Missouri | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "Missouri"

DOCX | The first case in which a senior officer of a mortgage document company was charged with crimes relating to mortgage document preparation.

DOCX | The first case in which a senior officer of a mortgage document company was charged with crimes relating to mortgage document preparation.


Action Date: February 7, 2012
Location: Boone Country, MO

DocX, LLC, a mortgage document company and a subsidiary of Lender Processing Services (“LPS”) in Jacksonville, Florida, was indicted on February 6, 2012, by a grand jury in Boone County, Missouri. Lorraine O’Reilly Brown, a former Senior Vice President of Lender Processing Services, and the founder of DocX, was also indicted. This was the first case in which a senior officer of a mortgage document company was charged with crimes relating to mortgage document preparation.

Brown and DocX were each charged with 68 counts of forgery, a class C felony in Missouri and 67 counts of False Declaration, a Class B misdemeanor.

The felony charges can each carry a term of imprisonment not to exceed seven years and a fine not to exceed $5,000 or double the gain from the crime up to $20,000. The misdemeanor charges each carry a term not to exceed six months, and a fine of $500 or double the gain up to $20,000.

The case will be prosecuted by Missouri Attorney General Chris Koster. “Today’s indictment reflects our firm conviction that when you sign your name to a legal document, it matters,” Koster said. “Mass-producing fraudulent signatures on millions of real estate documents across America constitutes forgery. When you file those documents in our state, you are committing a crime under Missouri law.

The indictment focuses on Deeds of Release, documents issued by banks and mortgage companies when a homeowner/borrower successfully pays off their loan. In some states, these are also called Satisfaction of Mortgages. The documents examined by the grand jury and identified in the indictments were signed by many different people signing the name Linda Green. This practice was first exposed in a segment of 60 Minutes that aired in 2011.

Other employees of a subsidiary of Lender Processing Services were indicted in 2011 in Nevada by Attorney General Catherine Cortez Masto. These employees notarized mortgage documents that had been signed by LPS employees using false names and false job titles.

LPS has steadfastly defended these practices and even coined a term, calling the forgeries “surrogate signing.” Regarding the use of false job titles, LPS has defended this practice by saying such titles were authorized by corporate resolutions from many different banks and mortgage companies.

But while publicly defending these practices, lawyers working for LPS have been filing thousands of “corrective” mortgage assignments in county records throughout the country. In tens of thousands of cases, employees signed the name Linda Green to mortgage documents and identified Green as an officer of Mortgage Electronic Registration Systems (“MERS”) though the real Linda Green did not qualify to serve as a MERS certifying officer because she was not an officer of her actual employer.

Conferring of officer titles to non-employees via corporate resolutions was one of the many practices challenged in a civil lawsuit brought by Illinois Attorney General Lisa Madigan against another mortgage document mill, Nationwide Title Clearing, on February 2, 2012.

Employees in the DocX office signed names to mortgage documents 4,000 times a day for several years. They most often signed false names and false officer titles to mortgage satisfactions and mortgage assignments. The assignments were very often used in foreclosure cases to prove that residential mortgage-backed trusts owned the mortgages and had the right to foreclose even though the trusts had never obtained the necessary documents during the securitization process.

These practices will be a significant part of the examination to be conducted by the mortgage securitization fraud task force, announced by President Obama during the State of the Union address. The taskforce will be co-chaired by New York Attorney General Eric Schneiderman who filed a lawsuit against MERS and three major banks on February 3, 2012. The New York lawsuit was similar to the lawsuits filed by Delaware Attorney General Beau Biden on October 27, 2011 and by Massachusetts Attorney General Martha Coakley in December, 2011.

According to the lawsuit filed by Attorney General Biden, “MERS engaged and continues to engage in a range of deceptive trade practices that sow confusion among consumers, investors, and other stakeholders in the mortgage finance system, damage the integrity of Delaware’s land records, and lead to unlawful foreclosure practices.”

The DocX mortgage documents permeate the records of almost every county recorder in the country. From July 1, 2008 through December 31, 2009, 1,742 DocX mortgage assignments were filed in Palm Beach County, transferring mortgages valued at $560,239,797. Deutsche Bank National Trust Company and American Home Mortgage Servicing were two of the most frequent users of the DocX documents, but over 30 banks and mortgage companies were clients of DocX.

 

FRAUD DIGEST by Lynn E. Szymoniak, ESQ.

Image: X-Files

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



Posted in STOP FORECLOSURE FRAUDComments (0)

MO Attorney General Chris Koster announces 136-count criminal indictments related to robo-signing in mortgage industry

MO Attorney General Chris Koster announces 136-count criminal indictments related to robo-signing in mortgage industry


–Boone County grand jury indicts Georgia corporation and its president for practices highlighted in 60 Minutes report —

NOTE: The following items are linked below:

New York Times story from this morning: http://www.nytimes.com/2012/02/07/business/docx-faces-foreclosure-fraud-charges-in-missouri.html?_r=1&ref=business

60 Minutes news story from August 7, 2011: http://www.cbsnews.com/video/watch/?id=7375936n&tag=mncol;lst;1

Jefferson City, Mo. – Attorney General Chris Koster today announced that a Boone County grand jury has handed down 136-count indictments against DOCX, LLC and its founder and former president, Lorraine Brown, for forgery and making a false declaration related to mortgage documents processed by DOCX.

“The grand jury indictment alleges that mass-produced fraudulent signatures on notarized real estate documents constitutes forgery,” Koster said. “Today’s indictment reflects our firm conviction that when you sign your name to a legal document, it matters,” Koster said.

The forgery and false declaration counts each allege that the person whose name appears on 68 notarized deeds of release on behalf of the lender is not the person who actually signed the paperwork. The documents were then submitted to the Boone County Recorder of Deeds as though they were genuine.

Koster’s office requested the indictment, and the Attorney General’s Office will prosecute the case.

The indictments are the result of months of investigation by the Attorney General’s Office into the robo-signing scandal that injected thousands of questionable mortgage documents into the market. When the practice began to come to light, several major lenders temporarily suspended foreclosures in 2010. DOCX’s role in the robo-signing process came to national attention when 60 Minutes reported that Linda Green, an employee of DOCX, purportedly signed thousands of mortgage-related documents on behalf of several different banks and in multiple handwritings. The 68 documents on which the indictments are based were purportedly signed by Linda Green, but were allegedly signed by someone else.

Forgery is a Class C felony and False Declaration is a Class B misdemeanor. If convicted on the most serious count, Brown could face up to seven years in prison for each count. DOCX could be fined up to $10,000 for each forgery conviction and $2,000 for each false declaration conviction.

The charges against DOCX and Lorraine Brown are merely accusations and, as in all criminal cases, the defendant is innocent until or unless proved guilty in a court of law.

The Attorney General’s investigation into this practice continues.

source: http://ago.mo.gov

[ipaper docId=80741262 access_key=key-872qqc60801aaclngf4 height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

INDICTMENT | State of Missouri vs DOCX, LLC a Georgia corporation

INDICTMENT | State of Missouri vs DOCX, LLC a Georgia corporation


IN THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI

STATE OF MISSOURI
Plaintiff,

v.

DOCX, LLC,
a Georgia corporation
Registered Agent:
CT Corporation System
1201 Peachtree Street, NE
Atlanta, Georgia 30361
Defendant.

 

[ipaper docId=80741262 access_key=key-872qqc60801aaclngf4 height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

DOCX Faces Foreclosure Fraud Forgery Charges in Mo. Foreclosures

DOCX Faces Foreclosure Fraud Forgery Charges in Mo. Foreclosures


Some tid-bits for you all from DOCX’s website in 1998:

DOCX was established in March of 1993 by its president, Lorraine O. Brown. It’s a privately held Colorado Limited Liability Company. DOCX set up headquarters in Springfield, Ohio. In October 1994, DOCX merged forces with Ontrak Services. Ontrak was a pioneer in the development of outsourcing services for assignment and satisfaction processing. With the acquisition of Ontrak, DOCX expanded its operations to Frederick Maryland. DOCX has recently established a marketing/sales office in Atlanta, Georgia. DOCX operations continue to run in both the Springfield, Ohio and Frederick, Maryland locations.

[…]

DOCX developed two software products; DOCX RID™ (Recorders Information Database) which keeps track of County Recorder fees, and the requirements for recording assignment and satisfaction documents, UCC’s, and to obtain certified true copies of recorded documents. DOCX’s latest software development, DOCX in a BOX™, takes the DOCX RID program significantly further by providing the software to produce the completed and legally-sufficient documents required to process


NYT-

One of the largest companies that provided home foreclosure services to lenders across the nation, DocX, has been indicted on forgery charges by a Missouri grand jury — one of the few criminal actions to follow reports of widespread improprieties against homeowners.

A grand jury in Boone County, Mo., handed up an indictment Friday accusing DocX of 136 counts of forgery in the preparation of documents used to evict financially strained borrowers from their homes. Lorraine O. Brown, the company’s founder and former president, was indicted on the same charges.

Employees of DocX, a unit of Lender Processing Services of Jacksonville, Fla., executed and notarized millions of mortgage documents for big banks and loan servicers over the years. Lender Processing closed the company in April 2010, after evidence emerged of apparent forgeries in these documents, a practice now called robo-signing.

[NEW YORK TIMES]

[ipaper docId=80741262 access_key=key-872qqc60801aaclngf4 height=600 width=600 /]

 

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



Posted in STOP FORECLOSURE FRAUDComments (0)

WASHINGTON v. COUNTRYWIDE HOME LOANS | 8th Cir. Court of Appeals Reverses/ Remands “Putitive Class Action, Unauthorized Charges of Interest and Fees”

WASHINGTON v. COUNTRYWIDE HOME LOANS | 8th Cir. Court of Appeals Reverses/ Remands “Putitive Class Action, Unauthorized Charges of Interest and Fees”


Jerry W. Washington and Golda M. Washington, Plaintiff-Appellants,

v.

Countrywide Home Loans, Inc., Defendant-Appellee.

No. 10-1340.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2011.
Filed: July 28, 2011.

Before RILEY, Chief Judge, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Jerry W. and Golda M. Washington sued Countrywide Home Loans, Inc. under the Missouri Second Mortgage Loan Act (MSMLA), Mo. Rev. Stat. §§ 408.231-408.241. The Washingtons alleged, for a putative class, that Countrywide charged them unauthorized interest and fees in violation of section 408.233.1 of the MSMLA. The case was removed from state court on diversity grounds based on the Class Action Fairness Act, 28 U.S.C. § 1332(d). The district court granted summary judgment for Countrywide. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.

In April 2005, the Washingtons applied for a second mortgage loan from Countrywide. The principal amount of the loan was $23,000, payable over 15 years at 12 percent interest. Before closing, Countrywide sent the Washingtons a Settlement Statement on a form, U.S. Department of Housing and Urban Development Settlement Statement (HUD-1). The HUD-1 statement notified them of four additional charges in connection with the loan: (1) $690 loan discount, (2) $100 settlement/closing fee, (3) $60 document processing/delivery fee, and (4) $37.80 in prepaid interest. These fees were included in the $23,000 principal. The Washingtons signed the HUD-1.

Five days after the Washingtons signed the loan agreement, a Countrywide audit determined that the $690 loan discount and the $100 settlement/closing fee should not have been assessed. Countrywide wired Servicelink (the title company) $790, which was paid to the Washingtons as part of their disbursement. Servicelink revised the HUD-1 statement to reflect the payment, removing $790, the amount of the loan discount and the settlement/closing fee. The Washingtons were not told of the revised HUD-1 statement and never asked to sign it.

On appeal, the Washingtons allege that Countrywide violated the MSMLA by charging them all four amounts listed above.

This court first considers the $690 loan discount and $100 settlement/closing fee. The district court did not decide whether these two charges violated the MSMLA, holding that because these amounts were paid to the Washingtons in the first disbursement, they suffered no loss and thus lacked standing. This court reviews de novo the grant of summary judgment, viewing all evidence most favorably to, and making all reasonable inferences for, the non-moving party. Country Life Ins. Co. v. Marks, 592 F.3d 896, 898 (8th Cir. 2010).

To recover actual damages for a violation of the MSMLA, a person must suffer “any loss of money or property” as a result of a violation. See Mo. Rev. Stat. § 408.562. The facts in this case are undisputed. Countrywide charged the Washingtons $790 for the loan discount and settlement/closing fee, which was financed as part of the principal of the loan. Although the Washingtons received the $790 as part of the loan disbursement, Countrywide did not reduce the principal by $790. Countrywide argues, and the district court agreed, that because the $790 was returned to the Washingtons, they suffered no loss.

Countrywide’s disbursement of the $790, however, did not make the Washingtons whole. During the two days between April 26 (the date of the loan) and April 28 (the date the Washingtons received the first disbursement, including the $790), the Washingtons paid 12 percent interest but were not able to use the $790-which constitutes “any loss of money.”[1] See Fielder v. Credit Acceptance Corp., 19 F.Supp.2d 966, 982 (W.D.Mo. 1998), vacated in part on other grounds, 188 F.3d 1031 (8th Cir. 1998) (applying § 408.562, the district court awarded actual damages to the class members who paid excess interest). The Washingtons have raised a material issue of fact as to whether they suffered “any” loss.

Countrywide further objects that the Washingtons cannot establish causation that any loss was “as a result” of the alleged MSMLA violations. Countrywide asserts that the Washingtons would not have changed the terms or amount of the loan even if they had received notice of the $790, as they received $790 and voluntarily paid the loan. Countrywide’s voluntary-payment assertion is not available as a defense to a claim under the MSMLA. See Mitchell v. Residential Funding Corp., 334 S.W.3d 477, 499-500 (Mo. App. 2010) (transfer denied by Supreme Court on April 26, 2011) (rejecting defendants’ voluntary-payment defense, the court noted that “allowing Defendants to present a voluntary payment defense would negate the MSMLA’s provision for consumer protections”); cf. Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 703 (Mo. banc 2008) (rejecting “voluntary payment” defense to an unauthorized-practice-of-law violation, the court noted that “to hold the consumer, not the mortgage lender, responsible for recognizing the unauthorized practice of law and precluding recovery because of a voluntary payment would be `illogical and inequitable'”).

On appeal, the Washingtons request that summary judgment be entered for them on the $690 loan discount and the $100 settlement/closing fee. The district court entered summary judgment for Countrywide based on the Washingtons’ lack of statutory standing. Neither party moved for summary judgment on, and the district court did not consider, whether the loan discount and settlement/closing fees violated the MSMLA. This court cannot decide whether the $690 loan discount and the $100 settlement/closing fee violated the MSMLA. See Williams v. City of St. Louis, 783 F.2d 114, 116 (8th Cir. 1986) (this court remanded to the district court issues improperly decided on summary judgment because “a court may not pose the issue and then proceed to decide the same without a motion for summary judgment”); Global Petromarine v. G.T. Sales & Mfg., Inc., 577 F.3d 839, 844 (8th Cir. 2008) (“[A] determination of summary judge sua sponte in favor of the prevailing party is appropriate so long as the losing party has notice and an opportunity to respond.”); see also Hartford Fire Ins. Co. v. Clark, 562 F.3d 943, 947 (8th Cir. 2009)Missouri Coalition for Env’t Found. v. U.S. Army Corps of Eng’rs, 542 F.3d 1204, 1212-13 (8th Cir. 2008) (remanding FOIA segregability issue to the district court where the record was unclear whether the court had considered and rejected the issue, or did not consider it at all). (after reversing the district court’s dismissal of a claim as time-barred, this court remanded the remaining issues, which the district court had not considered);

As for the $60 document processing/delivery fee, the district court held that it was an authorized closing cost under § 408.33.1(3) of the MSMLA. Missouri regulates the fees lenders may charge in connection with a second mortgage loan. See Mo. Rev. Stat. § 408.233. In exchange for allowing lenders to offer interest rates that exceed the statutory usury rate, the MSMLA limits the closing costs and fees that lenders may charge. See Thomas v. U.S. Bank N.A. ND, 575 F.3d 794, 796 n.1 (8th cir. 2009) (“The limits on closing costs and fees provided for in the MSMLA act as a trade-off for allowing lenders to charge a higher interest rate on second mortgage loans.”); See also U.S. Life Title Ins. Co. v. Brents, 676 S.W.2d 839, 841 (Mo. App. 1984) (explaining the MSMLA as a “fairly comprehensive” consumer protection measure that regulates “the business of making high-interest second mortgage loans on residential real estate”). Specifically, § 408.233.1(3) authorizes “[b]ona fide closing costs paid to third parties which shall include . . . (b) Fees for preparation of a deed, settlement statement, or other documents.” (Emphasis added.)

The Missouri Court of Appeals, in Mitchell v. Residential Funding Corp., addressed, and rejected Countrywide’s arguments here. 334 S.W.3d at 499 (transfer denied by Supreme Court on April 26, 2011). In a diversity case, the law declared by the state’s highest court is binding. See Erie v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state . . . . whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision. . . .”). The Missouri Supreme Court allowed the Mitchell opinion to stand as authority, by denying transfer of the case from the court of appeals. The Mitchell case is, thus, the best evidence of Missouri law. “Decisions from Missouri’s intermediate appellate court (the Missouri Court of Appeals) . . . . must be followed when they are the best evidence of Missouri law.” Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th Cir. 2005). See also Eubank v. Kansas City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010) (“When determining the scope of Missouri law, we are bound by the decisions of the Supreme Court of Missouri. If the Supreme Court of Missouri has not addressed an issue, we must predict how the court would rule, and we follow decisions from the intermediate state courts when they are the best evidence of Missouri law.”); Travelers Prop. Cas. Ins. Co. of Am. v. National Union Ins. Co. of Pittsburgh, 621 F.3d 697, 707 (8th Cir. 2010) (same); United Fire & Cas. Ins. Co. v. Garvey, 328 F.3d 411, 413 (8th Cir. 2003) (same). Seegenerally Salve Regina College v. Russell, 499 U.S. 225, 230, 238 (1991) (holding that “[w]hen de novo review is compelled, no form of appellate deference [to the District Court’s determination of state law] is acceptable”).

This court follows the Mitchell decision to resolve whether the $60 document processing/delivery fee was an authorized charge. In Mitchell, the court of appeals affirmed the directed verdict that specific fees charged by lenders, including a “loan discount,” a “processing fee” and a “federal express” fee, violated the MSMLA. 334 S.W.3d at 495-99. The defendants there argued that they should have been given an opportunity to present evidence that a charge identified on the HUD-1A form[2] as a “loan discount” was really an “origination fee,” which is a permissible charge under the statute. See Mitchell, 334 S.W.3d at 499; § 408.233.1(5). The court of appeals rejected this argument, explaining that an origination fee should have been included in the HUD-1A’s line entitled “origination fee,” not in the line entitled “loan discount.” See Mitchell, 334 S.W.3d at 499. The court of appeals denied defendants the opportunity to re-characterize the charged fees. Instead, the HUD-1A’s identification of the fees determined whether they were permissible. See id. (“[T]he HUD-1A’s were documents evidenced as a matter of law and showed as a matter of law that [certain disputed fees] were not third party charges.”) (emphasis in original).

Like the defendants in Mitchell, Countrywide attempts to re-characterize the document processing/delivery fee as document preparation, which is an authorized charge under § 408.233.1(3)(b). See § 408.233.1(3)(b) (authorizing “[b]ona fide closing costs paid to third parties which shall include . . . (b) Fees for preparation of a deed, settlement statement, or other documents”). The Washingtons’ HUD-1 form has a line for “Document Preparation” and a separate line for “Document Processing/Delivery.” On the Washingtons’ HUD-1 form, Servicelink was paid $60 for a “Document Processing/Delivery” fee. The “Document Preparation” line was left blank. Nevertheless, Countrywide, relying on dictionary definitions of “preparation,” asks this court to determine that the services performed by Servicelink were “preparation” of documents, and thus authorized by § 408.233.1(3)(b). This is precisely what the Mitchell court rejected. As in Mitchell, this court holds Countrywide to its own HUD-1 characterization; the charged services were for “document processing/delivery.”

Countrywide further argues that even if the document processing/delivery fee was not explicitly authorized, section 408.233’s list is not exclusive and permits additional “bona fide closing costs paid to third parties.” Unfortunately, a conflict exists between the Missouri Court of Appeals, and another district court as to whether section 408.233.1(3)’s enumerated list of authorized fees is exclusive. Compare Mitchell, 334 S.W.3d at 498 (holding that section 408.233’s list of permissible closing costs is exclusive), with Mayo v. GMAC Mortg., LLC, 763 F.Supp.2d 1091, 1104 (W.D.Mo.2011) (holding that section 408.233’s “enumerated fees are simply examples, not an exclusive list”). Again, this court follows the Mitchell court in determining that section 408.233’s list is exclusive. See Erie, 304 U.S. at 78. Because the document processing/delivery fee is not included in section 408.233’s exclusive list of authorized charges, it violated the MSMLA. See also Mitchell, 334 S.W.3d at 495-99 (affirming the circuit court’s directed verdict that a “Processing Fee” and a “Federal Express Fee” were not authorized and thus violated the MSMLA).

Finally, the Washingtons contend that the $37.80 in prepaid interest Countrywide charged violates the MSMLA. “Section 408.236 provides that by violating the MSMLA’s fee limitations, Defendants were barred `from recovery of any interest on the contract.'” Mitchell, 334 S.W.3d at 506. Because the document processing/delivery fee violated the MSMLA, the prepaid interest Countrywide collected on the Washingtons’ loan was an additional violation of the statute. See id. at 502-03 (affirming jury instruction “to find liability if it believed Defendants `directly or indirectly charged, contracted for, or received interest in connection with’ the [second mortgage] loans”).

This court reverses and remands to the district court for proceedings consistent with this opinion.

[1] Purely for purposes of standing as to “any loss of money,” the Washingtons may have such a loss during the life of the loan, depending on whether the interest rate on the $790 exceeds what they made on the $790.

[2] The HUD-1A, a Settlement Statement for “Transactions without Sellers,” is identical to the HUD-1 Settlement Statement here for all relevant provisions.

[ipaper docId=61414766 access_key=key-1vxb8f0u4phx5c06wq5g height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

Missouri’s AG’s Consumer Protection Division Finds A Great Deal Of MERS Fraud and Forgeries Involving Robo-Signing and More

Missouri’s AG’s Consumer Protection Division Finds A Great Deal Of MERS Fraud and Forgeries Involving Robo-Signing and More


Via Fox2Now:

“We’ve found a good deal of fraud in the process, in the foreclosure process itself, most notably with robo-signing,” said head of the Missouri Attorney General’s Consumer Protection Division Doug Ommen, referring to the process where foreclosure documents are signed blindly by people paid to forge the signatures of bank or lending company officials. “We have found fraud and we have found forgery in robo-signing and other areas.”

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



Posted in STOP FORECLOSURE FRAUDComments (2)

MISSOURI CLASS ACTION: FRASER v. BANK OF AMERICA

MISSOURI CLASS ACTION: FRASER v. BANK OF AMERICA


Via: ForeclosureBlues

[ipaper docId=45961000 access_key=key-25jetsootin624fmjba1 height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (3)

MO E. DIS. COURT: “Not Clear Who U.S. Bank Was A Successor To” SCHWEND-McCUMMISKEY v. US BANK, N.A. et al

MO E. DIS. COURT: “Not Clear Who U.S. Bank Was A Successor To” SCHWEND-McCUMMISKEY v. US BANK, N.A. et al


SCHWEND
v.
US BANK, N.A.

(E.D.Mo. 12-3-2010).
Case No. 4: 10 CV 1590 CDP

Excerpt:

As plaintiff points out, it is not at all clear who US Bank was a successor to, since “Wachovia Bank, N.A. Pooling and Servicing Agreement dated as of November 1,
2004. Asset-Backed Pass-Though Certificates Series 2004-WWF1” does not appear to refer to an entity who could be a trustee or security holder, but rather appears to refer to an agreement of some sort. More importantly, there is nothing in the record to show how US Bank, Wachovia Bank, or “Pooling and Servicing Agreement dated as of November 1, 2004” came to be the holder of this note. As noted above, the original lender shown in the Deed of Trust is Argent Mortgage Company LLC and the original trustee is Lenders Management Corp. The forbearance agreement that Schwend later signed is with America’s Servicing Company. From the record here it is not at all clear that US Bank was the lawful holder of the note with the power to foreclose, and if it was not, the claim for wrongful foreclosure is more than plausible. See, e.g., Cobe v. Lovan, 92 S.W. 93, 97 (Mo. 1906) (foreclosure sale void when foreclosing defendant did not hold title
to the note).

[ipaper docId=44983478 access_key=key-2j89la3vj6h5vs3m4u1f height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

FULL DEPOSITION TRANSCRIPT OF NATIONWIDE TITLE CLEARING ERICA LANCE / BRYAN BLY

FULL DEPOSITION TRANSCRIPT OF NATIONWIDE TITLE CLEARING ERICA LANCE / BRYAN BLY


Excerpts:

9 Q Okay. So in this particular instance,
10 CitiMortgage was NTC’s client?
11 A Uh-huh.
12 Q And they contacted you to prepare an Assignment
13 of Mortgage; is that correct?
14 A They contacted us to prepare a group of
15 Assignments. It wasn’t just one.

16 Q How many is — let me start all over with that
17 one.

18 In this instance, how many did they ask you — or
19 did they send over at one time?
20 A I don’t have that number.
21 Q Would it be — and I’m not asking you to guess,
22 but if you do have a ballpark, would it have been dozens or
23 hundreds?
24 A Hundreds to thousands but I don’t know in this
25 particular case how many.
1 Q So — I’m sorry.
2 A I was going to say we’ve done over a hundred
3 thousand Assignments so. . .

4 Q So anywhere from a hundred — from hundreds to a
5 hundred thousand, they would send a request?
6 A They send them in groupings.
7 Q And when you say “they send them in groupings,”
8 that’s requests for Assignments of Mortgages —
9 A Yes.
10 Q — in groupings? Okay.
11 Right underneath the portion we just read,
12 there’s a — a CMI L number.

<SNIP>

7 Q And then we have “CitiMortgage as successor in
8 interest by merger to CitiFinancial Mortgage Company, Inc.,”
9 whose address is 1000 Technology Drive in O’Fallon,
10 Missouri —
11 A Uh-huh.
12 Q — assigning a mortgage together with a note to
13 Bayview Loan Services; is that correct?
14 A Yes.
15 Q Is this typically how Assignments of — or
16 transfer of notes occur through Assignment of Mortgage?
17 MS. PARSONS: Objection. You still have to
18 answer.
19 THE WITNESS: I still have to answer?
20 MS. PARSONS: If you know the answer.
21 THE WITNESS: Yeah. I’m sorry. Sorry.
22 MS. PARSONS: I just do it for the record, just
23 so you know.
24 THE WITNESS: Okay. Got it.
25 A To answer your question, on this particular case,
1 I don’t know what occurred on it because I was not part of
2 the — the sale or of the agreement between Bayview and
3 Citi. We were hired specifically to do Assignments.
4 Normally, this is an action recording at the
5 county to indicate a sale has taken place or a transfer of
6 loans has taken place from one entity to another.
7 Q (By Ms. Drysdale) So I’m not sure that — that
8 answered the question that I was asking.
9 This document is apparently assigning a note?
10 A Yes.
11 Q Is that correct?
12 A Yes.
13 Q And is it your understanding that that’s
14 generally how notes are transferred through Assignments?
15 A I’m trying to figure out how to answer this
16 question. It is my understanding that notes are transferred
17 through a sale agreement between mortgage entities. They
18 record Assignments to put on the record who the current
19 beneficiary is for that note and loan, that mortgage.
20 The — the Assignment itself is not the, to my
21 understanding, the actual sale of the loan. Does that make
22 sense?
23 Q Yes, ma’am.
24 A Okay. So that’s why I’m saying this is to
25 indicate that that event occurred and to record it at the
1 county recorder’s office as having occurred.
2 Q And you said that you were not part of these or
3 privy to the details of the sale from CitiMortgage to
4 Bayview; is that correct?
5 A Correct.
6 Q That you were just asked to prepare a document?
7 A Prepare Assignments, yes.
8 Q Okay. Further down, still on the left hand side,
9 we see the signature of Bryan Bly as vice president?

10 A Yes.
11 Q And is Bryan Bly someone who you supervise?
12 A Directly, no.
13 Q But he is an employee of Nationwide Title
14 Clearing?
15 A Correct.
16 Q Who is his supervisor?
17 A Elsa McKinnon.
18 Q Could you spell that, please?
19 A E-L-S-A M-C-K-I-N-N-O-N.
20 Q When you and I spoke earlier, you indicated
21 that — that you might be a better person to provide
22 information about this Assignment than Mr. Bly; do you
23 recall that?
24 A Yes.
25 Q And — and why did you think that you rather than
1 his supervisor could be explain what —
2 A Because the questions that you were asking in
3 your affidavit did not just have to do with him signing the
4 direct document. You — the questions pertained also to our
5 overall procedure and our connection with CitiMortgage,
6 which are questions that he can’t answer.
7 Q So then let’s talk a little about what Mr. Bly —
8 what he actually does in executing an Assignment of
9 Mortgage. Can you go through that process with me?
10 A Yeah. He is what we refer to as a signer. He is
11 somebody at Nationwide who is designated to execute
12 documents.
13 Q So just can you give me a general idea of what
14 his — his day-to-day activities would be?
15 A He signs and notarizes documents.
16 Q So when he comes in in the morning, he sat — he
17 sits at his desk, and that’s pretty much all he does all
18 day?

19 A Yes.
20 Q Is sign and notarize documents?
21 A Yes.
22 Q Assignments of Mortgage?
23 A Assignments of Mortgage, Lien Releases.
24 Q Does he actually research any of the information
25 contained in the Assignment of Mortgage?
1 A No.
2 Q No?
3 A No.
4 Q About how many documents, including Assignments
5 of Mortgage, would he sign in the average day?
6 A A couple thousand.
7 Q And — and this — is he permanently employed?
8 Well, let me ask that question in a different way.
9 Is his — his employer — his present employer
10 and business address is Nationwide Title at 2100 Alt. 19
11 North; is that correct?
12 A Yeah. He’s presently a full-time employee with
13 Nationwide Title Clearing.
14 Q Okay. In the assign — the Corey Assignment of
15 Mortgage, he lists his address as 10000 [sic] Technology
16 Drive, O’Fallon, Missouri.
17 Why is that particular address used?
18 A That has to do with the question on how Bryan Bly
19 can sign as a vice president as well.
20 Q Okay.
21 A So the answer to that question has to do with a
22 corporate resolution.
23 Q Do you have that document with you?
24 A Yes.
25 Q May I take a look at that?

<SNIP>

8 Q Do you have a copy of the indemnity agreement?
9 A No. I did not bring that with me.
10 Q But that’s something that is in possession of
11 Nationwide?
12 A Yes.
13 Q And so when Mr. Bly is executing the couple
14 thousand of Assignments a day, that is the extent of his —
15 that’s the extent of his duties as vice president?
16 A Uh-huh — yes, sorry, or assistant secretary. It
17 just depends on what’s required at the county. He could be
18 listed as either or.
19 Q So does Nationwide have a chart of all the
20 counties in Florida to know whether or not Mr. Bly is
21 supposed to be a vice president or assistant secretary?

22 A We have a list of all the counties in the entire
23 United States that tells us that.

24 Q So Mr. Bly executes Assignments of Mortgage to be
25 recorded all over the United States?

1 A And Lien Releases.
2 Q And Lien Releases.
3 Does he hold that position as vice president for
4 any other companies other than CitiMortgage?
5 A Yes.
6 Q What other companies?
7 A There are many, and I don’t know if I can just
8 release all of the names of them.

9 Q Okay.
10 A But for all of our clients where we sign, he is
11 listed as one of the signers.
12 Q Previously you said that the consent of the
13 executive committee was the reason for the — the address
14 being listed as a 1000 Technology Drive.
15 Could you expound upon that?
16 A Yeah. He’s acting as the capacity as the vice
17 president for that company, and that is the address of that
18 company.
19 Q So he’s not physically located in Missouri? He
20 just —

21 A No. He’s physically located in Florida.
22 Q He just lists that as his address for purposes of
23 this Assignment of Mortgage?
24 A Correct.
25 Q And who is Christopher Jones?
1 A Christopher Jones is an employee of Nationwide
2 Title Clearing.
3 Q And what are his day-to-day duties?
4 A He also works in the processing area. One of the
5 duties he has is he is one of our signers and one of our
6 notaries.
7 Q Does Mr. Bly also work in the processing
8 department?
9 A That’s the department, yeah.
10 Q Is Mr. Bly also a notary?
11 A Yes.
12 Q Down at the bottom of the Corey Assignment it
13 says that the document was prepared by Jessica Fretwell?
14 A Yes.
15 Q Do you know Ms. Fretwell?
16 A Yes.
17 Q And is she also an employee of Nationwide?
18 A Yes, she is.
19 Q And what is her job description?
20 A She works in our quality control division.
21 Q What are her day-to-day responsibilities?
22 A How to do with the establishment of the forms and
23 the county requirements.
24 Q When you say “the establishment of the forms,”
25 what do you mean by that?

<SNIP>

15 Q Okay. So Mr. Bly didn’t actually sign the Corey
16 Assignment; is that correct?

17 A Well, he didn’t physically sign it, but he —
18 that meets with the standards for electronic document
19 recording.

20 Q Okay. Are you referring to a specific state or
21 federal law?
22 A This — no. Specific counties across the nation
23 have started setting it up, so part of like going more green
24 and not having as much paperwork that you can electronically
25 record documents. They have different settings anywhere
1 from just feeding them information to feeding them like a
2 PDF or TIF version of the document that gets recorded, that
3 they record in their imaging bank, stamped electronically,
4 and then send back to us as having been recorded once it’s
5 verified on their side. That document was one of those.
6 Q Yes, ma’am. I understand how it was recorded
7 electronically. I’m just trying to — to determine whether
8 or not Mr. Bly actually signed a physical document or if
9 a — his signature was created by Planat Press.

10 A The signature was included by Planat Press
11 because that document was never printed out.

12 Q So did Mr. Bly review the document before it was
13 sent for electronic recording?

14 A No.
15 Q So — and I’m now — I continue to refer to the
16 Corey Assignment.
17 Mr. Bly never saw the Corey Assignment prior to
18 it being recorded; is that correct?

19 A Correct.

<SNIP>

Q What about Crystal Moore? She — is she also a
7 signer?

8 A She is also a signer and a notary.
9 Q And a notary.
10 And her practices are the same as you’ve
11 described with Mr. Bly as far as how she — what her daily
12 duties are in executing documents?
13 A Yes.
14 Can I ask why you’re asking about Crystal Moore
15 because her name’s not on any of the documentation regarding
16 this.
17 Q I just saw her name on the Consent of the
18 Executive Committee we marked as 3.
19 A Uh-huh.
20 Q So are all of the names on Exhibit 3, the Joint
21 Consent, are they all signers?
22 A You mean is their job duty?
23 Q Yes, ma’am.

[ipaper docId=40648569 access_key=key-3ay7qzdw24j55o1c3kd height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (5)


GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com

Archives