America’s Wholesale Lender | FORECLOSURE FRAUD | by DinSFLA

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SHOUP vs. McCurdy & CANDLER, LLC | 11th Cir. Court of Appeals “MERS is NOT a CREDITOR, The complaint states a plausible claim for relief under the FDCPA”

SHOUP vs. McCurdy & CANDLER, LLC | 11th Cir. Court of Appeals “MERS is NOT a CREDITOR, The complaint states a plausible claim for relief under the FDCPA”


IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 10-14619
__________________________
D.C. Docket No. 1:09-cv-02598-JEC

JONI LEE SHOUP,
on behalf of herself and all others similarly situated,
Plaintiff – Appellant,

versus

MCCURDY & CANDLER, LLC,
Respondent – Appellee.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia

___________________________
(March 30, 2012)

Before DUBINA, Chief Judge, CARNES, Circuit Judge, and FORRESTER,*
District Judge.

*Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.

PER CURIAM:

Joni Shoup filed a lawsuit against McCurdy & Candler, LLC alleging a
violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e. The
district court dismissed her complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), and Shoup appeals, contending that her
complaint stated a valid claim for statutory damages under the FDCPA because
McCurdy & Candler’s initial communication letter falsely said that its client,
Mortgage Electronic Registration Systems, Inc. (MERS), was Shoup’s “creditor.”

I.

Shoup bought a home in Georgia in 2003. To finance her new home, she
entered into a mortgage contract with America Wholesale Lender. The contract
stated that America Wholesale Lender was the “Lender,” but it also described
MERS as “the grantee under” the mortgage contract and as “a separate corporation
that is acting solely as a nominee for Lender and Lender’s successors and assigns.”
Shoup defaulted on her mortgage, and MERS’ law firm, McCurdy &
Candler, sent Shoup an initial communication letter. That letter was entitled,
“NOTICE PURSUANT TO FAIR DEBT COLLECTION PRACTICES ACT 15
USC 1692,” and stated that its purpose was “an attempt to collect a debt.” The
letter identified MERS as “the creditor on the above referenced loan.” (Emphasis
added.)

Soon after receiving that letter, Shoup filed a complaint against McCurdy &
Candler under the FDCPA. She alleged that MERS is not a “creditor” as defined
in the FDCPA because it did not offer or extend credit to Shoup and she does not
owe MERS a debt. Instead, according to the complaint, MERS is “a company that
tracks, for its clients, the sale of promissory notes and servicing rights.” Shoup,
therefore, alleged that McCurdy & Candler violated the FDCPA by falsely stating
in the initial communication letter that MERS was Shoup’s “creditor.”1
McCurdy & Candler filed a motion to dismiss under Rule 12(b)(6), which
the district court granted. Finding that MERS was a “creditor” under the FDCPA,
the court concluded that Shoup’s complaint did not state a claim for statutory
damages under the FDCPA. The court also concluded that, even if MERS was not
a “creditor,” calling MERS one was harmless. This is Shoup’s appeal.

II.

We review de novo the grant of a motion to dismiss under Rule 12(b)(6) for
failure to state a claim, “accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Belanger v. Salvation
Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint must state a plausible
claim for relief, and ‘a claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Sinaltraninal v. Coca-Cola Co.,
578 F.3d 1252, 1261 (11th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949 (2009)) (alteration omitted). We also review de novo
matters of statutory interpretation. Belanger, 556 F.3d at 1155.

Under the FDCPA, “[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt,”
15 U.S.C. § 1692e, which includes “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information
concerning a consumer,” id. § 1692e(10). The statute defines “creditor” as “any
person who offers or extends credit creating a debt or to whom a debt is owed, but
such term does not include any person to the extent that he receives an assignment
or transfer of a debt in default solely for the purpose of facilitating collection of
such debt for another.” Id. § 1692a(4). And “[t]he FDCPA provides that ‘any
debt collector who fails to comply with any provision of this subchapter with
respect to any person is liable to such person’ for [actual and statutory] damages
and costs.” Bourff v. Lublin, __ F.3d __, slip op. at 6, No. 10-14618 (11th Cir.
Mar. 15, 2012) (quoting 15 U.S.C. § 1692k(a)).

Our decision in this case is controlled by our recent decision in Bourff. In
that case a law firm sent a letter to the plaintiff in “AN ATTEMPT TO COLLECT
A DEBT.” Id. at __, slip op. at 3 (quotation marks omitted). That letter identified
a loan servicer as “the creditor on the above-referenced loan.” Id. at __, slip op. at
3 (quotation marks omitted). The plaintiff’s complaint alleged that the loan
servicer was not a “creditor” under the FDCPA, id., and that the law firm violated
the FDCPA’s “prohibition on false, deceptive or misleading representations by
falsely stating in its collection notice that [the servicer] was the ‘creditor’ on [the
plaintiff’s] loan,” id. at __, slip op. at 5 (some quotation marks omitted). The
allegation that the loan servicer was not a “creditor” was enough to state a
plausible claim for relief under the FDCPA. Id. at __, slip op. at 6–7.

Here, viewing the allegations in the complaint in the light most favorable to
Shoup, she has alleged that MERS did not offer or extend credit to her and that she
does not owe a debt to MERS. Because the FDCPA defines a “creditor” as “any
person who offers or extends credit creating a debt or to whom a debt is owed,” 15
U.S.C. § 1692a(4), Shoup has alleged that MERS is not a “creditor” under the
FDCPA. Finally, because the complaint alleges that McCurdy & Candler’s initial
communication letter falsely identified MERS as her “creditor,” the complaint
states a plausible claim for relief under the FDCPA. See Bourff, __ F.3d at __,
slip op. at 6–7. And because the FDCPA provides a claim for statutory damages
based on any violation of the statute, see 15 U.S.C. § 1692k(a)(2), McCurdy &
Candler’s alleged violation of the FDCPA is not harmless. See Muha v. Encore
Receivable Mgmt., Inc., 558 F.3d 623, 629 (7th Cir. 2009) (“Were the plaintiffs
seeking actual damages rather than just statutory damages, they would have to
present some evidence that they were misled to their detriment.”); Baker v. G.C.
Servs. Corp., 677 F.2d 775, 780 (9th Cir. 1982) (“The statute clearly specifies the
total damage award as the sum of the separate amounts of actual damages,
statutory damages and attorney fees. There is no indication in the statute that
award of statutory damages must be based on proof of actual damages.”). The
district court erred in dismissing Shoup’s complaint under Rule 12(b)(6).

REVERSED AND REMANDED.

footnote:

1 Shoup also brought her claim on behalf of a putative class and sought class certification.
The district court did not rule on that issue, so it is not before us on appeal.

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Big news in BofA MBS litig: Kapnick tosses Walnut vs Counrtywide case

Big news in BofA MBS litig: Kapnick tosses Walnut vs Counrtywide case


Alison Frankel via Reuters Legal/ On the Case is working on this story.

Please check back.

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Countrywide Home Loans vs America’s Wholesale Lender | California Western Dist. Court – “Trademark™ Infringement”

Countrywide Home Loans vs America’s Wholesale Lender | California Western Dist. Court – “Trademark™ Infringement”


UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

COUNTRYWIDE HOME LOANS, INC.;
BANK OF AMERICA CORPORATION;
BANK OF AMERICA, N.A.,

Plaintiffs,

v.

AMERICA’S WHOLESALE LENDER, INC., a
New York Corporation…

Defendants

Excerpt:

Plaintiff Countrywide Home Loans, Inc. (“CHLI”) will arguably go down in history as the most prolific predatory lenders of all time. One would think this is a matter beyond reasonable dispute by way of a few examples, this point will be illustrated:

PDF LINK BELOW

[AWL v Countrywide]

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BOURFF vs. RUBIN LUBLIN, LLC | GA 11th Cir. Appeals Court “The identity of the “creditor” in these notices is a serious matter, FDCPA”

BOURFF vs. RUBIN LUBLIN, LLC | GA 11th Cir. Appeals Court “The identity of the “creditor” in these notices is a serious matter, FDCPA”


IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________
No. 10-14618
________________________
D.C. Docket No. 1:09-cv-02437-JEC

MICHAEL BOURFF,
Plaintiff – Appellant,

versus

RUBIN LUBLIN, LLC,
Defendant – Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 15, 2012)

Before EDMONDSON and PRYOR, Circuit Judges, and BOWDRE,* District
Judge.
*

PER CURIAM:
This appeal involves a Fair Dept Collection Practices Act claim in which a
“false representation” has been alleged. Michael Bourff appeals the district
court’s dismissal of his civil action under 15 U.S.C. §1692, the Fair Debt
Collection Practices Act (“FDCPA”), for failure to state a claim. The district court
concluded that Bourff’s claim was covered by the FDCPA but that Bourff did not
allege acts that violated the FDCPA. We vacate the dismissal and remand the case
for further proceedings.

Background

This case involves a $195,000 loan by America’s Wholesale Lender
(“AWL”) to Michael Bourff. The loan was evidenced by a note, was used to
purchase property in Fulton County, Georgia, and was secured by a deed to the
property purchased.1

The basics of this case are not in dispute. In April 2009 Bourff failed to
make a payment on the loan and caused default under the terms of the note. AWL
later assigned the loan and the security deed to BAC Home Loan Servicing, LP
f/k/a Countrywide Home Loans Servicing, LP (“BAC”) for the purpose of
collecting on the note. BAC in turn hired defendant law firm, Rubin Lublin, LLC
(“Rubin Lublin”), to assist in collection efforts. In late May 2009 Rubin Lublin
sent a notice to Bourff stating that they had been retained to help collect on the
loan. The notice clearly stated that it was being sent as “NOTICE PURSUANT
TO FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692[,]” and that
it was “AN ATTEMPT TO COLLECT A DEBT.” The notice also identified BAC
as “the creditor on the above-referenced loan.” (Compl. Ex. A.)

Shortly after receiving the notice, Bourff filed this civil action against Rubin
Lublin pursuant to the FDCPA. Bourff claimed that the notice sent by Rubin
Lublin violated §1692e of the FDCPA by falsely representing that BAC was the
“creditor” on the loan, despite entities in BAC’s position being specifically
excluded from the definition of “creditor” by the language of the FDCPA. Rubin
Lublin filed a motion to dismiss under Rule 12(b)(6), and the district court
dismissed the action for failure to state a claim under the FDCPA. The district
court concluded that BAC was a “creditor” according to the ordinary meaning of
the term and that, even if BAC was no creditor, the error in listing it as such was a
harmless mistake in the use of the term because BAC had the power to foreclose
on the property or otherwise to act as the creditor on the loan. (Order 11.)

Standard of Review

We review the grant of a motion to dismiss de novo; and in so doing, we
accept the allegations in the complaint as true while construing them in the light
most favorable to the Plaintiff. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir.
2011). The interpretation of a statute is likewise reviewed de novo as a purely
legal matter. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009).
A “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974
(2007)). Stating a plausible claim for relief requires pleading “factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged”: which means “more than a sheer possibility that a
defendant has acted unlawfully.” Id.

DISCUSSION

The FDCPA limits what is acceptable in attempting debt collection. The
FDCPA applies to the notice here in question because the notice was an attempt at
debt collection. The notice stated that Rubin Lublin had been retained to “collect
the loan,” stated in bold capital letters that it was “an attempt to collect a debt,”
and advised Bourff to contact Rubin Lublin to “find out the total current amount
needed to either bring your loan current or to pay off your loan in full.” (Compl.
Ex. A.)

The FDCPA, among other things, mandates that, as part of noticing a debt, a
“debt collector” must “send the consumer a written notice containing” — along
with other information — “the name of the creditor to whom the debt is owed[.]”
15 U.S.C. §1692g(a)(2). In addition, the Act prohibits a “debt collector” from
using “any false, deceptive, or misleading representation or means in connection
with the collection of any debt.” 15 U.S.C. §1692e. The use of “or” in §1692e
means that, to violate the FDCPA, a representation by a “debt collector” must
merely be false, or deceptive, or misleading. A false representation in connection
with the collection of a debt is sufficient to violate the FDCPA facially, even
where no misleading or deception is claimed.

Plaintiff claims that Rubin Lublin violated the prohibition on “false,
deceptive, or misleading representation[s]” by falsely stating in its collection
notice that BAC was the “creditor” on Bourff’s loan. The identity of the
“creditor” in these notices is a serious matter. For the FDCPA, “creditor” is
defined this way:

“The term ‘creditor’ means any person who offers or extends credit
creating a debt or to whom a debt is owed, but such term does not include
any person to the extent that he receives an assignment or transfer of a debt
in default solely for the purpose of facilitating collection of such debt for
another.” 15 U.S.C. §1692a(4).

Plaintiff’s complaint alleges that Bourff defaulted on the loan in April 2009
by failing to tender the required monthly payment. The complaint further alleges
that BAC “received an assignment of the security deed and debt on June 19, 2009 .
. ., while the Plaintiff’s loan was in default, for the purpose of facilitating
collection of such debt for another, presently unknown, entity.” (Compl. ¶13)
Accepting Plaintiff’s allegations as true and construing them in the light most
favorable to the Plaintiff, the statement on the May 2009 notice that BAC was
Plaintiff’s “creditor” was a false representation and was made by a “debt collector”
as defined in §1692a of the FDCPA.

The FDCPA provides that “any debt collector who fails to comply with any
provision of this subchapter with respect to any person is liable to such person…”
for potential damages and costs. 15 U.S.C. §1692k(a). The complaint on its face,
taken as true and viewed in the light most favorable to Plaintiff, states a claim
upon which relief may be granted under the FDCPA. As such, we vacate the
dismissal and remand this case to the district court for further proceedings.

VACATED and REMANDED.

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Full Deposition of Michele Sjolander, Executive Vice President of Countrywide Home Loans, Inc. “Stamp Endorsement”

Full Deposition of Michele Sjolander, Executive Vice President of Countrywide Home Loans, Inc. “Stamp Endorsement”


Remember Michele Sjolander? Well, you can read about her in MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI -

As well as in ARIZONA BK COURT ORDERS BONY MELLON TO PRODUCE ORIGINAL CUSTODIAN DOCUMENTS

and finally in the FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER

Fresh off the depo wagon comes her Full Deposition courtesy of 4closurefraud.

Excerpts:

Q It’s employees at Recontrust that stamp the
7 endorsements on the notes in general, including this one;
8 is that right?
9 A Yes.
10 Q And you’ve seen that taking place?
11 A Yes.
12 Q In Simi Valley?
13 A Yes.
14 Q Is there some type of manual or set of
15 instructions?
16 A They have my power of attorney.
17 Q Well, okay. That’s not what I’m asking. But I
18 do want to know about that. But what I’m saying: Is
19 there some sort of manual or instructions or –
20 A If you want to know the desk procedures, you
21 would have to speak with an associate of Recontrust.
22 Q Okay. Okay. Sorry. I’m just reading the notes
23 again. Now, I’m going to try to explain this. I may
24 have to do it a couple of times, but just bear with me.
25 And you’ve been very helpful so far. I appreciate it,
1 there it sat is I guess what I’m asking.
2 A In safekeeping, yes.
3 Q Okay. All right. Now, this is something you
4 touched on a minute ago. I’m going to try to phrase it
5 in a way that makes sense. Who — and let’s just deal
6 with Countrywide in 2007.
7 Who is allowed to be an endorser as you were? I
8 mean, who — let me leave it at that and see if that
9 makes sense to you.
10 A I don’t know what you’re asking.
11 Q What I’m saying is: Are there people other than
12 you at Countrywide in 2007 whose names would appear on a
13 note as an endorsement?
14 A For Countrywide Home Loans, Inc.?
15 Q Yes.
16 A In 2007, I was the endorser for Countrywide Home
17 Loans, Inc.
18 Q Okay. And, I mean, can you explain why you, in
19 particular? I mean, how is that established?
20 A Just lucky.
21 Q I mean, I know this is going to sound silly, but
22 was there some competition for it? Did they come to you
23 and say, “Ms. Sjolander, we choose you?” I mean, how did
24 you come to be designated the person?
25 A It is the position I held within Countrywide.
1 Q Okay. And did you know that going in; you know,
2 if you take this job, you’re going to be the endorser?
3 Was that explained to you at some point?
4 A I knew that my previous boss was the endorser,
5 yes.
6 Q Oh, okay. Now, we covered this, that other
7 people stamped your signature and the other — her name
8 is — oh, it’s Laurie Meder?
9 A Meder.
10 Q Okay. So other people have a stamp with her
11 name and your name on it, and how do those people have
12 the authority to put her name and your name on a note for
13 it to be an effective endorsement?
14 A With my name, they have a power of attorney.
15 Q And what does the power of attorney say?
16 A The power of attorney allows them to place my
17 endorsement stamp on collateral.
18 Q How do they come to have your power of attorney?
19 A I gave that to them.
20 Q But, I mean, in what sort of process? You know,
21 how does someone at Recontrust — I mean, I understand
22 that a power of attorney document exists, I’m assuming;
23 correct?
24 A Yes.
25 Q And how do those people come to operate under
1 it?
2 A It’s common, standard practice.
3 Q I may not be asking it quite right. I guess
4 what I’m asking is: Do they — the people who actually
5 use the stamps — is there more than one, or is there
6 just one stamp? I said “stamps” multiple. Is there only
7 one, or is there –
8 A No, there’s multiple stamps.
9 Q So do these people sign something that says, “I
10 understand I’m under Michele Sjolander’s power of
11 attorney”?
12 A Once again, you would have to look at the desk
13 procedures for Recontrust, and you would have to talk to
14 someone at Recontrust.
15 Q So that’s your understanding that you — did you
16 sign a power of attorney document?
17 A Yes, I did.
18 Q And, I mean, can you explain just in — you
19 know, in general, not word for word what it says, but
20 what does it purport to grant as power of attorney?
21 A It grants Recontrust. They can endorse and
22 assign notes on behalf of myself.
23 Q And do you know if this applies to a select
24 group of people?
25 A I do not have — I would have to read the
1 document.
2 Q Okay. But just to clarify, once again, you
3 don’t actually know the legal mechanism by which these
4 people with the stamps operate under this power of
5 attorney?
6 A As I said, I would have to go back through all
7 of the documentation that surrounds the power of
8 attorney, and Recontrust has desk procedures, and it
9 would be their procedures for them to assign that, to
10 place the stamp on the collateral.
11 Q And this was a procedure in 2007, what we’re
12 talking here is 2007?
13 A Correct.
14 Q And to the present?
15 A No.

<SNIP>

4 Q All of it, okay. Let’s see. Now, you mentioned
5 documents that you had reviewed. The AS-400, that’s a –
6 can you just refresh my memory? What was that again?
7 A A servicing system.
8 Q A servicing system, okay. Now, when you looked
9 over these records and documents before that you
10 mentioned before, where were you when you looked at
11 those?
12 A Simi Valley.
13 Q Simi Valley. And where were the documents that
14 you were looking at?
15 A At that time, they were brought into my office.
16 Q Do you have any idea where they were brought
17 from?
18 A They were printed off the system.
19 Q Printed off the system.
20 A From one of my associates.
21 Q Is that a computer system?
22 A As I said, the collateral tracking is printed
23 off the AS-400, which is our servicing system. The
24 investor number commitment was printed off — it’s a
25 web-based application from secondary marketing. It’s
1 printed off of that. The note was printed off of our
2 imaging system. And I think in this case I asked for a
3 copy of the note showing the endorsements, because in our
4 imaging system it does not — the note is actually imaged
5 prior to my endorsement stamp being in place. So I had
6 my associate contact the bank, which is Recontrust, to
7 get a copy of the original note to show my endorsement
8 stamps, because in imaging it is not shown.
9 Q So if a copy is made of a note that you got from
10 Recontrust, it doesn’t have an endorsement? Is that what
11 you’re saying?
12 A From our bank, it does. In our imaging system,
13 it does not. The note is imaged prior to an
14 endorsement — in ’07, the note is imaged prior to an
15 endorsement being placed on the note. So if you look in
16 our imaging system, you wouldn’t see the chain of title
17 of endorsement.
18 Q And where would you see that?
19 A On the original note.
20 Q Which is — which is where?
21 A In this case, it was in the Fannie Mae vault in
22 Simi Valley, California.
23 Q We’ll come back to the Fannie Mae vault. Okay.
24 So they’re printed off in AS-400 imaging system.
25 A AS-400 and the imaging system are two different
systems.
2 Q Oh, you said AS-400 is a servicing software
3 platform of some type?
4 A Yes.
5 Q And the imaging system, what — can you describe
6 that?
7 A It’s a –
8 Q You know –
9 A It’s when all of the collateral documents and
10 credit file documents are imaged after the closing of a
11 loan, and they are put in our imaging system, and we can
12 go into the system by loan number and pull up the
13 documentation of a loan –
14 Q I guess –
15 A — if you have access to the system.
16 Q But imaging, I mean, I’m imagining a scanner of
17 some sort. Is that what it is?
18 A It is not my area. I cannot tell you.

continue below…

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YVES SMITH: The Legal Lie at the Heart of the $8.5 Billion Bank of America and Federal/State Mortgage Settlements

YVES SMITH: The Legal Lie at the Heart of the $8.5 Billion Bank of America and Federal/State Mortgage Settlements


H/T Abigail – If you had any doubts about whether ‘your’ federal gov’t works for you or BofA, read Yves Smith’s latest:

One in a while, you can discern a linchpin lie on which other important lies hinge. We can point to quite a few in America: the notion of a permanent war on terror, which somehow justifies vitiating not just the Constitution, but even the Magna Carta, or the idea of an imperial executive branch.

Now the apparently-to-be-filed-in-court-today Federal/state attorneys general mortgage settlement is less consequential than matters of life and limb. But it still show the lengths to which the officialdom is willing to go to vitiate the law in order to get its way.

HUD Secretary Donovan, the propagandist in chief for the Federal/state mortgage pact, has claimed he has investor approval to do the mortgage modifications that are a significant portion of the value of the settlement. We’ll eventually see what is actually in the settlement, but the early PR was that “no less than $10 billion” of the $25 billion headline total was to come from principal reductions. Modifications of mortgages not owned by banks, meaning in securitized trusts, are counted only 50% and before Donovan realized he was committing a faux pas, he said he expected 85% of the mods to be from securitizations, so that means $17 billion.

[NAKED CAPITALISM]

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2nd Circuit greenlights novel vehicle for BofA’s MBS settlement

2nd Circuit greenlights novel vehicle for BofA’s MBS settlement


Alison Frankel-

Way back in June, a day or so after Bank of America announced its proposed $8.5 billion settlement with Countrywide mortgage-backed securities investors, I wrote about the very peculiar vehicle through which the bank was seeking judicial approval of the arrangement. The settlement was filed by the Countrywide MBS trustee, Bank of New York Mellon, under Article 77 of the New York state code. Article 77, which allows a trustee to seek a judicial endorsement of trust-related decisions, is usually invoked in garden-variety trust disputes, not in an $8.5 billion deal affecting thousands of beneficiaries in 530 trusts. But the law offered distinct advantages for BofA, BNY Mellon, and the group of 22 institutional investors that negotiated the Countrywide MBS settlement. Under New York trust law, trustees have broad discretion to make decisions on behalf of the trusts they oversee. As long as the judge presiding over an Article 77 proceeding determines that the trustee has acted reasonably and hasn’t abused its discretion, the trustee’s decision gets a stamp of judicial approval. Anyone who disagrees with the trustee — and the banks and institutional investors that negotiated the BofA proposed settlement knew that there would be many investors who didn’t like it — bears the heavy burden of proving that the trustee acted outside the bounds of reason.

[REUTERS LEGAL]

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NY, Delaware AGs may intervene in BofA, BNY Mellon MBS settlement

NY, Delaware AGs may intervene in BofA, BNY Mellon MBS settlement


What a team!

HW-

Attorneys General for Delaware and New York secured permission from a U.S. District Judge to intervene in court proceedings discussing the Bank of New York Mellon (BK: 18.03 -0.33%) $8.5 billion settlement with Bank of America (BAC: 5.045 -3.90%) over toxic mortgage-backed securities.

The AGs are eager to get a presence in the proceedings, so they can represent the interests of the investing public in their respective states before a final deal is reached. Admission to the process gives the AGs a chance to hear where talks are going and an opportunity to object to provisions of the deal.

[HOUSING WIRE]

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NY, Delaware AGs Allowed To Intervene In $8.5B Bank of America Settlement

NY, Delaware AGs Allowed To Intervene In $8.5B Bank of America Settlement


“This action concerns far more than the financial interests of a few sophisticated investors,” Pauley wrote. “And the intervention of the State AGs in this action will protect the interests of absent investors.”

 WSJ-

The federal judge presiding over the landmark $8.5 billion settlement between Bank of America Corp. (BAC) and major investors in mortgage-backed securities has allowed the state attorneys general of New York and Delaware to intervene in the case.

In a ruling dated Friday, Judge William H. Pauley agreed with the state lawmakers that the massive settlement carries implications for the nation’s financial markets, not just the investors who will be impacted by the pact.

“This action concerns far more than the financial interests of a few sophisticated investors,” Pauley wrote. “And the intervention of the State AGs in this action will protect the interests of absent investors.”

[WALL STREET JOURNAL]

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Why Judge Pauley kept $8.5bn BofA MBS case in federal court [READ RULING]

Why Judge Pauley kept $8.5bn BofA MBS case in federal court [READ RULING]


REUTERS-

The key paragraph in Manhattan federal judge William Pauley III‘s 21-page ruling Wednesday in Bank of America’s proposed $8.5 billion settlement with Countrywide mortgage-backed-securities investors is the last one.

“The settlement agreement at issue here implicates core federal interests in the integrity of nationally chartered banks and the vitality of the national securities markets,” Pauley wrote. “A controversy touching on these paramount federal interests should proceed in federal court.”

[REUTERS]

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Grais fights to keep $8.5 billion BofA case in fed. court

Grais fights to keep $8.5 billion BofA case in fed. court


If your trust is listed in the initial Notice of Petition to Intervene complaint, I highly recommend you go to the court house and make sure your last page to the “Note”, which was filed is still there :)’

REUTERS-

On Wednesday night, Grais & Ellsworth filed a 29-page brief laying out its arguments for why Bank of America’s proposed $8.5 billion settlement with Countrywide mortgage-backed securities investors belongs in federal court, not in New York state court, where Bank of New York Mellon, as Countrywide MBS trustee, filed it. I’ll talk about Grais’s assertions in a moment, but first, I want to explain why the jurisdictional question is so crucial to the ultimate fate of BofA’s proposed deal. Two transcripts tell that tale.

BNY Mellon, you’ll recall, used a highly unusual device when it asked for court approval of the proposed $8.5 billion settlement in late June. The bank filed the case as an Article 77 proceeding in New York state supreme court, taking advantage of a state law that permits trustees to seek a judge’s endorsement of their decisions. Using Article 77 was a deliberate tactic by BNY Mellon, BofA, and the 22 institutional investors who support the settlement. The lawyers who put together the deal considered and rejected other possible vehicles for court approval, but decided that Article 77 was the fastest, cleanest way to resolve claims involving 530 separate trusts. The provision, which is usually invoked in garden-variety trust cases, gives broad discretion to trustees, who are generally assumed to be acting in the best interests of trust beneficiaries.

[REUTERS]

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MARTINEZ v. AMERICA’S WHOLESALE LENDER | 9th Cir. Court of Appeals Reverses Part/Remands “Declarations Fail, QUIET TITLE, ReconTrust”

MARTINEZ v. AMERICA’S WHOLESALE LENDER | 9th Cir. Court of Appeals Reverses Part/Remands “Declarations Fail, QUIET TITLE, ReconTrust”


NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETRA MARTINEZ,
Plaintiff – Appellant,

v.

AMERICA’S WHOLESALE LENDER;
COUNTRYWIDE HOME LOANS
SERVICING LP; BANK OF AMERICA,
RECONTRUST COMPANY N.A.; and
BANK OF NEW YORK MELLON,
Defendants – Appellees.

Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding

Argued and Submitted May 12, 2011
San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.**

In this appeal, Petra Martinez contends that the district court erroneously
granted summary judgment in favor of Defendants. As the facts and procedural
history are familiar to the parties, we do not recite them here except as necessary to
explain our disposition. For the reasons explained below, we affirm the district
court’s grant of summary judgment in part and reverse it in part.

We review a district court’s grant of summary judgment de novo. See
Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011).
In doing so, we view the evidence in the light most favorable to the nonmoving
party, and determine both whether any genuine dispute as to any material fact
exists and whether the district court correctly applied the substantive law. See id.

In her Complaint, Martinez brought a number of causes of action against
Defendants based on their alleged role in foreclosing on a property over which she
held a mortgage interest. The relevant causes of action were to quiet title, for an
accounting, for tortious violation of statute (the Real Estate Settlement Procedures
Act), for unfair competition, for unfair debt-collection practices, for declaratory
relief, for slander of title, for intentional infliction of emotional distress, and for
negligent infliction of emotional distress.

Although the district court separately analyzed each of these causes of
action, as well as two implicit “overarching claims” of a “right to initiate
foreclosure proceeding[s]” and “deficient notice,” Martinez abandons all but two

of them on appeal. Specifically, in her opening brief, Martinez only addresses her
claim under California Civil Code Section 2923.5 (though her Complaint does not
identify it as a discrete cause of action) and her action to quiet title on the basis that
Defendants lacked authorization to carry out the foreclosure. She either ignores or
gives mere passing reference to her other causes of action, and so she has waived
them. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (citing
United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006)); Rattlesnake
Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1100 (9th Cir. 2007).

We affirm the district court’s grant of summary judgment in favor of
Defendants on Martinez’s Section 2923.5 claim. Although a private right of action
exists under this section, the remedy “is a simple postponement of the foreclosure
sale, nothing more.” Mabry v. Superior Court, 110 Cal. Rptr. 3d 201, 204 (Cal. Ct.
App. 2010). It follows that a claim under Section 2923.5 necessarily fails if a
foreclosure sale has occurred. See Hamilton v. Greenwich Investors XXVI, LLC,
126 Cal. Rptr. 3d 174, 185-86 (Cal. Ct. App. 2011). Defendants observe that the
relevant property was sold in foreclosure on April 28, 2010, and Martinez concedes
this fact in her reply. Martinez’s Section 2923.5 claim therefore fails.

The final issue concerns Martinez’s quiet-title claim. The district court
granted summary judgment to Defendants on this claim because “[u]ndisputed
facts show that plaintiff has an outstanding loan on the property, and that
defendant BNYM [Bank of New York Mellon] holds the promissory note. Plaintiff cannot
quiet the title until she repays the mortgage.” It is generally true that, in California,
“‘an action to set aside a trustee’s sale for irregularities in sale notice or procedure
should be accompanied by an offer to pay the full amount of the debt for which the
property was security.’” Ferguson v. Avelo Mortg., L.L.C., 126 Cal. Rptr. 3d 586,
591 (Cal. Ct. App. 2011) (quoting Arnolds Mgmt. Corp. v. Eischen, 205 Cal. Rptr.
15, 17 (Cal. Ct. App. 1984)). In the present case, however, Martinez has alleged
that the purported trustee, ReconTrust Company, N.A. (“ReconTrust”), had no
interest in the subject property and thus lacked authorization to attempt, or effect, a
nonjudicial foreclosure. If Martinez were to prove this allegation, the foreclosure
sale would be void under California law. See Dimock v. Emerald Props., L.L.C.,
97 Cal. Rptr. 2d 255, 261-63 (Cal. Ct. App. 2000). The tender rule does not apply
to a void, as opposed to a voidable, foreclosure sale. See Ferguson, 126 Cal. Rptr.
3d at 592; Dimock, 97 Cal. Rptr. 2d at 262-63; 4 Miller & Starr, Cal. Real Estate §
10:212 (3d ed.).

There would have been no error if Defendants had introduced admissible
evidence establishing that there is no genuine dispute that ReconTrust was
authorized to carry out the foreclosure sale, such that the sale was not void. Cf.,e.g.,
Ferguson, 126 Cal. Rptr. 3d at 595 (distinguishing Dimock and holding that
trustee’s sale conducted by authorized party is “merely voidable,” not void). In
moving for summary judgment, however, Defendants relied on documents attached
to declarations including those of Kalama M. Lui-Kwan, George Merziotis, and
Eva Tapia. Martinez, in opposing Defendants’ motion for summary judgment,
filed evidentiary objections to these declarations, which the district court overruled
without explanation. We conclude that the district court abused its discretion in
doing so.

A declarant must lay a proper foundation for evidence considered on
summary judgment. Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007). For
documentary evidence submitted on summary judgment, however, “a proper
foundation need not be established through personal knowledge but can rest on any
manner permitted by Federal Rule of Evidence 901(b) or 902.” Secs. & Exch.
Comm’n v. Phan, 500 F.3d 895, 913 (9th Cir. 2007) (quoting Orr v. Bk. of Am., NT
& SA, 285 F.3d 764, 774 (9th Cir. 2002)). Put differently, “[t]he documents must
be authenticated and attached to a declaration wherein the declarant is the ‘person
through whom the exhibits could be admitted into evidence.’” Bias, 508 F.3d at
1224 (quoting Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,
1551 (9th Cir. 1990)).

Lui-Kwan sought to introduce title documents, a variety of deeds, notices,
and other evidence relevant to the present case. His declaration presents numerous
authentication problems. First, he declared that he had reviewed title documents
that “appear” to have been recorded with the Monterey County Recorder’s office.
Second, he obtained copies of the relevant documents from private websites, which
are not self-authenticating. Cf. United States v. Salcido, 506 F.3d 729, 733 (9th
Cir. 2007) (per curiam); United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000).

Defendants nevertheless argue that “[a] majority of the exhibits are
documents recorded with the Monterey County Recorder bearing an official stamp
for the date and time of the recording as well as a document number . . . and, as
such, are self-authenticating[.]” The attached documents, however, are not
originals, but are copies, and therefore are not self-authenticating. Compare
United States v. Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) with United States
v. Hampton, 464 F.3d 687, 689 (7th Cir. 2006). Federal Rule of Evidence 902(4),
which governs “certified copies of public records,” requires the custodian or other
authorized person to certify that the copies are correct. Fed. R. Evid. 902(4).
Defendants failed to satisfy this requirement.

Defendants similarly failed to authenticate the documents attached to
Tapia’s declaration, which claim to be true and correct copies of documents
concerning Martinez’s loan and the Defendants’ corporate relationships. Tapia
asserted her “understanding” and “familiar[ity]” with the stated facts in a
conclusory manner that fails to establish her personal knowledge about the relevant
events and documents. Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008); Bank
Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995). Moreover, the
documents attached to her declaration are not admissible as “[c]ertified domestic
records of regularly conducted activity,” Fed. R. Evid. 902(11), because the
declaration contains no certification that ReconTrust made the records at or near
the time of the occurrence of the relevant matters, that it kept the records in the
course of a regularly conducted activity, or that it made the records by the regularly
conducted activity as a regular practice. Because Tapia failed to lay a foundation
for her personal knowledge about the documents, her testimony is not adequate
extrinsic evidence from “a witness who wrote it, signed it, used it, or saw others do
so” to establish admissibility under Federal Rule of Evidence 901(b)(1). Orr, 285
F.3d at 774 n.8 (internal quotation marks omitted). Defendants therefore failed to
authenticate the documents attached to Tapia’s declaration, and Tapia’s nondocumentary
factual assertions fail to meet the personal knowledge requirement of
Federal Rule of Civil Procedure 56(e)(1) (2009).

For the same reasons, we find that the documentary exhibits and factual assertions of
George Merziotis—to the extent that they are even relevant to the remaining
cause of action—fail to satisfy Federal Rule of Civil Procedure 56(e)
and the associated rules of evidence.

In light of these evidentiary problems, Defendants failed to introduce
sufficient admissible evidence to establish that the foreclosure sale was valid. We
therefore reverse as to Martinez’s quiet-title claim and remand to the district court
for further proceedings consistent with this disposition. Because the sole
remaining claim is founded on state law, we invite the district court to consider
whether it has subject-matter jurisdiction over the case.

Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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Untangling the Foreclosure Mystery— EXAMINING THE CASE OF ONE LOCAL “DEADBEAT”

Untangling the Foreclosure Mystery— EXAMINING THE CASE OF ONE LOCAL “DEADBEAT”


Excellent read in it’s entirety … you’ll be glad you did.

Kwtnblue-

The last few weeks, in this newspaper, I have made an attempt to expose what is truly going on in the foreclosure process, and how it ties back to a myriad of other systematic issues affecting our daily lives. Last week, we touched on the fact that the court system is incentivized directly by the Banks that have caused this crisis. But I would be remiss if I did not mention the Foreclosure and Economic Recovery Plan, aka the “Rocket Docket.” In FY 10 -11, our legislature, (clearly influenced by the Banking lobby) devised the Rocket Docket to appoint retired Judges to reduce the backlog (grease the skids) of foreclosure cases by 62 percent during the fiscal year. You might note that appointed retired Judges do not face the scrutiny of elections.


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LETTER? | BAC TRANSFERRING HOME LOANS BACK TO BANK OF AMERICA, N.A.?

LETTER? | BAC TRANSFERRING HOME LOANS BACK TO BANK OF AMERICA, N.A.?


Due to a possible copyright issue, letter will not be posted. It also provides some information about sending a “Qualified Written Request” if you have any concerns over your loan.

IMO this might have to do with MERS… don’t ask why but it’s just a feeling…possibly due to now “defunct” America’s Wholesale Lender no longer around for MERS to act as nominee, many of these loans originated with AWL… Make your own determinations after you get a better picture… [see Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm and begin on pg. 58]

via Living Lies-

We are receiving reports that BAC is sending out letters declaring that they are transferring loans from BAC or Bank of America, the parent company as of July 1, 2011.

The question is why? It seems that BOA is starting to realize the title problems inherent in its takeover of Countrywide and the initiation of loans using money from investors who bought bogus mortgage bonds. There is no doubt that the fundamental defects in the original loans is starting to bother BOA and other banks, along with their shareholders and creditors. They managed to get the NY Federal Reserve Bank to issue a statement that was dismissive of such claims. But the Fed doesn’t decide contractual or property rights — that is the exclusive province of the judicial branch applying existing laws.

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Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm

Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm


Excerpts:

Q. So through that corporate authority as
Exhibit 4 to this deposition, MERS assented to the terms
Of this assignment of mortgage?

A. Through me.

Q. So it was you that assented to the terms of
This assignment of mortgage.

A. The one in this case, yes.

Q. And no one else.

A. Correct

Q. And you signed as vice president of MERS
acting solely as a nominee for America’s Wholesale
Lender; is that correct?

A. Yes, it is.

Q. How did you know that MERS was nominee for
America’s Wholesale Lender?

A. By reviewing documentation.

Q. What documentation?

A. I don’t specifically recall what I reviewed
In this case to see that, to determine that, but I would
have reviewed either the mortgage or I would have
reviewed other documentation that would have established
that to me.

Q. So in this case you don’t remember a single
Document that you looked at that would establish the
Nominee status of MERS for America’s Wholesale Lenders;
Is that correct?

A. I don’t

Q. Did someone at America’s Wholesale Lender
Tell you that MERS was acting as the nominee?

A. No.

Q. Did someone at MERS tell you they were
Acting as Nominee for America’s Wholesale Lender?

A. NO.

Q. Was America’s Wholesale Lender in existence
On May 19, 2010?

A. don’t now.

Q. Did you check that before signing this
assignment of mortgage?

A. No.

<SNIP>

Q. Now, you’ve said you review the MERS
Website and you’ve seen documents like this, like
Composite Exhibit 6. Any reason why you wouldn’t review
the documents contained in Exhibit 6 before executing the
assignment of mortgage?

A. It’s not necessary.

Q. Why not?

A. Because it’s not. Because I decided it’s
not.

Q. You as vice president of MERS?

A. In every possible capacity as it relates to
This case.

Q. Did you sign this assignment of mortgage
after being retained as counsel for the plaintiff?

A. After my law firm was retained?

Q. (Nods head.)

A. Is that the question?

Q. Sure.

A. Yes.

Q. Okay. So you executed an assignment to be
Used as evidence in your case, correct?

A. Sure.

Q. Is that a yes?

A. It’s a sure.

Q. Is that a yes o a no?

A. You said sure earlier. Was that a yes or a
No?

Q. Okay. So…

A. It’s a yes.

Q. It’s a yes.

And were you aware when you signed the
assignment of mortgage that MERS was a defendant in this
Case?

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MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI

MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI


Decided on April 11, 2011

Supreme Court, Kings County

The Bank of New York, as Trustee for the Benefit of the Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, Plaintiff,

against

Sameeh Alderazi, Bank of America, NA, New York City Environmental Control Board, new York City Parking Violations Bureau, New York City Transit Adjudication Bureau, and “John Doe No.1″ through “John Doe #10″, Defendants.

21739/2008

Plaintiff Attorney
Hiscock & Barclay
1100 M & T Center
3 Fountain Plaza
Buffalo, New York 14203-1486
Charles C. Martorana, Esq.

Plaintiff Former Attorney –
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
20 West Main Street
Bayshore, New York 11706 (631) 969-3100
Todd Falasco, Esq.

Wayne P. Saitta, J.

The Plaintiff renews its motion for an appointment of a referee in the underlying foreclosure action.

Upon reading the Notice of Motion and Affirmation of Charles C. Martorana Esq., of counsel to Hiscock and Barclay, LLP attorneys for Plaintiff, dated September 28 2010, and the exhibits annexed thereto; the Affirmation of Charles C. Martorana Esq., dated January 7, 2011; the Affirmation of Todd Falasco Esq., of counsel to Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP,. Former attorneys for Plaintiff and the exhibits annexed thereto; the Affidavit of Jonathan Hyman sworn to February 10, 2011, and the exhibits annexed thereto; and upon all the proceedings heretofore had herein, and after hearing oral argument by Plaintiff’s counsel on March 3, 2011, and after due deliberation thereon, the motion is denied for the reasons set forth below.

The underlying action is a residential foreclosure action on a property located at 639 East 91st St. In Brooklyn. Plaintiff’s original application for the appointment of a referee to compute was denied by order of this court dated April 19, 2010. The Court denied the application because the Plaintiff, could not demonstrate that the original mortgagee, Countrywide Home Loans Inc., (doing business as America’s Wholesale Lender), had authorized the assignment of the mortgage to the Plaintiff.

The assignment to Plaintiff was executed by Mortgage Electronic Reporting System (MERS) as nominee for America’s Wholesale Lender.

Black’s Law Dictionary defines a nominee as “[a] person designated to act in place of another, usually in a very limited way”.

In its Memoranda to its original motion , Plaintiff quoted the Court in Schuh Trading Co., v. Commissioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which defined a nominee as follows:

The word nominee ordinarily indicates one designated to act for another as his representative in a rather limited sense. It is used sometimes to signify an agent or trustee. It has no connotation, however, other than that of acting for another, or as the grantee of another.. Id. ( Emphasis added).

An assignment by an agent without authority from the principal is a nullity. Plaintiff failed to provide any evidence that Countrywide had authorized MERS to assign its mortgage to Plaintiff. The Court denied the application with leave to renew upon a showing that Countrywide had authorized MERS to assign its mortgage to Plaintiff.

Plaintiff has again moved for an order of reference, and submitted in addition to the MERS assignment, what it purports to be an endorsed note and a corporate resolution of MERS showing that MERS had appointed all officers of Countrywide Financial Corporation as assistant secretaries and vice presidents of MERS.

This present motion must fail for the same reason as the prior motion as Plaintiff has failed to provide documentation from the lender that it authorized the assignment.

[*2]The Endorsed Note Plaintiff submits an affidavit from Sharon Mason, a vice president of BAC Home Loan Servicing LP (BAC), a servicer of the loan, in which she asserts, based upon Plaintiff’s, books and records, that at the time the action was commenced the original note bearing the endorsement of Countrywide was in Plaintiff’s possession.

Plaintiff also submits an affidavit from Jonathan Hyman, an officer of BAC, based on BAC’s records. Hyman asserts in his affidavit that the mortgage was assigned to Bank of New York and that “the original note was delivered and endorsed to the plaintiff with endorsement in the name of the plaintiff.” Hyman appends to his affidavit a copy of what purports to be an endorsed note.

The note contains a stamped endorsement which states, “Pay to the Order of * * without recourse Countrywide Home Loans Inc., A New York Corporation Doing Business As America’s Wholesale Lender By: Michele Sjolander Executive Vice President”. Under the stamp is handwritten ” * * The Bank of New York, as Trustee for the Benefit of the Certificate, CWABS, Inc. Asset Backed Certificates, Series 2007-2″. The endorsement is undated.

However, the note that was appended to the summons and complaint filed in court on July 25, 2008 does not bear any endorsement. Plaintiff has offered no explanation, from anyone with knowledge, as to why, had the note had been endorsed and in its possession when it commenced the suit, that the note filed when the suit was commenced did not bear an endorsement.

Significantly, counsel for Plaintiff stated in oral argument before the Court on March 3 2011 that “There is nobody left to speak at to Countrywide”.

The affidavits of Hyman and Mason, which were based on the books and records of the plaintiff and BAC, are insufficient to establish ownership of the note in light of the fact that the note originally submitted bore no endorsement, and the fact that purported endorsement is undated. The affidavits are based on books and records, not on personal knowledge. Yet the affiants did not produce any of the records on which they based their assertion that Plaintiff possessed an endorsed note at the time the action was commenced.

The Mortgage Assignment

In his affidavit Hyman also asserts that, Keri Selman, the person who signed the assignment, served as an officer of both Countrywide and MERS. He appended a copy of a MERS corporate resolution which appointed all officers of Countrywide Financial Corporation as assistant secretaries and vice presidents of MERS.

Even putting aside the fact that there is no evidence that Countrywide Financial Corporation and Countrywide Home Loans Inc., are the same entity, the fact that MERS authorized Countrywide officers to act on its behalf, is not evidence of the converse. It is no evidence that Countrywide authorized MERS officers to act as officers of Countrywide. Further, the fact that Selman may have been an officer of both Countrywide and MERS does not alter the fact that she executed the assignment on behalf of MERS.

The face of the assignment indicates that MERS is assigning the mortgage as nominee of America’s Wholesale Lender (a trade name of Countrywide), and more [*3]importantly that Selman executed the assignment as assistant vice president of MERS.

Hyman’s assertion that the assignment incorrectly lists Selman’s title as assistant vice president of MERS, instead of assistant secretary and vice president of MERS, is of no relevance other than to demonstrate the casual and cavalier manner in which these transactions have been conducted.

While Hyman further asserts in his affidavit that Selman “under her authority as an Assistant Secretary and Vice president of MERS, expedited the Assignment of Mortgage process on behalf of MERS, with the approval and for the benefit of Countrywide,” he provides no evidence that Countrywide in fact approved or authorized the assignment.

Similarly, William C. Hultman, Secretary and Treasurer of MERS, states in a conclusory fashion in paragraph 8 of his affidavit that Countrywide “instructed MERS to assign the Mortgage to Bank of New York” without offering the basis for that assertion, other than it role as nominee.

Plaintiff claims, that by the terms of the mortgage MERS as nominee, was granted the right “(A) to exercise any or all of those rights, including, but not limited to the right to foreclose and sell the Property, and (B) to take any action required of the Lender including, but not limited to, releasing and canceling this Security Instrument.” However, this language is found on page two of the mortgage under the section “BORROWER’S TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY” and therefore is facially an acknowledgment by the borrower. The fact that the borrower acknowledged and consented to MERS acting as nominee of the lender has no bearing on what specific powers and authority the lender granted MERS as nominee. The problem is not whether the borrower can object to the assignees’ standing, but whether the original lender, who is not before the Court, actually transferred its rights to the Plaintiff.

Furthermore, while the mortgage grants some rights to MERS it does not grant MERS the specific right to assign the mortgage. The only specific rights enumerated in the mortgage are the right to foreclose and sell the Property. The general language “to take any action required of the Lender including, but not limited to, releasing and canceling this Security Instrument” is not sufficient to give the nominee authority to alienate or assign a mortgage without getting the mortgagee’s explicit authority for the particular assignment.

The MERS Agreement

Plaintiff also argues that the agreement between MERs and its members grants MERS the authority to assign the mortgages of its members. However a reading of the MERS agreement reveals only that MERS can execute assignments on behalf of its members when directed to do so by the member or its servicer.

Plaintiff cites Rules of MERS membership, Rule 2 section 5. However what that rule requires is that a member to warrant to MERS that the mortgage either names MERS as mortgagee or that they prepare an assignment of mortgage naming MERs as mortgagee.

In this case MERS was named in paragraph (c) of the mortgage as Mortgagee of record for the purpose of recording the mortgage. Being the mortgagee of record for the [*4]purpose of recording the mortgage does not confer the right to assign the mortgage absent an instruction to do so from the lender. Paragraph 2 of the MERS terms and conditions provide that “MERS shall serve as mortgagee of record with respect to all such mortgage loans solely as a nominee in an administrative capacity”, and that “MERS agrees not to assert any rights (other than rights specified in the governing documents) with respect to such mortgage loans or mortgaged properties”. Assigning or alienating a mortgage without an explicit instruction from a lender to do so, is not acting in an administrative capacity.

Further, paragraph 6 of the terms and conditions provides that, “the MERS system is not a vehicle for creating or transferring beneficial interests in mortgage loans.” (emphasis added)

Lastly, Section 6 of the MERS agreement provides that MERS shall comply with the instructions from the holder of the notes and that in the absence of instructions from the holder may rely on instructions from the servicer with respect to transfers of beneficial ownership.

What the MERS agreements and terms and conditions provide, is that MERS may execute an assignment when instructed to do so by the lender or its servicer. This is nothing

more than saying that if granted authority by the lender, or its agent, to assign a mortgage, MERs can assign the mortgage on behalf of the lender.

To read the MERS agreement as granting MERS authority to assign any of the mortgages of its thousands of members, on its own volition, without the instruction or consent of the member would lead to a nonsensical result.

Plaintiff has failed to meet the very basic requirement that proof of an agent’s authority must be shown from the mouth of the principal not from the agent. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing Corp., 122 AD2d 25, 504 N.Y.S.2d 192 (2nd Dept 1986), Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 N.Y.S.2d 744 (2nd Dept 1985).

As Plaintiff has not shown that it owned the note and mortgage, it has no standing to maintain this foreclosure action. Therefore the renewed motion for an order of reference must be denied and the action dismissed.

The Court has raised the standing issue sua sponte because, in this case, it goes to the integrity of the entire proceeding. For the court to allow a purported assignee to foreclose, in the absence of some proof that the original lender authorized the assignment of the mortgage to them, would cast doubt upon the validity of the title of any subsequent purchasers, should the original lender or successor challenge the assignment at a future date.

WHEREFORE it is hereby Ordered that Plaintiff’s motion for an Order of Reference is denied and the action is dismissed. This constitutes the decision and order of the Court.

[*5]

J.S.C.

[ipaper docId=52865705 access_key=key-yfyu5zdt3tz8gq9umaq height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)

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.


© 2010-15 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 StreetComments (4)

EXCLUSIVE | ‘MERS’ DEPOSITION of SECRETARY and TREASURER of MERSCORP 4/2010

EXCLUSIVE | ‘MERS’ DEPOSITION of SECRETARY and TREASURER of MERSCORP 4/2010


Could this deposition hold the key to take all of MERS V3 &  MERSCORP down!

There is not 1, 2 but 3 MERS, Inc. in the past.

Just like MERS et al signing documents dated years later from existence the Corporate employees do the same to their own corporate resolutions! Exists in 1998 and certifies it in 2002.

If this is not proof of a Ponzi Scheme then I don’t know what is… They hide the truth in many layers but as we keep pulling and peeling each layer back eventually we will come to the truth!

“A Subtle Stranger” Orchestrates a Paradigm Shift

MERS et al has absolutely no supervision of what is being done by it’s non-members certifying authority PERIOD!

SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION – ATLANTIC COUNTY
DOCKET NO. F-10209-08
BANK OF NEW YORK AS TRUSTEE FOR
THE CERTIFICATE HOLDERS CWABS,
INC. ASSET-BACKED CERTIFICATES,
SERIES 2005-AB3
Plaintiff(s),
vs.
VICTOR and ENOABASI UKPE
Defendant(s).

___________________________________________
VICTOR and ENOABASI UKPE
Counter claimants and
Third Party Plaintiffs,
vs.
BANK OF NEW YORK AS TRUSTEE FOR
THE CERTIFICATE HOLDERS CWABS,
INC. ASSET-BACKED CERTIFICATES,
SERIES 2005-AB3
Defendants on the Counterclaim,
and
AMERICA’S WHOLESALE LENDER;
COUNTRYWIDE HOME LOANS, INC.;
MORGAN FUNDING CORPORATION,
ROBERT CHILDERS; COUNTRYWIDE
HOME LOANS SERVICING LP,
PHELAN, HALLINAN & SCHMIEG,
P.C.,
Third Party Defendants
——————–

Deposition of William C. Hultman, Secretary and Treasurer of MERSCORP

[ipaper docId=36513502 access_key=key-1ltln0ondmrqe0v9156u height=600 width=600 /]

Does MERS have any salaried employees?
A No.
Q Does MERS have any employees?
A Did they ever have any? I couldn’t hear you.
Q Does MERS have any employees currently?
A No.
Q In the last five years has MERS had any
employees
?
A No.
Q To whom do the officers of MERS report?
A The Board of Directors.
Q To your knowledge has Mr. Hallinan ever
reported to the Board?
A He would have reported through me if there was
something to report.
Q So if I understand your answer, at least the
MERS officers reflected on Hultman Exhibit 4, if they
had something to report would report to you even though
you’re not an employee of MERS, is that correct?
MR. BROCHIN: Object to the form of the
question.
A That’s correct.
Q And in what capacity would they report to you?
A As a corporate officer. I’m the secretary.
Q As a corporate officer of what?
Of MERS.
Q So you are the secretary of MERS, but are not
an employee of MERS?
A That’s correct.

etc…
How many assistant secretaries have you
appointed pursuant to the April 9, 1998 resolution; how
many assistant secretaries of MERS have you appointed?
A I don’t know that number.
Q Approximately?
A I wouldn’t even begin to be able to tell you
right now.
Q Is it in the thousands?
A Yes.
Q Have you been doing this all around the
country in every state in the country?
A Yes.
Q And all these officers I understand are unpaid
officers of MERS
?
A Yes.
Q And there’s no live person who is an employee
of MERS that they report to, is that correct, who is an
employee?
MR. BROCHIN: Object to the form of the
question.
A There are no employees of MERS.

RELATED ARTICLE:

_____________________________

MERS 101

_____________________________

FULL DEPOSITION of Mortgage Electronic Registration Systems (MERS) PRESIDENT & CEO R.K. ARNOLD “MERSCORP”

_____________________________

DEPOSITION of A “REAL” VICE PRESIDENT of MERS WILLIAM “BILL” HULTMAN

_____________________________

HOMEOWNERS’ REBELLION: COULD 62 MILLION HOMES BE FORECLOSURE-PROOF?

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of america, bank of new york, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, countrywide, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, insider, investigation, lawsuit, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, originator, R.K. Arnold, racketeering, Real Estate, sanctioned, scam, securitization, servicers, stopforeclosurefraud.com, sub-prime, TAXES, trustee, trustee sale, Trusts, truth in lending act, unemployed, Violations, Wall StreetComments (4)

MERS ‘AGENT’ PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic Registration Systems, Inc. v. Folkes, 2010 NY Slip Op 32007 – NY: Supreme Court

MERS ‘AGENT’ PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic Registration Systems, Inc. v. Folkes, 2010 NY Slip Op 32007 – NY: Supreme Court


2010 NY Slip Op 32007(U)

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., “MERS” as Nominee for AMERICA’S WHOLESALE LENDER, its Successors and Assigns, Plaintiff,

v.

CAROLE FOLKES, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, BARON ASSOCIATES, LLC, and JOHN DOE (said name being fictitious, it being the intention of plaintiff to designate any and all Occupants of premises being foreclosed herein and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises), Defendants.

No. 109824/05, Motion Seq. No. 005.

Supreme Court, New York County.

July 29, 2010.
July 21, 2010.

ALICE SCHLESINGER, Judge.

This action commenced in 2005 sounds in foreclosure. Thus, it should be a relatively straightforward matter. However, It Is anything but that. By the time it reached this Court, the action had acquired an intervenor, Baron Associates, LLC (“Baron”), who filed cross-claims against a defendant, Carole Folkes and a counterclaim against the plaintiff, Mortgage Electronic Registration Systems, Inc. as Nominee for America’s Wholesale Lender, its Successors and Assignors (“MERS”).

Although the index number is 2005, a note of issue was not filed until December 2009. Before the Court now is a motion by defendant Folkes for summary judgment dismissing the cross-claims of defendant Baron and for an order recognizing that Folkes has superior title to the premises located at 468 West 146th Street in New York.

This motion is followed by a cross-motion by plaintiff MERS for summary judgment on its foreclosure claims regarding the subject property. Plaintiff previously requested and was denied this relief in a decision dated February 5, 2000 by Judge Kibble Payne. Plaintiff is asking for amounts due on their mortgage and note, as well as a declaration that no defendant has any lien, equitable or otherwise, on the property. Plaintiff MERS is also moving, pursuant to CPLR §3212 for summary judgment dismissing defendant Baron’s counterclaim, and pursuant to CPLR §603 severing Baron’s cross-claims against Folkes. Finally, pursuant to CPLR §3025, MERS seeks to amend its pleadings to substitute Zhou Ye, Lillian Herring and Marvin Herring in place of “John Doe”.

Baron opposes virtually all of this relief, although it does not speak to the amendment. Folkes the defendant here, does not oppose plaintiffs cross-motion.

The saga of the sale of this property, to the extent relevant to these motions, began on August 19, 2004 when this property, a three family dwelling in Harlem, was sold by Its owner Shelby Sullivan to 468 West 146th Street Corporation, whose principal was Paul Jaikaran. The purchaser took out a mortgage on the premises for $550,000 from intervenor Baron. Also at the closing, Baron paid off an existing mortgage lien of $46,369.74 to Champion Mortgage Co.

However, three months later, on November 23, 2004, presumably this same Shelby Sullivan sold the same premises to Carole Folkes for something in the neighborhood of $700,000, with a mortgage of $650,250.00.

Ms. Folkes who has disclaimed any knowledge of the prior sale, stated she purchased the property as a favor for her sister Cheron Ramphal and Ramphal’s boyfriend, the same Paul Jaikaran who is principal of 468 West 146th Street Corp. Folkes explains that she did this because her credit was better than Ramphal’s and Jaikaran’s, and because her sister was being nice to her, she agreed to do her this favor. Her understanding of the transaction, as testified to at a deposition, was that she would take title to the property, but otherwise would have nothing to do with it. (Although she testified she was a home owner herself and knew how mortgages work.) In other words, Ramphal and Jaikaran would actually pay the note. She believed their plan was to renovate the property and quickly resell it.

What is important here Is that these closing papers were filed on May 27, 2005. But the earlier transaction was not filed until August 31, 2005, or three months later and over a year after the earlier closing.

Both mortgages have been defaulted upon. The action here, as previously mentioned, was commenced five years ago. The mortgagee for the MERS transaction, or at least the entity noted on the recorded deed, is Country-Wide Home Loans, Inc., although elsewhere in these papers “America’s Wholesale Lender” is named as the “Mortgagee/Lender”. The mortgage document itself also states that MERS “is a separate corporation acting solely as a nominee for lender” and its successors. The lender again named as “America’s Wholesale Lender.” The nominee MERS Is given the right, among others, to foreclose on the mortgage. However, it should be noted that all the demands for payment included in the cross-motion are from Countrywide to Folkes.

Other items of interest regarding the MERS transaction include the following: the settlement statement identifying Carol Folkes as the borrower gave her address as 142 116th Road in South Ozone Park, New York, an address never referred to elsewhere and never explained. At her deposition, Ms. Folkes stated that she has lived at 2000 Serpentine Terrace in Silver Springs, MD for 10½ years. Yet on the mortgage itself, her address is listed as the property being sold, 468 West 146th Street, New York. (She is also identified as an unmarried woman, though again at her deposition, she stated she had been married for 12½ years to the same man).

After a default in payments, as mentioned above, demand letters were sent by Countrywide to Ms. Folkes at the subject premises 468 West 146th Street, a place she said she had never even seen, much less lived in. She states, not surprisingly, that she never received these notices.

The settlement agent on all of the MERS documents was listed as Peter Port, Esq., undeniably plaintiffs agent. According to an affidavit, with documents attached from Ms. Nichole M. Orr, identified as an Assistant Vice President and Senior Operational Risk Specialist for Bank of America Home Loans, the successor-in-interest to plaintiff America’s Wholesale Lender (April 1, 2010)[1] certain wire transfers were made on November 23, 2004 to Mr. Port. The money appears to have come from an account with JP Morgan, but one of the documents also shows, inexplicably, that Mr. Port then sent $435,067.73 of this money to Cheron A. Ramphal at 14917 Motley Road, Silver Springs, MD. It should also be noted, as it was in the decision of February 5, 2008 by Judge Payne, that Mr. Port pled guilty in March 2006 in Federal District Court in New Jersey to providing false documents in a scheme to commit mortgage fraud.

I am not prepared to grant plaintiffs cross-motion for summary judgment. Beyond that and despite the fact, as counsel points out, that Folkes does not oppose their motion, I am dismissing the action. I am doing this for essentially three reasons. Some of which has to do with deficiencies in documentation.

Even without opposition, a plaintiff in a foreclosure action must satisfy a court that it has proper standing or title to bring the action, that the mortgage and note was actually funded by the plaintiff, and that the transaction itself, the one sued upon, has the indicia of reliability and is free of fraud. Kluge v Fugazy, 145 AD2d 537 (2nd Dep’t 1988); Katz v East-Ville Realty Co, 249 AD2d 243 (1st Dep’t 1998).

None of those criteria have been satisfied here. Countrywide was the mortgagee and upon default made demands to Ms. Folkes, which it appears never reached her. Nowhere in the papers is there a satisfactory showing that the transfer of ownership or title was ever made to MERS. Ms. Orr never mentions any connection to Countrywide. But even if she were to submit still another affidavit, she certainly has no personal knowledge of the transfer of ownership, and no documents have been submitted. I do not find the language or the closing documents, identifying MERS as nominee for America’s Wholesale Lender, to sufficiently tie in the real party in Interest.

As to the second point, which was one basis for Judge Payne’s denial of summary judgment in February 2008, that there was “a complete failure to prove funding of the mortgage,” there continues to be such a failure in the motion before this Court today. The uncertified documents[2] do anything but convince. For example, there is no explanation given as to why one of the wire transactions shows that Mr. Port sent $435,067.23 to Cheron A. Ramphal. There is also nothing to show that Ms. Folkes received anything at all, although some check in the amount of $125,000 is made out to Shelby, the Seller. Therefore, I simply cannot rely on these uncertified documents created five years ago, that contain more questions than answers.

Which brings me to my last point. I am unable to say with any confidence that this was an honest transaction. Ms. Folkes’ credibility certainly is questionable. Therefore, the fact that she fails to oppose the motion Is meaningless. We also know that people close to her were involved in an earlier transaction with the same alleged seller, suggesting some kind of fraud. Also, Port, the agent acting on behalf of the plaintiff was later convicted of fraud involving similar transactions. Further, as mentioned above, the papers surrounding the transaction are filled with errors. Therefore, at the least, they were drawn up by Port and others without care or worse. Therefore, the action is dismissed without prejudice for plaintiff to bring again, if they can, with proper support and reliability. The counterclaim is also dismissed without prejudice.

With regard to the four cross-claims brought by Baron against Folkes, the subject of the first motion, I am in fact granting them, but only to the extent of dismissing with prejudice the second cross-claim, at paragraph 12, which speaks of unjust enrichment and the fourth cross-claim, at paragraph 32 which speaks of fraud. With regard to paragraphs, there Is simply no showing by Baron that Folkes herself was enriched, unjustly or not, in the amount of $46,369.74, the payment Baron made to Champion Mortgage. Regarding the allegation of friaud, there is nothing to show that Baron, by giving the earlier mortgage to 468 West 146th Street Corp., in any way relied upon the representations and actions of Folkes in purchasing the property months after the August 19, 2004 sale.

Accordingly, it is hereby

ORDERED, that the motion for summary judgment by defendant Baron Associates, LLC is granted to the extent of dismissing with prejudice the second cross-claim sounding in unjust enrichment and the fourth cross-claim sounding In fraud; and it is further

ORDERED that plaintiffs cross motion for summary judgment is denied; and it is further

ORDERED that this foreclosure action and the counterclaim by defendant Carol Folkes are dismissed without prejudice and without costs or disbursements to any party.

This constitutes the decision and order of this Court. The Clerk is directed to enter judgment accordingly.

[1] We also learn in papers dated April 28, 2010, that Ms. Orr is also an officer of plaintiff MERS.

[2] I am referring to these documents as “uncertified” because that is what they are. As part of plaintiffs cross motion, Ms. Nicole Orr presented an April 1, 2010 affidavit with certain exhibits which she described as copies of wire transfer, settlement agent’s receipt of wire transfers, checks and additional wire transfers paid. There was no certification as to their origin or authenticity. When this was challenged by counsel for Baron, Ms. Orr submitted a later affidavit of April 28, 2010 with another exhibit, an affidavit from Linda S. Lewis who states she is a Vice President of JP Morgan Chase Bank who was served with a subpoena for certain documents. She then says that to the best of her knowledge, those “records or copies thereof produced were accurate versions of the documents described.” All of this is not sufficient to serve as certified business records.

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Posted in chain in title, conspiracy, CONTROL FRAUD, countrywide, foreclosure, foreclosure fraud, foreclosures, jp morgan chase, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., noteComments (1)


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