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WI Appeals Court Reverses SJ “Affidavit Submissions, Do Not Authenticate Assignment and Note” PHH MTG v. KOLODZIEJ

WI Appeals Court Reverses SJ “Affidavit Submissions, Do Not Authenticate Assignment and Note” PHH MTG v. KOLODZIEJ


COURT OF APPEALS
DECISION
DATED AND FILED

March 10, 2011

STATE OF WISCONSIN

PHH MORTGAGE CORPORATION

v.

ROBERT L. KOLODZIEJ AND DEBRA SNOBL, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OFMARCELLA L. KOLODZIEJ,
DECEASED

Excerpts:

¶21 Because the assignment of the mortgage is neither authenticated by averments in an affidavit that would suffice at trial nor self-authenticated by means of a certified copy, it cannot be considered in determining whether PHH made a prima facie case for summary judgment.4

<SNIP>

¶28 Because PHH’s submissions do not provide authentication for the mortgage assignment and for the endorsed note, its submissions do not make a prima facie showing that it is the holder of the mortgage and note. The court therefore erred in granting summary judgment in PHH’s favor. This conclusion makes it unnecessary to address the Estate’s argument that, even assuming these documents were authenticated, PHH still did not make a prima facie case for foreclosure.7

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[NYSC] DISMISSED “NO EVIDENCE MERS TRANFERRED INTEREST IN NOTE” LNV CORP v. MADISON REAL ESTATE LLC

[NYSC] DISMISSED “NO EVIDENCE MERS TRANFERRED INTEREST IN NOTE” LNV CORP v. MADISON REAL ESTATE LLC


EXCERPT:

In this case, Plaintiff has not provided any evidence which shows that when MERS assigned the mortgage to Plaintiff, it also transferred the interest in the underlying note. According to the mortgage assignment contract, MERS held legal title to the mortgage. There is no language in the agreement which transfers interest in the note to MERS. Because MERS did not hold title to the underlying note, it could not transfer any rights to the underlying note when it assigned the mortgage to Plaintiff. See LPP Mortgage Ltd v. Sabine Properties No. 103648/10,2010 N.Y. Misc. LEXIS 4216, at*7 (Sup. Ct. N.Y. Co. Sept. 1, 2010); Lamy , 824 N.Y.S.2d at 769 (Sup. Ct. Suffolk Co. 2006); HSBC Bank USA v. Miller, 26 Misc. 3d 407,411,889 N.Y.S.2d 430,433 (Sup. Ct. Sullivan Co. 2009). Without a transfer of title to the underlying note, Plaintiff cannot foreclose on the property based on default payment and lacks standing under CPLR 5 321 1 (a)(3)

[…]

Therefore, it is
ORDERED that Defendant’s motion to dismiss is granted; and it is further
ORDERED that this action is dismissed; and it is further
ORDERED that the clerk of the court directed to enter judgment accordingly.

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Special report: Legal woes mount for a foreclosure kingpin

Special report: Legal woes mount for a foreclosure kingpin


By Scot J. Paltrow
updated 12/6/2010 2:10:09 PM ET 2010-12-06T19:10:09
.

JACKSONVILLE, Florida — Lender Processing Services is riding the waves of foreclosures sweeping the United States, but in late October its CEO, Jeff Carbiener, found himself needing to reassure investors in the $2.8 billion company.

Although profits were rolling in, LPS’s stock had taken a hit in the wake of revelations that mortgage companies across the country had filed fraudulent documents in foreclosures cases. Earlier in the year, the company, which handles more than half of the nation’s foreclosures, had disclosed that it was under federal criminal investigation and admitted that employees at a small subsidiary had falsely signed foreclosure documents.

Still, Carbiener told the Wall Street analysts in an October 29 conference call that LPS’s legal concerns were overblown, and the stock has jumped 13 percent since its close the day before the call.

But a Reuters investigation shows that LPS’s legal woes are more serious than he let on. Public records reveal that the company’s LPS Default Solutions unit produced documents of dubious authenticity in far larger quantities than it has disclosed, and over a much longer timespan.

Questionable signing and notarization practices weren’t limited to its subsidiary, called DocX, but occurred in at least one of LPS’s own offices, mortgage assignments filed in county recorders’ offices show. And rather than halt such practices after the federal investigation got underway, the company shifted the signing to firms with which it has close business ties. LPS provided personnel to work in the new signing operations, according to information from an LPS spokeswoman and court records including an October 21 ruling by a judge in Brooklyn, New York. Records in county recorders’ offices, and in the judge’s opinion, show that “robosigning” and preparation of apparently false documents went on at these sites on a large scale.

In one instance, it helped set up a massive signing operation at the nearby office of a major client, a spokeswoman for the client, American Home Mortgage Servicing, confirmed. LPS-hired notaries who worked there said in interviews that troves of documents were improperly handled. They said that about 200 affidavits per day were robosigned during the two months the two notaries remained there.

A spokeswoman for LPS confirmed to Reuters that it had helped other firms establish operations that performed the same function. LPS spokeswoman Michelle Kersch didn’t specify which firms. But beginning early in 2010, county recorders’ records show, signing shifted also to law firms under contract with LPS.

Interviews with key players and court records also show that pending investigations and lawsuits pose a bigger threat to the company than Carbiener let on.

The criminal investigation in Jacksonville by federal prosecutors and the Federal Bureau of Investigation is intensifying. The same goes for a separate inquiry by the Florida attorney general’s office. Individuals with direct knowledge of the federal inquiry said that prosecutors have impaneled a grand jury, begun calling witnesses and subpoenaed records from LPS.

The company confirmed to Reuters that it has hired Paul McNulty, former deputy U.S. attorney general in the George W. Bush administration, to represent it in the investigation. A spokeswoman for the U.S. Attorney’s office declined to comment on the probe.

The U.S. Comptroller of the Currency’s office, which is responsible for supervising national banks, also announced in November that it had teamed up with the Federal Reserve to conduct an on-site examination of LPS.

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Connecticut Residents Charge EMC & Law Offices Of David J. Stern With Fraud

Connecticut Residents Charge EMC & Law Offices Of David J. Stern With Fraud


This is an excellent piece!

I could not get excerpts out of it because it’s ALL perfection!

CASE NAME:  EMC Mortgage Corporation vs. Karen A. Krondes, et al
STATE: Florida
DATE: October 19, 2010
RE:  Defenandants Motion For Order Prohibiting Plaintiff From Transfering, Selling Alleged Note and Mortgage

This motion pertains to the pending Florida foreclosure matter of EMC Mortgage Corporation vs. Karen A. Krondes, et al  –  (Case No: 56-2008-CA-000066), in the 19th Judicial Circuit Court In St. Lucie County, Florida.

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FULL DEPOSITION OF WELLS FARGO HERMAN JOHN KENNERTY

FULL DEPOSITION OF WELLS FARGO HERMAN JOHN KENNERTY


Hat tip to Brian Davis for this deposition below.

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.

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RELATED:

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


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Posted in assignment of mortgage, foreclosure, foreclosure fraud, herman john kennerty, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., wells fargoComments (1)

ONEWEST BANK GETS THE BOOT, MERS ASSIGNMENT MAKES NO REFERENCE TO NOTE

ONEWEST BANK GETS THE BOOT, MERS ASSIGNMENT MAKES NO REFERENCE TO NOTE


Judge Murphy deserves an applause for the great job of questioning all facts and making no assumptions.

SUPREME COURT – STATE OF NEW YORK
TRIAL TERM. PART 17 NASSAU COUNTY

PRESENT:
Honorable Karen V. Murphv
Justice of the Supreme Court

ONEWEST BANK, FSB
155 North Lake Avenue
Pasadena, CA 91101,
Plaintiff(s),

-against-

ALEXADER ROTH, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.
AS NOMINEE FOR E*TRADE WHOLESALE
LENDING CORP., ET AL.,
Defendant(s).

Excerpts:

In this matter Plaintiff failed to establish that it is entitled to the relief sought. It is well settled that a foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of mortgage is a nullity. (Kluge v. Fugazy, 145 A. 2d 537 538536 N. 2d 92 (2d Dept. , 1988)). While Plaintiff alleges that it is the holder of both the note and mortgage, the record before the Court suggests otherwise and raises factual issues as well as issues of credibility that can not be determined herein. (see .J Capelin Assoc. v. Globe Mfg. Corp. 34 N. 2d 338 341 313 N. 2d 776 357 N. 2d 478 (1974)).

The Complaint filed September 4, 2009 stated that Plaintiff is “the owner and holder of a note and mortgage being foreclosed.” Bald assertions of possession of the original note without more, in light of the conflicting evidence, is not sufficient to establish a prima facie case.

Furtermore, the assignment recorded on October 1 , 2009 specifically states that it is an “assignment of mortgage ” and makes no reference to the note. Thus, a question of fact exists as to whether the note was ever assigned or delivered to Plaintiff. It may well be that the note was neither assigned nor delivered to Plaintiff prior to commencement of this action and Plaintiff would then be without authority to bring this action.

A stamp on the copy of the note provided by Plaintiff appears to be an indorsement of the note in blan, by the original lender, and is not dated (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 890 N. 2d 578 (2d Dept. , 2009)). Additional issues regarding the timing of that indorsement on the note and whether MERS, at the time it executed the Assignment of Mortgage had authority, let alone the abilty, to assign the note and/or whether, in fact the note had already been assigned at the time of the purported assignment of the mortgage exist (id).

ORDERED that movant shall serve a copy of this Order upon all parties, or their attorneys if represented by counsel and shall there after file affidavits of service with the County Clerk and it is further,

ORDERED that a copy of this Order and proof of service of same be anexed as exhibits to any future applications regarding the subject mortgage and note.

The foregoing constitutes the Order of this Court.

Dated: September 1 , 2010
Mineola, N.
NASSAU COUNTY
COUNTY CLERK’S

ONEWEST BANKS GET THE BOOT, MERS ASSIGNMENT MENTIONS NO NOTE

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Posted in assignment of mortgage, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, onewestComments (1)

Flawed paperwork gnaws at bank foreclosures

Flawed paperwork gnaws at bank foreclosures


By Jerry Kronenberg
Tuesday, October 5, 2010 -

Bay State lawyers who specialize in fighting home seizures are declaring war on the banking industry, which is admitting that thousands of U.S. foreclosure cases might involve flawed paperwork.

“Foreclosure defense and fraud litigation is going to make (1998’s $200 billion tobacco-industry settlement) look like a grocery-store slip-and-fall case,” Nantucket lawyer Jamie Ranney predicted after Bank of America halted foreclosures in 23 states over the weekend.

The moratorium, which GMAC and JP Morgan Chase launched last week, doesn’t currently include Massachusetts. But Attorney General Martha Coakley has asked lenders to add the Bay State to the list.

Continue reading…BOSTON HERALD

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Posted in assignment of mortgage, CONTROL FRAUD, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, robo signers, settlementComments (1)

DOCX / LPS Price List…any documents you want!

DOCX / LPS Price List…any documents you want!


Looks like this is becoming more and more like a fabricating factory mill full of ?????????

DOCX’s GetNet™ Document Recovery solution is a national network of runners that is engaged to provide document recovery, expedited recordation services, title searches, and insurance submissions.

The service is unique in that our clients can request that DOCX obtain any missing recordable documents through this web site through our online GetNet™ Work Order Form. Status of existing projects can also be obtained through our Online Services.

We also accept work orders the “old fashioned” way via fax or mail. Upon receipt of the work order, DOCX will access the national network of runners, place the order and follow up to ensure prompt delivery.

GetNet™ was designed to assist mortgage servicers in meeting agency certifications and to avoid costly penalties for filing late satisfaction pieces.

GetNet™ Features

  • A National Network of title runners retains presence in every county jurisdiction nationwide.
  • Obtains missing mortgage documents, assignments, title policies and LGC/MICs.
  • Expedites recordation by physically walking documents in to county recorder offices.
  • Provides title searches to identify mortgage holders.
  • Provides online reporting capabilities.

GETNET™ RATE SHEET

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



Posted in assignment of mortgage, bogus, concealment, conflict of interest, CONTROL FRAUD, corruption, DOCX, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, Lender Processing Services Inc., LPS, STOP FORECLOSURE FRAUDComments (3)

EXPLOSIVE!!!! OHIO DA Identifies That Mers Did Not Re-Assign the Loans

EXPLOSIVE!!!! OHIO DA Identifies That Mers Did Not Re-Assign the Loans


THANK YOU OHIO!!!!!

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Posted in assignment of mortgage, chain in title, CONTROL FRAUD, corruption, district attorney, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Wall Street, William C. HultmanComments (2)

Is It Time to File Quiet Title Actions on Foreclosed Homes?

Is It Time to File Quiet Title Actions on Foreclosed Homes?


[GUEST POST]

Is It Time to File Quiet Title Actions on Foreclosed Homes?

THIS IS NOT Intended to Be Construed or Relied upon as COMPETENT LEGAL ADVICE—it is an academic paper discussing various perceptions of evolving potential facts and law, which may differ state by state and within jurisdictions within states. Readers are urged to obtain competent legal representation to review their facts.

In the past, foreclosed homeowners and their attorneys have discussed the utility of filing quiet title actions where homes have been seized and deficiency judgments entered by various foreclosure claimants that purport to unknowingly rely on faulty documentation. There are dangers. A buyer that has acquired a foreclosed home—or the foreclosing entity itself—may bring an action against a dispossessed person seeking redress. A pro se plaintiff or an attorney that represents the wronged homeowner may be subject to sanctions for raising a spurious or improperly supported claim. Today facts appear to put a defense attorney at risk of malpractice if he does not preserve his clients’ interest—even post foreclosure—unless he apprises the client of the opportunity to regain title to the family home. Courts have notice of these defects by reason of withdrawals of support documents—beyond GMAC.

Recent disclosures and admissions by document creation groups, together with widespread newspaper reported facts open avenues to additional discovery and formulation of academic legal opinion. These will open the door for claims to set aside erroneous judgments and/or pursue damages against those servicers, Indenture Trustees and document preparers that either knowingly, negligently, or acted with willful disregard to perpetrate fraud on the courts and the hapless home-owners. Mortgage-backed securities investors may also find an interest in these activities. Failed documentation may disguise outright fraud. Attestations and sworn affidavits serve a fundamental purpose—prevention of fraud. These are not mere technicalities as propounded by some industry apologists.  Certainly, homeowners with continuing duties of enforced silence may have opportunity to re-open their settlements in light of these possible fraudulent impositions and inducements.

There are at least two sets of circumstances raised to date whereby potentially void or voidable documents have been used to push homeowners into the streets and into bankruptcy;

  • Complaints in foreclosure supported by assignments of mortgage from purported representatives of MERS to various entities
  • Motions for Summary Judgment supported by Affidavits of Claimants—most notably GMAC’s Jeffrey Stephan

On September 23, 2010 the Washington Post added to the furor surrounding the (majority) federal government owned [ALLY] GMAC’s revelations from earlier this week. GMAC used affidavits executed by an employee, Jeffrey Stephan, who admitted in deposition testimony in December 2009 and June 2010, that he did not actually verify the mortgage foreclosure information to which he was testifying in connection with the foreclosures of two families.

In addition, he admitted signing these “affidavits,” and passing them for later notarization in bulk, a violation of proper notary procedure. Mr. Stephan signed off on 10,000 mortgage documents per month according to his June deposition and the Post article. GMAC, in this instance, took the honest and safe course of “temporarily suspending” some foreclosure-related activities in 23 states – as reported by several large newspapers, including the New York Times, Bloomberg and The Washington Post. The “temporary suspension” allows for evaluation of the impacts of this admitted breakdown in the system, rather than blatantly defrauding foreclosure courts in judicial foreclosure states.  The New York Times on the 22nd speculated that: [GMAC] “actions suggest concern about potential liability in evicting families and selling houses to which it does not have clear title.” [Emphasis added]  The same article notes that; “The lender said it was also reviewing completed foreclosures where the same unnamed procedure might have been used.” [Emphasis Added]. The step referred to in these articles, preparation and filing of an affidavit in support of a Motion for Summary Judgment—along with the Motion itself –occur well into the foreclosure process.

However, there is another critical document created and filed by a claimant with the foreclosure court at the beginning of foreclosure. This document, the Assignment of Mortgage, is supposed to support the claimant’s right or legal “standing” to press the Complaint in Foreclosure. The Complaint is the basis for the foreclosure and creation of a “deficiency judgment” – the amount left owing by the homeowner after the claimant sells the house for less than the amount owed and includes added fees and charges. The claimant uses the deficiency judgment to seize the homeowner assets and future paychecks. In most instances the assignment is the only document before the court that associates the claimant with the borrower. The complaint and supporting assignment frequently surprise and confuse the homeowner by naming an entity or sham “trust” that the homeowner has never heard of before.

The Assignment of Mortgage is significantly more important than the affidavit in support of the Motion for Summary Judgment, if for no other reason sheer numbers.  Typically most homeowners have undergone a psychological bruising and beating from the loan servicer by the time the actual Complaint in Foreclosure is filed. Often the family has lost the pay of one, if not both, wage earners and seeks some relief from one of the high cost, predatory loans created 2003-2007. Unfortunately the servicer typically refuses to discuss modification or any relief unless the homeowner has fallen behind in payments. The servicers may rely on terms limiting its authority within the securitization documents in respect of this hard-nose approach.

The hard-nose response gives the servicer cover for actions or abuses that often characterize its subsequent conduct. At that point, the servicer transfers the loan to the default department or outsources to a “default management” operation. This is an aggrandized term for collection agency. The “department” or collection agency often calls the family up to six or more times a day demanding money—rarely the same caller twice. Typically, this will throw the family into confusion and despair. Pleas for relief fall on deaf ears unless the family meets demands to “make up late payments and added fees.”  It’s just the beginning of a process that has the effect, if not the purpose, of destroying the family’s morale. The servicer may follow up with notices tacked on the homeowner’s door, a barrage of ominous if not outright threatening letters and other actions aimed at driving the homeowner to abandon the home and neglect a legal defense.

If the homeowner is either naïve enough to believe that the touted voluntary [for servicers] relief programs actually operate, or desperate to keep a roof over the family’s head, the loan modification dance begins. Under the guise of compliance with HAMP, the collection agency demands an array of homeowner financial and employment information. Irrespective of the use that the homeowner desires for that information, it will be of great help to the collection agency to locate assets and paychecks down the road to collect the looming deficiency. But today the information rarely satisfies the servicer in respect of moving towards a modification. The demanded documents are often purportedly “lost” by the servicer, or deemed inadequate—anything to drag out the nightmare and break the family’s spirits. After submitting and resubmitting documents, explanations, and hours on the telephone day after day, week after week, any false hopes that are raised are destroyed by a denial. Homeowners often will be told to try again-with the same results.

After about 3-4 months, perhaps even while the family thinks that a modification is soon to be forthcoming, the ax falls instead. An assignment is “created” and the Complaint is filed. Usually the family gives up without opposition at this point. The servicer may go so far as to place a note on the door offering to further discuss modification leaving a phone number. When the number is called by the confounded homeowner, the servicer representative may explain: “we didn’t really mean that; we just wanted to see if you have left yet!”

In some cases born of desperation, the struggling family may contact an attorney who demands $1000-$5000 just to open the case. The family has 30 days to raise the money to cause someone to simply look at the demands in the Complaint and the Assignment. In the vast majority of cases still remaining, the family gives up now, abandons the property, and no response is ever filed to the Complaint—a default judgment is entered in favor of the claimant. Most often, the family is not even aware that the demands seek more than just the home. That realization may take years to occur—when another collector knocks on the door demanding the long-forgotten deficiency. The process is aimed at breaking the family’s will, at winnowing out the homeowners. The servicer wants the home!

The articles printed prior to Sep 23, 2010 in connection with GMAC’s “unnamed procedure” did not focus upon the issue of potential forgery or related systemic fraud on the courts in connection with preparation of Assignments of Mortgage. By way of background, by reference to numerous anecdotes, it appears that often a claimant in possession of a list of homeowner loans in default provides superficial information to a default services company in respect of the borrower and property. One of the largest default service providers, by its own admission, is two-year old publicly traded Lender Processing Services (“LPS”), a spin-off from FINS. “Approximately 50 percent of all U.S. mortgages by dollar volume are serviced using LPS’ Mortgage Servicing Package (MSP)” The lender, a servicer or Indenture Trustee contracts with LPS for creation and delivery of an Assignment of Mortgage to the requesting entity. (see exhibit at end) This document is often sent directly by LPS through the mail to County Recorders to be file-stamped and recorded in the county property records.  These steps lend false authenticity to the piece of paper. By the time the targeted family sees the Complaint and attached Assignment, the assignment has been file-stamped by their local County Recorder, the Clerk of Courts and probably was attached to a subpoena “served” upon them by their County Sherriff. The family is thoroughly intimidated by the Assignment of Mortgage, which has been used to convert the family’s local authorities into apparent agents and enforcers of the distant claimant. The assignment is a powerful weapon in the war of intimidation.

The Washington Post, September 23, 2010, correlated the GMAC admitted breakdown in verification of loan files and notarization process with the assignment creation process operated by LPS. LPS’ document creation division in Alpharetta, Georgia operating under LPS’ DOCX trademark, churned out thousands of assignments. The Post identified one prolific signatory, Linda Green. The article set out in its body several examples of Ms. Green’s signature—which differ dramatically one to another. The Post stated the likely observation that the signatures were made by other LPS employees in addition to Ms Green.  She is but one example at one LPS office: there are others with similar handiwork including Tywanna Thomas and Korrel Harp at that office. Mr. Harp has the added dubious distinction of having been jailed for and plead guilty to “Knowingly Possessing False Identification” relating to an arrest in Oklahoma in 2008.   At the age of 24, Mr. Harp was signing as Vice-President of Mortgage Electronic Services Inc., aka MERS. MERS has been nominal owner of 65 million home mortgages—and receives mortgage title to 60% of all new mortgages.

As a VP of MERS the 24 year-old Harp, like Ms. Green and Thomas, purportedly possessed the power to transfer mortgages with questionable oversight to LPS’ clients—perhaps others?  Based on the signatures of Harp, Green, Thomas— and other varied, yet purportedly notarized signatures, Courts across the country have foreclosed on homes and granted deficiency judgments.  One of the in house LPS notaries was only 18 years old at the time she notarized signature for Harp, Thomas and others at DOCX. Michelle Kersch, a senior vice president for Lender Processing Services, made limited explanations by email in the Post article but did not elaborate “due to the pending criminal investigation”.

Like GMACs Stephan, LPS’ stamp and sign department was a high volume operation. Powers of attorney were not consistently attached to the crucial assignments—if at all.

In the case of Linda Green, there was no power of attorney to represent MERS on an original “assignment of mortgage dated October 17, 2008 and filed on October 13, 2009”. This technicality was disclosed in a corrective filing of assignment by Florida foreclosure firm Shapiro and Fishman dated August 11, 2010 in Lee County, Florida in support of a foreclosure by servicer AHMSI. The POA status of other prolific signers such as Harp seems equally uncertain—but as Harp has emphatically stated “I’m sure everything is legal.” There seems to be little observable difference between the conduct of GMAC’s Stephan and the LPS’ high volume signers—but for the possible failure of the LPS signers to have representative capacity to sign at all.

LPS has also made admissions that GMAC seems to echo in terms of problematic “processes”. In the company’s 2009 Annual Report on file with the Securities and Exchange Commission, published in March 2010, under “regulatory matters”-Recently, during an internal review of the business processes used by our document solutions subsidiary, we identified a business process that caused an error in the notarization of certain documents, some of which were used in foreclosure proceedings in various jurisdictions around the country.”

Subsequently, April 3, 2010, the Wall St. Journal published an article regarding the issues with LPS and notary deficiencies; “US Probes Foreclosure-Data Provider”.  Foreclosure activists in Florida did not let the admission pass. These persons identified and brought to light signed and notarized Assignments that actually conveyed mortgages to named entities, “Bogus Assignee” and “Bad Bene”. These clearly established undeniable proof that LPS’ internal controls were compromised and virtually any name could be inserted as a claimant in a foreclosure action.

LPS’ CEO Jeffrey Carbiener authored a Letter to the Editor of the Florida Times-Union responding to an article published May 14, 2010 referring to “bad bene” and “bogus assignee”. In his open letter admissions in the press Carbiener asserted that the bogus names were “placeholders” put in the signed and notarized assignment documents “…until the missing information [claimant name] was provided…” Carbiener noted that the forms, as well as the data inserted, were based on instructions from clients with the “placeholders” used until more data is provided.  This amounts to a Nuremberg Defense.

The Carbiener comments attempt to place the onus of error in naming mortgage claimants on his clients—but for the obvious so-called placeholders. However, Carbiener’s comments have great significance beyond LPS role. This explanation is an admission that assignments were prepared in blank based on client information. According to Carbiener, it would appear that the named claimant was subsequently determined by the client and inserted. This process allows substantial opportunity for abuse, suggesting that a servicer determined that a loan was in default, and then someone engaged in a separate process to identify a claimant to whom the proceeds of foreclosure would be awarded.

The difficulties, or opportunities, for a servicer and his client Indenture Trustees to shift the benefits among potential investor beneficiaries are more apparent when one reviews the SEC filings of now bankrupt mortgage note originators such as American Home Mortgage group (“AHM”) and Option One.

Both originated loans that were supposedly stuffed into trusts. On paper the trusts supposedly issued mortgage-backed securities to trusting investors. However, purported trust-sponsors AHM and Option One and the Indenture Trustees were at best haphazard in meeting basic commitments and representations that were plainly stated in the securitization documents they themselves filed. The trust documents clearly state that the lists of loans included in the trusts were filed with the SEC and the appropriate Secretary of State (UCC). The securitization documents provided detailed descriptions of the information to be included in the filed list. This information was sufficient that a homeowner could determine if the trust owned his/her loan and was the proper party to receive his payments. Investors in the trust MBS could look to the list to determine the principal amount of the loans that “backed” the investment, as well as loan to value ratios and other relevant information that would indicate the value of the loans—and provide information adequate to determine if the same loan was placed in multiple trusts. However, for AHM, 7 of the 12 investment trusts filed with SEC lacked the lists.  The schedule stated, “manually filed”, but the manual filing was not made in many instances. The actual manual filings made are identified on the SEC dockets for the trusts as “SE” for “scanned exhibit.” Under the “SE” docket entry, the list would be found in specificity.  One such example of a trust with a proper loan list was American Home Mortgage Investment Trust 2005-2.

In motion practice in connection with a homeowner’s motion to dismiss a naked claim by one of Korrel Harp’s or Linda Green’s appointed mortgage assignment beneficiary trusts, one could note that the trust lacked a loan list and ownership of the loan could not be independently verified by reference to government records as intended. In so doing, it was possible to refer the court to the properly filed loan lists to note the clear distinction and value of the list. It was possible to prove that the lists were not intentionally missing due to some overriding concern for homeowner privacy—a common speculation. It was also useful to prove that missing loan lists were not customary “industry practice”. The filed list was a government record freely accessible to the public online. That changed between July 21, 2010 and September 02, 2010. Loan lists that had been on file and available for investors and homeowners to view online on the SE site were unceremoniously deleted. The lists are no longer freely accessible. A demand is now necessary under Freedom of Information Act—the proper loan lists can no longer be referenced in motions to dismiss. The effect was equivalent to, if not the same as, intentional destruction of evidence by the SEC. It is of interest that on the same day as the Washington Post detailed the LPS similarity to GMAC in terms of uncertain document authenticity, the WSJ also ran a front-page article detailing questionable actions taken in recent months by SEC. Washington Post, September 22, 2010, SEC Blasted on Goldman.

In summary, SEC failed to require actual filing of loan lists by the trust sponsors and the Indenture Trustees. This failing has lead to LPS and GMAC transfers of claims to unverifiable beneficiaries. This the Times suggests, creates a cloud on the title of the new home buyers of foreclosed properties. Then to complete the injury and remove opportunity for homeowners to defend unsupported claims, SEC destroys evidence that could be useful to homeowners being foreclosed and investors seeking to prove fraud. The mortgage fiasco has roots in SEC failure to regulate and its continuation and concealment of potential fraud is an abuse of discretion by SEC, which is supposed to support disclosure of information—not hide it.

Excerpted from: DOCX eAssignTM brochure (no longer found online)

eAssign utilizes the industry’s most robust property records database and data capture capabilities to significantly reduce timelines and costs for lienholders when creating (emphasis added) and recording lien assignment documents.

This article was contributed by an anonymous supporter of StopForeclosureFraud.com

© 2010 FORECLOSURE FRAUD | by DinSFLA. All rights reserved. www.StopForeclosureFraud.com

Creative Commons License

Related links:

LPS 101

MERS 101

NO. THERE IS NO LIFE AT MERS

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



Posted in bogus, conflict of interest, CONTROL FRAUD, corruption, deed of trust, DOCX, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, GMAC, investigation, jeff carbiener, jeffrey stephan, Korrel Harp, Lender Processing Services Inc., linda green, MERS, MERSCORP, michelle kersch, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., notary fraud, note, quiet title, robo signers, S.E.C., securitization, servicers, STOP FORECLOSURE FRAUD, stopforeclosurefraud.com, trade secrets, Tywanna ThomasComments (8)

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.

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



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 StreetComments (3)

FINAL DISPOSITION| NO Evidence ‘MERS’ Owned The NOTE, Could NOT ASSIGN IT

FINAL DISPOSITION| NO Evidence ‘MERS’ Owned The NOTE, Could NOT ASSIGN IT


NY SUPREME COURT: FINAL DISPOSITION

Here, there are no allegations or evidence that MERS was the owner of the note such that it could assign it to LPP. Thus, the assignment from MERS was insufficient to confer ownership of the note to LPP and it has no standing to bring this action. Kluge v. F umz ~1, 45 AD2d at 538 (holding that the assignment of a mortgage without transfer of the debt is a nullity); Johnson v. Melnikoff, 20 Misc3d 1142(A), “2 (Sup Ct Kings Co. 2008), n. 2, afr, 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS which did not include the underlying debt were a legal nullity); m e Elect ro pic Registration Svstem v, Coakley, 41 AD3d 674 (2d Dept 2007)(holding that MERS had standing to bring foreclosure proceeding based on evidence that MERS was the lawful holder of the promissory note and the mortgage).

Thus, even assuming arguendo that the language of the assignment from MERS to LPP could be interpreted as purporting to assign not only the mortgage but also the note, such assignment is invalid since based on the record, MERS lacked an ownership interest in the note. $ee LaSalle Bank Nat. Ass’n v. Lamv, 12 Misc3d 1191(A), “3 (Sup Ct Suffolk Co. 2006) (noting that “the mortgage is merely an incident of and collateral security for the debt and an assignment of the mortgage does not pass ownership of the debt itself ’);

[ipaper docId=37137994 access_key=key-2kgxi389lto95oi00d3m height=600 width=600 /]

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



Posted in chain in title, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, Supreme CourtComments (0)

MERS ‘GETS FORECLOSED’| ASSIGNS NADA TO BAC fka COUNTRYWIDE

MERS ‘GETS FORECLOSED’| ASSIGNS NADA TO BAC fka COUNTRYWIDE


Court of Appeals of Ohio

UNION BANK CO. v. NORTH CAROLINA FURNITURE EXPRESS, LLC.

2010 Ohio 4176

The Union Bank Company, Plaintiff-Appellee,
v.
North Carolina Furniture Express, LLC, et al., Defendants-Appellants, and
Jeffrey Smith, et al., Defendants-Appellees.
Bac Home Loans Servicing Lp, Plaintiff-Appellant,
v.
Jeffrey T. Smith, et al., Defendants-Appellees.

Case No. 2-10-01

Court of Appeals of Ohio, Third District, Auglaize County.

Date of Decision: September 7, 2010.

Jason A. Whitacre, Laura C. Infante and Kathryn M. Eyster for Appellant, BAC Home Loans Servicing, L.P., fka Countrywide Home Loans Servicing, L.P.

Randy L. Reeves and Sarah N. Newland for Appellees, Jeffrey Smith and Kandi Smith.

John F. Moul for Appellee, Treasurer of Auglaize County

Jerry M. Johnson and Christine M. Bollinger for Appellee, The Union Bank Company

Thomas J. Katterheinrich for Appellee, Minster Bank.

OPINION

PRESTON, J.

{¶1} Appellant-defendant, BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P., (hereinafter “BAC”), appeals the Auglaize County Court of Common Pleas’ judgments, which vacated BAC’s foreclosure action and denied motions to consolidate and substitute BAC as a party-defendant. For the reasons that follow, we affirm.

{¶2} This case involves two separate foreclosure actions filed in the Auglaize County Court of Common Pleas that sought judgments on certain notes and mortgages encumbering the same parcel of real estate, commonly known as 422 South Franklin Street, New Bremen, Ohio (hereinafter “the property”). The facts of this case are largely not in dispute. On November 13, 2002, Jeffrey Smith and Kandi Smith (hereinafter “the Smiths”), who were members of North Carolina Furniture Express, L.L.C., executed a note in favor of SIB Mortgage Corp., a New Jersey corporation (hereinafter “SIB”), and a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter “MERS”), solely as nominee for SIB Mortgage Corp., for $141,000.00. The mortgage was subsequently recorded in the Auglaize County Recorder’s Office on November 18, 2002.

{¶3} Several years later, on January 19, 2007, the Smiths executed another note and mortgage in favor of appellee Minster Bank (hereinafter “Minster Bank”) for $30,000.00. This mortgage was recorded in the Auglaize County Recorder’s Office on January 26, 2007. Then, on March 5, 2007, the Smiths executed three separate notes and mortgages in favor of appellee The Union Bank Company (hereinafter “Union Bank”) for $100,000.00, $25,000.00, and $24,500.00, which were subsequently recorded in the Auglaize County Recorder’s Office on March 9, 2007.[ 1 ]

{¶4} On July 23, 2008, Union Bank filed a complaint for foreclosure against the property, which was designated Case No. 2008 CV 0267 (hereinafter “the 2008 foreclosure”). In the complaint, Union Bank listed North Carolina Furniture Express, L.L.C., the Smiths, Minster Bank, MERS, SIB, the Auglaize County Treasurer, and Entrust Administration, Inc. as defendants possibly having an interest in the property. All named defendants were served with notice. According to the record, MERS was served on July 30, 2008, and SIB was served on November 14, 2008. Minster Bank and the Smiths filed timely answers to the complaint.

{¶5} Union Bank filed a motion for default judgment against defendants MERS, SIB, and Entrust Administration, Inc., on March 10, 2009. The motion for default judgment was sent to all named defendants in the matter, including MERS and SIB. The trial court granted Union Bank default judgment on March 10, 2009, specifically stating that the defendants had “been legally served with summons and that Defendants are in default for answer or appearance and therefore has no interest in and to said premises and the equity of redemption of said Defendants in the real estate described in Plaintiff’s Complaint shall be forever cut off, barred, and foreclosed.” (2008 CV 0267, Mar. 10, 2009 JE). On March 11, 2009, Union Bank filed a motion for summary judgment against the Smiths, Minster Bank, and the Auglaize County Treasurer. Similarly, a copy of the motion for summary judgment was sent to all named defendants in the matter, including MERS and SIB. On March 30, 2009, the trial court granted the motion for summary judgment and issued a judgment of foreclosure providing that the lien priority on the property was as follows: the Auglaize County Treasurer, Minster Bank, and then Union Bank.

{¶6} Shortly thereafter, the Smiths filed for bankruptcy on May 12, 2009, causing the matter to be stayed. On June 9, 2009, the bankruptcy court issued a relief from stay and abandonment for Union Bank, which allowed the 2008 foreclosure matter to continue effective on July 31, 2009, and the property was scheduled for sheriff’s sale on October 1, 2009. However, due to a notice of sale not being received or served on all party defendants, the sale was cancelled and rescheduled for December 4, 2009.

{¶7} During this time and right after the Smiths had filed for bankruptcy, on June 1, 2009, MERS (acting solely as a nominee for SIB) assigned appellant BAC its interest in the property. (2009 CV 312, Oct. 7, 2009 JE, Ex. A). Consequently, on August 28, 2009, BAC filed a complaint for foreclosure against the property in the Auglaize County Court of Common Pleas, which was designated Case No. 2009 CV 0312 (hereinafter “the 2009 foreclosure”). Along with the complaint, BAC filed a preliminary judicial report showing what it believed to be a representation of any and all interests in the property.[ 2 ] In its complaint, BAC named the Smiths, Minster Bank, Union Bank, and the Auglaize County Treasurer as defendants having a possible interest in the property. Only Minster Bank and Union Bank filed answers to the complaint.[ 3 ] Thereafter, on October 7, 2009, BAC filed a motion for default judgment against the non-answering parties, and that same day, the trial court issued a judgment entry and decree in foreclosure granting BAC’s motion for default judgment and listing the lien priority on the property in the following order: the Auglaize County Treasurer, BAC, Minster Bank, and then Union Bank.

{¶8} As a result, on October 9, 2009, Union Bank filed a motion contra to BAC’s motion for default judgment and a motion to dismiss BAC’s complaint in the 2009 foreclosure action based on the existence of the 2008 foreclosure action. Additionally, on October 16, 2009, Union Bank and Minster Bank filed a joint motion to vacate the judgment entry of default in the 2009 foreclosure action, since they had not been afforded sufficient time to respond to BAC’s motion before the judgment entry of foreclosure had been granted.

{¶9} In response to the existence of the 2008 foreclosure action, on October 21, 2009, BAC filed several motions, which included: (1) a motion to substitute defendant BAC for defendant MERS; (2) a motion to set aside the default judgment action entered against MERS in the 2008 foreclosure action; (3) a motion to stay the 2008 foreclosure default judgment entry pending resolution of the motion to set aside the judgment entry; (4) a motion to consolidate cases 2008 CV 0267 and 2009 CV 0312; or in the alternative (5) a motion for leave to file an answer to the 2008 complaint and cross-claim.[ 4 ] Union Bank filed a response opposing all of BAC’s motions in the 2008 foreclosure case.

{¶10} In both of the foreclosure actions, the trial court set all of the motions for a hearing, which was held on November 3, 2009. Thereafter, on December 3, 2009, the trial court issued a judgment entry addressing the issues in both the 2008 and 2009 foreclosure cases, but specifically stating that it was not consolidating the cases for any other purposes other than the issues presented at the November 3, 2009 hearing. Consequently, in its judgment entry, the trial court vacated part of the 2009 foreclosure action, citing that the foreclosure portion of the action had been a “clerical error” within Civ.R. 60(A). Nevertheless, the trial court found that there had been no error as against the Smiths, and thus it allowed the 2009 foreclosure action to stand, but again only as against the Smiths individually. In addition, the trial court dismissed the 2009 foreclosure complaint on the basis of res judicata, and denied the motion to consolidate and motion to substitute defendant BAC as a party-defendant in the 2008 foreclosure action finding that BAC had not acquired an interest in the property by operation of the doctrine of lis pendens.

{¶11} BAC now appeals and raises four assignments of error. For ease of our discussion we also elect to address all of BAC’s assignments of error together.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO EXPRESSLY RULE ON APPELLANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT AND FAILED TO APPLY THE PROPER STANDARD FOR RULING ON SUCH A MOTION.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT VACATED THE OCTOBER 7, 2009 JUDGMENT ENTRY IN CASE NUMBER 2009 CV 0312 PURSUANT TO CIV.R. 60(A).

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REPRIORITIZED THE LIENS AGAINST THE PROPERTY SUBJECT TO CASE NUMBERS 2008 CV 0267 AND 2009 CV 0312.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THAT BAC DID NOT OBTAIN AN INTEREST IN THE PROPERTY WHEN IT OBTAINED ITS ASSIGNMENT BY OPERATION OF THE LIS PENDENS DOCTRINE.

{¶12} Essentially, BAC argues that the follwing decisions in the trial court’s December 3, 2009 judgment entry were erroneous: (1) its ruling on the motion to substitute; (2) failing to rule on its motion to set aside the default judgment pursuant to Civ.R. 60(B); (3) vacating part of the 2009 foreclosure action; and (4) its reprioritization of the liens against the property in the 2008 foreclosure action.

{¶13} As stated above, the trial court first denied the motion to substitute BAC as a party-defendant on the basis that it did not obtain any interest in the subject real estate when it obtained its assignment from MERS. (Dec. 3, 2009 JE at 3-4). As a result, the trial court vacated part of the 2009 foreclosure action (only as against the banks) and failed to address BAC’s motion to set aside the default judgment pursuant to Civ.R. 60(B). (Id.). After reviewing the record and the applicable law, we believe that the trial court did not abuse its discretion in rendering its December 3, 2009 judgment entry.

{¶14} First, we will address the motion to substitute BAC as a party-defendant for MERS in the 2008 foreclosure action. Civ.R. 25 governs the substitution of parties. Specifically, Civ.R. 25(C) provides that “[i]n cases of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original action.” The decision of whether to allow a substitution of parties is discretionary with the trial court and may be granted only upon a finding of a transfer of interest. Ahlrichs v. Tri-Tex Corp. (1987), 41 Ohio App.3d 207, 534 N.E.2d 1231. As a result, this Court uses an abuse of discretion standard of review when determining whether a trial court erred with respect to a motion to substitute pursuant to Civ.R. 25. Argent Mtge. Co. v. Ciemins, 8th Dist. No. 90698, 2008-Ohio-5994, ¶9, citing Young v. Merrill Lynch, Pierce, Fenner & Smith (1993), 88 Ohio App.3d 12, 623 N.E.2d 94. An abuse of discretion constitutes more than an error of judgment and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse-of-discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Id.

{¶15} While an assignment typically transfers the lien of the mortgage on the property described in the mortgage, as BAC acknowledged in its reply brief, an assignee can only take, and the assignor can only give, the interest currently held by the assignor. R.C. 5301.31. With that stated, it is clear under the facts of this case that BAC never obtained an interest in the property; thus, it could not have been substituted as a party-defendant in the 2008 foreclosure action. Here, with respect to the 2008 foreclosure action, the date the last party was served with notice was on January 28, 2009, which was almost six months before the purported assignment from MERS to BAC. Next, on March 11, 2009, the trial court issued a judgment entry of default against MERS foreclosing on its interest in the property. Once again, this default judgment was entered against MERS almost three months before the purported assignment from MERS to BAC occurred. The effect of this default judgment against MERS resulted in MERS having “no interest in and to said premises and the equity of redemption of said Defendants in the real estate described in Plaintiff’s Complaint shall be forever cut off, barred, and foreclosed.” (2008 CV 0267, Mar. 10, 2009 JE). Nevertheless, according to the documents filed by BAC to evidence its assignment from MERS, MERS assigned its interest to BAC on June 1, 2009. (2009 CV 312, Oct. 7, 2009 JE, Ex. A). Consequently, as a result of the already entered default judgment against MERS, when BAC was assigned MERS’ interest in the property on June 1, 2009, BAC did not receive a viable interest in the property. See Quill v. Maddox (May 31, 2002), 2nd Dist. No. 19052, at *2 (mortgagee’s assignee failed to establish that it had an interest in the property, as mortgagee’s interest was foreclosed by the court before mortgagee assigned its interest to assignee, which could acquire no more interest than mortgagee held). Thus, we find that it was reasonable for the trial court to have denied the motion to substitute BAC as a party-defendant for MERS given its lack of interest in the property.

{¶16} Additionally, BAC argues that the trial court erred because it did not apply the GTE Automatic standard to its motion for relief from judgment. See GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150, 351 N.E.2d 113. In particular, BAC claims that the trial court never ruled on its Civ.R. 60(B) motion. BAC claims that not addressing its motion was erroneous. However, in this particular case, in light of our discussion above, there would have been no need to address the motion and apply any standard to the motion for relief from judgment because BAC lacked standing to challenge the default judgment entered against MERS.

{¶17} Civ.R. 60(B) allows “a party or legal representative” to vacate a default judgment upon successfully demonstrating that: “(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *.” GTE Automatic Elec., Inc., 47 Ohio St.2d at 150, (emphasis added). However, BAC was neither a party nor was it a legal representative since it was not included in the original 2008 foreclosure action and was not allowed to be substituted as a party-defendant for MERS. Central Ohio Receivables Co. v. Huston (Sept. 20, 1988), 8th Dist. No. 87AP1-185, at *2-3 (holding that an assignee did not have standing to challenge a default judgment entered against its assignor). Accordingly, BAC lacked standing to challenge the default judgment entered against its assignor MERS in the 2008 foreclosure action, and the trial court did not abuse its discretion when it failed to rule on its motion.

{¶18} With respect to the trial court’s decision to vacate the 2009 foreclosure action, we note that the trial court did not vacate the 2009 foreclosure action in its entirety; rather, the court only vacated the portion of the action that pertained to an interest in the property. As we will discuss in further detail below, after dismissing the parties who were brought in because they had an interest in the property (i.e., Union Bank and Minster Bank), the only aspect in the 2009 foreclosure action that remained was the default judgment action against the Smiths. (Dec. 3, 2009 JE at 3-4). Nevertheless, we find that the trial court’s decision to vacate part of the 2009 foreclosure action was not an abuse of discretion.

{¶19} First of all, since MERS’ interest in the property had already been foreclosed prior to the filing of the 2009 foreclosure action, BAC did not obtain any interest in the property when it was assigned the mortgage from MERS, thus, BAC could not have brought a foreclosure action at all. Moreover, typically a pending foreclosure action between the same parties is grounds for abatement or dismissal of an assignee’s complaint. Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App.3d 65, 520 N.E.2d 1378; High Point Assn. v. Pochatek (Nov. 30, 1995), 8th Dist. Nos. 68000, 68395, at *3; Bates v. Postulate Invests., L.L.C., 176 Ohio App.3d 523, 2008-Ohio-2815, 892 N.E.2d 937, ¶16. Accordingly, it was reasonable for the trial court to dismiss BAC’s complaint based on the fact that the 2008 foreclosure action was still pending at the time BAC filed its 2009 foreclosure action. Therefore, although we may not agree with the trial court’s grounds for vacating most of the 2009 foreclosure action, we find that the trial court’s decision was reasonable under the circumstances and was not an abuse of discretion.

{¶20} Finally, as mentioned above, despite the trial court’s denial of the motion to substitute and its decision to vacate the 2009 foreclosure action as it related to any interest in the property, the trial court did add BAC as a lienholder in the December 3, 2009 judgment entry and stated that BAC had a fourth priority lien against the property. (Dec. 3, 2009 JE at 4). BAC claims this decision was also an abuse of discretion. Specifically, BAC claims that because the trial court recognized it had a lien against the property when it added BAC to the 2008 foreclosure lienholder list, the trial court clearly abused its discretion when it only recognized BAC as being the fourth priority lienholder, despite the fact that it had been assigned MERS lien, which would have given it the first priority lienholder to the property. Overall, BAC claims that the trial court could not have recognized it had an interest in the property without finding that it was also the first priority lienholder. While we acknowledge that the trial court obviously recognized that BAC had an interest the property, we disagree with BAC’s argument that this interest had to come from MERS’ first priority lienholder status pursuant to the mortgage.

{¶21} Despite the fact that the trial court vacated most of the 2009 foreclosure action, the trial court found that BAC’s default judgment and decree of foreclosure was valid but only as against the Smiths. This was because “as between BAC and Defendants Smith, BAC should obtain recovery of its Promissory Note, as assigned.” (Dec. 3, 2009 JE at 4). “The right to judgment on the note is one cause of action. The right to foreclose a mortgage is another cause of action. One is legal-the other is equitable.” Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 2008-Ohio-2959, 894 N.E.2d 65, ¶15, quoting Fed. Deposit Ins. Corp. v. Simon (Aug. 17, 1977), 9th Dist. No. 8443. This is because a “mortgage is merely security for a debt and is not the debt itself.” Id., quoting Gevedon v. Hotopp, 2nd Dist. No. 20673, 2005-Ohio-4597, ¶27. As another appellate court explained:

A mortgage is a form of secured debt where the obligation, evidenced by a note, is secured by the transfer of an interest in property, accomplished by the delivery of a mortgage deed. Upon breach of condition of the mortgage agreement, a mortgagee has concurrent remedies. It may, at its option, sue in equity to foreclose, or sue at law directly on the note; or, bring an action in ejectment, Equity Savings & Loan v. Mercurio (1937), 24 Ohio Law Abs. 1, 2. Thus, suit on the note was not foreclosed by the disposition of the previous action in foreclosure, * * * Broadview Savings and Loan Company v. Crow (Dec. 30, 1982), 8th Dist. Nos. 44690, 44691, & 45002, at *3.

{¶22} As we explained above, BAC did not obtain an interest in the property since the mortgage it had obtained from MERS had already been foreclosed. Nevertheless, the default judgment entered against the Smiths in the 2009 foreclosure action gave BAC a judgment lien on the note, so BAC still had a right to collect its unsecured judgment lien out of the proceeds from the sale of the real estate. However, BAC’s judgment lien was not superior to those of Minster or Union Bank’s liens because BAC’s judgment on the note had not been issued until after the Smiths had executed mortgages to Minster and Union Bank. Therefore, we find that the trial court did not abuse its discretion when it recognized BAC’s judgment lien against the property in the 2008 foreclosure action and only recognized it as the fourth lienholder, because BAC’s lien was the result of the promissory note assigned from SIB, and not a result of the mortgage assigned by MERS.

{¶23} Overall, while we may not necessarily agree with all of the doctrines and rules the trial court used in reaching its decision, we nonetheless have held that “[a] judgment by the trial court which is correct, but for a different reason, will be affirmed on appeal as there is no prejudice to the appellant.” Wedemeyer v. U.S.S. F.D.R. (CV-42) Reunion Assoc., 3d Dist. No. 1-09-57, 2010-Ohio-1502, ¶50 quoting Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶16 (citations omitted). Based on our discussion above, we find that the trial court did not abuse its discretion when it denied the motion to substitute BAC as a party-defendant for MERS in the 2008 foreclosure case on the basis that BAC did not acquire any interest in the property, when it failed to rule on BAC’s Civ.R. 60(B) motion, when it partially vacated the 2009 foreclosure action, and when it allowed BAC to have a fourth priority judgment lien.

{¶24} BAC’s first, second, third, and fourth assignments of error are, therefore, overruled.

{¶25} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

WILLAMOWSKI, P.J., concurs in Judgment Only.

ROGERS, J., Concurring in Part and Dissenting in Part.

{¶26} I respectfully concur in part and dissent in part from the decision of the majority.

{¶27} As to Assignment of Error No. I, I concur fully with the majority’s finding that the trial court did not err in denying BAC’s motion to substitute it as a party-defendant for MERS. I agree with the majority’s finding that, when the trial court issued a judgment entry against MERS foreclosing on its interest on March 11, 2009, MERS no longer had any viable interest in the property which it could assign to BAC on June 1, 2009. As such, I agree that, given BAC’s lack of interest in the property, the trial court was reasonable in denying BAC’s motion to substitute.

{¶28} Additionally, I wish to emphasize that the mortgage designated MERS “solely as nominee for SIB Mortgage Corp.” As expressed in my dissent in Countrywide Home Loans Servicing, L.P. v. Shifflet, et al., 3d Dist. No. 9-093-1, 2010-Ohio-1266, ¶¶18-21, I believe this language served solely to designate MERS as an agent for purposes of servicing the note and mortgage, and did not transfer to MERS any interest in the real estate or the repayment of moneys loaned. Therefore, it was never a real party in interest.

{¶29} Additionally, I believe that the majority’s finding in Assignment of Error No. I, with which I concur, is inconsistent with the remainder of the majority opinion.

{¶30} In its analysis of Assignment of Error No. II, the majority finds that the trial court did not abuse its discretion when it vacated the second foreclosure action (filed by BAC) and its default judgment because (1) BAC never obtained any interest in the property when MERS assigned to it the Smiths’ mortgage, and (2) a pending foreclosure action may be grounds for dismissal of an assignee’s complaint where the action is between the same parties. Nevertheless, the trial court did not vacate the portion of the second foreclosure action against the Smiths individually. Further, in its analysis of Assignment of Error No. II, the majority finds that the trial court did not abuse its discretion in listing BAC as the fourth priority lienholder because (1) BAC had a right to collect its unsecured judgment lien from the sale of the real estate foreclosed upon, and (2) BAC’s judgment lien was subordinate to Minster and Union Bank’s interests.

{¶31} While I agree with the majority’s conclusion that the trial court did not err in vacating portions of the second foreclosure action, I believe the trial court erred in failing to vacate the entire second foreclosure action. I find inconsistent the majority’s finding that any interest MERS had in the property was extinguished on March 11, 2009, and, thus, that it passed no viable interest to BAC, and the majority’s subsequent validation of the trial court’s finding that BAC’s default judgment and decree of foreclosure was valid against the Smiths. For the same reason, I find inconsistent the majority’s validation of the trial court’s prioritizing of BAC as the fourth lienholder in its December 2009 entry. I believe that the March 11, 2009 default judgment extinguished both the legal and equitable interests MERS, and consequently, BAC, had in the property. I would, therefore, reverse the trial court’s judgment, finding that it should have vacated the entire second foreclosure action and that it abused its discretion in recognizing BAC as a lienholder in the first foreclosure action, to which it was never a party. See, also, Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 2008-Ohio-2959, ¶20 (Carr, P.J., concurring) (noting that, “[I]f such subsequent claims are not barred, consumers will be needlessly forced to defend numerous separate lawsuits. The ramifications could be onerous. First, to pay to defend against multiple lawsuits, debt-laden consumers might be forced to assume even greater financial burdens, taking out second or third mortgages on subsequent real estate purchases. This cycle could lead to consumers’ overextending themselves financially and facing additional subsequent foreclosure actions. Second, I believe that these subsequent lawsuits for money due, which could be resolved in conjunction with an initial foreclosure action, would clog the dockets of our trial courts”).

{¶32} I also disagree with the trial court’s application of the lis pendens doctrine, which it used to support its conclusion that BAC never obtained an interest in the property. I do not believe this is an appropriate use of lis pendens, but rather that any interest MERS had, and consequently that BAC could have obtained, was extinguished as operation of judgment.

{¶33} Finally, even if BAC had a valid assignment from a real party in interest, I would find that BAC’s foreclosure filing was barred by res judicata as argued in Union Bank’s “Motion in Contra to Plaintiff’s Motion for Default Judgment and Motion to Dismiss Plaintiff’s Complaint.” The Supreme Court of Ohio has held that “[t]he doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as * * * estoppel by judgment, and issue preclusion, also known as collateral estoppel.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331. This Court has previously held that “[c]laim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.” Dawson v. Dawson, 3d Dist. Nos. 14-09-08, 10, 11, 12, 2009O-hio-6029, ¶36. Additionally, “[w]here a claim could have been litigated in the previous suit, claim preclusion also bars subsequent actions on that matter.” Dawson, 2009-Ohio-6029, at ¶36, citing Grava, 73 Ohio St.3d at 382. Here, Union Bank obtained a default judgment against BAC concerning the same subject matter in March 2009. Consequently, I would find BAC’s foreclosure filing in August 2009 to be barred by res judicata.

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



Posted in bac home loans, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., stopforeclosurefraud.comComments (1)

Banks Getting Worried About Rising Challenges to Foreclosures?

Banks Getting Worried About Rising Challenges to Foreclosures?


As many have seen SFF was the first to expose this Bogus Assignment scandal via a YouTubeVideo.

Via: NakedCapitalism by Yves Smith

I’m not quite certain how to calibrate journalism American Banker style, but I found this article, “Challenges to Foreclosure Docs Reach a Fever Pitch,” (sadly, subscription only, e-mailed by Chris Whalen), to be both interesting and more than a tad disingenuous.

The spin starts with the headline, it’s a doozy. The “challenge to foreclosure documents” message persists throughout the article, and it’s perilously close to a misrepresentation:

Because the notes were often sold and resold during the boom years, many financial companies lost track of the documents. Now, legal officials are accusing companies of forging the documents needed to reclaim the properties.

On Monday, the Florida Attorney General’s Office said it was investigating the use of “bogus assignment” documents by Lender Processing Services Inc. and its former parent, Fidelity National Financial Inc. And last week a federal judge in Florida ordered a hearing to determine whether M&T Bank Corp. should be charged with fraud after it changed the assignment of a mortgage note for one borrower three separate times…

In many cases, [plaintiff attorney] Kowalski said, it has become impossible to establish when a mortgage was sold, and to whom, so the servicers are trying to recreate the paperwork, right down to the stamps that financial companies use to verify when a note has changed hands…

In a notice on its website, the Florida attorney general said it is examining whether Docx, an Alpharetta, Ga., unit of Lender Processing Services, forged documents so foreclosures could be processed more quickly.

“These documents are used in court cases as ‘real’ documents of assignment and presented to the court as so, when it actually appears that they are fabricated in order to meet the demands of the institution that does not, in fact, have the necessary documentation to foreclose according to law,” the notice said..

Yves here. Let’s parse the two messages:

1. Note how the problem is presented as one of “documentation”, implying it is not substantive.

2. Because everyone knows mortgages were sold a lot, (which is clearly mentioned in the piece) the idea that some somehow went missing (or as the piece suggests, the “documentation” is missing even though the parties are presented as if they know who really owns the mortgage) is presented as something routine and not very alarming.

OK, let’s dig a little deeper. Even though the media refers to “mortgages”, under the law there are two pieces: the note, which is the indebtedness, and the mortgage (in some states, a “deed of trust”), which is the lien against the property. In 45 of 50 states, the mortgage follows the note (it is an “accessory”) and has no independent existence (as in you can’t enforce the mortgage if you don’t hold the note. You need to have both the note and the mortgage. This is a bit approximate, but will do for this discussion).

Now, the note is a bearer instrument if it is endorsed in blank (as in signed by current owner but not specifically made payable to the next owner, which was common for notes that were sold). It isn’t some damned “documentation”. Remember the days of bonds, when you had the real security, or stock certificates? This is paper with a hard monetary value, the face amount of the note (as long as it’s current, anyhow).

So now go back and look at that little extract. This “oh business was so busy we mislaid a lot of paper” isn’t some mere filing error. It’s like saying you left an envelopes full of cash in the subway on a regular basis. In the late 1960s back office crisis on Wall Street, when the volume of stock trading overwhelmed delivery and settlement infrastructure, a LOT of firms went out of business, in the midst of a bull market.

OK, now the second item with the article finesses is the sale of mortgages versus the role of the servicer. For the overwhelming majority of first mortgages, and I believe about 50% of second mortgages and HELOCs, the servicer is working for a trust that holds the notes pursuant to a securitization.

The standard documentation for a RMBS calls for the trust to gave a certification at closing that it has all the notes and it has to recertify that it has all the assets at two additional future dates, usually 90 days out and a full year after closing.

So this “notes were flyin’ around, yeah we lost track” is presumably impossible if we are discussing securitizations. Or put it another way: it means the fraud here is much more extensive than servicers making up documents ex post facto. It means the fraud extended back into how the securitization took place (as in what investors were told v. what actually happened).

And before you say these reports are exaggerated, my limited sample and my discussions with mortgage professional (not merely plaitiff’s attorneys but mortgage industry lifers) suggests the reverse.

But what about the second claim in the headline, that this activity has reached a “fever pitch”? Wellie, that’s a distortion too, perhaps to energize those who would be enraged by visions of deadbeat borrowers staying in houses due to fancy legal footwork. Trust me, there are FAR more overextended borrowers living in “free” housing due to banks slowing up the foreclosure process than due to legal battles.

First, the story is ONLY about Florida, despite the hyperventilating tone. And Florida is way ahead of other jurisdictions. There is a group of lawyers that are sharing G2 on these cases, and there are also a fair number of sympathetic judges. Note some states (Minnesota in particular) have both extremely pro bank laws and a business friendly bar. So it’s misleading to make sweeping generalizations; you need to get a bit more granular, which this article fails to do.

Second, the “fever pitch” headline also conveys the impression that this is an epidemic, ergo, these cases are widespread. While it is hard to be certain (this activity is by nature fragmented), at this point, that looks to be quite an exaggeration. The vast majority of borrowers, when the foreclosure process moves forward, don’t fight. They lack the energy and the resources. And when the borrower prevails, the case is typically dismissed “without prejudice”, meaning if the servicer and trustee get their act together, they can come back to court and try again.

Most of the battles against foreclosure appear to fall into one of two categories:

1. The borrower can afford the mortgage, but has fallen behind due to what he thinks is a servicing snafu. I can give you the long form, but the way servicers charge extra fees is in violation of Federal law and is designed to put the borrower on a treadmill of escalating fees. And they do not typically inform the borrower that fees have compounded until 6 or more months into the mess, and by that time, the arrearage can be $2000 or more. The borrower is unable to fix the servicing error, the fees continue to escalate, and the house goes into foreclosure.

2. The borrower has filed for a Chapter 13 bankruptcy, but the trustee is fighting the bankruptcy stay and trying to seize the house.

So why this alarmist American Banker article? Even if the numbers of successfully contested foreclosures are not (yet) large, the precedents being set are very detrimental to the foreclosure mills, the servicers, and the trustees. Moreover, the costs of fighting these cases can quickly exceed the value of the mortgage. So it would not take much of an increase in this trend to wreak havoc with servicer economics, and ultimately, the losses on the trust, particularly on prime mortgages, where the loss cushions were considerably smaller than on subprime.

I suspect the real reason for alarm isn’t the “fever pitch,” meaning the current level of activity. It’s that a state attorney general is throwing his weight against the servicers, and what he is uncovering is every bit as bad as what the critics have been saying for some time. That may indeed kick up anti-foreclosure efforts in states with open-minded judges to a completely new level.

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



Posted in Bank Owned, bogus, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, insider, investigation, Real Estate, securitizationComments (0)


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