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Jeff L. Thigpen | Book: ON POINT – Voices and Values of the Young Elected Officials

Jeff L. Thigpen | Book: ON POINT – Voices and Values of the Young Elected Officials


 

New Book On Point-highlights 16 young elected officials as they tell their stories

“In a time where slogans of a few words capture a position and controversy swirls with each news cycle, On Point offers refreshing and timely insights from a new generation of young elected officials in the eternal struggle to build a more perfect union,” wrote Senator George J. Mitchell in his introduction to On Point: Voices and Values of the Young Elected Officials, by Jeff L. Thigpen.

 

 GO TO JEFFTHIGPEN.COM TO BUY NOW! 

 

The author had that point in mind when he decided to write the book focusing on the these young electeds and on a national organization called the Young Elected Officials (YEO) Network with over 600 elected leaders 35 and under.   

“I wrote On Point because there’s an emerging group of principled leaders shaping a new era in American politics. It’s time we know them and why they were inspired to run for elected office, and how they are meeting the challenges of this time in history.  Most importantly, it is time we hear their stories,” said Thigpen.

The book was published by Polar Bear & Co., PO Box 311, Solon, Maine, 04979 (207) 643-2795

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Commissioners: Bristol County, MA joining Norfolk, Plymouth counties in filing suits against MERS

Commissioners: Bristol County, MA joining Norfolk, Plymouth counties in filing suits against MERS


Taunton Gazette-

The Bristol County Board of Commissioners received a letter from Attorney Garrett Bradley notifying them that a complaint against Mortgage Electronic Registration Systems (MERS) was filed in Suffolk County on March 29.

Previously, the commissioners voted on Feb. 14 to file a lawsuit to reclaim millions of dollars from MERS for allegedly skirting public recording laws at the expense of the county’s three property registries.

Bristol County is joining Norfolk and Plymouth counties in filing lawsuits against MERS.

Commissioners have previously said the county won’t know exactly how much money they are looking to collect until the discovery process of litigation.

Read more: [TAUNTON GAZETTE]

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Rachel Maddow Exclusive: Standing up to banks, putting who-owns-what back in order w/ Special Guest Jeff Thigpen

Rachel Maddow Exclusive: Standing up to banks, putting who-owns-what back in order w/ Special Guest Jeff Thigpen


Rachel Maddow reports on one North Carolina town standing up to the big banks that destroyed the housing market and the lives of many local families with foreclosures that may turn out to be fraudulent.

Visit msnbc.com for breaking news, world news, and news about the economy

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Guilford County, NC vs LPS/DocX, MERSCORP, MERS, Inc. et al

Guilford County, NC vs LPS/DocX, MERSCORP, MERS, Inc. et al


STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

COUNTY OF GUILFORD

GUILFORD COUNTY, ex rel. JEFF L.
THIGPEN, GUILFORD COUNTY
REGISTER OF DEEDS,
Plaintiff,

v.

LENDER PROCESSING SERVICES, INC.;
DOCX, LLC; LPS DEFAULT SOLUTIONS,
INC.; MERSCORP HOLDINGS, INC.;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; WELLS
FARGO BANK, N.A.; WELLS FARGO
HOME MORTGAGE, INC.; BANK OF
AMERICA, N.A.; JPMORGAN CHASE
BANK, N.A.; CHASE HOME FINANCE
LLC; EMC MORTGAGE CORPORATION;
MIDFIRST BANK; SAND CANYON
CORPORATION; CITI RESIDENTIAL
LENDING, INC.; GREEN TREE
SERVICING, LLC; AMERIQUEST
MORTGAGE COMPANY; USAA
FEDERAL SAVINGS BANK; AMERICAN
HOME MORTGAGE SERVICING, INC.;
MOREQUITY, INC.; U.S. BANK
NATIONAL ASSOCIATION;
EQUICREDIT CORPORATION OF
AMERICA; NATIONSCREDIT
FINANCIAL SERVICES CORP.; ARGENT
MORTGAGE COMPANY, LLC; THE
BANK OF NEW YORK MELLON; THE
BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.; CAPITAL ONE, N.A.;
FIRST FRANKLIN FINANCIAL CORP.;
NAVY FEDERAL CREDIT UNION; and
WEICHERT FINANCIAL SERVICES;
Defendants.

[ipaper docId=85235617 access_key=key-1g5fk84g1cy0nyzvnllk height=600 width=600 /]

 

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Guilford County, NC Sues To Clean Up Banks’ “Mess” at the Register of Deeds

Guilford County, NC Sues To Clean Up Banks’ “Mess” at the Register of Deeds


For Immediate Release: March 13, 2012
Contact: Ginger Cavanaugh (704) 246-3896
ginger@talcottfranklin.com

Guilford County Sues To Clean Up Banks’ “Mess” at the Register of Deeds

 

Guilford County, ex rel. Jeff L. Thigpen, Guilford County Register of Deeds, filed suit today against LPS/DocX, MERSCORP, MERS, Inc., and numerous banks, loan servicers, and foreclosure specialists seeking to clean up the “mess” Defendants created in the County’s property records registry.

“Our office uncovered an abundance of falsified, forged, and fraudulently executed mortgage documents,” said Thigpen. “But our investigation only found the tip of the iceberg. We need the banks to clean up their mess.”

The suit cites as evidence, Thigpen’s identification of over 6,100 mortgage documents (4,519 of those by DocX) which were filed with the Register of Deeds and signed in the names of known robo-signer aliases: “Linda Green,” “Christie Baldwin,” “Pat Kingston,” “Korell Harp,” “Jessica Ohde,” “Rita Knowles,” “Linda Thoresen,” and “Brent Bagley.”

“How can we maintain accurate records of title with fraudulent documents? The banks are also maintaining their own private registry called ‘MERS’ that prevents the public from discovering who owns what loans. Because there is no accountability for MERS, its records are also a mess,” said Thigpen. “The system is broken and it needs to be fixed. We’re telling MERS and the banks: you broke it, you fix it.”

In an April 6, 2011 letter, Thigpen and Southern Essex (MA) District Registry of Deeds John O’Brien urged Iowa Attorney General Tom Miller to investigate MERS and its impact on Registers of Deeds as part of the national attorneys general robo-signing investigation. The suit cites numerous reasons why MERS fails to keep reliable chains of title, and notes that the recent attorneys general settlement did not address MERS’s and robo-signing’s impact on Registers of Deeds.

“When you combine the fraudulent documents with MERS, it is difficult if not impossible to trace title for property. Potential title defects hurt Guilford County homeowners and businesses by impacting property values,” said Thigpen. “We need to clean up chains of title to ensure certainty in the land records system.”

Under Thigpen, the Guilford County Register of Deeds strives to serve as a model register. The Register of Deeds implemented electronic filing, created an audit software program to improve indexing and correct filing errors, intensified staff training, redacted social security numbers from land records, and significantly upgraded technology.

In 2009, the Register of Deeds received a Local Government Federal Credit Union Productivity Award from the North Carolina Association of County Commissioners for technological innovations.

“It is unbelievably frustrating to expend County resources in an attempt to create an efficient, accurate registry and have these banks wreak havoc on our efforts through fraudulent documents and a secret registry. If we don’t fix this now, the future impact on land records and property values could be severe and incurable.”

“Registries of deeds pre-date the founding of this country and are essential functions of government,” said Guilford County Attorney Mark Payne. “The Guilford County

Register of Deeds has created an outstanding infrastructure, but no registry can work if it is filled with falsified documents.”

The lawsuit, filed by Payne and Deputy County Attorney Matthew Turcola, describes the process by which the Defendants made and sold loans, created and maintained MERS, filed robo-signed documents, and damaged the Register of Deeds and the people of Guilford County. Among other things, the suit seeks the appointment of a special master to oversee an audit of the mortgage documents on file at the Register of Deeds and make necessary corrections.

“While the suit goes into detail on a complex series of transactions, the message is pretty simple,” said Payne. “We’re saying to the banks: ‘You made the mess, you clean it up.’”

Guilford County is located in central North Carolina. Its population is approximately 500,000. Greensboro is the largest city within Guilford County. Guilford County was established in 1771, the same year it began its Registry of Deeds. To assist with the suit, Guilford County retained Talcott Franklin P.C., the nation’s preeminent securitization litigation law firm. Talcott Franklin P.C. has offices in Dallas, Texas and Davidson, North Carolina.
Links:

http://www.restorepublicrecords.com (For copies of the Complaint and associated materials).

[ipaper docId=85235617 access_key=key-1g5fk84g1cy0nyzvnllk height=600 width=600 /]

 

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Bristol County, MA commissioners vote to participate in suit against MERS

Bristol County, MA commissioners vote to participate in suit against MERS


HERALD NEWS-

The Bristol County Board of Commissioners moved on Tuesday to file a lawsuit to reclaim millions of dollars from Mortgage Electronic Registration Systems, commonly known as MERS, for allegedly skirting public recording laws at the expense of the county’s three property registries.

Commissioner John Mitchell said Bristol County is joining with Norfolk and Plymouth counties in filing lawsuits against MERS.

“MERS has hidden all the assignment of mortgages,” Mitchell said. “This (lawsuit) is to get fees back for the recording of assignments of mortgages. You don’t know how many times they did it. They did it privately. Supposedly, somewhere, this MERS has a registry of their own assignments of mortgages which show who is the true owner of a mortgage, except I guess in practice they don’t really have it. And that’s been a problem with foreclosures. When a bankruptcy court says, ‘Who owns the mortgage now?,’ they haven’t always been able to come up with it.”

Mitchell said it has been a “substantial” problem, but the county won’t be sure about how much money they are actually looking to collect until the discovery process of litigation — rough estimates put together by county registries last year indicate that the loss of revenue ranges well into the millions of dollars.

[HERALD NEWS]

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In RE: BASS | North Carolina Appeals Court Affirms U.S. Bank c/o Wells Fargo ‘Judy Faber’s Invalid Stamp Indorsement, Not the legal holder of a promissory note’

In RE: BASS | North Carolina Appeals Court Affirms U.S. Bank c/o Wells Fargo ‘Judy Faber’s Invalid Stamp Indorsement, Not the legal holder of a promissory note’


NORTH CAROLINA COURT OF APPEALS

In the Matter of the foreclosure
of a Deed of Trust executed by
Tonya R. Bass in the original
amount of $139,988.00 dated
October 12, 2005, recorded in Book
4982, Page 86, Durham County
Registry,

Substitute Trustee Services, Inc.,
as Substitute Trustee,

Appeal by Petitioner from order entered 14 September 2010
by Judge Abraham Penn Jones in Durham County Superior Court.
Heard in the Court of Appeals 27 October 2011.

K&L Gates, LLP, by A. Lee Hogewood, III and Brian C. Fork,
for Petitioner-appellant.

Legal Aid of North Carolina, Inc., by E. Maccene Brown,
Gregory E. Pawlowski, John Christopher Lloyd, and Andre C.
Brown, for Respondent-appellee.

HUNTER, JR., Robert N., Judge.

U.S. Bank, National Association, as Trustee, c/o Wells
Fargo Bank, N.A. (“Petitioner”) appeals the trial court’s order
dismissing foreclosure proceedings against Respondent Tonya R.
Bass. Petitioner assigns error to the trial court’s
determination that Petitioner is not the legal holder of a
promissory note executed by Respondent and therefore lacks
authorization to foreclose on Respondent’s property securing the
note under a deed of trust. After careful review, we affirm.

Excerpt:

Furthermore, Comment 1 to North Carolina General Statutes
§ 25-3-308 defines “presumed” to mean “that until some evidence
is introduced which would support a finding that the signature
is forged or unauthorized, the plaintiff is not required to
prove that it is valid.” Id. In contrast to the stamp at
issue, a handwritten signature accompanies each of the other
stamps on the Note introduced by Petitioner before the trial
court. The stamp purporting to transfer the Note from
Residential to Petitioner, for example, bears the apparent
handwritten signature of Judy Faber, identified as Residential’s
vice president. This signature provides at least some evidence
that this stamp was executed with the requisite intent and
authority. Whether a stamp bearing an apparent handwritten
signature is sufficient competent evidence of the purported
indorsement, however, is not before this Court as Respondent
challenges the only stamp without a handwritten signature. The
omission of a handwritten signature with respect to the
challenged stamp is competent evidence from which the trial
court could conclude that this particular stamp was not executed
by an authorized individual and is therefore facially invalid
indorsement. Thus, even if Respondent had failed to object to
the stamp, which it did not, the burden properly remained upon
Petitioner to prove its validity.

[ipaper docId=75081797 access_key=key-1zz3byrbex3zpcm5knnv height=600 width=600 /]

MUST READ:

FULL_DEPOSITION_OF_GMAC_JUDY_FABER

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NC court weighs if foreclosure needs original docs

NC court weighs if foreclosure needs original docs


This part of the article doesn’t settle well for me:

The hearing in a state traditionally friendly to banks and home to U.S. industry leader Bank of America comes as paperwork problems have gummed up foreclosures nationwide.

Boston Herald-

RALEIGH, N.C. — North Carolina’s Supreme Court heard arguments today in a case that could decide whether mortgage lenders can foreclose on a home without producing original documents that prove they’re owed the money.

The hearing in a state traditionally friendly to banks and home to U.S. industry leader Bank of America comes as paperwork problems have gummed up foreclosures nationwide.

Those problems include missing documents validating a mortgage transaction and unqualified employees “robo-signing” affidavits improperly swearing to the accuracy of overdue mortgage debts. The problem of suspect documents could create legal trouble for homeowners and mortgage lenders for years.

[BOSTON HERALD]

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DOBSON v. WELLS FARGO | AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT LINDA G. DOBSON

DOBSON v. WELLS FARGO | AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT LINDA G. DOBSON


SUPREME COURT OF NORTH CAROLINA

LINDA G. DOBSON,

Plaintiff-Appellant,

v.

SUBSTITUTE TRUSTEE SERVICES, 
INC., Substitute Trustee and WELLS
FARGO BANK MINNESOTA, N.A.
as Trustee for Equivantage Home Equity
Loan Trust, 1996-4, Note Holder,
EQUVANTAGE, INC., and AMERICA‘S
SERVICING COMPANY,

Defendants-Appellees.

****************************
PROPOSED BRIEF OF AMICI CURIAE NORTH CAROLINA JUSTICE CENTER, NORTH CAROLINA ADVOCATES FOR JUSTICE, CENTER FOR RESPONSIBLE LENDING, MAINE ATTORNEYS SAVING HOMES, THE FINANCIAL PROTECTION LAW CENTER, AARP, AND THE NATIONAL ASSOCIATION OF CONSUMER ADVOCATES IN SUPPORT OF PLAINTIFF-APPELLANT
*****************************

[ipaper docId=69227950 access_key=key-891zlyysqnu97uay2ag height=600 width=600 /]

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Massachusetts Register of Deeds John O’Brien is first in the nation to say no to recording robo-signed documents; North Carolina Register of Deeds, Jeff Thigpen agrees.

Massachusetts Register of Deeds John O’Brien is first in the nation to say no to recording robo-signed documents; North Carolina Register of Deeds, Jeff Thigpen agrees.


Register O’Brien said, “Knowing what I now know, it would be a dereliction of my duties as the keeper of the records to record these documents and any other documents that contain questionable signatures. To do so, would make me a willing participant in a continuing scheme which has corrupted the chain of title of thousands of Essex County property owners. I have decided to put a stop to this reckless behavior and hold these lenders and their agents accountable for the authenticity of what they are attempting to record in my Registry. I do not believe this to be unreasonable.”

[ipaper docId=57301547 access_key=key-2ldlpwbcwn1md5xxx098 height=600 width=600 /]

[scribd id=57301547 key=key-2ldlpwbcwn1md5xxx098 mode=list]

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ROADBLOCK | Banks Hit Foreclosure Hurdle

ROADBLOCK | Banks Hit Foreclosure Hurdle


WSJ

Banks trying to foreclose on homeowners are hitting another roadblock, as some delinquent borrowers are successfully arguing that their mortgage companies can’t prove they own the loans and therefore don’t have the right to foreclose.

These “show me the paper” cases have been winding through the courts for several years. But in recent months, some judges have been siding with borrowers and stopping foreclosures after concluding that banks’ paperwork problems are more serious than previously thought and raise broader ethical questions.

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MA Bristol County Board of Commissioners: MERS cost registries millions of dollars

MA Bristol County Board of Commissioners: MERS cost registries millions of dollars


The board also gave the reminder that the Bristol County Advisory Board meeting is coming up. It will take place on June 23 at 6 p.m. at the Taunton Superior Courthouse.

The Taunton Gazette-

The Bristol County Board of Commissioners sent a letter to Attorney General Martha Coakley on Tuesday concerning the “deceptive practices” of a mortgage process streamlining corporation, which it says cost county registries millions of dollars in the last decade.

The commissioners say Mortgage Electronic Registration System, commonly known as MERS, skirt public recording laws about recording mortgage assignments with the Registry of Deeds. The board says MERS is able to do this by keeping a secretive recording system for its participants that is not accessible to others.

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FDIC Chair Shelia Bair concurs with O’Brien and Thigpen that damages to consumer’s “has yet to be quantified”

FDIC Chair Shelia Bair concurs with O’Brien and Thigpen that damages to consumer’s “has yet to be quantified”


FOR IMMEDIATE RELEASE:

MAY 13th, 2011

Contact:
Kevin Harvey, 1st Assistant Register
978-542-1724
kevin.harvey@sec.state.ma.us

To: Members of the Media
Fr: Massachusetts Register of Deeds John O’Brien and North Carolina Register of Deeds Jeff Thigpen
Re: FDIC Chair Shelia Bair concurs with O’Brien and Thigpen that damages to consumer’s “has yet to be quantified”

This story has to be told: No settlements with the Big Banks until we know the “extent of the problem” and until the amount of exposure is “quantified”.

Bloomberg News
FDIC Chairman Sheila Bair

The head of the Federal Deposit Insurance Corp. is warning that flaws may have “infected millions of foreclosures” and questioned whether other regulators’ inquiries into problems at the nation’s mortgage-servicing companies have been thorough enough.

“We do not yet really know the full extent of the problem,” FDIC Chairman Sheila Bair said Thursday in written remarks submitted to a hearing of the Senate Banking Committee. “Flawed mortgage-banking processes have potentially infected millions of foreclosures, and the damages to be assessed against these operations could be significant and take years to materialize.”

Federal and state officials launched numerous investigations last autumn after revelations that, to process foreclosures, banks used “robo-signers” who didn’t review documents prepared by their colleagues. Banking regulators’ have said their reviews of a sample of 2,800 foreclosure cases have found a small number of improper foreclosures.

Acting Comptroller of the Currency John Walsh said last month that the problems were limited in scope. They include cases that shouldn’t have gone forward under a law blocking foreclosures on military personnel, ones in which the borrower was in bankruptcy and cases in which borrowers were already on the verge of having their loans modified.

But Ms. Bair, who is departing her position in July, argued that other regulators likely missed homeowners who should have been provided loan assistance but who were improperly denied such help. The FDIC, she said, has found a “not insignificant” number of such cases. “There needs to be much more aggressive action,” she told lawmakers.

Under consent orders that 14 banks and thrifts reached with regulators in March, financial institutions are required to hire a consultant to review their foreclosures over the past two years to identify any borrowers who were harmed by foreclosure-processing problems.

Ms. Bair, however, questioned whether those reviews will truly be independent. Such consultants “may have other business with [banks] or future business they would like to do with them,” Ms. Bair said. “This is a huge issue.”

Federal Reserve Chairman Ben Bernanke, in response to questions from lawmakers at the hearing, didn’t address this criticism directly, but reiterated that regulators plan to fine banks as a result of the inquiry into foreclosure problems. He noted that the foreclosure crisis is “at some level” a problem of bank regulation, but noted it is “also a macroeconomic problem.”

Ms. Bair also raised the possibility that banks may be forced by government-controlled mortgage giants Fannie Mae and Freddie Mac to buy back more defaulted loans.
Fannie and Freddie have been pressing banks to do so, and numerous investors have filed lawsuits with similar demands. “A significant amount of this exposure has yet to be quantified,” she said in her prepared remarks.

REGISTERS O’BRIEN & THIGPEN SAY “PUT THE BRAKES ON ANY SETTLEMENT WITH THE BIG BANKS … REGISTERS OF DEEDS NEED TO BE AT THE TABLE”

Southern Essex County (MA) Register of Deeds, John O’Brien and Guilford County (NC) Register of Deeds, Jeff Thigpen, are today publicly asking Iowa’s Attorney General, Tom Miller, who has been coordinating the National Association of Attorneys General (“NAAG”) investigation into the banks’ improper mortgage dealings to stop settlement negotiations until there is a full accounting of the damage that the bank’s practices have inflicted upon the land recordation system and consumers chains of title across the nation and have again asked for the Registers of Deeds to have a seat at the negotiation table.

O’Brien and Thigpen, wrote to Miller in early April, asking that the Registers of Deeds be represented at any settlement talks. They have not heard back from Miller, and they find that very disturbing. “We represent Main Street, in contrast to Wall Street, and that constituency needs to be heard” said O’Brien.

Register O’Brien, who is leading the nationwide effort against the Mortgage Electronic Registration System (“MERS”) and its member banks said, “We need to take a long hard look at the damage that these banks have caused, not only to our economy but also to people’s chains of title. There can be no settlement for pennies on the dollar.” O’Brien points to MERS and their failure to record documents in the local registry of deeds in order to avoid paying billions of dollars in recording fees, thereby corrupting the chains of title of hundreds of thousands of homeowners across the country, as well as the alleged fraud associated with the robo-signing, as reasons for putting on the breaks. “That is why it is so important that the Registers of Deeds be brought into the room. We need to bring our knowledge of the land recordation system and consumer’s problematic chain of title issues to the table.” Common sense mandates that if a bridge collapses and there is a meeting to re-build that bridge, that the structural engineers must be invited to the table. “Why the Registers of Deeds have not been involved in these negotiations is puzzling” according to O’Brien and Thigpen

Thigpen’s office sent Attorney General Miller and Federal Regulators 4,500 potentially fraudulent and/or forged documents recorded in his Registry by Doc X. Doc X is owned by Lender Processing Services, which was acting on behalf of Wells Fargo, Bank of America, and MERS, among others. “I am but one county, however I feel confident based upon my research that this is a disaster of epic proportions, for homeowner’s chains of title in the United States. As a result, it needs to be clearly established that citizens can no longer be harmed by the reckless disregard that the major banks and MERS have had for the American consumer and the integrity of public recording offices. People need to be assured that their ownership rights are secure and protected, that people who sign legal documents are who they say they are, and that there is transparency and fair dealing by all. I don’t think we are there yet.” stated Thigpen.

In addition, O’Brien and Thigpen are concerned about the reports that Miller has received hundreds of thousands of dollars in campaign contributions from banks, finance, insurance, and real estate contributors since he announced that he was leading the NAAG investigation. O’Brien and Thigpen said, “Without questioning Millers integrity, Miller should consider either returning the contributions or voluntarily stepping aside so that there would not be even the slightest appearance of a conflict of interest.”

These Registers want to know “Why is there such a rush to have a settlement? “How can the consumers be fully protected when the extent of the damages are still unknown?”

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REGISTERS O’BRIEN & THIGPEN SAY “PUT THE BRAKES ON ANY SETTLEMENT WITH THE BIG BANKS … REGISTERS OF DEEDS NEED TO BE AT THE TABLE”

REGISTERS O’BRIEN & THIGPEN SAY “PUT THE BRAKES ON ANY SETTLEMENT WITH THE BIG BANKS … REGISTERS OF DEEDS NEED TO BE AT THE TABLE”


JOHN L. O’BRIEN, JR.
Register of Deeds
Phone: 978-542-1704
Fax: 978-542-1706
website: www.salemdeeds.com
Commonwealth of Massachusetts
Southern Essex District Registry of Deeds Shetland Park
45 Congress Street
Suite 4100
Salem, Massachusetts 01970

NEWS
FOR IMMEDIATE RELEASE

Salem, MA
May 12th, 2011

Contact:
Kevin Harvey, 1st Assistant Register
978-542-1724
kevin.harvey@sec.state.ma.us

REGISTERS O’BRIEN & THIGPEN SAY “PUT THE BRAKES ON ANY SETTLEMENT WITH THE BIG BANKS … REGISTERS OF DEEDS NEED TO BE AT THE TABLE”

Southern Essex County (MA) Register of Deeds, John O’Brien and Guilford County (NC) Register of Deeds, Jeff Thigpen, are today publicly asking Iowa’s Attorney General, Tom Miller, who has been coordinating the National Association of Attorneys General (“NAAG”) investigation into the banks’ improper mortgage dealings to stop settlement negotiations until there is a full accounting of the damage that the bank’s practices have inflicted upon the land recordation system and consumers chains of title across the nation and have again asked for the Registers of Deeds to have a seat at the negotiation table.

O’Brien and Thigpen, wrote to Miller in early April, asking that the Registers of Deeds be represented at any settlement talks. They have not heard back from Miller, and they find that very disturbing. “We represent Main Street, in contrast to Wall Street, and that constituency needs to be heard” said O’Brien.

Register O’Brien, who is leading the nationwide effort against the Mortgage Electronic Registration System (“MERS”) and its member banks said, “We need to take a long hard look at the damage that these banks have caused, not only to our economy but also to people’s chains of title. There can be no settlement for pennies on the dollar.” O’Brien points to MERS and their failure to record documents in the local registry of deeds in order to avoid paying billions of dollars in recording fees, thereby corrupting the chains of title of hundreds of thousands of homeowners across the country, as well as the alleged fraud associated with the robo-signing, as reasons for putting on the breaks. “That is why it is so important that the Registers of Deeds be brought into the room. We need to bring our knowledge of the land recordation system and consumer’s problematic chain of title issues to the table.” Common sense mandates that if a bridge collapses and there is a meeting to re-build that bridge, that the structural engineers must be invited to the table. “Why the Registers of Deeds have not been involved in these negotiations is puzzling” according to O’Brien and Thigpen

Thigpen’s office sent Attorney General Miller and Federal Regulators 4,500 potentially fraudulent and/or forged documents recorded in his Registry by Doc X. Doc X is owned by Lender Processing Services, which was acting on behalf of Wells Fargo, Bank of America, and MERS, among others. “I am but one county, however I feel confident based upon my research that this is a disaster of epic proportions, for homeowner’s chains of title in the United States. As a result, it needs to be clearly established that citizens can no longer be harmed by the reckless disregard that the major banks and MERS have had for the American consumer and the integrity of public recording offices. People need to be assured that their ownership rights are secure and protected, that people who sign legal documents are who they say they are, and that there is transparency and fair dealing by all. I don’t think we are there yet.” stated Thigpen.

In addition, O’Brien and Thigpen are concerned about the reports that Miller has received hundreds of thousands of dollars in campaign contributions from banks, finance, insurance, and real estate contributors since he announced that he was leading the NAAG investigation. O’Brien and Thigpen said, “Without questioning Millers integrity, Miller should consider either returning the contributions or voluntarily stepping aside so that there would not be even the slightest appearance of a conflict of interest.”

These Registers want to know “Why is there such a rush to have a settlement? “How can the consumers be fully protected when the extent of the damages are still unknown?”

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MI Clerks Bullard, Hertel testify before House committee about fraudulent mortgage documents

MI Clerks Bullard, Hertel testify before House committee about fraudulent mortgage documents


LegalNews-

If someone does not pay their mortgage they will lose their home. But banks have to play by the rules, too.” Hertel further stated,


“We are looking at a massive fraud committed against the people of the state of Michigan.”


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[VIDEO] Register of Deeds Jeff Thigpen Press Release on Mortgage Fraud

[VIDEO] Register of Deeds Jeff Thigpen Press Release on Mortgage Fraud


From previous post below:

NC Reg. of Deeds Thigpen Releases Approx. 4,500 DocX Signature Spread Sheet

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



Posted in STOP FORECLOSURE FRAUDComments (2)

In re: GILBERT | NC Appeals Court Reversal “Improper Indorsement, No Evidence of Debt” JEFFREY STEPHAN AFFIDAVIT, DEUTSCHE BANK, GMAC, RESIDENTIAL FUNDING

In re: GILBERT | NC Appeals Court Reversal “Improper Indorsement, No Evidence of Debt” JEFFREY STEPHAN AFFIDAVIT, DEUTSCHE BANK, GMAC, RESIDENTIAL FUNDING


Here’s a snippet and highly recommend reading this in its entirety!

Excerpt:

The record is void of any evidence the Note was assigned and securitized to a trust.

[ipaper docId=54673705 access_key=key-1dch86ck9zy229rl5p87 height=600 width=600 /]

IN THE MATTER OF THE FORECLOSURE BY DAVID A. SIMPSON, P.C., SUBSTITUTE TRUSTEE, OF A DEED OF TRUST EXECUTED BY REX T. GILBERT, JR. AND DANIELA L. GILBERT, HUSBAND AND WIFE, DATED MAY 5, 2006 AND RECORDED ON MAY 10, 2006, IN BOOK 219 AT PAGE 53 OF THE HYDE COUNTY PUBLIC REGISTRY.

No. COA10-361.

Court of Appeals of North Carolina.

Filed May 3, 2011.

Katherine S. Parker-Lowe, for respondent-appellants.

The Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr. and James R. White for petitioner-appellee.

HUNTER, JR., Robert N., Judge.

Respondents Rex T. Gilbert, Jr. and his wife Daniela L. Gilbert, appeal from the trial court’s Order authorizing David A. Simpson, P.C., as Substitute Trustee, to proceed with foreclosure under a power of sale in the Deed of Trust recorded in Book 219 at Page 53 in the Hyde County Register of Deeds. We reverse.

I. Factual and Procedural History

On 5 May 2006, Respondent Rex T. Gilbert, Jr. executed an adjustable rate note (“the Note”) to refinance an existing mortgage on his home. According to the terms of the Note, Mr. Gilbert promised to pay a principal amount of $525,000.00 plus interest to First National Bank of Arizona. The Note was secured by a Deed of Trust, executed by Mr. Gilbert and his wife, Daniela L. Gilbert, on real property located at 134 West End Road, Ocracoke, North Carolina. The Deed of Trust identified First National Bank of Arizona as the lender and Matthew J. Ragaller of Casey, Grimsley & Ragaller, PLLC as the trustee.

The record reveals that, during 2008, Respondents ceased making payments on the Note and made an unsuccessful attempt to negotiate a modification of the loan. On 9 March 2009, a Substitution of Trustee was recorded in the Hyde County Register of Deeds, which purports to remove Matthew Ragaller as the trustee of the Deed of Trust and appoint his successor, David A. Simpson, P.C. (“Substitute Trustee”). The Substitution of Trustee identified Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 (“Petitioner”) as the holder of the Note and the lien created by the Deed of Trust.

On 12 March 2009, the Substitute Trustee commenced this action by filing a Notice of Hearing on Foreclosure of Deed of Trust with the Hyde County Clerk of Superior Court pursuant to section 45-21.16 of our General Statutes. N.C. Gen. Stat. § 45-21.16 (2009). The Notice of Hearing stated, “the current holder of the foregoing Deed of Trust, and of the debt secured thereby, is: Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6.”

In a letter dated 5 April 2009, Mr. Gilbert purported to exercise his right to rescind the loan transaction he entered into with the original lender, First National Bank of Arizona, pursuant to the federal Truth in Lending Act, 15 U.S.C. § 1635. As justification for his purported rescission, Gilbert alleged that the Truth in Lending Disclosure Statement provided by First National Bank of Arizona failed to accurately provide all required material disclosures including, inter alia, the correct annual percentage rate and payment schedule. The Substitute Trustee responded with a letter from GMAC ResCap, in which it denied any material disclosure errors were made and refused to rescind the loan transaction.

The foreclosure hearing was held on 2 June 2009 before the Clerk of Superior Court of Hyde County. The Honorable Sharon G. Sadler entered an Order on 17 June 2009, permitting the Substitute Trustee to proceed with the foreclosure. In the Order, the Clerk specifically found, inter alia, that Petitioner was the holder of the Note and Deed of Trust that it sought to foreclose and the Note evidenced a valid debt owed by Mr. Gilbert. Respondents appealed the Order to superior court.

The matter came on for a de novo hearing on 18 August 2009 before the Honorable Marvin K. Blount, III, in Hyde County Superior Court. During the hearing, the trial court admitted into evidence a certified copy of the Note and the Deed of Trust and two affidavits attesting to the validity of Gilbert’s indebtedness pursuant to the Note, and that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note. Additionally, Petitioner introduced the original Note and Allonge for the trial court’s inspection.

Reviewing the record before this Court, the Allonge contains a series of indorsements evidencing the alleged assignments of the Note, as follows:

PAY TO THE ORDER OF: First National Bank of Nevada WITHOUT RECOURSE BY: [Signature] ___________________________ AMY HAWKINS, ASSISTANT VICE PRESIDENT FIRST NATIONAL BANK OF ARIZONA Pay to the order of: RESIDENTIAL FUNDING CORPORATION Without Recourse FIRST NATIONAL BANK OF NEVADA By: [Signature] __________________________ Deutsche Bank National Trust Company, F/K/A Bankers Trust Company of California, N.A. as Custodian as Attorney in Fact [Illegible Name and Title] PAY TO THE ORDER OF Deutsche Bank Trust Company Americas as Trustee WITHOUT RECOURSE Residential Funding Corporation BY [Signature] ________________________ Judy Faber, Vice President

Respondents made two arguments at the hearing. First, Respondents argued that the debt evidenced by the Note no longer existed, as Mr. Gilbert had rescinded the transaction for the loan with First National Bank of Arizona. Petitioner objected to Respondents’ rescission argument as being a defense in equity and, as such, inadmissible in a proceeding held pursuant to N.C. Gen. Stat. § 45-21.16. The trial court agreed and refused to let Respondents’ expert witness testify as to alleged material errors in the Truth in Lending Disclosure Statement, which Mr. Gilbert alleged permitted him the right to rescind the loan. Second, Respondents argued that Petitioner had not produced sufficient evidence to establish that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 was the holder of the Note.

Based on the preceding evidence, the trial court entered an order on 18 August 2009 in which it found, inter alia: Mr. Gilbert executed the Note and, with his wife, executed a Deed of Trust in favor of First National Bank of Arizona, secured by the real property described in the Deed of Trust; a valid debt exists and is owed by Gilbert to Petitioner; Gilbert is in default under the Note and Deed of Trust; proper notice of the foreclosure hearing was given to all parties as required by N.C. Gen. Stat. § 45-21.16; Petitioner was the current holder of the Note and the Deed of Trust. The trial court concluded as a matter of law that the requirements of N.C. Gen. Stat. § 45-21.16 had been satisfied. Based on these findings and conclusion of law, the trial court authorized the Substitute Trustee to proceed with the foreclosure. Respondents timely entered notice of appeal.

II. Analysis

A party seeking permission from the clerk of court to proceed with a foreclosure pursuant to a power of sale contained in a deed of trust must prove the following statutory requirements: (1) the party seeking foreclosure is the holder of a valid debt, (2) default on the debt by the debtor, (3) the deed of trust provides the right to foreclose, (4) proper notice was given to those parties entitled to notice pursuant to section 45-21.16(b). N.C. Gen. Stat. § 45-21.16(d) (2009). The General Assembly added a fifth requirement, which expired 31 October 2010: “that the underlying mortgage debt is not a subprime loan,” or, if it is a subprime loan, “that the pre-foreclosure notice under G.S. 45-102 was provided in all material respects, and that the periods of time established by Article 11 of this Chapter have elapsed[.]” Id. The role of the clerk of court is limited to making a determination on the matters specified by section 45-21.16(d). See Mosler ex rel. Simon v. Druid Hills Land Co., Inc., 199 N.C. App. 293, 295-96, 681 S.E.2d 456, 458 (2009). If the clerk’s order is appealed to superior court, that court’s de novo hearing is limited to making a determination on the same issues as the clerk of court. See id.

The trial court’s order authorizing the foreclosure to proceed was a final judgment of the superior court, therefore, this Court has jurisdiction to hear the instant appeal. N.C. Gen. Stat. § 7A-27(b) (2009). Our standard of review for this appeal, where the trial court sat without a jury, is “`whether competent evidence exists to support the trial court’s findings of fact and whether the conclusions reached were proper in light of the findings.'” In re Adams, __ N.C. App. __, __, 693 S.E.2d 705, 708 (2010) (quoting In re Foreclosure of Azalea Garden Bd. & Care, Inc., 140 N.C. App. 45, 50, 535 S.E.2d 388, 392 (2000)).

We note the trial court classified multiple conclusions of law as “findings of fact.” We have previously recognized “[t]he classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997). Generally, “any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law.” Id. (citations omitted). Any determination made by “`logical reasoning from the evidentiary facts,'” however, “is more properly classified a finding of fact.” Id. (quoting Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 657-58 (1982)). When this Court determines that findings of fact and conclusions of law have been mislabeled by the trial court, we may reclassify them, where necessary, before applying our standard of review. N.C. State Bar v. Key, 189 N.C. App. 80, 88, 658 S.E.2d 493, 499 (2008) (citing In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675).

Looking to the trial court’s Order, we conclude that the following “findings of fact” are determinations that required the application of legal principles and are more appropriately classified as conclusions of law: a valid debt exists and is owed to Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6; proper notice was given to and received by all parties as required by N.C. Gen. Stat. § 45-21.16 and the Rules of Civil Procedure; Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note and Deed of Trust. See In re Watts, 38 N.C. App. 90, 92, 247 S.E.2d 427, 428 (1978) (noting upon the appeal of a N.C. Gen. Stat. § 45-21.16 special proceeding the trial court’s conclusions of lawsee also Connolly v. Potts, 63 N.C. App. 547, 549, 306 S.E.2d 123, 124 (1983) (same). In light of this reclassification of the trial court’s findings of fact and conclusions of law, we turn to the issues raised on appeal. included the existence of a valid debt, the right to foreclose under the deed of trust, and proper notice to the mortgagors);

1. Rescission of the Loan Transaction

Respondents raise several arguments alleging the trial court erred by refusing to consider their defense to the foreclosure action, that the debt Petitioner sought to foreclose was not a valid debt——a required element under the statute for foreclosure by power of sale. See N.C. Gen. Stat. § 45-21.16(d)(i) (requiring, inter alia, that the clerk of court must determine that a valid debt exists). Respondents contend the debt is not valid because Mr. Gilbert rescinded the transaction by which he obtained the loan from First National Bank of Arizona pursuant to the federal Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667f, and the Federal Reserve Board’s Regulation Z, 12 C.F.R. § 226.1-.58. We conclude the trial court did not err.

The admissibility of evidence in the trial court is based upon that court’s sound discretion and may be disturbed on appeal only upon a finding that the decision was based on an abuse of discretion. Gibbs v. Mayo, 162 N.C. App. 549, 561, 591 S.E.2d 905, 913 (2004). Here, we conclude the trial court properly refused to consider Respondents’ evidence of rescission. Rescission under the TILA is an equitable remedy. See Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 819 (4th Cir. 2007) (“`[A]lthough the right to rescind [under the TILA] is [statutory], it remains an equitable doctrine subject to equitable considerations.'” (quoting Brown v. Nat’l Permanent Fed. Sav. & Loan Ass’n, 683 F.2d 444, 447 (D.C. Cir. 1982)). While legal defenses to a foreclosure under a power of sale are properly raised in a hearing held pursuant to section 45-21.16, equitable defenses are not. Watts, 38 N.C. App. at 94, 247 S.E.2d at 429. As we have previously stated, a hearing under section 45-21.16 is “not intended to settle all matters in controversy between mortgagor and mortgagee, nor was it designed to provide a second procedure for invoking equitable relief.” Id. A party seeking to raise an equitable defense may do so in a separate civil action brought in superior court under section 45-21.34. Id.; N.C. Gen. Stat. § 45-21.34 (2009) (stating that a party with a legal or equitable interest in the subject property may apply to a superior court judge to enjoin a sale of the property upon legal or equitable grounds). Accordingly, the trial court properly concluded Respondents’ argument that Mr. Gilbert had rescinded the loan transaction, invaliding the debt Petitioner sought to foreclose, was an equitable defense and not properly before the trial court. Respondents’ argument is without merit.[1]

2. Evidence that Petitioner was the Owner and Holder of Mr. Gilbert’s Promissory Note

Respondents also argue the trial court erred in ordering the foreclosure to proceed, as Petitioner did not prove that it was the holder of the Note with the right to foreclose under the instrument as required by section 45-21.16(d)(i) and (iii). We agree.

A “foreclosure under a power of sale is not favored in the law and its exercise will be watched with jealousy.” In re Foreclosure of Goforth Props., Inc., 334 N.C. 369, 375, 432 S.E.2d 855, 859 (1993) (citations and internal quotation marks omitted). That the party seeking to foreclose on a promissory note is the holder of said note is an essential element of the action and the debtor is “entitled to demand strict proof of this element.” Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (1978).

For the trial court to find sufficient evidence that Petitioner is the holder of a valid debt in accordance with section 45-21.16(d), “this Court has determined that the following two questions must be answered in the affirmative: (1) `is there sufficient competent evidence of a valid debt?’; and (2) `is there sufficient competent evidence that [the party seeking to foreclose is] the holder[ ] of the notes [that evidence that debt]?'” Adams, __ N.C. App. at __, 693 S.E.2d at 709 (quoting In re Cooke, 37 N.C. App. 575, 579, 246 S.E.2d 801, 804—05 (1978)); see N.C. Gen. Stat. § 45-21.16(d) (2009) (in order for the foreclosure to proceed, the clerk of court must find, inter alia, the existence of a “valid debt of which the party seeking to foreclose is the holder,” and a “right to foreclose under the instrument” securing the debt) (emphasis added).

Establishing that a party is the holder of the note is essential to protect the debtor from the threat of multiple judgments on the same note.

If such proof were not required, the plaintiff could negotiate the instrument to a third party who would become a holder in due course, bring a suit upon the note in her own name and obtain a judgment in her favor. . . . Requiring proof that the plaintiff is the holder of the note at the time of her suit reduces the possibility of such an inequitable occurrence.

Liles, 38 N.C. App. at 527, 248 S.E.2d at 387.

We have previously determined that the definition of “holder” under the Uniform Commercial Code (“UCC”), as adopted by North Carolina, controls the meaning of the term as it used in section 45-21.16 of our General Statutes for foreclosure actions under a power of sale. See Connolly, 63 N.C. App. at 550, 306 S.E.2d at 125; Adams, __ N.C. App. at __, 693 S.E.2d at 709. Our General Statutes define the “holder” of an instrument as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” N.C. Gen. Stat. § 25-1-201(b)(21) (2009); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 203, 271 S.E.2d 54, 57 (1980). Furthermore, a “`[p]erson’ means an individual, corporation, business trust, estate, trust . . . or any other legal or commercial entity.” N.C. Gen. Stat. § 25-1-201(b)(27) (2009).

As addressed above, we conclude the trial court properly found that a valid debt existed. The remaining issue before this Court is whether there was competent evidence that Petitioner was the holder of the Note that evidences Mr. Gilbert’s debt.

In support of its argument that it provided competent evidence to support the trial court’s findings, Petitioner first points to its production of the original Note with the Allonge at the de novo hearing, as well as its introduction into evidence true and accurate copies of the Note and Allonge. Petitioner asserts this evidence “plainly evidences the transfers” of the Note to Petitioner. We cannot agree.

Under the UCC, as adopted by North Carolina, “[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” N.C. Gen. Stat. § 25-3-203(a) (2009). Production of an original note at trial does not, in itself, establish that the note was transferred to the party presenting the note with the purpose of giving that party the right to enforce the instrument, as demonstrated in Connolly, 63 N.C. App. at 551, 306 S.E.2d at 125, and Smathers v. Smathers, 34 N.C. App. 724, 726, 239 S.E.2d 637, 638 (1977) (holding that despite evidence of voluntary transfer of promissory notes and the plaintiff’s possession thereof, the plaintiff was not the holder of the note under the UCC as the notes were not drawn, issued, or indorsed to her, to bearer, or in blank. “[T]he plaintiff testified to some of the circumstances under which she obtained possession of the notes, but the trial court made no findings of fact with respect thereto.”)

In Connolly, determining who had possession of the note became the critical question for the foreclosure proceeding. 63 N.C. App. at 551, 306 S.E.2d at 125. Several years prior to the foreclosure proceedings at issue in Connolly, the petitioners obtained a loan from a bank and pledged as collateral a promissory note that was payable to the petitioners by assigning and delivering the note to the bank. Id. at 549, 306 S.E.2d at 124. After obtaining their loan, the petitioners sought to foreclose on the promissory note and deed of trust, which was in the bank’s possession, but were denied at the special proceeding before the clerk of court. Id. at 548, 306 S.E.2d at 124. The petitioners appealed the decision to superior court. Id. During the de novo hearing, the petitioners testified their loan to the bank had been paid, but “they had left the [] note at the bank, for security purposes.” Id. at 551, 306 S.E.2d at 125. The petitioners, however, “introduced the originals of the note and deed of trust” during the hearing. Id. The trial court found the bank was in possession of the note and concluded, as a matter of law, the petitioners were not the holders of the note at the institution of the foreclosure proceedings; the foreclosure was again denied. Connolly, 63 N.C. App. at 550, 306 S.E.2d at 124-25. On appeal, this Court concluded that despite the fact that the party seeking foreclosure introduced the original note at the time of the de novo hearing, the trial court’s findings of fact did not address whether the petitioners were in possession of the note at the time of the trial; the trial court’s judgment was vacated and remanded. Id. at 551, 306 S.E.2d at 125-26.

Similarly, here, the trial court’s findings of fact do not address who had possession of Mr. Gilbert’s note at the time of the de novo hearing. Without a determination of who has physical possession of the Note, the trial court cannot determine, under the UCC, the entity that is the holder of the Note. See N.C. Gen. Stat. § 25-1-201(b)(21) (defining “holder” as “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession“) (emphasis added); Connolly, 63 N.C. App. at 550, 306 S.E.2d at 125 (“It is the fact of possession which is significant in determining whether a person is a holder, and the absence of possession defeats that status.“) (emphasis added). Accordingly, the trial court’s findings of fact do not support the conclusion of law that Petitioner is the holder of Mr. Gilbert’s note.

Assuming arguendo that production of the Note was evidence of a transfer of the Note pursuant to the UCC and that Petitioner was in possession of the Note, this is not sufficient evidence that Petitioner is the “holder” of the Note. As discussed in detail below, the Note was not indorsed to Petitioner or to bearer, a prerequisite to confer upon Petitioner the status of holder under the UCC. See N.C. Gen. Stat. § 25-1-201(b)(21) (requiring that, to be a holder, a person must be in possession of the note payable to bearer or to the person in possession of the note). “`[M]ere possession’ of a note by a party to whom the note has neither been indorsed nor made payable `does not suffice to prove ownership or holder status.'” Adams, __ N.C. App. at __, 693 S.E.2d at 710 (quoting Econo-Travel Motor Hotel Corp., 301 N.C. at 203, 271 S.E.2d at 57).

Petitioner acknowledges that following the signing of the Note by Mr. Gilbert, the Note was sequentially assigned to several entities, as indicated by the series of indorsements on the Allonge, reprinted above. Respondents argue these indorsements present two problems. First, Respondents state that Petitioner did not provide any evidence to establish that Deutsche Bank National Trust Company had the authority, as the attorney-in-fact for First National Bank of Nevada, to assign the Note to Residential Funding Corporation in the second assignment. Respondents make no argument——and cite no authority to establish——that such evidence is needed. Therefore, we do not address the merits of this alleged error and deem it abandoned. See N.C. R. App. P. 28(6) (2011) (“Issues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.”)

Second, Respondents argue Petitioner has not offered sufficient evidence that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 was the holder of the Note and, thus, the party entitled to proceed with the foreclosure action. We agree.

Respondents note the third and final assignment on the Allonge was made to “Deutsche Bank Trust Company Americas as Trustee,” which is not the party asserting a security interest in Respondents’ property; this action was brought by Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6, the entity the trial court found to be the owner and holder of the Note. Section 3-110 of the UCC, as codified in our General Statutes, states in pertinent part:

For the purpose of determining the holder of an instrument, the following rules apply:

. . . .

(2) If an instrument is payable to (i) a trust, an estate, or a person described as trustee or representative of a trust or estate, the instrument is payable to the trustee, the representative, or a successor of either, whether or not the beneficiary or estate is also named . . . .

N.C. Gen. Stat. § 25-3-110(c) (2009) (emphasis added). Additionally, the official comments to this section of the UCC state, in part, “This provision merely determines who can deal with an instrument as a holder. It does not determine ownership of the instrument or its proceeds.” Id. § 25-3-110, Official Comment 3.

In the present case, the Note is clearly indorsed “PAY TO THE ORDER OF Deutsche Bank Trust Company Americas as Trustee.” Thus, pursuant to section 25-3-110(c)(2), the Note is payable to Deutsche Bank Trust Company Americas as Trustee. See Id. Because the indorsement does not identify Petitioner and is not indorsed in blank or to bearer, it cannot be competent evidence that Petitioner is the holder of the Note. See N.C. Gen. Stat. § 25-1-201(b)(21) (defining “holder” as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession“); Econo-Travel Motor Hotel Corp., 301 N.C. at 204, 271 S.E.2d at 57 (concluding that where the defendants produced a copy of the note indorsed to an entity other than the plaintiff, the “defendants established that plaintiff was not the owner or holder of the note”).

In addition to the Note and Allonge, Petitioner points to two affidavits provided by two GMAC Mortgage employees as further evidence that the trial court’s findings are based on sufficient competent evidence. Again, we disagree.

The first affidavit is an Affidavit of Indebtedness by Jeffrey Stephan (“Stephan”).[2] In his affidavit, Stephan averred, inter alia, he was a limited signing officer for GMAC Mortgage, the sub-servicer of Mr. Gilbert’s loan, and as such, was “familiar with the books and records of [GMAC Mortgage], specifically payments made pursuant to the Note and Deed of Trust.” Accordingly, Stephan testified as to the principal amount of Mr. Gilbert’s loan and to his history of loan payments. Stephan further testified that after the Note and Deed of Trust were executed they were “delivered” to the original lender, First National Bank of Arizona; the original lender then “assigned and transferred all of its right, title and interest” to First National Bank of Nevada, which, in turn, assigned all its rights, title, and interest in the instruments to Residential Funding Corporation. The final assignment to which Stephan averred is an assignment and securitization of the Note and Deed of Trust from Residential Funding Corporation to “Deutsche Bank Trust Company Americas as Trustee.” Stephan then makes the conclusory statement, “Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note and Deed of Trust described herein.”

Whether Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the owner and holder of the Note and Deed of Trust is a legal conclusion that is to be determined by a court of law on the basis of factual allegations. As such, we disregard Stephan’s conclusion as to the identity of the “owner and holder” of the instruments. See Lemon v. Combs, 164 N.C. App. 615, 622, 596 S.E.2d 344, 349 (2004) (“`Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.'” (quoting 3 Am. Jur. 2d, Affidavits § 13 (2002))); see also Speedway Motorsports Int’l Ltd. v. Bronwen Energy Trading, Ltd., __ N.C. App. __, __ n.2, __ S.E.2d __, __ n.2, slip op. at 12 n.2, No. 09-1451 (Feb. 15, 2011) (rejecting a party’s contention that this Court must accept as true all statements found in the affidavits in the record, stating, “our standard of review does not require that we accept a witness’ characterization of what `the facts’ mean”). While Stephan referred to a Pooling and Servicing Agreement (“PSA”) that allegedly governs the securitization of the Note to Deutsche Bank Trust Company Americas as Trustee, the PSA was not included in the record and will not be considered by this Court. See N.C. R. App. P. 9(a) (2011) (“In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9.”) The record is void of any evidence the Note was assigned and securitized to a trust.

We also note that Stephan alleged no facts as to who possesses Mr. Gilbert’s note, other than his averment that the Note was “delivered” to the original lender, First National Bank of Arizona. Stephan referred to a statement made by counsel for GMAC Mortgage that the original Note “would be brought to the foreclosure hearing,” but he did not provide any facts from which the trial court could determine who has possession of the Note. As demonstrated by Connolly,63 N.C. App. at 551, 306 S.E.2d at 125. Thus, we conclude Stephan’s affidavit is not competent evidence to support the trial court’s conclusion that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the owner and holder of Mr. Gilbert’s note. discussed above, production of a note at trial is not conclusive evidence of possession.

Petitioner also provided the affidavit of Scott Zeitz (“Zeitz”), who alleged in his affidavit to be a litigation analyst for GMAC Mortgage. Zeitz’s basis for his affidavit testimony is that he works with “the documents that relate to account histories and account balances of particular loans” and that he is familiar with Mr. Gilbert’s account. Accordingly, Zeitz testified to the details of Mr. Gilbert’s loan and the terms of the Note. Zeitz’s affidavit, substantially similar to the affidavit of Jeffrey Stephan, also averred to the transfer of the Note and Deed of Trust through the series of entities indicated on the Allonge, stating in part:

Residential Funding Corporation sold, assigned and transferred all of its right, title and interest in and to the Note and Deed of Trust to Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6. This is reflected on the Allonge to the Note, a true and accurate copy of which is attached and incorporated hereto as EXHIBIT 5. (Emphasis added.)

This statement is factually incorrect; the Allonge in the record contains no indorsement to Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6. Zeitz further stated that “Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note and Deed of Trust.” This statement is a legal conclusion postured as an allegation of fact and as such will not be considered by this Court. See Lemon, 164 N.C. App. at 622, 596 S.E.2d at 349.

Unlike Jeffrey Stephan, Zeitz stated that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 “has possession of the original Note and Deed of Trust.” We note, however, that “[w]hen an affiant makes a conclusion of fact, it must appear that the affiant had an opportunity to observe and did observe matters about which he or she testifies.” Lemon, 164 N.C. App. at 622, 596 S.E.2d at 348-49 (quoting 3 Am. Jur. 2d Affidavits § 13) (internal quotation marks omitted). Moreover,

[t]he personal knowledge of facts asserted in an affidavit is not presumed from a mere positive averment of facts but rather the court should be shown how the affiant knew or could have known such facts and if there is no evidence from which an inference of personal knowledge can be drawn, then it is presumed that such does not exist.

Id. at 622-23, 596 S.E.2d at 349 (quoting 3 Am. Jur. 2d Affidavits § 14, cited with approval in Currituck Associates Residential P’ship v. Hollowell, 170 N.C. App. 399, 403-04, 612 S.E.2d 386, 389 (2005)). Thus, while Zeitz concluded as fact that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 has possession of the Note, his affidavit provides no basis upon which we can conclude he had personal knowledge of this alleged fact. Because of these deficiencies, we conclude that neither the affidavit of Jeffrey Stephan nor the affidavit of Scott Zeitz is competent evidence to support the trial court’s finding that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the owner and holder of Mr. Gilbert’s note.

III. Conclusion

We conclude the record is lacking of competent evidence sufficient to support that Petitioner is the owner and holder of Mr. Gilbert’s note and deed of trust. The trial court erred in permitting the Substitute Trustee to proceed with foreclosure proceedings and its order is

Reversed.

Judges MCGEE and BEASLEY concur.

[1] During the pendency of this action, the Gilberts filed a separate action against Deutsche Bank Trust Company Americas, Residential Funding, LLC, GMAC Mortgage, LLC, and David A. Simpson, P.C. to litigate, inter alia, their TILA claim in Hyde County Superior Court. The defendants removed the action to federal court. See Gilbert v. Deutsche Bank Trust Co. Americas, slip op. at 1, 4:09-CV-181-D, 2010 WL 2696763 (E.D.N.C. July 7, 2010), reconsideration denied, 2010 WL 4320460 (E.D.N.C. Oct. 19, 2010). Because the Gilberts’ claim was filed more than three years after the loan transaction was completed, the federal trial court dismissed the action for failure to state a claim upon which relief could be granted. Id. at __, slip op. at 5.

[2] This Court finds troubling that GMAC Mortgage, LLC was recently found to have submitted a false affidavit by Signing Officer Jeffrey Stephan in a motion for summary judgment against a mortgagor in the United States District Court of Maine. Judge John H. Rich, III concluded that GMAC Mortgage submitted Stephan’s false affidavit in bad faith and levied sanctions against GMAC Mortgage, stating:

[T]he attestation to the Stephan affidavit was not, in fact, true; that is, Stephan did not know personally that all of the facts stated in the affidavit were true. . . . GMAC [Mortgage] was on notice that the conduct at issue here was unacceptable to the courts, which rely on sworn affidavits as admissible evidence in connection with motions for summary judgment. In 2006, an identical jurat signed under identical circumstances resulted in the imposition of sanctions against GMAC [Mortgage] in Florida. James v. U.S. Bank Nat. Ass’n, 272 F.R.D. 47, 48 (D. Me. 2011).

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BofA, Wells Fargo Mortgage Papers Challenged by North Carolina Official

BofA, Wells Fargo Mortgage Papers Challenged by North Carolina Official


BLOOMBERG-

The signatures of the same names on more than 4,500 documents handled by Lender Processing Services Inc. (LPS) for real estate valued at $624.8 million varied enough to raise doubts about their validity, Jeff Thigpen, register of deeds in Guilford County, North Carolina, told reporters today in Greensboro.

Check out the link to documents below…

NC Reg. of Deeds Thigpen Releases Approx. 4,500 DocX Signature Spread Sheet

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NC Reg. of Deeds Thigpen Releases Approx. 4,500 DocX Signature Spread Sheet

NC Reg. of Deeds Thigpen Releases Approx. 4,500 DocX Signature Spread Sheet


Take a look at all these residents with DocX signatures…this is only the beginning to his quest. In matter of fact he’s found about 2,300 others.

mortgage fraud information from press conference


[ipaper docId=54630751 access_key=key-18dtymzwmp9dng31z6jd height=600 width=600 /]

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Bristol County Board of Commissioners ask AG Martha Coakley about possible lawsuit against MERS

Bristol County Board of Commissioners ask AG Martha Coakley about possible lawsuit against MERS


TAUNTON —

The Bristol County Board of Commisioners voted unanimously Tuesday to send a letter to Massachusetts Attorney General Martha Coakley expressing interest in pursuing litigation against Mortgage Electronic Registration Systems, Inc, commonly known as MERS, for skirting public recording laws.

MERS is a private network that is partly owned by Bank of America. The commissioners did not specify how much they are looking to recover. “It’d be really rough numbers,” said Commissioner John Mitchell. “We’d have to find out.”

Read more: http://www.tauntongazette.com/news/x916857902/Bristol-County-Board-of-Commissioners-ask-AG-Martha-Coakley-about-possible-lawsuit-against-mortgage-corporation#ixzz1LM9hlvuD

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MA Register of Deeds John O’Brien Uncovers Questionable and Possibly Fraudulent Signatures

MA Register of Deeds John O’Brien Uncovers Questionable and Possibly Fraudulent Signatures


JOHN L. O’BRIEN, JR.
Register of Deeds Phone: 978-542-1704 Fax: 978-542-1706
website: www.salemdeeds.com
Commonwealth of Massachusetts Southern Essex District Registry of Deeds
Shetland Park 45 Congress Street Suite 4100
Salem, Massachusetts 01970

NEWS FOR IMMEDIATE RELEASE
Salem, MA May 3rd, 2011
Contact: Kevin Harvey, 1st Assistant Register 978-542-1724
kevin.harvey@sec.state.ma.us

The 1960’s television show “To Tell the Truth”, where imposters pretend to be the central character, is playing out today at the Essex Southern District Registry of Deeds and Register John O’Brien is not happy about it. After the 60 Minutes’ expose on Mortgage Fraud was aired and showed that leading mortgage services have been using forged documents to foreclose on homeowners, Register John O’Brien reviewed mortgage discharges recorded in his Registry. To view the 60 Minutes Article and a link to the video, go to http://www.cbsnews.com/stories/2011/04/01/60minutes/main20049646.shtml

What he found astonished him. In 2010 alone, 286 Bank of America’s mortgage discharges were recorded with what he calls “questionable and possibly fraudulent signatures of the notorious Linda Green.” O’Brien said that he has found at least four variations of Green’s signature recorded in his Registry.

Green, who was spotlighted in the 60 Minutes Episode, had her name signed by various individuals on thousands of documents recorded at Registries of Deeds throughout the state of Massachusetts and across the nation. In Register O’Brien’s opinion, these documents have corrupted Essex County homeowner’s chains of title. “I have a responsibility to ensure that the documents recorded in my Registry meet the statutory requirements of recording. If, however, I am presented with evidence that clearly shows that fraud may have been committed then it is my responsibility as the keeper of records to turn these documents over to the appropriate authorities for their review and action.”

O’Brien has today forwarded certified copies of these discharges to United States Attorney, Carmen Ortez, Attorney General, Martha Coakley, and Essex County District Attorney, Jonathan Blodgett. “If what I suspect has happened, then the people who have committed this fraud should be held accountable for their actions” commented O’Brien. O’Brien fears that this fraudulent behavior is only the tip of the iceberg and feels strongly that lenders and mortgage servicers should be held accountable for their actions. Actions which he originally only thought involved a scheme to circumvent the land recordation system by creating a private, for profit cyber-registry to benefit the big bank’s pocketbooks. Now it seems that MERS, and its member banks may have added fraud to their repertoire of services that they offer.

Register O’Brien questions if a good portion of this foreclosure mess could have been avoided in the first place, if the big banks did what they were supposed to do and recorded assignments like other lenders do. Register O’Brien believes: 1) Homeowners deserve to know who owns their mortgages; 2) Assignments should be recorded in the appropriate registry of deeds, each and every time a mortgage is sold, to provided transparency and public disclosure of ownership; and 3) Any and all documents should be signed by an authorized authority at the entity that actually owns and holds the note secured by the mortgage.

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Register of Deeds Jeff Thigpen Uncovers Possible Fraud by Wells Fargo, Bank of America, and MERS

Register of Deeds Jeff Thigpen Uncovers Possible Fraud by Wells Fargo, Bank of America, and MERS


PRESS RELEASE
May 2, 2011

For Immediate Release
Greensboro, NC
May 2, 2011

Contact:  Jeff Thigpen Guilford County Register of Deeds

Ph. 336-451-5300
Ph.  336-641-4802
Email: jthigpe@co.guilford.nc.us

PRESS RELEASE

Register of Deeds Jeff Thigpen Uncovers Possible Fraud by Wells Fargo, Bank of America, and MERS

Guilford County Register of Deeds Jeff Thigpen will hold a press conference in the Blue Room in the Old Guilford County Courthouse on Wednesday, May 6th at 10 am  to reveal the findings of an internal investigation initiated after a 60 Minutes segment called “The Mortgage Paperwork Mess” that followed alleged fraud committed the company Doc X, owned by Lender Proccessing Services (LPS) and contracted with major mortgage and banking institutions including Wells Fargo, Bank of America and the Mortgage Electronic Registration Systems (MERS) Inc.

Register of Deeds Thigpen will be joined by Lynn Szymoniak, an attorney interviewed during the segment by 60 Minutes Scott Pelley.   The findings of this internal investigation will be revealed and forwarded to the appropriate federal and state agencies including the Federal Reserve, Federal Deposit Insurance Corporation (FDIC), Office of Thrift Supervision (OTS), and Office of Comptroller of the Currency (OCC).

The findings will be submitted to Iowa Attorney General Tom Miller, heading the 50 State Attorney General Investigations into Foreclosure Fraud, and North Carolina Attorney General Roy Cooper, current President of the National Association of Attorneys General for their consideration and the financial services institutions.

Register of Deeds Thigpen will also announce actions taken involving Lenders and Mortgage companies to address the findings of this investigation.

###

*April 4, 2011 60 Minutes segment on Mortgage Mess:

http://www.cbsnews.com/video/watch/?id=7361572n

http://www.cbsnews.com/video/watch/?id=7361572n&tag=contentMain;contentBody

source: Guildforddeeds.com

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