You’re either pregnant or you ain’t. Can’t be both!

Credit Slips-

Since last October, shortly after the robosigning scandal broke, I’ve been talking until I turned blue in the face about robosigning being the tip of the iceberg with mortgage problems and that the real issue was chain of title. Robosigning appeared to be an almost unexpected deposition by-product; the real goal in the depositions that uncovered the robosigning was exposing the backdating of mortgage endorsement. And that they did–the notaries’ whose seals were on the documents didn’t have their commissions when the assignments supposedly took place.

But why would anyone bother backdating mortgage assignments? …

Naked Capitalism-

Do you remember the brouhaha over testimony by a senior executive in Countrywide’s mortgage servicing unit last year? It called into question whether mortgages had been conveyed properly to securitizations, which in turn would impair Bank of America’s ability to foreclose.

Let me refresh your memory. As we wrote last year:

Testimony in a New Jersey bankruptcy court case provides proof of the scenario we’ve depicted on this blog since September, namely, that subprime originators, starting sometime in the 2004-2005 timeframe, if not earlier, stopped conveying note (the borrower IOU) to mortgage securitization trust as stipulated in the pooling and servicing agreement….

As we indicated back in September, it appeared that Countrywide, and likely many other subprime orignators quit conveying the notes to the securitization trusts sometime in the 2004-2005 time frame. Yet bizarrely, they did not change the pooling and servicing agreements to reflect what appears to be a change in industry practice. Our evidence of this change was strictly anecdotal; this bankruptcy court filing, posted at StopForeclosureFraud provides the first bit of concrete proof. The key section:

As to the location of the note, Ms. DeMartini testified that to her knowledge, the original note never left the possession of Countrywide, and that the original note appears to have been transferred to Countrywide’s foreclosure unit, as evidenced by internal FedEx tracking numbers. She also confirmed that the new allonge had not been attached or otherwise affIXed to the note. She testified further that it was customary for Countrywide to maintain possession of the original note and related loan documents.

Abigail Field-

Fortune examined hundreds of foreclosure documents to determine the validity of mortgage securitizations after Bank of America debunked testimony about them last fall. The results raise more questions than they answer.

Are Countrywide mortgage-backed securities really mortgage-backed? Do banks even have the legal right to foreclose on certain homes?

Check out the related posts below …

Decided on April 11, 2011

Supreme Court, Kings County

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

against

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

21739/2008

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

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

Wayne P. Saitta, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[*5]

J.S.C.

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

Excerpt:

In this case, DBNTC clearly had no standing to bring the motion. Debtors never consented to MERS to act as Nominee under the terms of the DOT. Even if one assumes that MERS had authority to assign IndyMac Bank’s beneficial interest to DBNTC, IndyMac Bank ceased to exist at the time MERS purportedly made an assignment to DBTNC. DBNTC received nothing by virtue of the assignment; the assignment constitutes a fraudulent conveyance.

For the foregoing reasons, Debtors respectfully request the Court to make findings of fact and to deny DBNTC’s second Motion for Relief from the Automatic Stay with prejudice. Debtors further request this Court to award attorney fees incurred by Debtors against DBNTC and its attorney for bringing this frivolous motion.

Continue below…

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION

In Re:
THUAN X. NGUYEN AND TAMMY H. NGUYEN

excerpt:

The deception and fraud committed by Deutsche Bank National Trust Company and its known foreclosure mill counsels, Barrett Daffin Frappier Treder & Weiss, LLP, upon the Court and harassment upon Debtors with unwarranted motion to cause delay and to increase litigation costs by Debtors must be stopped.

continue below…

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The latest bombshell follows with a brilliant 325 Pg. Deposition of LPS/ Fidelity’s Bill Newland.

Feel free to upload docs using email a tip link located above the site.

EXCERPTS:

2   Q    Sure.  Are there any attorneys who are not
3   members of the Fidelity — or the LPS attorney network
4   who can access your Process Management system?
5        A    Not that I’m aware of.
6        Q    And is it a fact that the only attorneys who
7   are using Process Management are attorneys who have
8   signed a referral agreement with LPS?
9        A    That would be correct.
10        Q    So, while your clients are free to choose
11   whomever as a foreclosing attorney, if they are an MSP
12   user and they are an LPS — they have an LPS agreement
13   with you for Default Solutions, the only attorneys
14   available on LPS system are attorneys who have signed
15   a contract with LPS?
16        A    That have signed a contract with LPS, yes.

<SNIP>

3        Q    So I just want to be sure.  What you’re
4   testifying to is that there is no compensation ever
5   paid by the servicer to LPS Default Solutions for all
6   this work that it does on behalf of the servicer with
7   respect to the foreclosure?
8        A    No.
9        Q    There is compensation or there is not
10   compensation?
11        A    No, there’s no compensation.
12        Q    Is it your testimony then that the only fees
13   which LPS Default Solutions collects with respect to
14   the foreclosure of any given loan is the
15   administrative support fee charged to the network
16   attorneys?
17        A    Yes.
18        Q    And the division of LPS Default Solutions
19   which we are here about today and which you are
20   testifying as a 30(b)(6) representative, the only
21   source of income it derives for its work with respect
22   to foreclosure is the administrative support fee?
23        A    That’s my understanding.

Continue below to the transcript…

[ipaper docId=45556213 access_key=key-rvgb96qx4uuxvufi2md height=600 width=600 /]

CitiMortgage, Inc., Plaintiff,

against

Angela Nunez, et. al., Defendant.

EXCERPTS:

The Court does not work for CITI and cannot wait for CITI, a multi-billion dollar financial behemoth to get its “act” together.

Conclusion

Accordingly, it is
ORDERED, that the instant motion of plaintiff CITIMORTGAGE, INC. for summary
judgment and an order of reference for the premises at 38 Norwood Avenue, Brooklyn, New
[*4]York (Block 3905, Lot 28, County of Kings) is denied; and it is further

ORDERED, that the instant action, Index Number 2558/09, is dismissed without prejudice;
and it is further

ORDERED, that the notice of pendency in the instant action, filed with the Kings County
Clerk on February 2, 2009, by plaintiff, CITIMORTGAGE, INC., to foreclose a mortgage for
real property located at 38 Norwood Avenue, Brooklyn, New York (Block 3905, Lot 28,
County of Kings), is cancelled; and it is further

ORDERED, that if plaintiff, CITIMORTGAGE, INC., moves to restore the instant foreclosure
action and motion for an order of reference for real property located at 38 Norwood Avenue,
Brooklyn, New York (Block 3905, Lot 28, County of Kings), counsel for plaintiff must comply
with the new Court filing requirement, announced by Chief Judge Jonathan Lippman on October
20, 2010, and ordered by Chief Administrative Judge Ann T. Pfau on October 20, 2010, by
submitting an affirmation, using the new standard Court form, pursuant to CPLR Rule 2106 and
under the penalties of perjury, that counsel for plaintiff, CITIMORTGAGE, INC.: has “based
upon my communications [with named representative or representatives of plaintiff], as well as
upon my own inspection and reasonable inquiry under the circumstances, . . .that, to the best of
my knowledge, information, and belief, the Summons, Complaint and other papers filed or
submitted to the Court in this matter contain no false statements of fact or law”; and, is “aware of
my obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22
NYCRR Part 130.”

This constitutes the Decision and Order of the Court.

Continue Below…

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IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

HSBC BANK USA, N.A., as Indenture :
Trustee for the Registered Noteholders :
of Renaissance Home Equity Loan :
Trust 2007-1 :
:
v.
:
JAMIE W. THOMPSON, et al.

EXCERPTS:

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

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

Continue below…

[ipaper docId=45244461 access_key=key-anpxpirlidav1x2vgqd height=600 width=600 /]

DALLAS–(BUSINESS WIRE)– Goldfarb Branham LLP is investigating whether certain officers and directors of Lender Processing Services, Inc. (NYSE: LPS) violated state and federal securities laws due to statements the company made about its home foreclosure procedures. Concerned LPS shareholders are urged to contact securities attorney Hamilton Lindley at 877-583-2855 or hlindley@goldfarbbranham.com about their rights and remedies.

“According to a class action complaint, LPS failed to disclose that its DocX subsidiary used ‘robo signers’ to falsify documents and that LPS engaged in improper fee shifting with foreclosure attorneys to hide these deceptive practices,” said securities lawyer Hamilton Lindley. “After a company press release commented on these allegations, LPS stock price plummeted 13 percent.”

Goldfarb Branham LLP lawyers have significant experience representing shareholders and whistleblowers in securities lawsuits nationwide. The firm may be retained without financial obligation or cost to its clients. Lender Processing Services investors who purchased stock before or between July 29, 2009 and October 4, 2010, and continue to hold their shares, should contact the firm at hlindley@goldfarbbranham.com or 877-583-2855 to learn about their rights.

Goldfarb Branham LLPHamilton Lindley, 214-583-2233877-583-2855 Toll Free214-583-2234 Facsimile hlindley@goldfarbbranham.com

Source: Goldfarb Branham LLP

This class action was commenced in the United States District Court for the Middle District of Florida on behalf of purchasers of LPS securities between July 29, 2009 and October 4, 2010 (the “Class Period”).

The following Firms have made announcements on:

12/9

Law Offices of Howard G. Smith.

12/10

Lieff Cabraser Heimann & Bernstein, LLP

The Complaint alleges that during the Class Period the Company and certain of its executive officers violated federal securities laws by issuing material misrepresentations to the market concerning the Company’s business, operations and financial performance, thereby artificially inflating the price of LPS securities.

In the matter of:
The Application of Quinn Emanuel Urquhart
& Sullivan, LLP to subpoena documents
from CUSTODIAN OF RECORDS, THE
DEPOSITORY TRUST COMPANY, under
a Commission issued in an action entitled
MBIA INSURANCE CORPORATION, a
New York corporation, Plaintiff v.
INDYMAC ABS, INC., a Delaware
corporation; HOME EQUITY MORTGAGE
2006-H4, a Delaware statutory trust; HOME
BACKED TRUST, SERIES INDS 2007-1, a
New York common law trust; HOME
BACKED TRUST, SERIES INDS 2007-2, a
New York common law trust; CREDIT
SUISSE SECURITIES (USA), L.L.C., a
Delaware limited liability Corporation; UBS
SECURITIES, LLC, a Delaware
corporation; JPMORGAN CHASE & CO., a
Delaware corporation; MICHAEL PERRY,
an individual; A. SCOTT KEYS, an
individual; JILL JACOBSON, an individual;
KEVIN CALLAN, an individual; and JOHN
and JANE DOES 1 – 100, Defendants,
pending in the Superior Court of California,
Los Angeles County, Central District, Case
No. BC422358.

ORDER DIRECTING
PRODUCTION OF BUSINESS
RECORDS FOR USE IN AN
ACTION PENDING
OUTSIDE NEW YORK STATE

[ipaper docId=44664574 access_key=key-1udstfmksoj49d885mbw height=600 width=600 /]

EXCERPTS:

Q So the original —
5 A — and I’ve been to her office.
6 Q — the original was located in your office?
7 A Yes.
8 Q Where’s your office located?
9 A Simi Valley, California.
10 Q And has the original of this allonge remained in your
11 office until you appeared here today?
12 A We had sent it on to — to our attorneys. They were in
13 possession of it.
14 Q And again, who do you believe is the holder of the note
15 and mortgage here?
16 A Well, Countrywide — Bank of America — whatever we’re
17 calling ourselves these days, we are Bank of America now — we
18 originated this loan. It was originated via a broker and it’s
19 really always been a Countrywide loan. The investor is Bank
20 of New York. We are the servicer of the loan.
21 Q Now, when you say it’s really a Countrywide loan, wasn’t
22 it sold? Wasn’t this loan securitized and ultimately sold —
23 sold to this trust?
24 A Right, it would have been securitized and sold. They are
25 the investors of the loan. But we are the ones that would

<SNIP>

9 A Who is in possession of the note? We have the note in our
10 origination file.
11 Q So — so Bank of New York as trustee does not hold the
12 note, is that correct, or is not in possession of the note?
13 A The original note to my knowledge is in the origination
14 file.
15 Q Where is the — do you have it here today?
16 A No, I don’t have it with me here today.
17 Q So you don’t have the note?
18 A It’s in our office.
19 Q So it’s in your office, it’s not with this trust that owns
20 the — that’s supposedly holds the — or is the owner of this
21 note, is that correct?
22 A That’s correct.
23 Q And your testimony is that this allonge was never
24 submitted to — it was never in the possession of Bank of New
25 York as trustee for the certificate holder, is that correct?

<SNIP>

9 Q And this allonge, it’s a stand-alone document, correct?
10 It’s not attached to anything, is that correct?
11 A I’m not sure I’m understanding your question.
12 Q Was there anything — when you brought the original that’s
13 in front of you, did you remove it? Was it stapled to
14 something else?
15 A No, it wouldn’t have necessarily been stapled to something
16 else. There would have probably been other documents showing
17 the — you know, we would have shown her the note. We would
18 have reviewed all of that before.

Continue Below…

EXCERPT:

THE COURT: All right. I have the supplemental and
12 second supplemental submissions of Countrywide and the reply.
13 Mr. Kaplan, I look to you first. I am, frankly, appalled at
14 the confusion and lack of credibility of Countrywide’s
15 response to the issue of the note — the possession of the
16 note.
17 We started out with Ms. DeMartini’s testimony that
18 the note never leaves the servicer. She says that she saw a
19 Federal Express receipt whereby the actual note, the physical,
20 original note was transferred to the Foreclosure Department
21 internally in the same building, but that the note had not yet
22 been located. That’s where we stood at that point.
23 Then we had a submission, the supplemental
24 submission saying the original note has been found and can be
25 available for inspection. It doesn’t say where it was found,

1 who had possession or the like, but it was found and is
2 available for inspection.
3 And then without any explanation, there is a lost
4 note affidavit presented dated February of 2007 indicating
5 that the note cannot be found. No explanation provided. What
6 do I do with that, Mr. Kaplan?

<SNIP>

THE COURT: It’s amazing how sloppy this
2 presentation was, and I’m very disappointed about that.
3 Anyway — all right. Well, thank you, Mr. Kaplan. Do you
4 want to present testimony? Does it matter, you know, because
5 there is no testimony regarding possession by Bank of New York
6 as Trustee, correct?
7 MR. KAPLAN: That’s correct, Your Honor. I’m not
8 disputing that. That’s what Ms. DeMartini testified to, that
9 the note — she had no record of this note leaving and going
10 across country, across wherever, to Bank of New York.
11 THE COURT: And you do understand as well that the
12 Pooling and Servicing Agreement requires that transfer, that
13 physical transfer of the note in accordance with — and
14 endorsement — in accordance with UCC requirements?
15 MR. KAPLAN: I understand that, Your Honor. I’ll
16 simply say for the sake of edification, but this is — and I
17 was told it was all e-filed — this is apparently the index to
18 this Master Servicing Agreement showing all the loans and it
19 does reference the Kemp loan. It’s a double-side document,
20 includes all the loans.
21 And I can say that, although Your Honor is right and
22 the UCC and the Master Servicing Agreement apparently requires
23 that, procedure seems to indicate that they don’t physically
24 move documents from place to place because of the fear of loss
25 and the trouble involved and the people handling them. They

basically execute the necessary documents and retain them as
2 long as servicing’s retained. The documents only leave when
3 servicing is released.
4 THE COURT: They take their chances.
5 MR. KAPLAN: I understand, Your Honor.
6 THE COURT: Understood. Thank you.
7 Counsel, the proof of claim was filed — let’s see
8 — it was filed by Countrywide Home Loans, Inc., servicer for
9 Bank of New York — now, that’s wrong. We understand that.
10 Can the — can these problems be corrected post-petition? In
11 other words, we know that claims can be transferred post12
petition.
13 What about if the note, the original note now that
14 has seemingly appeared, is now transferred to the Bank of New
15 York as Trustee and amended, it wouldn’t have to — well, it
16 would be amended to reflect that Countrywide Home Loans, Inc.,
17 is not the right party, but Countrywide Home Loans, Master
18 Servicing or servicing whatever that name is, as servicer for
19 Bank of New York, Trustee, is filing this proof of claim,
20 what’s wrong with that?

FULL DEPOSITION TRANSCRIPT OF KEMP v. COUNTRYWIDE

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Note and Mortgage Transfers in Securitizations

A residential mortgage securitization is a transaction that involves a series of transfers of two types of documents:  mortgage notes (the IOUs made by mortgage borrowers) and mortgages (the security instrument that says the lender may foreclose on the house if the borrower defaults on the note).   Ultimately, both the notes and mortgages need to be properly transferred to a trust that will pay for them by issuing securities (backed by the mortgages and notes, hence residential mortgage-backed securities or RMBS). If the notes and mortgages aren’t properly transferred to the trust, then the securities that the trust issues aren’t mortgage-backed and are worthless.

So the critical issue here is whether the notes and mortgages were properly transferred to the securitization trusts.  To determine this, we need to figure out two things.  First, what is the proper method for transferring the notes and mortgages, and second, whether that method was followed. For this post, I’m going to focus solely on the notes. There are issues with the mortgages too, but that gets much, more complicated and doesn’t directly connect with Kemp.

1.  How Do You Transfer a Note?

Mark my words …this is one you’re going to hear of over and over again. It’s beginning to appear … what we’ve been trying hard to break is cracking before our eyes and ears. This should raise concerns about the MERS System as well since the assignments clause states “together with the note(s) and documents therein described”.

Humpty Dumpty does indeed exist!

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY

In the Matter of John T. Kemp

John T. Kemp
v.

Countrywide Home Loans, Inc.

Case No. 08-18700-JHW

APPEARANCES:

Bruce H. Levitt, Esq.
Levitt & Slafkes, PC
76 South Orange Avenue, Suite 305
South Orange, New Jersey 07079
Counsel for the Debtor

Harold Kaplan, Esq.
Dori 1. Scovish, Esq.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
80 Main Street, Suite 460
West Orange, New Jersey 07052
Counsel for the Defendant

EXCERPT:

The new allonge was signed by Sharon Mason,
Vice President of Countrywide Home Loans, Inc., in the Bankruptcy Risk
Litigation Management Department. Linda DeMartini, a supervisor and
operational team leader for the Litigation Management Department for BAC
Home Loans Servicing L.P. (“BAC Servicing”V testified that the new allonge
was prepared in anticipation of this litigation, and that it was signed several
weeks before the trial by Sharon Mason.

As to the location of the note, Ms. DeMartini testified that to her
knowledge, the original note never left the possession of Countrywide, and that
the original note appears to have been transferred to Countrywide’s foreclosure
unit, as evidenced by internal FedEx tracking numbers. She also confirmed
that the new allonge had not been attached or otherwise affIXed to the note.
She testified further that it was customary for Countrywide to maintain possession of
the original note and related loan documents.

In a supplemental submission dated September 9,2009, the defendant
asserted that “the Defendant/Secured Creditor located the original Note. The
original Note with allonge and Pooling and Servicing Agreement are available
for inspection.,,7 When the matter returned to the court on September 24,
2009, counsel for the defendant represented to the court that he had the
original note, with the new allonge now attached, in his possession. No
additional information was presented regarding the chain of possession of the
note from its origination until counsel acquired possession.

Continue reading below…

CASE FILE New Jersey Admissions In Testimony Notes Never Sent to Trusts Kemp v Countrywide

[ipaper docId=43537304 access_key=key-282sqkqnzukrmkam934g height=600 width=600 /]

Excerpts:

#1 TP1_US BANK v. Ronnie Fishbein

The purported affidavit of Tamara Price, “Vice President of CITI RESIDENTIAL LENDING MORTGAGE, a
servicing agent who has power of attorney for the plaintiff,” does not contain a jurat, and there is
no language of oath or affirmation. The absence of a jurat renders the “affidavit” inadmissible as
there is no evidence that an oath or affirmation was taken (Pagano v Kingsbury, 182 AD2d 268
[ 2d Dept 19921; see also, People v Lieberman, 57 Misc 2d 1070 [Sup. Ct 19681). Moreover, the
purported power of attorney pursuant to which 1 he affidavit was assertedly prepared is not
annexed to the motion papers, and the submissions do not otherwise establish the authority of an
officer of plaintiffs servicer to execute the affidavit on behalf of plaintiff.

#2 TP2_ARGENT v. Olivera

The Affidavit of Merit and Amount Due was executed and notarized in San Bernadino, California
by Tamara Price and it is unaccompanied by a certificate of conformity and, therefore, cannot
provide evidence on this application. (see Daimler Chrysler Services North America LLC v,
Tammaro 14 Misc 34128 [A]; 2006 NY Slip OP 52506[U]* [App Term, 2Deptl; Bath Meaka1
Suppw, Inc. v. Allstate Indemnity Co., 13 Misc 3d142[A] 2006 NY Slip OP52273[U] *1-*2 [App
Term 2d Dept]).

#3 TP 3 DBNT v. Halverson

Moreover, the submissions do not reflect the authority of Tamara Price, a
self-described “authorized agent” of AMC Mortgage Services, hc., a
non-party to this mortgage foreclosure action, to represent plaintiff in this action, nor do the
submissions contain evidence that AMC Mortgage Services, Inc. is the attorney in fact for the
plaintiff in this action, as alleged in the affidavit of Ms. Price. Similarly, the assignment whereby
the mortgage was purportedly assigned to plaintiff was executed by Tamara Smith on behalf of
AMC Mortgage Services, Inc. as “authorized agent” for the assignor, without any evidence of
such agency. Accordingly, the motion is denied, with leave to renew upon proper submissions
that address the deficiencies identified herein.

#4 FROM JUDGE SCHACK

TP 4 JUDGE SCHACK_ DEUTSCHE v. Ezagui

According to plaintiffs application, defendant Ezaguis’ default began with the
nonpayment of principal and interest due on September 1,2006. Yet, more than five
months later, plaintiff DEUTSCHE BANK was idling to take an assignment of a
nonperforming loan from AMERIQUEST. Further, both assignor AMC, as Attorney in
Fact for AMERIQUEST, and assignee, DEUTSCHE BANK, have the same address, 505
City Parkway West, Orange, CA 92868. Plaintiffs “affidavit of amount due,” submitted
in support of the instant application for a default order of reference was executed by
Tamara Price, on February 16, 2007. Ms. Price states that “I am the Vice President for
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF
AMERIQUEST MORTGAGE SECURITIES, INC., ASSET-BACKED PASS
THROUGH CERTIFICATES, SERIES 2004-R1( 1, UNDER THE POLING AND
SERVICING AGREEMENT DATED AS OF OCTOBER 1,2004, WITHOUT
RECOURSE (DEUTSCHE BANK.” However, i he February 7,2007 assignment from
AMERIQUEST, by AMC, its Attorney in Fact, is executed by Tamara Price, Vice
President of AMC. The Tamara Price signatures on both the February 7,2007 affidavit
and the February 16,2007 assignment are identical. Did Ms. Price change employers
from February 7,2007 to February 16,2007? The Court is concerned that there may be
fraud on the part of AMERIQUEST, or at least malfeasance. Before granting an
application for an order of reference, the Court requires an affidavit from Ms. Price,
describing her employment history for the past three years. Further, irrespective of her
employment history, Ms. Price must explain why DEUTSCHE BANK would purchase a
nonperforming loan from AMERIQUEST, and why DEUTSCHE BANK shares office

THE BIGGIE

#5 JUDGE SCHACK_DBNT v. CLOUDEN

In the instant action, Argent’s defective assignment to Deutsche Bank affects the
standing of Deutsche Bank to bring this action. The recorded assignment from Argent to
Deutsche Bank, made by “Tamara Price, as Authorized Agent” on behalf of “AMC
Mortgage Services Inc. as authorized agent,” lacks any power of attorney granted by
Argent to AMC Mortgage Services, Inc. and/or Tamara Price to act on its behalf. The
first mortgage assignment, from Grand Pacific Mortgage to Argent, was proper. It was
executed by the President of Grand Pacific Mortgage.

Continue Below…

[ipaper docId=41560174 access_key=key-1o4ekwtxjmbkpjujphp5 height=600 width=600 /]

According to DJSP Enterprises Inc.’s 6k filing

On November 2, 2010, the Audit Committee of the Board of Directors of DJSP Enterprises , Inc. (the “Company” or the “Registrant” ) appointed Jewett, Schwartz, Wolfe & Associates  (“Jewett”) as the Company’s independent registered public accounting firm, effective immediately.  Jewett served as the independent registered public accounting firm of Chardan 2008 China Acquisition Corp. (“Chardan”) for the periods prior to the closing on the Business Combination (as defined below).  Chardan changed its name to DJSP Enterprises, Inc. on January 15, 2010 in connection with the closing of the Business Combination.

On October 27 , 2010, the Company was notified that effective October 27 , 2010, McGladrey & Pullen, LLP, the Company’s independent registered public accounting firm (“McGladrey”), resigned as the independent registered public accounting firm for the Company.

The terminations come two days after mortgage giants Fannie Mae and Freddie Mac severed ties with the firm. “There’s been a substantial reduction in staff, it started happening over the past few weeks and many employees received notice today,” said Jeffrey Tew, a lawyer representing the Stern firm.

STRIKE 1, STRIKE 2,

STRIKE 3…below

.

Thanks to WamuLoanFraud.com for this tip

IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

TAMMY JO LONG, CASTLE HOME §
BUILDERS, INC., AND WILLIAM KEITH §
DAVIDSON

v.

JPMORGAN CHASE BANK N.A., BANK
OF AMERICA N.A., BANK OF AMERICA,
NATIONAL ASSOCIATION AS
SUCCESSOR BY MERGER TO LASALLE
BANK NA AS TRUSTEE FOR WAMU
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2006-AR19
TRUST, LENDER PROCESSING
SERVICES, INC., NEW ORLEANS
EMPLOYEES’ RETIREMENT SYSTEM,
MARTA/ATU LOCAL 732 EMPLOYERS
RETIREMENT PLAN, WASHINGTON
MUTUAL BANK, F.A., FIRST AMERICAN
EAPPRAISEIT, FIRST AMERICAN, INC.,
WAMU ASSET ACCEPTANCE CORP.,
SHAPIRO & SWERTFEGER, LLP, DOE(S)
ROE(S) AND WASHINGTON MUTUAL
INC.

PLAINTIFF’S FIRST VERIFIED COMPLAINT FOR EMERGENCY TEMPORARY AND PERMANENT INJUNCTIVE RELIEF, DECLARATORY RELIEF & JUDGMENT, FRAUD IN THE FACTUM & INDUCEMENT, FRAUD, ASSIGNMENT & TITLE FRAUD/ SLANDER OF TITLE, VIOLATIONS OF THE GEORGIA RESIDENTIAL MORTGAGE ACT & MORTGAGE FRAUD, VIOLATION OF FAIR DEBT COLLECTION ACT, NEGLIGENT SUPERVISION, TORTIOUS INTERFERENCE WITH CONTRACT AND BUSINESS RELATIONSHIPS, VIOLATION OF FIDUCIARY DUTY, VIOLATION OF DUTY OF GOOD FAITH & FAIR DEALING, VIOLATION OF GEORGIA’S RACKETEERING STATUTES (RICO), COUNT XIII RESCISSION, UNJUST ENRICHMENT, CLAIM FOR ATTORNEY FEES & LITIGATION EXPENSES PURSUANT TO O.C.G.A. §§ 13-6-11 & 13-1-11, BREACH OF CONTRACT, VIOLATIONS OF REAL ESTATE SETTLEMENT PROCEDURES ACT, VIOLATIONS OF FEDERAL TRUTH-IN-LENDING ACT, VIOLATION OF FAIR CREDIT REPORTING ACT, FRAUDULENT MISREPRESENTATION, & USURY & FRAUD

[ipaper docId=39953852 access_key=key-1lw7fm32kpcbjjpebb4p height=600 width=600 /]

Supreme Court of the State of New York, held
in and for the County of KINGS, at
the Courthouse located at 360 Adams
Street, Brooklyn, NY on the 2nd day of
June, 2010

“WHY an order should not be made dismissing the within action due to Plaintiffs lack of standing; together with such other and further relief as this Court may deem just and equitable;”

ORDERED, that pending the hearing . . of this motion, the Plaintiff Mortgage Electronic Registration System as Nominee for US Bank, N.A., and any of its attorneys, agents, successors and assignees, be and are hereby restrained from implementing or any way pursuing the closing of title on any third party sale of the premises known as 81 Woodbine Street, Brooklyn, NY 11221; and Plaintiff Mortgage Electronic Registration System as Nominee for US Bank, N.A., and any of its attorneys, agents, successors and assignees be and are hereby restrained from evicting Liborio Munoz and his family and any other occupants from the premises known as 81 Woodbine Street, Brooklyn, NY 11221.

[ipaper docId=36645881 access_key=key-12v2ajab40rvsj0bsv1b height=600 width=600 /]

August 26, 2010 10:19 AM EDT

WASHINGTON, DC — (MARKET WIRE) — 08/26/10 — Cuneo Gilbert & LaDuca, LLP and Liddle & Robinson, LLP today announced that a class action has been commenced in the United States District Court for the Southern District of Florida on behalf of purchasers of the common stock of DJSP Enterprises, Inc. (“DJSP” or the “Company”) (NASDAQ: DJSP) between March 16, 2010 and May 10, 2010, inclusive (the “Class” and “Class Period”), seeking to pursue remedies under the Securities Exchange Act of 1934 (the “Exchange Act”).

Any person seeking to serve as lead plaintiff must move the Court no later than September 20, 2010. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact Matt Miller, Esq. at Cuneo, Gilbert & LaDuca at 202-789-3960, or via e-mail at mmiller@cuneolaw.com. Any member of the Class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent Class member.

The Complaint charges DJSP and certain of its officers with violations of the Exchange Act. The Complaint alleges that, throughout the Class Period, defendants made material misrepresentations and failed to disclose material adverse facts about the Company’s true financial condition, business and prospects. Specifically, the Complaint alleges that the Company made positive representations concerning its present and future business prospects, when it knew or recklessly disregarded that (1) one of its largest clients would be drastically reducing its need for the Company’s services, and (2) the federal government’s efforts to slow down real estate foreclosures would also reduce demand for the Company’s services. According to the complaint, on May 27, 2010, the Company shocked the market by lowering its guidance for adjusted net income by $15 million to $17 million, and the price of the Company’s stock has fallen dramatically.

Cuneo Gilbert & LaDuca, a firm with offices in Washington, D.C., New York, Los Angeles and Alexandria, Va., specializes in the representation of plaintiffs in consumer, antitrust, civil rights and securities class actions and is active in major litigations pending in federal and state courts throughout the United States. The Cuneo Gilbert & LaDuca website (http://www.cuneolaw.com) has more information about the firm.

Liddle & Robinson, based in New York, represents individuals and financial services firms, hedge funds and other businesses in high-stakes, cutting-edge employment, securities and commercial litigation matters. The Liddle & Robinson website (http://www.liddlerobinson.com) has more information about the firm.

CONTACT:

Matt Miller
202-789-3960
Email Contact