocopying does not raise a fact issue for the jury about whether the documents were firmly affixed. If it did, the validity of an allonge would always be a question of the finder of fact, since no allonge can be affixed so firmly that it cannot be detached. One simply cannot infer that two documents were never attached from the fact that they can be, and have been, detached. Nor could the jury infer from the staple holes in the two papers, as the court of appeals suggested, that the two documents had not been attached. This would be pure conjecture.” Id. at 264.

{¶ 64} Like Texas, Ohio has adopted the pertinent revisions to the UCC. In All American Finance Co. v. Pugh Shows, Inc. (1987), 30 Ohio St.3d 130, the Supreme Court of Ohio noted that under UCC 3-302, “a purported indorsement on a mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation.” Id. at 132, n. 3. At that time, R.C. 1303.23 was the analogous Ohio statute to UCC 3-202, which required endorsements to be firmly affixed.

{¶ 65} Ohio subsequently adopted the revisions to the UCC. R.C. 1303.24(A)(2) now requires that a paper be affixed to an instrument in order for a signature to be considered part of the instrument. R.C. 1303.24 is the analogous Ohio statute to UCC. 3-204. The 1990 official comments for UCC 3-204 state that this requirement is “based on subsection (2) of former Section 3-202. An indorsement on an allonge is valid even though there is sufficient space on the instrument for an indorsement.” This latter comment addresses the fact that prior to the 1990 changes to the UCC, the majority view was that allonges could be used only if the note itself contained insufficient space for further endorsements. See, e.g., Pribus v. Bush (1981), 118 Cal.App.3d 1003, 1008, 173 Cal.Rptr. 747. See, also, All American Finance, 30 Ohio St.3d at 132, n.3 (indicating that while the court did not need to reach the issue for purposes of deciding the case, several jurisdictions “hold that indorsement by allonge is permitted only where there is no longer room on the instrument itself due to previous indorsements.”)

{¶ 66} The current version of the UCC, codified as R.C. 1303.24(A)(2), allows allonges even where room exists on the note for further endorsements. However, the paper must be affixed to the instrument in order for the signature to be considered part of the instrument. As the Supreme Court of Texas noted in Watson, the requirement has changed from being “firmly affixed” to “affixed.” However, even the earlier version, which specified that the allonge be “attached thereto,” was interpreted as requiring that the allonge be stapled. Watson, 964 S.W.2d at 263.

{¶ 67} In contrast to Watson, no evidence was presented in the case before us to indicate that the allonges were ever attached or affixed to the promissory note. Instead, the allonges have been presented as separate, loose sheets of paper, with no explanation as to how they may have been attached. Compare In re Weisband, (Bkrtcy. D. Ariz., 2010), 427 B.R. 13, 19 (concluding that GMAC was not a “holder” and did not have ability to enforce a note, where GMAC failed to demonstrate that an allonge endorsement to GMAC was affixed to a note. The bankruptcy court noted that the endorsement in question “is on a separate sheet of paper; there was no evidence that it was stapled or otherwise attached to the rest of the Note.”)

{¶ 68} It is possible that the allonges in the case before us were stapled to the note at one time and were separated for photocopying. But unlike the alleged creditor in Watson, HSBC offered no evidence to that effect. Furthermore, assuming for the sake of argument that the allonges were properly “affixed,” the order of the allonges does not permit HSBC to claim that it is the possessor of a note made payable to bearer or endorsed in blank.

{¶ 69} The first allonge is endorsed from Delta to “blank,” and the second allonge is endorsed from Fidelity to Delta. If the endorsement in blank were intended to be effective, the endorsement from Fidelity to Delta should have preceded the endorsement from Delta to “blank,” because the original promissory note is made payable to Fidelity, not to Delta. Delta would have had no power to endorse the note before receiving the note and an endorsement from Fidelity.

{¶ 70} HSBC contends that the order of the allonges is immaterial, while Thompson claims that the order is critical. At the oral argument of this appeal, HSBC appeared to be arguing that the order of allonges would never be material. This is easily refuted by the example of two allonges, one containing an assignment from the original holder of the note to A, and the other containing an assignment from the original holder of the note to B. Whichever allonge was first would determine whether the note had been effectively assigned to A, or to B.

{¶ 71} Thompson contends that because the last-named endorsement is made to Delta, Delta was the proper holder of the note when this action was filed, since the prior, first-named endorsement was from an entity other than the current holder of the note. In Adams v. Madison Realty & Development, Inc. (C.A.3, 1988), 853 F.2d 163, the Third Circuit Court of Appeals stressed that from the maker’s standpoint:

{¶ 72} “it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide makers with a recognizable interest in demanding proof of the chain of title.” Id. At 168.

{¶ 73} The Third Circuit Court of Appeals further observed that:

{¶ 74} “Financial institutions, noted for insisting on their customers’ compliance with numerous ritualistic formalities, are not sympathetic petitioners in urging relaxation of an elementary business practice. It is a tenet of commercial law that `[h]oldership and the potential for becoming holders in due course should only be accorded to transferees that observe the historic protocol.'” 853 F.2d at 169 (citation omitted).

{¶ 75} Consistent with this observation, recent decisions in the State of New York have noted numerous irregularities in HSBC’s mortgage documentation and corporate relationships with Ocwen, MERS, and Delta. See, e.g., HSBC Bank USA, N.A. v. Cherry (2007), 18 Misc.3d 1102(A), 856 N.Y.S.2d 24 (Table), 2007 WL 4374284, and HSBC Bank USA, N.A. v. Yeasmin (2010), 27 Misc.3d 1227(A), 2010 N.Y. Slip Op. 50927(U)(Table), 2010 WL 2080273 (dismissing HSBC’s requests for orders of reference in mortgage foreclosure actions, due to HSBC’s failure to provide proper affidavits). See, also, e.g., HSBC Bank USA, N.A. v. Charlevagne (2008), 20 Misc.3d 1128(A), 872 N.Y.S.2d 691 (Table), 2008 WL 2954767, and HSBC Bank USA, Nat. Assn. v. Antrobus (2008), 20 Misc.3d 1127(A), 872 N.Y.S.2d 691,(Table), 2008 WL 2928553 (describing “possible incestuous relationship” between HSBC Bank, Ocwen Loan Servicing, Delta Funding Corporation, and Mortgage Electronic Registration Systems, Inc., due to the fact that the entities all share the same office space at 1661 Worthington Road, Suite 100, West Palm Beach, Florida. HSBC also supplied affidavits in support of foreclosure from individuals who claimed simultaneously to be officers of more than one of these corporations.).

{¶ 76} Because the last allonge endorses the note to Delta, and no further endorsement to HSBC was provided, the trial court did not err in concluding that HSBC was not the holder of the note when the litigation was commenced against Thompson.

{¶ 77} As an alternative position, HSBC contended at oral argument that it had standing to prosecute the action, because assignment of the mortgage alone is sufficient. In this regard, HSBC notes that the mortgage was transferred to HSBC by MERS on November 14, 2007. This was about one week after HSBC commenced the mortgage foreclosure action.

{¶ 78} HSBC did not argue this position in its briefs, and did not provide supporting authority for its position at oral argument. In fact, HSBC relied in its brief on the contrary position that HSBC “was the legal holder of the note and, accordingly, entitled to enforce the mortgage loan regardless of the date the Mortgage was assigned, and under Marcino, even if the Mortgage had never been separately assigned to HSBC.” Brief of Appellant HSBC Bank USA, N.A., pp. 15-16 (bolding in original).

{¶ 79} The Marcino case referred to by HSBC states as follows:

{¶ 80} “For nearly a century, Ohio courts have held that whenever a promissory note is secured by a mortgage, the note constitutes the evidence of the debt and the mortgage is a mere incident to the obligation. Edgar v. Haines (1923), 109 Ohio St. 159, 164, 141 N.E. 837. Therefore, the negotiation of a note operates as an equitable assignment of the mortgage, even though the mortgage is not assigned or delivered.” U.S. Bank Natl. Assn. v. Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, ¶ 52.

{¶ 81} Even if HSBC had provided support for the proposition that ownership of the note is not required, the evidence about the assignment is not properly before us. The alleged mortgage assignment is attached to the rejected affidavits of Neil. Furthermore, even if we were to consider this “evidence,” the mortgage assignment from MERS to HSBC indicates that the assignment was prepared by Ocwen for MERS, and that Ocwen is located at the same Palm Beach, Florida address mentioned in Charlevagne and Antrobus. See Exhibit 3 attached to the affidavit of Chomie Neil. In addition, Scott Anderson, who signed the assignment, as Vice-President of MERS, appears to be the same individual who claimed to be both Vice-President of MERS and Vice-President of Ocwen. See Antrobus, 2008 WL 2928553, * 4, and Charlevagne, 2008 WL 2954767, * 1.

{¶ 82} In support of its argument that a subsequent mortgage assignment can confer standing on a noteholder, HSBC cites some Ohio cases in which “courts have rejected claims that the execution of an assignment subsequent to the filing of a complaint necessarily precludes a party from prosecuting a foreclosure action as the real party in interest.” Deutsche Bank Natl. Trust Co. v. Cassens, Franklin App. No. 09-AP-865, 2010-Ohio-2851, ¶ 17. Accordingly, at least in the view of some districts in Ohio, if the note had been properly negotiated to HSBC, HSBC may have been able to claim standing, based on equitable assignment of the mortgage, supplemented by the actual transfer of the mortgage after the complaint was filed.

{¶ 83} In contrast to the Seventh District, other districts take a more rigid view. See Wells Fargo Bank v. Jordan, Cuyahoga App. No. 91675, 2009-Ohio-1092 (holding that Civ. R. 17(A) does not apply unless a plaintiff has standing in the first place to invoke the jurisdiction of the court. Accordingly, a bank that is not a mortgagee when suit is filed is not the real party in interest on the date the complaint is filed, and cannot cure its lack of standing by subsequently obtaining an interest in the mortgage). Accord Bank of New York v. Gindele, Hamilton App. No. C-090251, 2010-Ohio-542.

{¶ 84} In Gindele, the First District Court of Appeals commented as follows:

{¶ 85} “We likewise reject Bank of New York’s argument that the real party in interest when the lawsuit was filed was later joined by the Gindeles. We are convinced that the later joinder of the real party in interest could not have cured the Bank of New York’s lack of standing when it filed its foreclosure complaint. This narrow reading of Civ.R. 17 comports with the intent of the rule. As other state and federal courts have noted, Civ.R. 17 generally allows ratification, joinder, and substitution of parties `to avoid forfeiture and injustice when an understandable mistake has been made in selecting the parties in whose name the action should be brought.’ * * * * `While a literal interpretation of * * * Rule 17(a) would make it applicable to every case in which an inappropriate plaintiff was named, the Advisory Committee’s Notes make it clear that this provision is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. When determination of the correct party to bring the action was not difficult and when no excusable mistake was made, the last sentence of Rule 17(a) is inapplicable and the action should be dismissed.'” Id. at ¶ 4 (footnotes omitted).

{¶ 86} We need not decide which approach is correct, because the alleged assignment of mortgage is attached to Neil’s rejected affidavits. Since the trial court’s disregard of the affidavits was not an abuse of discretion, there is currently no evidence of a mortgage “assignment” to consider. Moreover, we would reject HSBC’s position even if we considered the alleged assignment, because HSBC failed to establish that it was the holder of the note. Therefore, no “equitable assignment” of the mortgage would have arisen. All that HSBC might have established is that the mortgage was assigned to it after the action was filed. However, as we noted, the matters pertaining to that fact were submitted with an affidavit that the trial court rejected, within its discretion.

{¶ 87} Accordingly, the trial court did not err in dismissing the action without prejudice, based on HSBC’s failure to prove that it had standing to sue.

{¶ 88} HSBC’s First Assignment of Error is overruled.

IV

{¶ 89} The final matter to be addressed is Thompson’s motion to dismiss the part of HSBC’s appeal which assigns error in the trial court’s denial of HSBC’s motion for summary judgment. HSBC filed a motion for summary judgment on Thompson’s counterclaim, which alleged violations of the Fair Debt Practices Collection Act. The trial court denied the motion for summary judgment, and filed a Civ. R. 54(B) certification regarding the summary judgment that had been rendered in Thompson’s favor.

{¶ 90} Thompson contends that denial of summary judgment is not a final appealable order, and that HSBC’s argument regarding the FDCPA should not be considered on appeal. In response, HSBC maintains that it is not appealing the denial of its motion for summary judgment. HSBC argues instead, that if we reverse the trial court order granting Thompson’s motion to strike the affidavit of Neil, or if we reverse the order dismissing HSBC’s foreclosure complaint, we would then be entitled under App. R. 12(B) to enter a judgment dismissing the FDCPA claims.

{¶ 91} App. R. 12(B) provides that:

{¶ 92} “When the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in appellant’s brief and that the appellee is entitled to have the judgment or final order of the trial court affirmed as a matter of law, the court of appeals shall enter judgment accordingly. When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment or final order. In all other cases where the court of appeals determines that the judgment or final order of the trial court should be modified as a matter of law it shall enter its judgment accordingly.”

{¶ 93} App. R. 12(B) does not apply, because the trial court did not commit error prejudicial to HSBC. Furthermore, HSBC admits that it is not appealing the denial of its summary judgment motion. Accordingly, Thompson’s motion to dismiss is without merit and is overruled.

V

{¶ 94} All of HSBC’s assignments of error having been overruled, the judgment of the trial court is Affirmed. Thompson’s motion to dismiss part of HSBC’s appeal is overruled.

Brogan and Froelich, JJ., concur.

This copy provided by Leagle, Inc.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bogus, chain in title, conflict of interest, conspiracy, CONTROL FRAUD, corruption, fdcpa, foreclosure, foreclosure fraud, foreclosures, HSBC, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, notary fraud, note, robo signers, stopforeclosurefraud.com, trade secrets, trustee, Trusts0 Comments

Mr. Velez, I am sorry for what the judge did.

Mr. Velez, I am sorry for what the judge did.

Ok… before we get to the transcript below I want to point out a few issues I found.

The question that remains is how did EVERHOME “ever” get a hold of any mortgage? It has no assignment in PB records.

EVERHOME is a Shareholder/ Owner of MERS. There is also a connection between CitiMortgage and a Verdugo Trustee Service Corporation.

In 2006 MERS released a mortgage belonging to the Velez’s. MERS Vice President name is Merhl Gibson and the notary is Jane Eyler. Both from Maryland. It appears that the same individual signed the entire document. See exhibit below.

Now these same individuals are signing this document below as Vice President and Notary for CitiMortgage. But take a close look and compare the signatures to the release above.Both of these are about a few weeks apart. Merhl’s stamp is from New York.

Not to mention in William C. Hultman’s deposition earlier this year he states MERS has ZERO EMPLOYEES. So where exactly are the live persons whom get these delivered to MERS to sign?

Thank you to 4ClosureFraud for this info below.

Comment from a reader of this site…

Lori Bangor says:

September 1, 2010 at 11:11 AM

“On 8/30, I had a Summary Judgment Foreclosure hearing on Palm Beach County’s “Rocket Docket”. The judge spoke for 14 minutes to the crowd, of mostly pro se defendants, about how they should just agree to the summary judgment and the plaintiffs, (whose attorneys (Shapiro & Fishman had a dedicated courtroom and to whom he referred to as “my attorneys”) would be gracious (Ha!) enough to allow them to stay in their homes for 120 days if needed (even though the statute says he only has to give them 30). When it came to hearing arguments which were fully briefed and provided to the court (pursuant to the instructions of the Divisions head judge) he only allowed 30-60 seconds for argument, failed to read any of the papers, failed to review the plaintiff’s foreclosure package,flatly ignored the Affidavit filed in Opposition, ignored my plea for a trial, signed the judgment and dismissed me. I never was permitted to even read the proposed judgment or to examine the “newly discovered” allonge which Shapiro’s counsel said I had no right to see. Thank God I had a court reporter!”

Well it just happens to be that Lori is an Attorney and got a transcript of  what went down…

This is what happens everyday…

I have seen it first hand…

Horrifying…

Full transcript below…

[ipaper docId=36808660 access_key=key-23og4xre46fgbtqgcorz height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in chain in title, citimortgage, concealment, conspiracy, CONTROL FRAUD, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, investigation, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., notary fraud, note, Real Estate, robo signers, servicers, shapiro & fishman pa, stopforeclosurefraud.com, trustee, William C. Hultman4 Comments

FORECLOSURE FRAUD | AFFIDAVIT IN SUPPORT FOR ‘SUMMARY JUDGMENT’

FORECLOSURE FRAUD | AFFIDAVIT IN SUPPORT FOR ‘SUMMARY JUDGMENT’

AFFIDAVIT FAIL!

Just like the Lis Pendens arriving before the Assignment from Mortgage Electronic Registration Systems, Inc. with 1st Vice President Mark Bishop (who also signs for CityWide Mortgage Corp and America’s Wholesale Lender,etc.). There is no Assignment “created” from MERS to BAC Home Loan Servicing LP.

In this Affidavit we have Suzanne M. Haumesser signing as SR. Vice President of BAC Home Loan Servicing, LP. For Owner and Holder of Mortgage and Note, Bank of New York as Trustee for the Certificate Holders CWALT inc Alternative Loan Trust 2006-oa10 mortgage pass through certificates, series 2006-oa10

The Notary is Dolores V. Bald from Erie County, New York.

The day of service August 26. 2010

Date showing for the amount due “FEBRUARY 17, 2010”

Signed in California but notarized in New York!

Did Suzanne make a special trip just to sign this in NY?

NOW, Take a look at when this was NOTARIZED DECEMBER 30, 2009 (?08) months before the February 17, 2010 tally of the amounts due! It also looks like an 08 instead of a 09. Last the date of service was August 26, 2010. C’mon get real! Why does it take all these months?

If this was done in 2008 New York Notary Commissions are good for 4 years.


© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of new york, chain in title, conflict of interest, conspiracy, CONTROL FRAUD, corruption, countrywide, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, notary fraud, note, securitization, servicers, STOP FORECLOSURE FRAUD, trade secrets, trustee, Trusts, Wall Street4 Comments

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