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IN RE: BALDERRAMA | 2nd allonge includes an endorsement from RFC (Judy Faber) to Deutsche that did not exist in the first allonge…3 different Promissory Notes

IN RE: BALDERRAMA | 2nd allonge includes an endorsement from RFC (Judy Faber) to Deutsche that did not exist in the first allonge…3 different Promissory Notes


**Judy Faber has a history on this site and named in some important cases…check it out!

 

UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

In re
MARIA RENEE BALDERRAMA
Debtor.

CARLA P. MUSSELMAN, TRUSTEE
Plaintiff,

vs.

DEUTSCHE BANK TRSUTE COMPANY
AMERICAS, in trust for Residential
Accredit Loans, Inc. Mortgage Asset-
Backed Pass-Through Certificates, Series
2007-QH5,
Defendant.

MEMORANDUM OPINION PARTIALLY GRANTING AND
PARTIALLY DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT

EXCERPT:

In response, the trustee filed her own cross motion for summary judgment arguing the
various documents Deutsche has provided to support its position, including three different
versions of the note and two versions of the allonge, were ineffective to transfer any interest to
Deutsche and evidence Deutsche‘s bad faith in purporting to own the note.17 The trustee‘s
argument primarily is based on the second allonge provided by Deutsche upon the Court‘s order
compelling discovery. The second allonge includes an endorsement from RFC to Deutsche that
did not exist in the first allonge, and, according to the trustee, Deutsche caused this endorsement
to be made fraudulently to meet the needs of litigation.18 The trustee urges the Court to find
Deutsche has not adequately explained the discrepancies between the two allonges, has not met
its burden to prove it is the legitimate owner of the note, and title to the Property should vest in
the trustee.

[…]

Neither version of the allonge, however, includes dates of the alleged transfers as stated
by Ms. Faber. Even assuming she had the authority to endorse the note to Deutsche, Ms. Faber
does not explain why RFC initially failed to produce the second allonge with the RFC
endorsement in its motion to lift stay, even though it allegedly existed at that time. These ?holes?
present substantial questions of fact as to Deutsche‘s good faith and the second allonge‘s
authenticity. The Court cannot avoid suspecting that the second allonge indeed was created
solely to rebut the trustee‘s assertions in this litigation and did not previously exist. If so, the
Court suggests Deutsche and Ms. Faber individually consider the possible consequences of
propounding potentially false evidence and perjured testimony to the Court.

[ipaper docId=81975432 access_key=key-1kab3johohtn0eshfdqc height=600 width=600 /]

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A valentine from Chief United States, Bankruptcy Court Middle Dist. of Florida Judge Karen S. Jennemann on Feburary 14, 2012

A valentine from Chief United States, Bankruptcy Court Middle Dist. of Florida Judge Karen S. Jennemann on Feburary 14, 2012


A valentine from Chief United States Bankruptcy Judge Karen S. Jennemann on Feburary 14, 2012:

The Court cannot avoid suspecting that the second allonge indeed was created solely to rebut the trustee‘s assertions in this litigation and did not previously exist. If so, the Court suggests Deutsche and Ms. Faber individually consider the possible consequences of propounding potentially false evidence and perjured testimony to the Court. Muselman v. Deutsche Bank, U.S. Bankruptcy Court, Middle District of Florida, Orlando Division, Case No. 6:10-bk-07828-KSJ. Document 67, page 8.

As gratifying as this recognition of fraudulent documents may be, it does raise the question: just what are the consequences of propounding false evidence and perjured testimony to the Court. With the exception of a few judges and a few decisions, there have been no consequences whatsoever.

FRAUD DIGEST by Lynn E. Szymoniak, ESQ.

 

NOTE:

I would like to make a note of this because as soon as I posted this IN RE BALDERRAMA | FL BK Court “Deutsche Bank, Not proven to either the trustee or the Court that it holds a validly endorsed promissory note evidencing its purchase of the debt on the disputed property”, it went completely missing from the site! See for yourself and it’s still missing and not sure why some cases go missing.

 

451 B.R. 185 (2011)

In re Maria Renee BALDERRAMA, Debtor.
Carla P. Musselman, as Chapter 7 Trustee, Plaintiff,

v.

Deutsche Bank Trust Company Americas, in trust for Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QH5, Defendant.

Bankruptcy No. 6:10-bk-07828-KSJ. Adversary No. 6:10-ap-00245-KSJ.
United States Bankruptcy Court, M.D. Florida, Orlando Division.
May 4, 2011.
186*186 Seldon J. Childers, Childers Law LLC, Gainesville, FL, for Plaintiff.

Daniel A. Miller, Broad and Cassel, West Palm Beach, FL, for Defendant.

MEMORANDUM OPINION PARTIALLY GRANTING AND PARTIALLY DENYING TRUSTEE’S AMENDED AND RENEWED MOTION TO COMPEL PRODUCTION OF DEUTSCHE BANK

KAREN S. JENNEMANN, Bankruptcy Judge.

In this adversary proceeding the Chapter 7 trustee, Carla Musselman, seeks to quiet title and to value at zero dollars defendant Deutsche Bank’s alleged secured interest in debtor Maria Balderrama’s non-homestead real property. As part of discovery, the trustee served interrogatories and document production requests seeking information about the bank’s purchase of the promissory note and mortgage on the disputed property.[1] Deutsche Bank resists producing any discovery related to the purchase history of the note and the chain of title of the mortgage arguing that, under Florida law, it has established its secured interest in the property merely by alleging it holds the original promissory note endorsed specially in its favor.[2] The trustee disputes Deutsche Bank’s characterization of Florida law and notes that neither the Court nor the trustee has seen the original endorsed note. She now requests the Court 187*187 compel the bank to produce the requested information.[3]

Although Deutsche Bank is correct that under Florida law if it holds a validly endorsed original note it may be deemed equitably also to own the mortgage, the bank first must establish its actual possession of the original note. As such, the trustee’s discovery requests pertaining to Deutsche Bank’s status as holder of the note, including the authenticity and authority of the signatures endorsing the note, are relevant. All other requests, including any requests for information regarding the prior ownership history of the note or the mortgage, are irrelevant and overbroad under Florida law. Accordingly, the Court will grant in part and deny in part the trustee’s motion and direct Deutsche Bank to respond to interrogatory number 5 and document request numbers 7 and 30 on or before June 3, 2011. The trustee’s motion to compel otherwise is denied, and the objections raised by the bank are sustained as to all other interrogatories and production requests.

On September 28, 2010, the trustee initiated this adversary proceeding to value Aurora Loan Services’ secured claim at $0.00 pursuant to § 506(a) of the Bankruptcy Code[4] and to quiet title in property owned by the debtor located in Rockledge, Florida. Aurora is the servicing agent on the mortgage, and it previously has moved for relief from stay to foreclose on the mortgage,[5] which this Court denied without prejudice for lack of evidentiary support.[6] On October 18, 2010, the trustee served her first set of interrogatories and first requests for production of documents on Aurora. On November 17, 2010, Aurora filed its objections to the trustee’s discovery requests,[7] objecting to certain requests seeking information about the history of the ownership of the subject note and mortgage. Aurora’s objections are based on its position that under Florida law the holder of a promissory note may equitably own and enforce a mortgage, even without a written assignment of the mortgage, and, accordingly, that the trustee’s requests seeking information regarding chain of ownership are irrelevant and overbroad.

On December 16, 2010, at a pretrial conference before this Court, the parties discussed Aurora’s objections to the trustee’s discovery, and the trustee made an ore tenus motion to amend the complaint to name Deutsche Bank as the real defendant in interest as the alleged holder of the original promissory note, which the Court granted.[8] At the hearing, the trustee also agreed to file an amended motion to compel Deutsche Bank to respond to the discovery requests served on Aurora, and Deutsche Bank has agreed for purposes of resolving the amended motion to compel and its/Aurora’s objections to the trustee’s discovery that it will step into Aurora’s position and stipulate for convenience that the discovery served on Aurora properly was served on it.[9]

188*188 Accordingly, on January 4, 2011, the trustee amended her complaint to change the name of the defendant from Aurora to Deutsche Bank Trust Company Americas, in trust for Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QH5.[10] On January 18, 2011, Deutsche Bank filed its answer to the amended complaint.[11] On January 28, 2011, the trustee filed her amended motion to compel defendant’s response to trustee’s first interrogatories and request for production of documents and an associated memorandum of law.[12] On February 25, 2011, Deutsche Bank filed its memorandum in response to the trustee’s motion to compel.[13]

The trustee’s amended complaint argues Deutsche Bank cannot provide sufficient evidence of its purchase of either the note or the mortgage to assert a secured claim to the disputed property. The trustee now seeks to compel production of information from Deutsche Bank regarding its purchase of the underlying debt and mortgage, and especially whether the note and mortgage were properly assigned.

In response to the motion to compel, Deutsche Bank reiterates Aurora’s previous position, arguing certain interrogatories and production requests regarding chain of title are irrelevant and overbroad because, under Florida law, it need only show it holds the original note evidencing its purchase of the debt underlying the mortgage for it to equitably own the mortgage, too.[14] Essentially, the bank argues that, in Florida, a mortgage travels equitably with the underlying debt in the absence of a formal written assignment of the mortgage. Because the bank allegedly holds the note specially endorsed in its favor, Deutsche Bank maintains it already has established its security interest in the property.

The Court largely agrees with Deutsche Bank’s legal argument. Under applicable Florida law,[15] a mortgage, even without a written assignment, may travel equitably to the holder of the underlying debt, i.e., to the entity holding the original, properly executed and endorsed promissory note. Thus, if Deutsche Bank establishes it is the holder of a validly endorsed note, it, in turn, will establish its equitable ownership of the mortgage securing the note. This general rule of Florida law (the “General Rule”) was stated best in 1938 by the Florida Supreme Court in the seminal case Johns v. Gillian, as follows:

… a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there be some plain and clear agreement to the contrary, if that be the intention of the parties.[16] 189*189 Johns goes on to say that “[t]he transfer of the note or obligation evidencing the debt… operates as an assignment of the mortgage securing the debt, and it is not necessary that the mortgage papers be transferred, nor, in order that the beneficial interest shall pass, that a written assignment be made.”[17] Johns concluded that “if there had been no written assignment, Gillian would be entitled to foreclose in equity upon proof of his purchase of the debt.”[18] Finding that Gillian had sufficiently proven his purchase of the debt through his in-court testimony, the court held that Gillian was the “equitable owner of the mortgage” entitled to foreclose, even though no formal assignment of the mortgage was executed.

The General Rule is alive and well in Florida.[19] In Riggs v. Aurora Loan Services, LLC,[20] Florida’s Fourth District Court of Appeals held Aurora was entitled to summary judgment in a foreclosure action when it produced the original mortgage, a promissory note endorsed in blank, and affidavits that stated Aurora was the proper holder of the note and mortgage. Aurora did not submit a written assignment of the mortgage, and Aurora was not the original mortgagee. Nonetheless, the court found Aurora was the holder of the note entitled to enforce its terms under Fla. Stat. § 673.3011, and thus could foreclose on the mortgage, because it provided sufficient evidence of its purchase of the debt underlying the mortgage: possession of the original note endorsed in blank.[21]

Likewise, in another decision, the Fourth District Court of Appeals reversed and remanded a dismissal of a foreclosure action because the lower court failed to consider application of the General Rule.[22] In that case, WM Specialty filed a foreclosure complaint on December 3, 2002, and later, in response to a motion to dismiss, filed an assignment of mortgage dated January 3, 2003. The assignment, however, reflected that the mortgage was transferred to WM Specialty prior to the complaint date on November 25, 2002. The lower court found the complaint was void ab initio because WM Specialty did not hold the note and mortgage as of the date of filing the complaint. In reversing the lower court, the appellate court instructed the lower court to consider on remand whether WM Specialty acquired an equitable interest in the mortgage before execution of the written assignment by virtue of the prior transfer of the note and mortgage to WM Specialty. The court quoted Johns favorably at length for the proposition that “the mortgage in equity passes as an incident to the debt,” and indicated the lower court had failed to consider this General Rule.

In reaching its conclusion, WM Specialty Mortgage distinguished the facts before it from Jeff-Ray Corp. v. Jacobson,[23] another Fourth District Court of Appeals case the Chapter 7 trustee relies on in attempting to establish an exception to the General Rule. Jeff-Ray held that a trial court erred in not dismissing a foreclosure complaint for failure to state a cause of 190*190 action because it relied upon an assignment that was not in existence when the complaint was filed. There, the complaint was filed on January 4, 1988, supported by an alleged assignment of mortgage dated in 1986, which was not attached to the complaint. When the plaintiff later produced the assignment, it was dated April 18, 1988, four months after the complaint was filed. The plaintiff’s actions therefore led the appellate court to conclude that plaintiff had lied to the court by stating it held an assignment of mortgage from 1986 when in fact it held no assignment at all. Moreover, the court in Jeff-Ray did not discuss the General Rule or consider whether equitable transfer of the mortgage occurred prior to filing the foreclosure complaint because the plaintiff had not alleged any facts that might have indicated such transfer occurred (e.g. purchase of the underlying debt or any indication the plaintiff held possession of the mortgage in 1986).

These recent Florida appellate court cases all support Deutsche Bank’s position that proof of ownership of the debt underlying a mortgage is sufficient under Florida law to equitably convey the mortgage to the debt holder. Moreover, these cases suggest a note specifically endorsed to a foreclosure plaintiff is sufficient proof of purchase of the debt underlying a mortgage to equitably convey such mortgage. Indeed, Riggs indicates the holder of a note endorsed in blank may hold an equitable interest in the mortgage securing the note.[24]

The trustee disputes this legal analysis and, in response, argues that an exception to the General Rule applies.[25] She interprets Johns[26] to create an exception to the General Rule that if a foreclosure plaintiff lacks a written assignment of the mortgage he must prove his purchase of the debt beyond merely establishing he is the holder of the note underlying the mortgage. The trustee relies on this sentence: “Or if there had been no written assignment, Gillian would be entitled to foreclose in equity upon proof of his purchase of the debt.” Noticeably absent from this sentence and the Johns decision, however, is any statement that a creditor’s proof of its status as holder of a promissory note is not proof of purchase of the debt. The trial court in Johns required testimony of Gillian to establish he purchased the mortgage debt because there were factual issues raised concerning the timing of the purchase of the note.[27] But nothing in Johns or the more recent Florida appellate court cases can credibly be construed as establishing an exception to the General Rule that would require a note holder to prove its purchase of the debt beyond simply establishing that it is indeed the note holder. Proof of a creditor’s status as holder of a note underlying a 191*191 mortgage is proof of purchase of the debt, and the previous ownership history of the note and mortgage is irrelevant.

The trustee’s argument also relies on a decision from the Massachusetts Supreme Court, applying Massachusetts law, to argue that Florida state courts require more than the original note to convey equitable title to a mortgage.[28] Because Massachusetts law treats the equitable assignment of mortgages very differently than Florida law, a Massachusetts court’s interpretation of the law of their state is irrelevant to this proceeding. Ibanez sums up well how Massachusetts law deals with equitable transfer of mortgages as follows:

In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage. [] Rather the holder of the mortgage holds the mortgage in trust for the purchaser of the note, who has an equitable right to obtain an assignment of the mortgage, which may be accomplished by filing an action in court and obtaining an equitable order of assignment.[29]

These procedures are quite different than Florida’s procedures and its General Rule. Unlike Massachusetts, Florida law does allow the assignment of a note to carry with it the implicit assignment of the mortgage. Indeed, Ibanez distinguishes Massachusetts law from such other states’ laws that provide for equitable assignment of a mortgage.[30] Massachusetts law simply differs from Florida law and, as such, cannot create any type of exception to the still valid Florida General Rule. A creditor who holds a validly endorsed promissory note is deemed to hold an equitable lien arising from the related mortgage, without any requirement to have a separate valid assignment of the mortgage.[31]

Deutsche Bank, however, still has not proven to either the trustee or the Court that it holds a validly endorsed promissory note evidencing its purchase of the debt on the disputed property. Therefore, Deutsche Bank cannot rely on the General Rule to avoid responding to the trustee’s discovery requests pertaining to the authenticity of the note. The trustee has raised in her complaint doubts concerning the authenticity and effectiveness of the endorsements on the allonge to the note. The copies of the note and mortgage attached as an exhibit to its response therefore are insufficient to establish Deutsche Bank’s status as holder of the note.

Because the trustee has raised issues concerning the authenticity of and authority to endorse the note and allonge, the Court will overrule Deutsche Bank’s objection and compel its response to interrogatory number 5, seeking the names and addresses of “each person whose signature appears on any endorsements on the Note or any allonge.” The Court similarly will overrule Deutsche Bank’s objections and 192*192 compel its response to requests for production numbers 7 and 30. These requests seek documents and information related to Deutsche Bank’s purchase of the note and the authority of the individual who signed the endorsement. The inquiries are relevant to whether Deutsche Bank is the holder of a properly endorsed note.

The Court will sustain Deutsche Bank’s objections to every other interrogatory[32] and document production request,[33] finding such requests are irrelevant and overbroad in light of the General Rule. In particular, information on the chain of title of the mortgage, which parties have ever held an interest in the note or mortgage, and the electronic records related to this mortgage is irrelevant to the question of whether Deutsche Bank now holds the original validly endorsed note.

Accordingly, the Court will partially grant and partially deny the trustee’s motion to compel and direct defendant Deutsche Bank to respond to certain of the trustee’s first set of interrogatories and document production requests on or before June 3, 2011, as specified above. A further pretrial conference is set in this adversary proceeding for 2:00 p.m. on June 22, 2011.

A separate order consistent with this memorandum opinion will be entered simultaneously.

DONE AND ORDERED.

[1] As discussed below, the trustee’s discovery requests actually were served on Deutsche Bank’s predecessor to this adversary proceeding, Aurora Loan Services. Deutsche Bank has stipulated for purposes of this motion to compel that such requests were served on it, too. The Court similarly assumes that Deutsche Bank is authorized to prosecute the objections to the trustee’s discovery requests previously articulated by Aurora Loan Services and, for purposes of this motion, the interest of Deutsche Bank and Aurora Loan Services are identical.

[2] Defendant’s Response to Trustee’s Amended and Renewed Motion to Compel Defendant’s Response to Trustee’s First Interrogatories and Trustee’s First Request for Production of Documents and Incorporated Memorandum of Law (Doc. No. 25). A list of defendant’s specific objections to particular interrogatories and production requests is attached to its Response as Exhibit B.

[3] Trustee’s Amended and Renewed Motion to Compel Defendant’s Response to Trustee’s First Interrogatories and Trustee’s First Request for Production of Documents (Doc. No. 23).

[4] All references to the Bankruptcy Code are to Title 11 of the United States Code.

[5] Doc. No. 22 in the Main Case.

[6] Doc. No. 36 in the Main Case.

[7] Doc. Nos. 7, 8.

[8] Doc. No. 15.

[9] Fn. 4 of Defendant’s Response (Doc. No. 25). Deutsche Bank has adopted Aurora’s objections by incorporating them as Exhibit B to its Response.

[10] Doc. No. 17.

[11] Doc. No. 19.

[12] Doc. Nos. 23, 24.

[13] Doc. No. 25.

[14] Doc. No. 25 and Ex. B thereto set forth the bank’s specific objections.

[15] Paragraph 16 of the copy of the mortgage attached as Exhibit A to Defendant’s Response (Doc. No. 25) states the applicable law is the “law in which the property is located.” The property is located in Rockledge, Florida, and neither party disputes that Florida law applies.

[16] Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938) (citations omitted).

[17] Id. (quoting 41 C.J., Mortgages, Sec. 686, p. 677) (quotations omitted).

[18] Id. at 143-44 (citing Pease v. Warren, 29 Mich. 9, 18 Am.Rep 58).

[19] Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (per curiam); WM Specialty Mortgage, LLC, v. Salomon, 874 So.2d 680, 682-3 (Fla. 4th DCA 2004).

[20] 36 So.3d at 933-34.

[21] Id.

[22] WM Specialty Mortgage, 874 So.2d at 682-3.

[23] 566 So.2d 885, 886 (Fla 4th DCA 1990).

[24] 36 So.3d at 933-34.

[25] Doc. No. 24.

[26] 184 So. at 143.

[27] Specifically, one of the main issues in Johns was whether a possibly dissolved corporation properly transferred its ownership of a mortgage. Because factual issues arose as to the timing of the corporation’s assignment of the mortgage, the purported purchaser of the note and mortgage testified in court as to his purchase of the debt. Johns makes no mention of the lack of a written assignment of the mortgage as the reason for the purported note holder’s testimony. The trustee’s interpretation of Johns as establishing a requirement under Florida law that without a written assignment of mortgage a purported note holder must go beyond proof of its status as note holder to establish the purchase of the debt, including chain of title and the entire ownership history of the note, therefore is strained and unsupported by the facts of the case.

[28] U.S. Bank N.A. v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 53-4 (2011).

[29] Id. (citations omitted).

[30] Id. (citing Barnes v. Boardman, 149 Mass. 106, 114, 21 N.E. 308 (1889) and quoting within the citation “In some jurisdictions it is held that the mere transfer of the debt, without any assignment or even mention of the mortgage, carries the mortgage with it, so as to enable the assignee to assert his title in an action at law … This doctrine has not prevailed in Massachusetts….”).

[31] The trustee also argues the Florida U.C.C. has abolished the General Rule. This proposition has no support in either the Florida U.C.C. or, as demonstrated by the recent Fourth D.C.A. decisions discussed above, in Florida case law.

[32] In particular, the objections are sustained as to interrogatory numbers: 1, 2, 3, 8, 9, 10, 13, 16, 17.

[33] In particular, the objections are sustained as to requests for production numbers: 8, 9, 10, 11, 17, 18, 19, 20, 22, 23.

[ipaper docId=55407063 access_key=key-n00win1gmrxcgwmvllb height=600 width=600 /]

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AURORA v. TOLEDO | NJ SC  “We question whether Lehman’s designation of MERS as its nominee remained in effect after Lehman filed its bankruptcy”

AURORA v. TOLEDO | NJ SC “We question whether Lehman’s designation of MERS as its nominee remained in effect after Lehman filed its bankruptcy”


NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0804-10T3

AURORA LOAN SERVICES, LLC,
Plaintiff-Respondent,

v.

BERNICE TOLEDO,
Defendant-Appellant,

and

MR. TOLEDO, Husband of
BERNICE TOLEDO, MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., As Nominee
For LEHMAN BROTHERS BANK FSB;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., As Nominee For
AURORA LOAN SERVICES LLC,
Defendants.
_________________________________________________________

Submitted September 26, 2011 – Decided October 18, 2011

Before Judges Alvarez and Skillman.

On appeal from Superior Court of New Jersey,
Chancery Division, Passaic County, Docket
No. F-10005-09.

Kenneth C. Marano, attorney for appellant.

Victoria E. Edwards (Akerman Senterfitt),
attorney for respondent.

PER CURIAM

Defendant appeals from an order entered on August 31, 2010,
which granted a summary judgment in this mortgage foreclosure
action declaring that defendant’s answer “sets forth no genuine
issue as to any material fact challenged and that [plaintiff] is
entitled to a judgment as a matter of law.” There is no
indication in the record before us that plaintiff ever secured a
final judgment of foreclosure. Therefore, the appeal appears
interlocutory. See Wells Fargo Bank, N.A. v. Garner, 416 N.J.
Super. 520, 523-24 (App. Div. 2010). However, because defendant
did not move to dismiss on that basis and the appeal has been
pending for a substantial period of time, we grant leave to
appeal as within time and address the merits. See R. 2:4-
4(b)(2).

The record before us is rather sparse and disjointed.
However, the following facts may be gleaned from that record.
Defendant owns a home in the Borough of Prospect Park. On
July 24, 2006, defendant executed two promissory notes payable
to Lehman Brothers Bank, the first for $320,000, which was
payable on August 1, 2036, and the second for $60,000, which was
payable on August 1, 2021. Both notes were secured by mortgages
on defendant’s home.

On September 1, 2006, plaintiff began servicing the notes
on behalf of Lehman.

Sometime in 2008, defendant went into default in the
payment of her obligations under the notes.

On January 30, 2009, plaintiff purportedly obtained an
assignment of the $320,000 note from Lehman and the mortgage
securing that note.1 This assignment was signed by a person
named Joann Rein, with the title of Vice-President of Mortgage
Electronic Systems, Inc. (MERS). MERS was described in the
assignment document as a “nominee for Lehman Brothers Bank.”

This document is discussed in greater detail later in the
opinion.

On February 23, 2009, plaintiff filed this mortgage
foreclosure action. The parties subsequently engaged in
negotiations to resolve the matter. Those negotiations were
unsuccessful and are not relevant to our disposition of this
appeal.

Plaintiff filed a motion for summary judgment to strike
defendant’s answer on the ground there was no contested issue of
fact material to plaintiff’s right to foreclose upon defendant’s
property. In support of this motion, plaintiff relied primarily
on an affidavit by Laura McCann, one of its vice-presidents,
and exhibits attached to that affidavit, which are discussed
later in this opinion. Defendant submitted an answering
certification.

After hearing oral argument, the trial court issued a brief
written opinion and order granting plaintiff’s motion. This
appeal followed.

To have standing to foreclose a mortgage, a party generally
must “own or control the underlying debt.” Wells Fargo Bank,
N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011) (quoting
Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch.
Div. 2010)). If the debt is evidenced by a negotiable
instrument, such as the promissory notes executed by defendant,
the determination whether a party owns or controls the
underlying debt “is governed by Article III of the Uniform
Commercial Code (UCC), N.J.S.A. 12:3-101 to -605, in particular
N.J.S.A. 12A:3-301.” Ibid. Under this section of the UCC, the
only parties entitled to enforce a negotiable instrument are
“[1] the holder of the instrument, [2] a nonholder in possession
of the instrument who has the rights of the holder, or [3] a
person not in possession of the instrument who is entitled to
enforce the instrument pursuant to [N.J.S.A.] 12A-3-309 or
subsection d. of [N.J.S.A.] 12A:3-418.” N.J.S.A. 12A:3-301
(brackets added).

In this case, it is clear for the same reasons as in Ford,
418 N.J. Super. at 598, that plaintiff is neither a “holder” of
the promissory notes executed by defendant nor a “person not in
possession” of those notes who is entitled to enforce them
pursuant to N.J.S.A. 12A:3-309 or N.J.S.A. 12A:3-418(d).

Therefore, as in Ford, plaintiff’s right to foreclose upon the
mortgages defendant executed to secure those notes depends upon
whether plaintiff established that it is “a nonholder in
possession of the instrument[s] who has the rights of a holder.”
N.J.S.A. 12A:3-301; see Ford, supra, 418 N.J. Super. at 498-99.

To establish its right to foreclose upon the mortgage
defendant executed to secure her $320,000 note to Lehman,
plaintiff relied upon an affidavit by Laura McCann, a vicepresident
of plaintiff. McCann’s affidavit states that she has
“custody and control of the business records of [plaintiff] as
they relate to [defendant’s] loans.” Regarding each of the
copies of defendant’s notes and mortgages attached to her
certifications, McCann asserts that it is a “true and correct
copy.” However, McCann does not state that she personally
confirmed that those attachments were copies of originals in
plaintiff’s files.

McCann’s affidavit also has attached a copy of a document
that purports to be a “Corporate Assignment of Mortgage” from
MERS, as Lehman’s nominee, to plaintiff. Again, McCann’s
affidavit asserts that this document “is a true and correct copy
of the instrument assigning the Mortgage and Note to
[plaintiff],” but does not state that she personally confirmed
that it was a copy of the original.

A certification in support of a motion for summary judgment
must be based on “personal knowledge.” Ford, supra, 418 N.J.
Super. at 599 (quoting R. 1:6-6); see also Deutsche Bank Nat’l
Trust Co. v. Mitchell, ___ N.J. Super. ___, ___ (App. Div. 2011)
(slip op. at 17-19). Our Supreme Court has recently reaffirmed
the need for strict compliance with this requirement in mortgage
foreclosure actions by adopting, effective December 20, 2010, a
new court rule which specifically states that an affidavit in
support of a judgment in a mortgage foreclosure action must be
“based on a personal review of business records of the plaintiff
or the plaintiff’s mortgage loan servicer.” R. 4:64-2(c)(2).
McCann’s affidavit does not state that she conducted such a
“personal review of [plaintiff’s] business records” relating to
defendant’s notes and mortgages.

Furthermore, even if plaintiff had presented adequate
evidence that the purported assignment of the mortgages and
notes attached to McCann’s affidavit was a copy of the original
in plaintiff’s files, this would not have been sufficient to
establish the effectiveness of the alleged assignment. This
document was signed by a JoAnn Rein, who identifies herself as a
vice-president of MERS, as nominee for Lehman Brothers, and was
notarized in Nebraska. Plaintiff’s submission in support of its
motion for summary judgment did not include a certification by
Rein or any other representative of MERS regarding her authority
to execute the assignment or the circumstances of the
assignment. In the absence of such further evidence, we do not
view the purported assignment of the mortgages and notes to be a
self-authenticating document that can support the summary
judgment in plaintiff’s favor. N.J.R.E. 901; see 2 McCormick on
Evidence § 221 (6th ed. 2006).

There is an additional potential problem with this
purported assignment. The assignment was not made by Lehman, as
payee of the promissory notes secured by the mortgage, but
rather by MERS, “as nominee for Lehman.” Although the notes and
mortgages appointed MERS as Lehman’s nominee, Lehman filed a
petition for bankruptcy protection in September 2008, see Andrew
Ross Sorkin, Lehman Files for Bankruptcy; Merrill is Sold, N.Y.
Times (Sept. 14, 2008), which was before the purported
assignment of defendant’s mortgage and note on January 30, 2009.

Therefore, we question whether Lehman’s designation of MERS as
its nominee remained in effect after Lehman filed its bankruptcy
petition, absent ratification of that designation by the
bankruptcy trustee. On remand, the trial court should address
the question whether MERS was still Lehman’s nominee as of the
date of its purported assignment of defendant’s note and
mortgage to plaintiff.

Accordingly, we reverse the August 31, 2010 order granting
plaintiff’s motion for summary judgment and remand to the trial
court for further proceedings in conformity with this opinion.

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NY Judge Spinner Denies 86 Applications for JUDGMENT OF FORECLOSURE AND SALE Due to No Affirmation by Plaintiff Counsel

NY Judge Spinner Denies 86 Applications for JUDGMENT OF FORECLOSURE AND SALE Due to No Affirmation by Plaintiff Counsel


Excerpt:

Plaintiff has applied to this Court for the granting of a Judgment of Foreclosure & Sale pursuant to RPAPL § 1351. The express provisions of the Administrative Order of the Chief Administrative Judge of the Courts, no. A0548/10 require the filing of an Affirmation by Plaintiff’s counsel. No such Affirmation has been filed in this proceeding, in derogation of the aforesaid mandate. Accordingly, this application must be denied.

It is, therefore,

ORDERED that the within application by the Plaintiff shall be and the same is hereby denied without prejudice.

[ipaper docId=59494902 access_key=key-264kx7256bxnizbtwjpy height=600 width=600 /]

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NY Appeals Court Reversed “Aurora failed to produce evidence of MERS’ authority to assign” | AURORA LOAN SERVS v. WEISBLUM

NY Appeals Court Reversed “Aurora failed to produce evidence of MERS’ authority to assign” | AURORA LOAN SERVS v. WEISBLUM


Decided on May 17, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.
DANIEL D. ANGIOLILLO
ARIEL E. BELEN
SHERI S. ROMAN, JJ.
2010-03065
2010-05864
(Index No. 6174/09)

Aurora Loan Services, LLC, respondent,

v

Steven Weisblum, et al., appellants, et al., defendants.

Excerpt:

In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the mortgage (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207). A plaintiff [*7]has standing where it is both (1) the holder or assignee of the subject mortgage and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d at 207-209; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754). Thus, as long as the plaintiff can establish its lawful status as assignee, either by written assignment or physical delivery, prior to the filing of the complaint, the recording of a written assignment after the commencement of the action does not defeat standing (see U.S. Bank, N.A. v Collymore, 68 AD3d at 754). We find that Aurora has failed to make this showing.

Here, the note and mortgage at issue were originally comprised of a first and second note and mortgage, which were consolidated into a single note in the amount of $704,000 and the single lien reflected in the CEMA. The document submitted by Aurora in support of its motion for summary judgment and in opposition to the Weisblums’ cross motion purports to be an assignment of only the first note and mortgage in the amount of $672,000 to Aurora by MERS, as nominee for Lehman Brothers. However, Aurora failed to produce evidence of MERS’ authority to assign the first note. On its motion for summary judgment, Aurora failed to provide a copy of the first note but submitted a copy of the original first mortgage and a series of assignments culminating in the purported assignment of the first note and mortgage to Aurora. The first mortgage was originally held by MERS, as nominee for Credit Suisse; the mortgage document recites that the lender on the first note is Credit Suisse, but there is nothing in this document to establish the authority of MERS to assign the first note. MERS later assigned the first mortgage “together with” the underlying note, and thereafter, successive assignees assigned the first mortgage “together with” the underlying note. While, in some circumstances, the assignment of a note may effect the transfer of the mortgage as an inseparable incident of the debt (see U.S. Bank, N.A. v Collymore, 68 AD3d at 754), here the assignment instruments purport to do the opposite, without any evidence that MERS initially physically possessed the note or had the authority from the lender to assign it (see LPP Mtge. Ltd. v Sabine Props, LLC, 2010 NY Slip Op 32367[U]; OneWest Bank, F.S.B. v Drayton, 29 Misc 3d 1021, 1038-1041; Bank of N.Y. v Alderazi, 28 Misc 3d 376; cf. Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674-675).

Moreover, Aurora produced no documents indicating an assignment to it of the second note and mortgage or of the entire consolidated note and CEMA in the amount of $704,000. Although Aurora’s vice president averred in conclusory fashion that Aurora became holder of the mortgage which is the subject of the action “by delivery without a written assignment,” the affiant failed to give any factual detail of a physical delivery of both the consolidated note and the CEMA to Aurora prior to the commencement of the action. Thus, Aurora failed to establish its standing to commence the action.

Accordingly, the appeal from the order dated February 25, 2010, is dismissed, as that order was superseded by the order dated May 19, 2010, made upon renewal. The order dated May 19, 2010, is reversed insofar as appealed from, on the law and, upon renewal, the order dated February 25, 2010, is vacated, the plaintiff’s motions for summary judgment on the complaint and for an order of reference are denied, and the Weisblums’ cross motion for summary judgment dismissing the complaint insofar as asserted against them is granted.
DILLON, J.P., BELEN and ROMAN, JJ., concur.

ORDERED that the appeal from the order dated February 25, 2010, is dismissed, as that order was superseded by the order dated May 19, 2010, made upon renewal; and it is further,

ORDERED that the order dated May 19, 2010, is reversed insofar as appealed from, on the law, and, upon renewal, the order dated February 25, 2010, is vacated, the plaintiff’s motions for summary judgment on the complaint and for an order of reference are denied, and the cross motion of the defendants Steven Weisblum and Patti Weisblum for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants Steven Weisblum and Patti Weisblum.

ENTER:

Matthew G. Kiernan

Clerk of the Court

Footnotes

Footnote 1:1 Former RPAPL 1304(5)(c) and (d), defined “subprime home loan” as a home loan consummated between January 1, 2003, and September 1, 2008, in which, for a first lien mortgage loan, the annual percentage rate exceeded three percentage points over the yield on treasury securities, or for a subordinate mortgage lien, the annual percentage rate exceeded five percentage points over the yield on treasury securities. The parties here do not dispute that the consolidated loan at issue falls within the definition of subprime.

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IN RE BALDERRAMA | FL BK Court “Deutsche Bank, Not proven to either the trustee or the Court that it holds a validly endorsed promissory note evidencing its purchase of the debt on the disputed property”

IN RE BALDERRAMA | FL BK Court “Deutsche Bank, Not proven to either the trustee or the Court that it holds a validly endorsed promissory note evidencing its purchase of the debt on the disputed property”


In re: MARIA RENEE BALDERRAMA, Chapter 7, Debtor.
CARLA P. MUSSELMAN, as Chapter 7, Trustee, Plaintiff,
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS, in trust for Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QH5, Defendant.

Case No. 6:10-bk-07828-KSJ, Adv. Pro. No. 6:10-ap-00245-KSJ.

United States Bankruptcy Court, M.D. Florida, Orlando Division.

May 4, 2011.

Seldon J. Childers, ChildersLaw LLC, Gainesville, FL, Plaintiff Attorney.

Carla P. Musselman, Maitland, FL, Plaintiff.

Daniel A. Miller, Broad and Cassel, West Palm Beach, FL, Defendant Attorney.

MEMORANDUM OPINION PARTIALLY GRANTING AND PARTIALLY DENYING TRUSTEE’S AMENDED AND RENEWED MOTION TO COMPEL PRODUCTION OF DEUTSCHE BANK

KAREN S. JENNEMANN, Bankruptcy Judge

In this adversary proceeding the Chapter 7 trustee, Carla Musselman, seeks to quiet title and to value at zero dollars defendant Deutsche Bank’s alleged secured interest in debtor Maria Balderrama’s non-homestead real property. As part of discovery, the trustee served interrogatories and document production requests seeking information about the bank’s purchase of the promissory note and mortgage on the disputed property.[1] Deutsche Bank resists producing any discovery related to the purchase history of the note and the chain of title of the mortgage arguing that, under Florida law, it has established its secured interest in the property merely by alleging it holds the original promissory note endorsed specially in its favor.[2] The trustee disputes Deutsche Bank’s characterization of Florida law and notes that neither the Court nor the trustee has seen the original endorsed note. She now requests the Court compel the bank to produce the requested information.[3]

[…]

Deutsche Bank, however, still has not proven to either the trustee or the Court that it holds a validly endorsed promissory note evidencing its purchase of the debt on the disputed property. Therefore, Deutsche Bank cannot rely on the General Rule to avoid responding to the trustee’s discovery requests pertaining to the authenticity of the note. The trustee has raised in her complaint doubts concerning the authenticity and effectiveness of the endorsements on the allonge to the note. The copies of the note and mortgage attached as an exhibit to its response therefore are insufficient to establish Deutsche Bank’s status as holder of the note.

continue below…

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AURORA v. Carlsen, Wis: Court of Appeals, 4th Dist. 2011 – REVERSED “FAILED MERS ASSIGNMENT, FAILED AFFIDAVIT, FAILED STANDING, FAILED CASE”

AURORA v. Carlsen, Wis: Court of Appeals, 4th Dist. 2011 – REVERSED “FAILED MERS ASSIGNMENT, FAILED AFFIDAVIT, FAILED STANDING, FAILED CASE”


AURORA LOAN SERVICES LLC,

PLAINTIFF-RESPONDENT,

V.

DAVID J. CARLSEN AND NANCY L. CARLSEN,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Rock County:

JAMES WELKER, Judge. Reversed.

Before Vergeront, P.J., Lundsten and Blanchard, JJ.

¶1 LUNDSTEN, J. This appeal involves a foreclosure action initiated
by Aurora Loan Services against David and Nancy Carlsen. Following a court
trial, the circuit court granted judgment of foreclosure in favor of Aurora, finding
that Aurora is the holder of the note and owner of the mortgage and that the
Carlsens were in default. We conclude that the circuit court’s finding that Aurora
was the holder of the note, a finding essential to the judgment, is not supported by
admissible evidence. We therefore reverse the judgment.

Background

¶2 Aurora Loan Services brought a foreclosure suit against David and
Nancy Carlsen, alleging that Aurora was the holder of a note and owner of a
mortgage signed by the Carlsens encumbering the Carlsens’ property. The
Carlsens denied several allegations in the complaint and, especially pertinent here,
denied that Aurora was the holder of the note. Aurora moved for summary
judgment, but that motion was denied.

¶3 A trial to the court was held on June 9, 2010. Aurora called one of
its employees, Kelly Conner, as its only witness. Aurora attempted to elicit
testimony from Conner establishing a foundation for the admission of several
documents purportedly showing that Aurora was the holder of a note that
obligated the Carlsens to make payments and that the Carlsens were in default. It
is sufficient here to say that the Carlsens’ attorney repeatedly objected to questions
and answers based on a lack of personal knowledge and lack of foundation, and
that the circuit court, for the most part, sustained the objections. Aurora’s counsel
did not move for admission of any of the documents into evidence. After the
evidentiary portion of the trial, and after hearing argument, the circuit court made
findings of fact and entered a foreclosure judgment in favor of Aurora. The
Carlsens appeal. Additional facts will be presented below as necessary.

Discussion

¶4 It is undisputed that, at the foreclosure trial, Aurora had the burden
of proving, among other things, that Aurora was the current “holder” of a note
obligating the Carlsens to make payments to Aurora. Because Aurora was not the
original note holder, Aurora needed to prove that it was the current holder, which
meant proving that it had been assigned the note. There appear to be other failures
of proof, but in this opinion we focus our attention solely on whether Aurora
presented evidence supporting the circuit court’s findings that “the business
records of Aurora Loan Services show … a chain of assignment of that … note”
and that “Aurora is the holder of the note.”

¶5 As to assignment of the note, the Carlsens’ argument is simple: the
circuit court’s findings are clearly erroneous because there was no admissible
evidence supporting a finding that Aurora had been assigned the note. The
Carlsens contend that, during the evidentiary portion of the trial, the circuit court
properly sustained objections to Aurora’s assignment evidence, but the court then
appears to have relied on mere argument of Aurora’s counsel to make factual
findings on that topic. We agree.

¶6 We focus our attention on a document purporting to be an
assignment of the note and mortgage from Mortgage Electronic Registration
Systems to Aurora. At trial, this document was marked as Exhibit D. Although
Aurora’s counsel seemed to suggest at one point that certain documents, perhaps
including Exhibit D, were certified, the circuit court determined that the
documents were not certified. Under WIS. STAT. § 889.17,1 certified copies of
certain documents are admissible in evidence based on the certification alone.
Aurora does not contend that Exhibit D is admissible on this basis.

¶7 Aurora argues that Conner’s testimony is sufficient to support the
circuit court’s finding that Aurora had been assigned the note. Our review of her
testimony, however, reveals that Conner lacked the personal knowledge needed to
authenticate Exhibit D. See WIS. STAT. § 909.01 (documents must be
authenticated to be admissible, and this requirement is satisfied “by evidence
sufficient to support a finding that the matter in question is what its proponent
claims”). Relevant here, Conner made general assertions covering several
documents. Conner either affirmatively testified or agreed to leading questions
with respect to the following:

  • · She works for Aurora.
  • · She “handle[s] legal files” and she “attend[s] trials.”
  • · “Aurora provided those documents that are in [her] possession.”
  • · She “reviewed the subject file” in preparing for the hearing.
    • · She declined to agree that she is the “custodian of records for

Aurora.”

    • · She “look[s] at documentation … [does] not physically handle

original notes and documents, but [she does] acquire
documentation.”

  • · “Aurora [is] the custodian of records for this loan.”
  • · She is “familiar with records that are prepared in the ordinary course
    of business.”
  • · She has “authority from Aurora to testify as to the documents, of
    [Aurora’s] records.”

As it specifically pertains to Exhibit D, the document purporting to evidence the
assignment of the note and mortgage from Mortgage Electronic Registration
Systems to Aurora, Conner testified:

  • · Aurora has “possession of Exhibit D.”
  • · Exhibit D is “an assignment of mortgage.”

With respect to possession of Exhibit D, Conner did not assert that Exhibit D was
an original or that Aurora had possession of the original document. For that
matter, Conner did not provide a basis for a finding that any original document she
might have previously viewed was what it purported to be.2

¶8 Thus, Conner did no more than identify herself as an Aurora
employee who was familiar with some unspecified Aurora documents, who had
reviewed some Aurora documents, and who had brought some documents,
including Exhibit D, to court. Although Conner was able to say that Exhibit D, on
its face, was an assignment, she had no apparent personal knowledge giving her a
basis to authenticate that document. See WIS. STAT. § 909.01.

¶9 Aurora points to various provisions in WIS. STAT. chs. 401 and 403,
such as those relating to the definition of a “holder” (WIS. STAT.
§ 401.201(2)(km)), to a person entitled to enforce negotiable instruments (WIS.
STAT. § 403.301), and to the assignment of negotiable instruments (WIS. STAT.
§§ 403.203, 403.204, and 403.205). This part of Aurora’s argument addresses the
underlying substantive law regarding persons entitled to enforce negotiable
instruments, such as the type of note at issue here, but it says nothing about
Aurora’s proof problems. That is, Aurora’s discussion of the underlying law does
not demonstrate why Exhibit D was admissible to prove that Aurora had been
assigned the note and was, under the substantive law Aurora discusses, a party
entitled to enforce the note.

¶10 Similarly, Aurora discusses the relationship between a note and a
mortgage and, in particular, the equitable assignment doctrine. But here again
Aurora’s discussion fails to come to grips with Aurora’s failure to authenticate
Exhibit D, the document purporting to be an assignment of the note to Aurora.
Aurora points to testimony in which Conner asserted that Aurora acquired and
possessed Exhibit D, but possession of Exhibit D is meaningless without
authentication of the exhibit.

¶11 Aurora argues that we may look at the “record as a whole,”
including summary judgment materials, to sustain the circuit court’s factual
findings. Thus, for example, Aurora asks us to consider an affidavit filed with its
summary judgment motion. In that affidavit, an Aurora senior vice-president
avers that the note was assigned to Aurora, that the assignment was recorded with
the Rock County Register of Deeds, and that Aurora is the holder of the note. This
argument is meritless. Aurora was obliged to present its evidence at trial. It could
not rely on the “record as a whole” and, in particular, it could not rely on summary
judgment materials that were not introduced at trial. See Holzinger v. Prudential
Ins. Co., 222 Wis. 456, 461, 269 N.W. 306 (1936). For that matter, even if Aurora
had, at trial, proffered the affidavit of its senior vice-president, the affidavit would
have been inadmissible hearsay. See WIS. STAT. § 908.01(3) (“‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”).

¶12 In sum, Aurora failed to authenticate Exhibit D, the document
purporting to be an assignment of the note. Thus, regardless of other alleged proof
problems relating to that note and the Carlsens’ alleged default, the circuit court’s
finding that Aurora was the holder of the note is clearly erroneous—no admissible
evidence supports that finding. Aurora failed to prove its case, and it was not
entitled to a judgment of foreclosure.

By the Court.—Judgment reversed.

Not recommended for publication in the official reports.

_______________________________________

1All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
 2 Our summary of Conner’s testimony omits several assertions Conner made that were
stricken by the circuit court. Similarly, we have not included examples of the circuit court
repeatedly sustaining hearsay and foundation objections. For example, the court repeatedly
sustained objections to Aurora’s attempts to have Conner testify that Aurora “owns” the note.
Aurora does not and could not reasonably argue that the Carlsens have not preserved their
authentication objections. The Carlsens’ attorney repeatedly and vigorously objected on hearsay,
foundation, and authentication grounds. The record clearly reflects that the Carlsens were
objecting to the admission of all of Aurora’s proffered documents on the ground that Conner
lacked sufficient knowledge to lay a foundation for admission.

[ipaper docId=51510952 access_key=key-2dcpf4gvzz30kaf45tk height=600 width=600 /]

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GA Supreme Court Affirms | Quiet Title, Forged Deeds Cannot Vest Title AURORA LOAN SERVICES, LLC v. Veatch

GA Supreme Court Affirms | Quiet Title, Forged Deeds Cannot Vest Title AURORA LOAN SERVICES, LLC v. Veatch


“[A] forged deed is a nullity and vests no title in a grantee. [Cit.] As such, even a bona fide purchaser for value without notice of a forgery cannot acquire good title from a grantee in a forged deed, or those holding under such a grantee, because the grantee has no title to convey.” Brock v. Yale Mortgage Co

AURORA LOAN SERVICES, LLC
v.
JOHN MACELRAY VEATCH, ADMR., et al.

S10A1725.

Supreme Court of Georgia.

Decided: March 18, 2011.

HINES, Justice.

In this quiet title action, the trial court entered a final order ruling that fee simple title to the subject property was vested in John Macrelay Veatch (“Veatch”), as personal representative of the estate of Raymond Wesley Veatch, Jr., unencumbered by the security deed held by Aurora Loan Services, LLC (“Aurora”), and striking various deeds from the deed records of Fulton County. Aurora appeals, and for the reasons that follow, we affirm.

Elsie Veatch owned the subject property until her death in 1974; her sole heir was Raymond Wesley Veatch, Jr., Veatch’s father, who died on March 20, 2006. After his death, two forged deeds were recorded in the Fulton County deed records, purporting to convey title to the property to Antonio Simpson. One forged deed was styled “Quitclaim Deed,” purportedly executed on May 19, 2006 by Elsie Veatch, who had then been dead for 32 years; this purported deed was recorded on October 17, 2006. The other purported deed was styled “Executors Deed,” and was purportedly executed by Raymond Wesley Veatch, Jr., on March 15, 2006, a date on which he lay in a coma; it was recorded on November 6, 2006. After these forged deeds were executed and recorded, a warranty deed purportedly from Antonio Simpson to Darryl Matthews was recorded on November 8, 2006. Matthews then executed a security deed in favor of First Magnus Financial Corporation in connection with a loan for $187,500. The security deed was eventually assigned to Aurora.

On September 5, 2007, after Veatch discovered activity on the property and applied for, and was granted, letters of administration of the estate of Raymond Wesley Veatch, Jr., he filed in the Fulton County land records an affidavit stating that the Executor’s and Quitclaim deeds were false. He then filed in the superior court the present petition to quiet title. OCGA § 23-3-40 et seq. The trial court appointed a Special Master who concluded that Aurora was a bona fide purchaser for value. See Roop Grocery Co. v. Gentry, 195 Ga. 736, 745 (1) (25 SE2d 705) (1943). However, the trial court disagreed, finding that there was record notice that the forged deeds were fraudulent, and that in any event, a forged deed is a nullity and cannot convey title.

The trial court is correct. Aurora’s interest in the property is dependent upon the forged deeds made to Antonio Simpson. As the trial court noted, such a deed cannot convey title. “[A] forged deed is a nullity and vests no title in a grantee. [Cit.] As such, even a bona fide purchaser for value without notice of a forgery cannot acquire good title from a grantee in a forged deed, or those holding under such a grantee, because the grantee has no title to convey.” Brock v. Yale Mortgage Co., 287 Ga. 849, 852 (2) (700 SE2d 583) (2010). In that opinion, this Court specifically overruled prior precedent of this Court that extended “the bona fide purchaser for value doctrine to those acquiring title under a grantee in a forged deed.” Id. at 853 (2). Accordingly, it is of no moment whether the deed records provided notice of the forgeries at the time Matthews executed the security deed on which Aurora bases its claim; there was simply no title held by Simpson, Matthews, First Magnus Financial Corporation, or any subsequent assignee. Id. Accord, Second Refuge Church &c. v. Lollar, 282 Ga. 721, 726-727 (3) (550 SE2d 128) (2007). The trial court did not err in declaring title to be vested in Veatch, as personal representative of the estate of Raymond Wesley Veatch, Jr., unencumbered by the security deed held by Aurora.

Judgment affirmed. All the Justices concur.

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Anonymous Posts FAQ’s on How Balboa Hid Documents For Indymac and Aurora

Anonymous Posts FAQ’s on How Balboa Hid Documents For Indymac and Aurora


Anonymous via his source post crucial information that has been known but not in detail.

Attorneys and Attorney Generals nationwide have been working diligently against the banks in order to keep their clients in their homes. You must keep in mind that there are several levels of indiscriminate behavior going on, keeping these efforts at bay. For now, however, I will give you a general overview of how some of the tracking systems interact and how the reporting works, so that those with the power to subpoena documents for their clients know where to find the correct documentation to support their individual cases, because as Abigail Fields points out, “It would certainly be provable/disprovable by subpoenaing documents.”

In order to do that, however, an attorney would need to know where to look. If you were to only subpoena generic loan information, you will only be provided with the System of Record (SOR) data, which previous posts have clearly proved do not show the full picture as there are several common ways of removing information from the system of record both individually and en masse. As the email trail clearly shows, there is always an audit trail in the back end if you know what to ask for.



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CA IMPORTANT NOTICE: TRO & Order To Show Cause On DEUTSCHE, AURORA LOAN SERVICES

CA IMPORTANT NOTICE: TRO & Order To Show Cause On DEUTSCHE, AURORA LOAN SERVICES


IMPORTANT NOTICE: On January  24, 2011 the plaintiffs, on behalf of the potential Class applied for and received another Temporary Restraining Order and Order to Show Cause against the defendants in this action. If you are a potential class member, please call this office at 714-372-2264  NOW!

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OUTRAGEOUS |NYSC Judge Suspends 30 Cases From Steven J. Baum PC for Intentional Failure of Improper and Inadequate Submissions

OUTRAGEOUS |NYSC Judge Suspends 30 Cases From Steven J. Baum PC for Intentional Failure of Improper and Inadequate Submissions


What in the world is happening to America? What laws exist that permits this to happen over and over and over …again?

After StopForeclosureFraud posted the Class Action against a Foreclosure Mill in Florida it took the FL AG 4 days to request information from this case that lead to an Investigation.

Then within a matter of days after SFF released information on another Foreclosure Mill in Massachusetts, they too launched one.

SFF has posted numerous court orders involving this firm and nothing has come about the fraud they are submitting and swearing to under oath. Shocking.

Lets set aside that these are FORECLOSURES for a second…T h e s e   a r e   o f f i c e r s   o f   t h e   c o u r t    [PERIOD END OF STORY], intentionally submitting bogus, fraudulent documents even after they were made aware of new filing requirements.

“We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs–such as a family home–during this period of economic crisis,” said New York State Chief Judge Jonathan Lippman in a statement.

Judge Melvyn Tanenbaum suspends the following cases

Excerpt:

This Court has repeatedly directed plaintiffs counsel to submit proposed orders of reference
and judgments of foreclosure in proper form and counsel has continuously failed to do so. The Court
provided counsel’s office directly with copies of orders and judgments which would satisfy the
requirements and counsel has responded by submitting correspondence addressed to the Court from
non-attorney employees with improper and inadequate submissions. The Court deems plaintiffs
counsel’s actions to be an intentional failure to comply with the directions of the Court and a
dereliction of professional responsibility.
Accordingly it is…

Continue to the Orders All The Way Down…

.

Another 18 reasons why an Investigation should be in order…some of us are keeping track and trust me there is many more!

  1. NY Judge Hammers “Foreclosure Mill” STEVEN J. BAUM For Failing To Comply (25.049)
  2. NYSC LPS FORECLOSURE AFFIDAVIT ‘NO PERSONAL KNOWLEDGE’ & ‘FAILURE IN SUPPORT’
  3. NEW YORK STATE COURT FORECLOSURE FRAUD CASES (14.441)
  4. GMAC, Steven Baum Law Firm Face FORECLOSURE FIGHT in NY COURT (14.273)
  5. Judge ARTHUR SCHACK’s COLASSAL Steven J. BAUM “MiLL” SMACK DOWN!! MERS TWILIGHT ZONE! (14.077)
  6. NY SUPREME COURT: WELLS FARGO, MERS & STEVEN J. BAUM “FATAL DEFECT”
  7. NY BANKRUPTCY COURT In Re: Fagan DECISION GRANTING SANCTIONS FOR MOTION TO LIFT STAY BASED ON FALSE CERTIFICATION
  8. HSBC BANK and STEVEN J. BAUM LAW FIRM both SANCTIONED for filing a FRIVOLOUS lawsuit
  9. “TRO” ISSUED ON MERS, MERRILL & STEVEN J. BAUM
  10. HEY NY TIMES…’NO PROOF’ JEFFREY STEPHAN HAS AUTHORITY TO EXECUTE AFFIDAVIT FOR WELLS FARGO
  11. GMAC, MERS & STEVEN J. BAUM PC…THE COURT IS AT LOSS ON A PURPORTED “CORRECTIVE ASSIGNMENT”
  12. ‘NO PROOF’ MERS assigned BOTH Mortgage and NOTE to HSBC
  13. NY Law Offices of Steven J. Baum P.C. may get sanctions for False Representations
  14. NEW YORK COURT DISMISSES FORECLOSURE WITH PREJUDICE ON ILLEGAL MERS ASSIGNMENT EXECUTED BY COUNSEL FOR THE FORECLOSING PLAINTIFF
  15. Lasalle Bank N.A. v Smith 2010: NY Slip Judge Schack does it again! Slams BAUM Law Firm!
  16. [NYSC] MERS HAS NO INTEREST, STANDING, OFFICER AFFIDAVIT HAS NO PROVATIVE VALUE
  17. [NYBKC] WELLS FARGO ASSIGNMENT, STEVEN J. BAUM P.C. COUNSEL UNABLE TO ANSWER QUESTIONS IN SUPPORT
  18. AMENDED |NEW YORK FORECLOSURE CLASS ACTION AGAINST STEVEN J. BAUM & MERSCORP

[ipaper docId=42649448 access_key=key-1t7ogf2uox9k3ebb8qd8 height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (4)

THEODORE “THEO” SCHULTZ CORPORATE BANK TITLES

THEODORE “THEO” SCHULTZ CORPORATE BANK TITLES


Mr. Schultz and his various Corporate Hats. These sensitive documents are part of homes being sold today in a county near you.

Vice President of:

  • MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.,
  • Aurora Loan Servicing,
  • Household Bank,
  • Decision One Mortgage Company,
  • Nations Home Funding,
  • First National Bank of Arizona,
  • Pinnacle Financial,
  • First Magnus Financial
  • Lehman Brothers

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



Posted in STOP FORECLOSURE FRAUDComments (5)

RHODE ISLAND: One judge to hear all MERS-related cases in the state

RHODE ISLAND: One judge to hear all MERS-related cases in the state


One judge to hear all MERS-related cases in the state

01:00 AM EDT on Sunday, October 31, 2010

By Christine Dunn

Journal Staff Writer

PROVIDENCE –– One Providence Superior Court judge, Allen P. Rubine, has been assigned to hear all cases in Rhode Island that are related to the Mortgage Electronic Registration System.

Alice B. Gibney, presiding justice of the Superior Court, issued an administrative order in September directing the courts in Kent, Washington and Newport counties to transfer all their MERS-related cases to Justice Rubine.

Formed by the mortgage finance industry, MERS was created to increase profits and efficiency by eliminating the need to record changes in mortgage ownership at local government property registries when loans are sold multiple times and/or bundled and sold together in pools. MERS is a corporation that also acts as a nominee for lenders and their successors.

An Aug. 25, 2009, decision by Providence Superior Court Judge Michael A. Silverstein upheld the right of MERS to foreclose in Rhode Island.

The case, brought by Anthony and Stephanie Bucci, of Cranston, through their lawyer, George E. Babcock, of Providence, has been appealed to the Rhode Island Supreme Court. The defendants in the case are Lehman Brothers Bank, FSB, a federal savings bank, MERS, and Aurora Loan Services, LLC.

Judge Silverstein ruled that Rhode Island law “does not prohibit MERS from invoking the Statutory Power of Sale [foreclosure]” because “statutes should not be construed to reach an absurd result.”


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



Posted in STOP FORECLOSURE FRAUDComments (1)

EXPLOSIVE DEPOSTION!!!! BUSTED!! DAVID J. STERN “MILL” KNEW THIS ALL ALONG…THIS FORECLOSURE FRAUD!!!

EXPLOSIVE DEPOSTION!!!! BUSTED!! DAVID J. STERN “MILL” KNEW THIS ALL ALONG…THIS FORECLOSURE FRAUD!!!


FORMER EMPLOYEE WHISTLE BLOWER!!!

.

Via: 4ClosureFraud

.

HEY JUDGE COX, THIS IS WHAT YOUR MOTION TO QUASH IS PROTECTING!

~

MY GOD!

~

WHERE ARE THE F***ING FEDERAL AGENTS!!!

~

“I personally did not do it because I refused to do it.”

“I wasn’t going to falsify a military document.”

“I was told that that’s fine, somebody else on your team will do it.”

~

This just in and it is unbelievable!

We are neck deep in issues today so I do not have time to go through and highlight everything, and there is a lot, but here are some snips…

TAKE THE TIME TO READ THIS IN ITS ENTIRETY

THIS SHOULD BE THE BOMBSHELL THAT STOPS IT ALL IN FLORIDA

MORE TO FOLLOW ON THIS

1                             STATE OF FLORIDA
OFFICE OF THE ATTORNEY GENERAL
2                             DEPARTMENT OF LEGAL AFFAIRS

3                             AG # L10-3-1145

4

5   IN RE:

6   INVESTIGATION OF LAW OFFICES
OF DAVID J. STERN, P.A.
7

8   ____________________________/

9

10

11

12               DEPOSITION OF TAMMIE LOU KAPUSTA

13

14

15

16                    12:11 p.m. – 1:58 p.m.
September 22, 2010
17                Office of the Attorney General
110 Southeast 6th Street, 10th Floor
18                Fort Lauderdale, Florida 33301

1 P R O C E E D I N G S
2 – – –
3 Deposition taken before Kalandra Smith, Court
4 Reporter and Notary Public in and for the State of
5 Florida at Large, in the above cause.
6 – – –
7 THERE UPON:
8 TAMMIE LOU KAPUSTA
9 having been first duly sworn or affirmed, was examined
10 and testified as follows:

1 Q Let’s go to the assignments of mortgage. They
2 were prepared in-house?
3 A Yeah.
4 Q You’re smiling. You want to tell me about
5 them?
6 A Assignments were done sometimes after the
7 final judgement was entered.
8 Q Do you know why that is?
9 A Because that’s what we were directed to do

19 Q Can you tell me the execution of the
20 assignments, how it worked?
21 A Assignments were prepared again from the
22 casesum. All of our stuff comes from the casesum. They
23 would be stamped and signed by a notary or not. Per
24 floor we had a designated spot to place them and Cheryl
25 would come once a day and sign them.
22
1 Q Sign them as what?
2 A As –
3 Q For the bank?
4 A Correct.
5 Q Or for MERS or whoever it was for?
6 A Correct.
7 Q Would these notaries be there watching her as
8 she signed?
9 A No.
10 Q She would just sit there and sign stacks of
11 them?
12 A Correct. As far as notaries go in the firm I
13 don’t think any notary actually used their own notary
14 stamp. The team used them.
15 Q There were just stamps around?
16 A Yes.
17 Q And you actually saw that?
18 A I was part of that.
19 Q You did it? Are you a notary?
20 A No, I’m not.
21 Q Did you sign as a witness?
22 A I did not. I signed as a witness on one
23 document and after that I decided that I didn’t want to
24 put my name as a witness anymore.
25 Q Tell me about the stamps. You stamped them?
23
1 A Yeah, I had stamps. Each team had a notary on
2 them or notaries that I was aware of. Whether they were
3 or weren’t wasn’t –
4 Q You had stamps?
5 A Correct. We would stamp them and they would
6 get signed.
7 Q Stamp them in blanks?
8 A Yes.
9 Q Who would sign them?
10 A Other people on the team that could sign the
11 signature of the person or just a check on there or
12 whatever.
13 Q Was that common practice?
14 A Yes.
15 Q Was that standard practice?
16 A Pretty much.
17 Q What about the witnesses?
18 A Those would be signed by juniors who were –
19 Q Standing there?
20 A Here, sign this. It has to go to Cheryl, sign
21 it. Then it would go and sit at the desk where Cheryl
22 would sign everything.
23 Q Out of view of the notary and out of view of
24 the witnesses?
25 A Correct.
24
1 Q Do you know who implemented this procedure?
2 A Cheryl.
3 Q Cheryl did?
4 A Um-hum.
5 Q Did anybody else sign with the firm for the
6 banks?
7 A Yes.
8 Q Who was that?
9 A There were people that were responsible for
10 signing Cheryl’s name. Cheryl, Tammie Sweat, and Beth
11 Cerni. Those were the only three people that could sign
12 Cheryl’s name. If you ever look at assignments you’ll
13 see that they are not all the same.
14 MS. EDWARDS: What are the names again?
15 Cheryl, Tammie?
16 THE WITNESS: Tammie Sweat and Beth Cerni.
17 MS. EDWARDS: Could you spell that.
18 MS. CLARKSON: C-E-R-N-I.
19 BY MS. CLARKSON:
20 Q Did they practice Cheryl’s signature?
21 A I would assume so.
22 Q Did you ever see them?
23 A Not practicing but I’ve seen them sign it.
24 Q Did you see somebody sign Cheryl’s name?
25 A Yes.
25
1 Q That wasn’t Cheryl?
2 A Yes. All the time.
3 Q Did Cheryl know about this?
4 A Yes.
5 Q Was it at her direction?
6 A Yes.

16 Q Did anyone quit as far as you know due to the
17 practices?
18 A I’m sure but they wouldn’t come right out and
19 say I quit because of the practices. I know that people
20 had left because they were uncomfortable with the things
21 that they were being asked to do, as most of us were.
22 When it got really sticky there were a lot of us that
23 weren’t here.
24 Q What does really sticky mean?
25 A They wanted us to start changing the documents
33
1 and stuff and doing stuff that we weren’t supposed to be
2 doing as far as service.
3 Q What documents did they want you to change?
4 A Manpower documents. A lot of judges started
5 requiring, because of the Jane and John Doe issues,
6 required that you have a military search for all the
7 defendants. If you named a Jane and John Doe as an NKA
8 you had to pull a military search on them. Unless you
9 have somebody’s social security number technically you
10 can’t pull a military search supposedly.
11 The program that we used for the program that
12 we used, you could put in the main defendant’s social
13 security and John or Jane Doe’s name and it would give
14 us a military search saying that they were in the
15 military.
16 Q You would get their social security number
17 because the bank documents contained it?
18 A Correct. The lenders, the referrals had the
19 socials.
20 Q Did you put the social in on everybody to find
21 out their address for service?
22 A Not everybody. I personally did not do it
23 because I refused to do it. I wasn’t going to falsify a
24 military document. I was told that that’s fine,
25 somebody else on your team will do it.
1 Q What do you mean falsify a military document?
2 A Well, I’m using the main defendant’s social
3 security number on somebody else’s name, not his name.
4 John Doe and the main defendant was James, I was taking
5 James’ social security number and putting John Doe’s
6 name in there. I wasn’t but that’s what the practice
7 was. The judges started saying we’re not going to
8 consider service completed until –
9 Q There’s a miliary search?
10 A Correct.
11 Q So why wouldn’t they use the right social
12 security number for the right person?
13 A Because you don’t have a social for an NKA or
14 unknown tenant. They wouldn’t enter a final judgement
15 unless the military doc was there.
16 Q So you just used anybody’s?
17 A Correct.

9 A So what we had to do from that point, again
10 the affidavits were still split in two pages, at that
11 point we were supposed to be sending them back to the
12 banks to be signed now. The problem being that a lot of
13 times we wouldn’t get them back or executed in time for
14 the hearings. So we had what they called signature
15 pages that Tammie Sweat or someone else would have in
16 their possession. If we couldn’t get it back from the
17 bank executed in time we would just take a signature
18 page and put it on the affidavit.
19 Q What was on the signature page?
20 A The signature and notary from the bank.
21 Q Were these documents photocopied or were they
22 original documents?
23 A Some were photocopied.
24 Q How would you get that many from a bank
25 original? The bank supplied them to you.
42
1 A Well, what would happen would be like if I had
2 file A and that one didn’t go to hearing because there
3 was something wrong with it and file B was going to
4 hearing but it was the same bank, I would take the
5 signature page from A and give it to B.
6 Q Oh give it to another file?
7 A And just re-execute this file.
8 Q Okay. That was common practice?
9 A Yes, after Cheryl couldn’t sign.
10 Q Did Cheryl know?
11 A Yes.
12 Q Cheryl knew about all the practices because
13 she is the one who ran the office?
14 A She was the one who implemented them.
15 Q Were there any other activities or practices
16 over at David Stern’s firm that made you feel
17 uncomfortable or that you were unwilling to do?
18 A I don’t know how to answer that question.
19 It’s a loaded one.
20 Q Take your time.
21 A Yeah. Some of the things that were done there
22 just were not on the up and up.
23 Q Explain to me in as much detail as you can
24 what those things were.
25 A I don’t even know where to start with it.

Now that’s some BULLSHIT!

~

MUCH MORE IN THE DEPO BELOW…

~

Full-Deposition-of-Tammie-Lou-Kapusta-Law-Office-of-David-J-Stern

[ipaper docId=38901226 access_key=key-1qyc5k5u2jgdkg86i66p height=600 width=600 /]

Image credit: PI Bill Warner


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



Posted in assignment of mortgage, aurora loan servicing, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, Law Offices Of David J. Stern P.A., MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., STOP FORECLOSURE FRAUD, Tammie Lou KapustaComments (6)


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