UNIFORM COMMERCIAL CODE COMMITTEE

WHERE’S THE NOTE, WHO’S THE HOLDER: ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE

HON. SAMUEL L. BUFFORD
UNITED STATES BANKRUPTCY JUDGE
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES, CALIFORNIA

(FORMERLY HON.) R. GLEN AYERS
LANGLEY & BANACK
SAN ANTONIO, TEXAS

AMERICAN BANKRUPTCY INSTUTUTE
APRIL 3, 2009
WASHINGTON, D.C.

WHERE’S THE NOTE, WHO’S THE HOLDER

INTRODUCTION

In an era where a very large portion of mortgage obligations have been securitized, by assignment to a trust indenture trustee, with the resulting pool of assets being then sold as mortgage backed securities, foreclosure becomes an interesting exercise, particularly where judicial process is involved.  We are all familiar with the securitization process.  The steps, if not the process, is simple.  A borrower goes to a mortgage lender.  The lender finances the purchase of real estate.  The borrower signs a note and mortgage or deed of trust.  The original lender sells the note and assigns the mortgage to an entity that securitizes the note by combining the note with hundreds or thousands of similar obligation to create a package of mortgage backed securities, which are then sold to investors.

Unfortunately, unless you represent borrowers, the vast flow of notes into the maw of the securitization industry meant that a lot of mistakes were made.  When the borrower defaults, the party seeking to enforce the obligation and foreclose on the underlying collateral sometimes cannot find the note.  A lawyer sophisticated in this area has speculated to one of the authors that perhaps a third of the notes “securitized” have been lost or destroyed.  The cases we are going to look at reflect the stark fact that the unnamed source’s speculation may be well-founded.

UCC SECTION 3-309

If the issue were as simple as a missing note, UCC §3-309 would provide a simple solution.  A person entitled to enforce an instrument which has been lost, destroyed or stolen may enforce the instrument. If the court is concerned that some third party may show up and attempt to enforce the instrument against the payee, it may order adequate protection.  But, and however, a person seeking to enforce a missing instrument must be a person entitled to enforce the instrument, and that person must prove the instrument’s terms and that person’s right to enforce the instrument.  §3-309 (a)(1) & (b).

WHO’S THE HOLDER

Enforcement of a note always requires that the person seeking to collect show that it is the holder.  A holder is an entity that has acquired the note either as the original payor or transfer by endorsement of order paper or physical possession of bearer paper.  These requirements are set out in Article 3 of the Uniform Commercial Code, which has been adopted in every state, including Louisiana, and in the District of Columbia.  Even in bankruptcy proceedings, State substantive law controls the rights of note and lien holders, as the Supreme Court pointed out almost forty (40) years ago in United States v. Butner, 440 U.S. 48, 54-55 (1979).

However, as Judge Bufford has recently illustrated, in one of the cases discussed below, in the bankruptcy and other federal courts, procedure is governed by the Federal Rules of Bankruptcy and Civil Procedure.  And, procedure may just have an impact on the issue of “who,” because, if the holder is unknown, pleading and standing issues arise.

BRIEF REVIEW OF UCC PROVISIONS

Article 3 governs negotiable instruments – it defines what a negotiable instrument is and defines how ownership of those pieces of paper is transferred.  For the precise definition, see § 3-104(a) (“an unconditional promise or order to pay a fixed amount of money, with or without interest . . . .”)  The instrument may be either payable to order or bearer and payable on demand or at a definite time, with or without interest.

Ordinary negotiable instruments include notes and drafts (a check is a draft drawn on a bank).  See § 3-104(e).

Negotiable paper is transferred from the original payor by negotiation.  §3-301.  “Order paper” must be endorsed; bearer paper need only be delivered.  §3-305.  However, in either case, for the note to be enforced, the person who asserts the status of the holder must be in possession of the instrument.  See UCC § 1-201 (20) and comments.

The original and subsequent transferees are referred to as holders.  Holders who take with no notice of defect or default are called “holders in due course,” and take free of many defenses.  See §§ 3-305(b).

The UCC says that a payment to a party “entitled to enforce the instrument” is sufficient to extinguish the obligation of the person obligated on the instrument.  Clearly, then, only a holder – a person in possession of a note endorsed to it or a holder of bearer paper – may seek satisfaction or enforce rights in collateral such as real estate.

NOTE:  Those of us who went through the bank and savings and loan collapse of the 1980’s are familiar with these problems.  The FDIC/FSLIC/RTC sold millions of notes secured and unsecured, in bulk transactions.  Some notes could not be found and enforcement sometimes became a problem.  Of course, sometimes we are forced to repeat history.  For a recent FDIC case, see Liberty Savings Bank v. Redus, 2009 WL 41857 (Ohio App. 8 Dist.), January 8, 2009.

THE RULES

Judge Bufford addressed the rules issue this past year.  See In re Hwang, 396 B.R. 757  (Bankr. C. D. Cal. 2008).  First, there are the pleading problems that arise when the holder of the note is unknown.  Typically, the issue will arise in a motion for relief from stay in a bankruptcy proceeding.

According F.R.Civ. Pro. 17, “[a]n action must be prosecuted in the name of the real party in interest.”  This rule is incorporated into the rules governing bankruptcy procedure in several ways.  As Judge Bufford has pointed out, for example, in a motion for relief from stay, filed under F.R.Bankr.Pro. 4001 is a contested matter, governed by F. R. Bankr. P. 9014, which makes F.R. Bankr. Pro. 7017 applicable to such motions.  F.R. Bankr. P. 7017 is, of course, a restatement of F.R. Civ. P. 17.  In re Hwang, 396 B.R. at 766.  The real party in interest in a federal action to enforce a note, whether in bankruptcy court or federal district court, is the owner of a note.  (In securitization transactions, this would be the trustee for the “certificate holders.”) When the actual holder of the note is unknown, it is impossible – not difficult but impossible – to plead a cause of action in a federal court (unless the movant simply lies about the ownership of the note).  Unless the name of the actual note holder can be stated, the very pleadings are defective.

STANDING

Often, the servicing agent for the loan will appear to enforce the note.   Assume that the servicing agent states that it is the authorized agent of the note holder, which is “Trust Number 99.”   The servicing agent is certainly a party in interest, since a party in interest in a bankruptcy court is a very broad term or concept.  See, e.g., Greer v. O’Dell, 305 F.3d 1297, 1302-03 (11^th Cir. 2002).  However, the servicing agent may not have standing: “Federal Courts have only the power authorized by Article III of the Constitutions and the statutes enacted by Congress pursuant thereto. … [A] plaintiff must have Constitutional standing in order for a federal court to have jurisdiction.”  In re Foreclosure Cases, 521 F.Supp. 3d 650, 653 (S.D. Ohio, 2007) (citations omitted).

But, the servicing agent does not have standing, for only a person who is the holder of the note has standing to enforce the note.  See, e.g., In re Hwang, 2008 WL 4899273 at 8.

The servicing agent may have standing if acting as an agent for the holder, assuming that the agent can both show agency status and that the principle is the holder.  See, e.g., In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008) at 520.

A BRIEF ASIDE: WHO IS MERS?

For those of you who are not familiar with the entity known as MERS, a frequent participant in these foreclosure proceedings:

MERS is the “Mortgage Electronic Registration System, Inc.  “MERS is a mortgage banking ‘utility’ that registers mortgage loans in a book entry system so that … real estate loans can be bought, sold and securitized, just like Wall Street’s book entry utility for stocks and bonds is the Depository Trust and Clearinghouse.” Bastian, “Foreclosure Forms”, State. Bar of Texas 17^th Annual Advanced Real Estate Drafting Course, March 9-10, 2007, Dallas, Texas. MERS is enormous.  It originates thousands of loans daily and is the mortgagee of record for at least 40 million mortgages and other security documents. Id.

MERS acts as agent for the owner of the note.  Its authority to act should be shown by an agency agreement.  Of course, if the owner is unknown, MERS cannot show that it is an authorized agent of  the owner.

RULES OF EVIDENCE – A PRACTICAL PROBLEM

This structure also possesses practical evidentiary problems where the party asserting a right to foreclose must be able to show a default.  Once again, Judge Bufford has addressed this issue.   At In re Vargas, 396 B.R. at 517-19.  Judge Bufford made a finding that the witness called to testify as to debt and default was incompetent.  All the witness could testify was that he had looked at the MERS computerized records.  The witness was unable to satisfy the requirements of the Federal Rules of Evidence, particularly Rule 803, as applied to computerized records in the Ninth Circuit.  See id. at 517-20.  The low level employee could really only testify that the MERS screen shot he reviewed reflected a default.  That really is not much in the way of evidence, and not nearly enough to get around the hearsay rule.

FORECLOSURE OR RELIEF FROM STAY

In a foreclosure proceeding in a judicial foreclosure state, or a request for injunctive relief in a non-judicial foreclosure state, or in a motion for relief proceeding in a bankruptcy court, the courts are dealing with and writing about the problems very frequently.

In many if not almost all cases, the party seeking to exercise the rights of the creditor will be a servicing company.  Servicing companies will be asserting the rights of their alleged principal, the note holder, which is, again, often going to be a trustee for a securitization package.  The mortgage holder or beneficiary under the deed of trust will, again, very often be MERS.

Even before reaching the practical problem of debt and default, mentioned above, the moving party must show that it holds the note or (1) that it is an agent of the holder and that (2) the holder remains the holder.  In addition, the owner of the note, if different from the holder, must join in the motion.

Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder.  See, e.g., Tex. Prop. Code §51.0001.  However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments.  This status is certainly open to challenge.  The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act.   If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note.  See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y.  Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008.  In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.

SOME RECENT CASE LAW

These cases are arranged by state, for no particular reason.

Massachusetts

In re Schwartz, 366 B.R.265 (Bankr. D. Mass. 2007)

Schwartz concerns a Motion for Relief to pursue an eviction. Movant asserted that the property had been foreclosed upon prior to the date of the bankruptcy petition.  The pro se debtor asserted that the Movant was required to show that it had authority to conduct the sale.  Movant, and “the party which appears to be the current mortgagee…” provided documents for the court to review, but did not ask for an evidentiary hearing.  Judge Rosenthal sifted through the documents and found that the Movant and the current mortgagee had failed to prove that the foreclosure was properly conducted.

Specifically, Judge Rosenthal found that there was no evidence of a proper assignment of the mortgage prior to foreclosure.  However, at footnote 5, Id. at 268, the Court also finds that there is no evidence that the note itself was assigned and no evidence as to who the current holder might be.

Nosek v. Ameriquest Mortgage Company (In re Nosek), 286 Br. 374 (Bankr D Mass. 2008).

Almost a year to the day after Schwartz was signed, Judge Rosenthal issued a second opinion.  This is an opinion on an order to show cause.  Judge Rosenthal specifically found that, although the note and mortgage involved in the case had been transferred from the originator to another party within five days of closing, during the five years in which the chapter 13 proceeding was pending, the note and mortgage and associated claims had been prosecuted by Ameriquest which has represented itself to be the holder of the note and the mortgage.  Not until September of 2007 did Ameriquest notify the Court that it was merely the servicer.  In fact, only after the chapter 13 bankruptcy had been pending for about three years was there even an assignment of the servicing rights.  Id. at 378.

Because these misrepresentations were not simple mistakes:  as the Court has noted on more than one occasion, those parties who do not hold the note of mortgage do not service the mortgage do not have standing to pursue motions for leave or other actions arising form the mortgage obligation.  Id at 380.

As a result, the Court sanctioned the local law firm that had been prosecuting the claim $25,000.  It sanctioned a partner at that firm an additional $25,000.  Then the Court sanctioned the national law firm involved $100,000 and ultimately sanctioned Wells Fargo $250,000.  Id. at 382-386.

In re Hayes, 393 B.R. 259 (Bankr. D. Mass. 2008).

Like Judge Rosenthal, Judge Feeney has attacked the problem of standing and authority head on.  She has also held that standing must be established before either a claim can be allowed or a motion for relief be granted.

Ohio

In re Foreclosure Cases, 521 F.Supp. 2d (S.D. Ohio 2007).

Perhaps the District Court’s orders in the foreclosure cases in Ohio have received the most press of any of these opinions.  Relying almost exclusively on standing, the Judge Rose has determined that a foreclosing party must show standing.  “[I]n a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time that the complaint was filed.”  Id. at 653.

Judge Rose instructed the parties involved that the willful failure of the movants to comply with the general orders of the Court would in the future result in immediate dismissal of foreclosure actions.

Deutsche Bank Nat’l Trust Co. v. Steele, 2008 WL 111227 (S.D. Ohio) January 8, 2008.

In Steele, Judge Abel followed the lead of Judge Rose and found that Deutsche Bank had filed evidence in support of its motion for default judgment indicating that MERS was the mortgage holder.  There was not sufficient evidence to support the claim that Deutsche Bank was the owner and holder of the note as of that date.  Following In re Foreclosure Cases, 2007 WL 456586, the Court held that summary judgment would be denied “until such time as Deutsche Bank was able to offer evidence showing, by a preponderance of evidence, that it owned the note and mortgage when the complaint was filed.”  2008 WL 111227 at 2.  Deutsche Bank was given twenty-one days to comply.  Id.

Illinois

U.S. Bank, N.A. v. Cook, 2009 WL 35286 (N.D. Ill. January 6, 2009).

Not all federal district judges are as concerned with the issues surrounding the transfer of notes and mortgages.  CookId. at 3.  In fact, a review of the evidence submitted by U.S. Bank showed only that it was the alleged trustee of the securitization pool.  U.S. Bank relied exclusively on the “pooling and serving agreement” to show that it was the holder of the note.  Id. is a very pro lender case and, in an order granting a motion for summary judgment, the Court found that Cook had shown no “countervailing evidence to create a genuine issue of facts.”

Under UCC Article 3, the evidence presented in Cook was clearly insufficient.

New York

HSBC Bank USA, N.A. v. Valentin, 21 Misc. 3D 1124(A), 2008 WL 4764816 (Table) (N.Y. Sup.) November 3, 2008.  In Valentin, the New York court found that, even though given an opportunity to, HSBC did not show the ownership of debt and mortgage.  The complaint was dismissed with prejudice and the “notice of pendency” against the property was cancelled.

Note that the Valentin case does not involve some sort of ambush. The Court gave every HSBC every opportunity to cure the defects the Court perceived in the pleadings.

California

In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008)

and

In re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008)

These two opinions by Judge Bufford have been discussed above.  Judge Bufford carefully explores the related issues of standing and ownership under both federal and California law.

Texas

In re Parsley, 384 B.R. 138 (Bankr. S.D. Tex. 2008)

and

In re Gilbreath, 395 B.R. 356 (Bankr. S.D. Tex. 2008)

These two recent opinions by Judge Jeff Bohm are not really on point, but illustrate another thread of cases running through the issues of motions for relief from stay in bankruptcy court and the sloppiness of loan servicing agencies.  Both of these cases involve motions for relief that were not based upon fact but upon mistakes by servicing agencies.  Both opinions deal with the issue of sanctions and, put simply, both cases illustrate that Judge Bohm (and perhaps other members of the bankruptcy bench in the Southern District of Texas) are going to be very strict about motions for relief in consumer cases.

SUMMARY

The cases cited illustrate enormous problems in the loan servicing industry.  These problems arise in the context of securitization and illustrate the difficulty of determining the name of the holder, the assignee of the mortgage, and the parties with both the legal right under Article 3 and the standing under the Constitution to enforce notes, whether in state court or federal court.

Interestingly, with the exception of Judge Bufford and a few other judges, there has been less than adequate focus upon the UCC title issues.  The next round of cases may and should focus upon the title to debt instrument.  The person seeking to enforce the note must show that:

(1)               It is the holder of this note original by transfer, with all necessary rounds;

(2)               It had possession of the note before it was lost;

(3)               If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be          prepared to post a bond;

(4)               If the person seeking to enforce is an agent, it must show its agency status and that its principal is the holder of the note (and meets the above requirements).

Then, and only then, do the issues of evidence of debt and default and assignment of mortgage rights become relevant.

JOHN KENNERTY, a/k/a HERMAN JOHN KENNERTY

JOHN KENNERTY a/k/a Herman John Kennerty has been employed for many years in the Ft. Mill, SC offices of America’s Servicing Company, a division of Wells Fargo Bank, N.A. He signed many different job titles on mortgage-related documents, often using different titles on the same day. He often signs as an officer of MERS (“Mortgage Electronic Registration Systems, Inc.”) On many Mortgage Assignments signed by Kennerty, Wells Fargo, or the trust serviced by ASC, is shown as acquiring the mortgage weeks or even months AFTER the foreclosure action is filed.

Titles attributed to John Kennerty include the following:

Asst. Secretary, MERS, as Nominee for 1st Continental Mortgage Corp.;

Asst. Secretary, MERS, as Nominee for American Brokers Conduit;

Asst. Secretary, MERS, as Nominee for American Enterprise Bank of Florida;

Asst. Secretary, MERS, as Nominee for American Home Mortgage;

Asst. Secretary, MERS, as Nominee for Amnet Mortgage, Inc. d/b/a American Mortgage Network of Florida;

Asst. Secretary, MERS, as Nominee for Bayside Mortgage Services, Inc.;

Asst. Secretary, MERS, as Nominee for CT Mortgage, Inc.;

Asst. Secretary, MERS, as Nominee for First Magnus Financial Corporation, an Arizona Corp.;

Asst. Secretary, MERS, as Nominee for First National Bank of AZ;

Asst. Secretary, MERS, as Nominee for Fremont Investment & Loan;

Asst. Secretary, MERS, as Nominee for Group One Mortgage, Inc.;

Asst. Secretary, MERS, as Nominee for Guaranty Bank;

Asst. Secretary, MERS, as Nominee for Homebuyers Financial, LLC;

Asst. Secretary, MERS, as Nominee for IndyMac Bank, FSB, a Federally Chartered Savings Bank (in June 2010);

Asst. Secretary, MERS, as Nominee for Irwin Mortgage Corporation;

Asst. Secretary, MERS, as Nominee for Ivanhoe Financial, Inc., a Delaware Corp.;

Asst. Secretary, MERS, as Nominee for Mortgage Network, Inc.;

Asst. Secretary, MERS, as Nominee for Ohio Savings Bank;

Asst. Secretary, MERS, as Nominee for Paramount Financial, Inc.;

Asst. Secretary, MERS, as Nominee for Pinnacle Direct Funding Corp.;

Asst. Secretary, MERS, as Nominee for RBC Mortgage Company;

Asst. Secretary, MERS, as Nominee for Seacoast National Bank;

Asst. Secretary, MERS, as Nominee for Shelter Mortgage Company, LLC;

Asst. Secretary, MERS, as Nominee for Stuart Mortgage Corp.;

Asst. Secretary, MERS, as Nominee for Suntrust Mortgage;

Asst. Secretary, MERS, as Nominee for Transaland Financial Corp.;

Asst. Secretary, MERS, as Nominee for Universal American Mortgage Co., LLC;

Asst. Secretary, MERS, as Nominee for Wachovia Mortgage Corp.;

Vice President of Loan Documentation, Wells Fargo Bank, N.A.;

Vice President of Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. f/k/a Norwest Mortgage, Inc.

Please submit documents that have been signed by any attorney from The Law Offices of David J. Stern located in Florida. I am collecting the signatures.

Can be any of the following:

• Lis Pendens
• Assignments
• Affidavits
• Complaint
• Pleadings

Thank you in advance.

Click Envelope to Upload Documents

Or Info at stopforeclosurefraud.com

I’m really waiting to see who else will join Madoff with “Racketeering”?

By Edvard Pettersson – Sep 17, 2010 12:01 AM ET

Countrywide Financial Corp. former Chief Executive Officer Angelo Mozilo must face trial on regulators’ claims he misled investors about risks tied to subprime lending, a judge ruled.

U.S. District Judge John F. Walter in Los Angeles yesterday denied requests by Mozilo and two other former senior Countrywide executives, David Sambol and Eric Sieracki, for a ruling that there were no genuine issues to be tried. The case is now set for a jury trial in October.

“It remains to be seen whether the Securities and Exchange Commission will be able to convince a jury that defendants’ statements were indeed misleading and material,” Walter said in his decision. “At the summary judgment stage, the judge’s function is not himself to weigh the evidence and determine the truth of the matter.”

The SEC sued Mozilo, 71, in June 2009, saying he publicly reassured investors about the quality of Countrywide’s loans while he issued “dire” internal warnings and sold about $140 million of his own shares.

Mozilo is the most prominent executive targeted by U.S. regulators examining the subprime mortgage crisis. He co-founded Countrywide in 1969 and built it into the nation’s biggest mortgage lender, helping trigger the subprime bubble by offering loans to customers with below-average credit scores.

‘Flying Blind’

He wrote in an e-mail that Countrywide was “flying blind” and had “no way” to determine the risks of some adjustable- rate mortgages, according to the SEC complaint.

Continue reading…. BLOOMBERG

The yellow in the picture represents all the hard work and sweat Mr. Nguyen encountered for this victory.

Quiet Title, Rescission and Damages, and Unfair Business Practices

JUDGMENT

1. This Court has jurisdiction over the subject matter of this case and over the Defendants.

2. Venue as to the Defendants in the Central District of California is proper.

3. Default judgment is hereby entered against Chase Bank USA, N.A. and Chase Home Finance, LLC and in favor of Plaintiffs Paul Nguyen and Laura Nguyen on all claims in Plaintiffs’ SecondAmended Complaint.

4. IT IS THEREFORE ORDERED that the Deed of Trust recorded with Orange County Recorder as instrument No. 2007000731120 on 12/12/2007 is wholly voided as to plaintiff Laura Nguyen.

5. IT IS FURTHER ORDERED that Defendant First American Loanstar Trustee Services record a DEED OF RECONVEYANCE to reconvey unto Plaintiffs thereto all right, title and interest which was heretofore acquired by First American Loanstar Trustee Services under deed of trust recorded with Orange County Recorder as instrument No. 2007000731120 on 12/12/2007.

6. IT IS FURTHER ORDERED that all adverse claims against property known as 16141 Quartz Street, Westminster, CA 92683 are quieted.
The legal description of said property is:

LOT 44 TRACT NO. 8977, IN THE CITY OF WESTMINSTER, COUNTY OF ORANGE, STATE OF  CALIFORNIA, AS PER MAP RECORDED IN BOOK 369, PAGE(S) 46 AND 47 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Assessor’s Parcel No.: 107-903-44.

7. IT IS FURTHER ORDERED that the Promissory Note dated 12/12/2007 executed by Plaintiff Paul Nguyen in favor of Chase Bank USA, N.A. rescinded pursuant to 15 U.S.C. §1635(i).

8. IT IS FURTHER ORDERED that pursuant to 15 U.S.C. §1635(b), Plaintiffs had made offer to tender the loan evidenced by promissory note dated 12/12/2007 and Defendant Chase Bank USA, N.A. did not take possession within 20 days after tender by the Plaintiffs. Therefore, ownership of the loan proceed is vested in the Plaintiffs without obligation on their part to pay for it.

9. IT IS FURTHER ORDERED that Defendant Chase Bank USA, N.A. within 20 days after entry of judgment shall return to the Plaintiffs any money or property given as earnest money, down payment, or otherwise pursuant to 15 U.S.C. §1635(b).

10. IT IS FURTHER ORDERED that Plaintiffs are awarded their costs of suit, to be paid by Defendants Chase Bank USA, N.A. and Chase Home Finance, LLC, in an amount to be determined by the Clerk of the Court.

DATED: September 15, 2010
____________________________
The Honorable A. Howard Matz
JS-6 United States District Judge

[ipaper docId=37596755 access_key=key-1473obcdj4vb1esh5oz5 height=600 width=600 /]

From Lynn Szymoniak

Jeffrey Stephan, who actually works for GMAC Mortgage Corp. in Montgomery County, PA, signs thousands of Mortgage Assignments each month as an officer of other banks and mortgage companies in order to transfer mortgages TO GMAC. In Florida, the law firms that regularly present documents signed by Jeffrey Stephans as “proof” that GMAC has standing to foreclose include The Law Offices of Marshall Watson, The Law Offices of David Stern and Florida Default Law Group.

Stephan has admitted in depositions that he has no personal knowledge of the facts of documents he signs, does not verify the facts, and often does not sign in front of a notary (though the documents are eventually notarized).

Titles used by Jeffrey Stephan include the following:

(“MERS” stands for Mortgage Electronic Registration Systems, Inc.)

Vice President, MERS as Nominee for American Interbanc Mortgage , LLC;

Vice President, MERS as Nominee for Cardinal Financial Co., Ltd. Partnership;

Vice President, MERS as Nominee for Centerpoint Financial, Inc.;

Vice President, MERS as Nominee for Central Pacific Mortgage Corp.;

Vice President, MERS as Nominee for Certified Home Loans of Florida, Inc.;

Vice President, MERS as Nominee for Gateway Mortgage Group, LLC;

Vice President, NERS as Nominee for GMAC Bank;

Vice President, MERS as Nominee for GMAC Mortgage Corp. d/b/a Ditech.com;

Vice President, MERS as Nominee for Great Country Mortgage Bankers Corp.;

Vice President, MERS as Nominee for Greenpoint Mortgage Funding, Inc.

Vice President, MERS as Nominee for Group One Mortgage, Inc.;

Vice President, MERS as Nominee for Homecomings Financial Network, Inc,;

Vice President, MERS as Nominee for Lexon Financial Mortgage Corp. d/b/a Weslend Financial Corp.;

Vice President, MERS as Nominee for Mortgage Investors Corp.;

Vice President, MERS as Nominee for Pinnacle Financial Corp. d/b/a Tri Star Lending Group

Vice President, MERS as Nominee for Popular Mortgage Corp.;

Vice President, MERS as Nominee for Premier Mortgage Funding;

Vice President, MERS as Nominee for Quicken Loans;

Vice President, MERS as Nominee for Sky Investments d/b/a North Star Lending;

Vice President, MERS as Nominee for Transland Financial Services, Inc.; and

Vice President, MERS as Nominee for USAA Federal Savings Bank

Read more on…Jeffery Stephan

RUSCALLEDA v. HSBC BANK USA

Glazy Ruscalleda and Jose Ruscalleda, Appellants,
v.
HSBC Bank USA, etc., Appellee.

No. 3D09-997.

District Court of Appeal of Florida, Third District.

Opinion filed September 15, 2010.

John H. Ruiz and Karen Barnet-Backer, for appellants.

Shapiro & Fishman and Heidi J. Weinzetl (Boca Raton), for appellee.

Before WELLS, ROTHENBERG, and LAGOA, JJ.

ON MOTION FOR REHEARING OR CLARIFICATION.

ROTHENBERG, J.

Upon consideration of the appellee’s motion for rehearing or clarification, we withdraw our previous opinion filed on June 9, 2010, and substitute the following opinion in its stead.

This is an appeal of a final summary judgment in a mortgage foreclosure action entered in favor of plaintiff, HSBC Bank USA (“HSBC”), and against the defendants, Glazy Ruscalleda and Jose Ruscalleda. Based on the unique circumstances of this case, we reverse and remand for further proceedings.

The unique circumstances surrounding this case involve a rather confusing situation caused by two banks—the appellee, HSBC, and American Home Mortgage Servicing, Inc. (“American Home Mortgage”)—because they were simultaneously attempting to foreclose the same mortgage. On October 8, 2008, American Home Mortgage filed a foreclosure action against the defendants.^{[ 1 ]} A week later, HSBC filed an action to foreclose the same exact mortgage. The complaint filed by HSBC falsely alleged that it was the current owner and holder of the mortgage and note, when, in reality, American Home Mortgage was still the holder of the note and mortgage.^{[ 2 ]} On October 28, 2008, due to the actions of American Home Mortgage and HSBC, the defendants, who were acting pro se at that time, filed an answer and affirmative defenses only in the foreclosure action filed by American Home Mortgage, which was the holder of the mortgage and note, because they mistakenly believed that the complaints involved the same foreclosure action.

After filing their pro se answer and affirmative defenses, the defendants retained counsel. Continuing in their mistaken belief, they did not inform their attorney of the action filed by HSBC. On November 13, 2008, counsel filed an amended answer and affirmative defenses on behalf of the defendants in the American Home Mortgage action, but took no action on the HSBC complaint.

Although the defendants did not file an answer in response to HSBC’s complaint, HSBC never moved for a default judgment.^{[ 3 ]} Instead, on January 22, 2009, HSBC moved for summary judgment, scheduling the hearing for March 24, 2009. When the defendants received the motion for summary judgment in the HSBC action, it sent the motion to their counsel. It was at that point, that the defendants and their counsel realized that two separate banks were attempting to simultaneously foreclose on the same mortgage, but that they only had been defending the initial action filed by American Home Mortgage.

On February 23, 2009, the defendants filed a memorandum of law in opposition to the motion for summary judgment, the affidavit of Glazy Ruscalleda, and a motion to transfer the case to the division where the foreclosure action filed by American Home Mortgage was pending (“Motion to Transfer”). On February 25, 2009, the defendants filed a request for production, request for admissions, and notice of interrogatory. American Home Mortgage waited until the day before the scheduled hearing to file its notice of voluntary dismissal, although it had executed the assignment of mortgage almost three months earlier.

At the scheduled hearing, the trial court heard the arguments raised by HSBC in its motion for summary judgment and by defense counsel in his memorandum of law filed in opposition. Although it is undisputed that the defendants’ discovery was still pending, the trial court entered final summary judgment on the same day as the hearing, March 24, 2009, in favor of HSBC.^{[ 4 ]}

Based on the unique circumstances set forth above, we conclude that the order under review must be reversed, and the cause remanded for further proceedings, with directions to allow the defendants to file an answer and affirmative defenses and to require HSBC to respond to the defendants’ discovery requests. The record clearly demonstrates that the defendants’ failure to file a timely answer and affirmative defenses in the action filed by HSBC was due to the confusion caused by American Home Mortgage and HSBC when they were simultaneously attempting to foreclose on the same exact mortgage in two different divisions of the circuit court.

Reversed and remanded with directions.

Not final until disposition of timely filed motion for rehearing.

[ipaper docId=37553372 access_key=key-2hn44kayr0ix1ahp23yq height=600 width=600 /]

Lynn E. Szymoniak, Esq.
The Metropolitan, PH 2-5
403 S. Sapodilla Avenue
West Palm Beach, Florida 33401
(szymoniak@mac.com)

Mr. Ed Albrigo
Senior Vice President
FREDDIE MAC
8200 Jones Branch Drive MS 200
McLean, Virginia 22102

Mr. R.K. Arnold, President and CEO
Merscorp, Inc.
1595 Spring Hill Road, Suite 310
Vienna, Virginia 22182

Marianne Sullivan
Senior Vice President
FANNIE MAE
3900 Wisconsin Avenue
Washington, D.C. 20016

September 6, 2010

Re: Abuses and Forgeries By MERS Officers in Mortgage Foreclosures

Dear Mr. Albrigo, Mr. Arnold and Ms. Sullivan:

I am writing to you in your capacity as members of the Board of Directors of MERS.

This letter concerns certain widespread abuses by individuals using MERS titles. After extensive research regarding Mortgage Assignments prepared in Alpharetta, Georgia, purportedly signed by MERS certifying officers, it is apparent that:

1. there were widespread forgeries by individuals who signed over a million Mortgage Assignments as MERS officers with many different individuals signing the same four names;

2. the individuals signing these names also used many different MERS titles,with Linda Green, Korell Harp and Tywanna Thomas claiming to be authorized by many different lenders to convey mortgages as MERS
officers;

3. the information on the Mortgage Assignments is false particularly regarding the dates on which mortgages were conveyed. In several hundred thousand cases, Assignments to Residential Mortgage-Backed Securitized
Trusts state that the Trusts acquired the mortgages AFTER foreclosure litigation was filed by the Trusts. This has resulted in a tremendous backlog of cases as the wrong parties often file the foreclosure actions.
These Mortgage Assignments are being used extensively in foreclosure actions in Florida and other states. Because of the apparent authority of MERS, these assignments are most often assumed to be correct by judges. Because so many foreclosure litigants are unrepresented by counsel, these Mortgage Assignments
are going unchallenged even though they are obvious forgeries.

Please carefully examine the attached mortgage assignments signed by Linda Green, Korell Harp, Tywanna Thomas and Jessica Ohde as MERS officers as these examples plainly show many variations of the Green, Harp, Ohde, and Thomas signatures.

Many of the MERS job titles that have been attributed to Linda Green are listed in Schedule A attached hereto. Many of the MERS job titles that have been attributed to Korell Harp are listed in Schedule B. Many of the MERS job titles that have been attributed to Tywanna Thomas are listed in Schedule C.

TIME IS OF THE ESSENCE. There were nearly 11,000 mortgage foreclosures granted in Palm Beach County, Florida in the last six weeks. Many of these foreclosures were granted based on these Mortgage Assignments signed by individuals using MERS titles. It is apparent that these signatures and MERS titles are misleading judges and homeowners. The Palm Beach County experience is occurring throughout the country.

The Florida Attorney General is investigating fraudulent documents used to “facilitate” foreclosures.

Most often, in Florida, these fraudulent Assignments are used by the same law firms that are hired by Lender Processing Services, in its role as a foreclosure management company. In Florida, the firms that most often use these documents to foreclose are the Law Offices of David J. Stern, Florida Default Law Group, Shapiro & Fishman, and the Law Offices of Marshall Watson.

All four of these law firms have also been named by the Florida Attorney General as being under investigation for using fraudulent documents in foreclosures.

I am prepared to brief you or your designees fully on my research.

Thank you for your attention to this most serious matter.

Yours truly,

Lynn E. Szymoniak

BIG BANK BACKS DOWN–FOR NOW; HALTS FORECLOSURE ON CANCER PATIENT’S HOME AS CONGRESSMAN LEADS VIGIL

By Miriam Raftery East County Magazine

Luz Maria Villanueva

“I hope this will spread across America.” – Congressman Bob Filner at a pre-dawn rally, where he announced that Union Bank called off plans to have the Sheriff issue a foreclosure notice today to evict a woman and her child with cancer

“We can join together and fight these banks.” – Ray Lutz, 52nd Congressional district candidate

September 14, 2010 (Bonita) – “Thank you, thank you!” Luz Maria Villanueva’s voice was choked with emotion at a rally on her front lawn organized by Congressman Bob Filner (D-San Diego). Nearly 100 people turned out at 5:30 a.m. for a candlelight vigil to protest Union Bank’s announced plan to have the Sheriff’s department take Villanueva’s Bonita home. She has pleaded for a reprieve at least until her son, who is legally blind and has cancer, completes chemotherapy treatments. Congressman Bob Filner leads rally to save woman’s Bonita home from foreclosure.“We’re going to stand together to change America,” said Rep. Filner. “We have a president who talked about hope. We have to give him strength. The banks have taken over both parties.” He called for changes in the law to protect those victimized by predatory lending practices.

The rally drew widespread media attention; at least three major TV stations as well as print and online media reporters were on hand to cover the event.

Filner was willing to risk arrest to halt the foreclosure.  The Congressman knows first-hand the effectiveness of civil disobedience to right a wrong; in the1960s he rode the Freedom Train to Mississippi, where he was arrested in a Civil Rights protest and jailed for several weeks after standing up for rights of African-Americans.

Although Villanueva attained a temporary stay when Union Bank called off the Sheriff  today, the order could be reissued, Filner warned those present. “We got them to back down, but we need you to be on call.”

The crowd responded by chanting, “Stop Union Bank! Stop taking our homes!”

Members of the public who want to be notified of upcoming “stop foreclosure” rallies may follow Rep. Filner’s Twitter feed at http://twitter.com/CongBobFilner.

Ray Lutz (back) , who is running against Rep. Duncan Hunter, stands with Rep. Bob Filner (front)Ray Lutz, Democratic candidate in East County’s 52nd Congressional district, also stood with Filner and Villanueva at the rally. “I think this is going to be a big tidal wave of fighting back against banks,” Lutz told East County Magazine. “We’ve got to stop these foreclosures. If we stand together, we can get the government to help us, because they don’t have any spine unless we have a spine.”

Lutz said he wants to push the Obama administration to rewrite loans and reassess the value of homes, allowing homeowners to stay in their residences and pay what homes are actually worth. “We need recognition that the bubble burst a long time ago. This is the best way to put our economy back on a solid footing,” Lutz added.

Filner and Lutz have met with organizations working to stop evictions.

Naa-Avorkor Okai, also facing foreclosure, says her bank falsified documents.Evictions of people like Naa-Anoror Okai and James Tillory. “I have proof that my bank changed my income, my marital status, and my ethnicity,” said Okai, who came out to show solidarity with Villanueva. After a Housing Commission worker found that the bank had falsified Fannie Mae documents before initiating foreclosure proceedings, Okai filed a lawsuit and sought help from Congresswoman Susan Davis (D-San Diego).

But when the Congresswoman contacted the bank, Okai said, “They wouldn’t return her calls…Instead of working with me, they sold our loan to another lender.” Okai wants to save her home, but also hopes to see her bank prosecuted by the federal government for fraud.

Villanueva, who fell behind on payments due to divorce and her son’s medical bills, now waits and hopes that public pressure will persuade her bank to stop foreclosure proceedings and give her an opportunity to work out an arrangement to stay in her home and make payments. Today, she will take her son, who suffers from kidney disease as well as cancer, for a potentially life-saving infusion.

“We can’t give up,” the determined mother vowed.

source: East County Magazine

Again… look towards the “Common Thread” chances are MERS is involved if they’ve been securitized . Remember every loan needs a “MOM“

FBI crackdown on fraudulent mortgages may underestimate scope of problem

by CHRISTINE RICCIARDI
Tuesday, September 14th, 2010, 1:00 pm

When the Federal Bureau of Investigation began Operation Stolen Dreams in March 2010, the government’s largest mortgage fraud takedown, the FBI estimated about $2.3 billion of fraudulent mortgages were originated in 2009. However, recent estimates from a source monitoring the operation indicates that number is now closer to $14 billion.

The numbers were put together recently by an European investment bank in the run-up to a mortgage fraud conference in the U.K. next month. It found that mortgage fraud in the U.K. stood at $120 million in 2009.  “The phenomenon, though worrying and one that certainly requires strong intervention from authorities, is not of the same scale as in the U.S.,” said the source. “Securitization is therefore well protected from this issue.”

Continue to…House Wire

.

Anyone can see the “Fiction” that was set into place from all the institutions in this article below. Each one of these named parties as a shareholder utilizes Mortgage Electronic Registration Systems, Inc., yet Washington never mentions this MERS device.

All this talk of false and misleading loans blah blah blah …I mean grab the bull by it’s nuts and put these criminals behind bars. Not just seek refunds! This clean up should also seek Racketeering Indictments.

Congress Seeks Fannie, Freddie Exit as Banks Eat Soured Loans

By Dawn Kopecki – Sep 15, 2010 1:00 AM ET

U.S. lawmakers will grapple today with how to end the bailout of Fannie Mae and Freddie Mac after two years and almost $150 billion, and who pays the bill for bad loans made during the housing boom.

Regulators who seized control of the two mortgage lenders in 2008 are under pressure to stem losses for taxpayers and recoup money from banks that sold faulty loans to Fannie Mae and Freddie Mac — all without hindering the housing market’s recovery. Assistant Treasury Secretary Michael Barr and Edward DeMarco, acting director of the Federal Housing Finance Agency, are scheduled to testify today on their progress at the House Financial Services Committee.

The Obama administration and Congress are weighing the future of the two companies as part of an overhaul of the U.S. housing finance system. Fannie Mae, based in Washington, and Freddie Mac, based in McLean, Virginia, lost $166 billion on guarantees of single-family mortgages from the end of 2007 through the second quarter, according to the FHFA. Treasury Secretary Timothy F. Geithner has promised a comprehensive proposal by early next year.

“The biggest problem in the economy is that we have three or four million too many homes,” said Chris Kotowski, a banking analyst at Oppenheimer & Co. The solution “will take another two or three years to work out until we sop up the excess supply,” Kotowski said.

Loan Clean-Up

The clean-up includes seeking refunds from lenders who sold loans based on false or misleading information, and the two government-backed firms aren’t the only ones demanding buybacks. The Federal Reserve, private mortgage investors and mortgage insurers are combing through loan documents for faulty appraisals, inflated borrower incomes and missing documentation that would support a refund request.

As of the end of the second quarter 2010, Fannie Mae had $4.7 billion in outstanding repurchase requests, and Freddie Mac had $6.4 billion in outstanding repurchase requests. DeMarco said in his prepared testimony that outstanding repurchase requests continue to be “of concern.”

Continue reading…BLOOMBERG

.

StopForeclosureFraud.com

While US Bank cannot foreclose on the home, it can sue her to collect the debt she still owes.

Hough’s attorney, Henry Loeb of Somerville, said, “It’s a split decision. She is very happy about having the mortgage voided. But we thought there were decent arguments to have the entire loan voided.”

read the full article here…My Central Jersey

Appeals Court Opinion

US BANK, N.A. v. HOUGH

US BANK, N.A., Plaintiff-Respondent,
v.
NIKIA HOUGH, Defendant-Appellant, and
MR. HOUGH, HUSBAND OF NIKIA HOUGH; NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS; COUNCIL ON AFFORDABLE HOUSING; TOWNSHIP OF PISCATAWAY; NEW JERSEY HOUSING AND MORTGAGE FINANCE AGENCY; STATE OF NEW JERSEY; and THE COMMONS AT PISCATAWAY, INC., Defendants.

No. A-5623-08T3.

Superior Court of New Jersey, Appellate Division.

Argued January 12, 2010.

Reargued April 13, 2010.

Decided September 14, 2010.

Henry A. Loeb argued the cause for appellant (Blumberg & Rosenberg, P.A., attorneys; Mr. Loeb, on the brief).

Vladimir Palma argued the cause for respondent (Phelan Hallinan & Schmieg, PC, attorneys; Mr. Palma, on the brief).

Geraldine Callahan, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Paula T. Dow, Attorney General, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; Ms. Callahan, on the statement in lieu of brief).

Before Judges Fuentes, Gilroy and Simonelli.

GILROY, J.A.D.

This is a real property foreclosure action. Plaintiff US Bank, N.A. seeks to foreclose upon defendant Nikia Hough’s residential condominium unit located in the Township of Piscataway (the Township). The condominium unit forms part of the Township’s affordable housing obligation and, as such, is subject to the Uniform Housing Affordability Controls (UHAC) adopted by defendant New Jersey Housing and Mortgage Finance Agency (HMFA), N.J.A.C. 5:80-26.1 to -26.26. Hough appeals from the June 12, 2009 order that denied her motion seeking to “void judgment of foreclosure and to dismiss plaintiff’s complaint with prejudice.”

The primary question presented is whether a commercial lender, which makes a loan secured by a mortgage on an affordable housing unit in excess of the amount permitted by N.J.A.C. 5:80-26.8(b), is prohibited from seeking to foreclose the mortgage. We answer the question in the affirmative, holding that the mortgage is void pursuant to N.J.A.C. 5:80-26.18(e). Accordingly, we reverse.

I.

We briefly state the procedural history and facts leading to this appeal. On January 14, 2004, Hough purchased the condominium unit for $68,142.86. To fund part of the purchase price, Hough borrowed $61,329 from Wells Fargo Home Mortgage, Inc., and secured the loan by executing a mortgage in favor of Wells Fargo. Because the condominium formed a part of the Township’s affordable housing obligation, the deed contained the following restriction:

The owner’s right title and interest in this unit and the use, sale and resale of this property are subject to the terms, conditions, restrictions, limitations and provisions as set forth in Ordinance number 88-34, as amended, which Ordinance is entitled “An Ordinance Establishing and Creating Regulations Governing the Conduct of the Purchase and/or Rental of Affordable Housing in the Township of Piscataway[,”]. . . as well as those terms, conditions, restrictions, limitations, and provisions as set forth in the “Affordable Housing Plan of the Commons at Piscataway” dated April 3, 1991 which plan was filed in the Office of the Clerk of Middlesex County . . . on June 20, 1991. Both are on file with the Piscataway Township Department of Planning and Community Development.

The deed was recorded in the Middlesex County Clerk’s Office on March 15, 2004.

On March 25, 2005, Hough refinanced the condominium unit by borrowing $108,000 from Mortgage Lenders Network, USA, Inc. At the time of the mortgage transaction, the maximum allowable resale price of the condominium unit, pursuant to N.J.A.C. 5:80-26.6, was approximately $68,735.41.^{[ 1 ]} Hough executed a promissory note in favor of Mortgage Lenders, secured by a mortgage on the condominium unit. The mortgage was recorded in the Middlesex County Clerk’s Office on April 14, 2005. Hough used the mortgage proceeds to satisfy the Wells Fargo purchase money mortgage then in the amount of $62,795.10, and for other personal unsecured debts, and real property tax liens. Hough netted $20,080.45 from the mortgage refinance. The new mortgage included the same affordable housing restriction contained in the January 14, 2004 deed. On February 1, 2007, Hough defaulted on the mortgage.

On June 12, 2007, Mortgage Lenders filed a complaint in foreclosure against Hough.^{[ 2 ]} On July 20, 2007, Mortgage Lenders assigned the mortgage to plaintiff. On July 8, 2008, plaintiff filed an amended complaint adding as defendants: the New Jersey Department of Community Affairs (DCA), the Council on Affordable Housing (COAH), the Township, HMFA, and Hough’s condominium, The Commons at Piscataway, Inc. Plaintiff served Hough with the amended complaint and summons on August 13, 2008. Plaintiff entered default against defendants on September 18, 2008.

The Township filed an answer alleging priority over plaintiff’s mortgage based on the deed restriction. On December 15, 2008, plaintiff and the Township filed a consent order under which the Township withdrew its answer; and plaintiff agreed to prosecute the action subject to the affordable housing restriction referenced in the January 14, 2004 deed, to provide the Township with notice of any sheriff’s sale, and to request the court return the matter to the Office of Foreclosure as an uncontested action.

On January 26, 2009, plaintiff filed and served a notice for entry of final judgment. On March 9, 2009, plaintiff filed proofs in support of its request for entry of judgment. In the interim, Hough filed a motion seeking to void the judgment of foreclosure and to dismiss the complaint with prejudice, contending that the mortgage violated the UHAC regulations, as it secured a loan in excess of the amount permitted pursuant to N.J.A.C. 5:80-26.8(b).

On April 3, 2009, mistakenly believing that final judgment had already been entered, the trial court denied the motion, concluding that vacating the judgment would improperly bestow a benefit upon Hough because she had been aware of the affordable housing restrictions when she borrowed the money, paid off the Wells Fargo mortgage, and otherwise used or retained the balance of the mortgage proceeds. It is from this order that Hough appeals.

The order appealed from is not a final judgment. A “final judgment in an action to foreclose a real estate mortgage fixes the amount due under the mortgage and directs the sale of the real estate to raise funds to satisfy the amount due.” Eisen v. Kostakos, 116 N.J. Super. 358, 365 (App. Div. 1971). Accordingly, the order appealed from is interlocutory, as it is not final as to all parties and all issues. Janicky v. Pt. Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007). Nonetheless, because of the importance of the issue presented, we grant leave to appeal nunc pro tunc. Gill v. N.J. Dep’t of Banking & Ins., 404 N.J. Super. 1, 8 (App. Div. 2008).

Hough initially argued that we should reverse and declare only the mortgage void, pursuant to N.J.A.C. 5:80-26.18(e). In countering plaintiff’s assertion that she would receive a windfall if the court were to void the entire indebtedness, Hough contended that plaintiff’s assertion “ignore[d] that it is only [plaintiff’s] mortgage that is void under the COAH regulation at issue and not the [n]ote or therefore the underlying debt. Rather, the regulation unequivocally establishes a reasoned and non-confiscatory penalty for a violation of its requirement; a loss of the obligation’s secured status.”

Questioning whether N.J.A.C. 5:80-26.18(e) requires voiding only the mortgage or whether it also requires voiding the indebtedness, we invited the Attorney General to address the issue on behalf of the HMFA. Consistent with Hough’s initial assertion, the Attorney General argued it is only “the mortgage secured by the affordable property that offends the regulation and is void as against public policy.” Nonetheless, contrary to her initial position, Hough contended at re-argument that we should not only void the mortgage, but also declare the underlying indebtedness void as against public policy.

II.

The January 14, 2004 deed restriction placed lenders on constructive notice that the condominium unit was part of the Township’s Mount Laurel^{[ 3 ]} affordable housing obligation subject to the UHAC regulations.^{[ 4 ]} The amount of indebtedness that can legally be secured by a mortgage on an affordable housing unit is governed by N.J.A.C. 5:80-26.8, which provides:

(a) Prior to incurring any indebtedness to be secured by an ownership unit, the owner shall submit to the administrative agent a notice of intent to incur such indebtedness, in such form and with such documentary support as determined by the administrative agent, and the owner shall not incur any such indebtedness unless and until the administrative agent has determined in writing that the proposed indebtedness complies with the provisions of this section.

(b) With the exception of original purchase money mortgages, during a control period, neither an owner nor a lender shall at any time cause or permit the total indebtedness secured by an ownership unit to exceed 95 percent of the maximum allowable resale price of that unit, as such price is determined by the administrative agent in accordance with N.J.A.C. 5:80-26.6(c).

“Administrative agent” is defined in the regulations as meaning “the entity responsible for administering the affordability controls of this subchapter with respect to specific restricted units, as designated pursuant to N.J.A.C. 5:80-26.14.” N.J.A.C. 5:80-26.2.

The “maximum allowable resale price” of an affordable housing unit is determined in accordance with N.J.A.C. 5:80-26.6:

(c) The initial purchase price of a restricted ownership unit financed under [Urban Home Ownership Recovery Program] or [Market Oriented Neighborhood Investment Program] unit shall be calculated so that the monthly carrying costs of the unit, including principal and interest (based on a mortgage loan equal to 95 percent of the purchase price and the Federal Reserve HR15 rate of interest), taxes, homeowner and private mortgage insurance and condominium or homeowner association fees do not exceed 28 percent of the eligible monthly income of a household whose income does not exceed 45 percent of median income, in the case of a low-income unit, or 72 percent of median income, in the case of a moderate-income unit, and that is of an appropriate household size as determined under N.J.A.C. 5:80-26.4.

(d) The maximum resale price for a restricted ownership unit, if the resale occurs prior to the one-year anniversary of the date on which title to the unit was first transferred to a certified household, is the initial purchase price. If the resale occurs on or after such anniversary date, the maximum resale price shall be consistent with the regional income limits most recently published by COAH and calculated pursuant to [N.J.A.C.] 5:94-7.2(b). The administrative agent shall prove all resale prices, in writing and in advance of the resale, to assure compliance with the foregoing standards.

[N.J.A.C. 5:80-26.6.]

Lastly, the prohibition against securing loans in excess of the amount permitted by N.J.A.C. 5:80-26.8(b) with a mortgage against an affordable housing unit is enforced in part by N.J.A.C. 5:80-26.18(e), which provides:

Banks and other lending institutions are prohibited from issuing any loan secured by owner-occupied real property subject to the affordability controls set forth in this subchapter, if such loan would be in excess of the amounts permitted by the restriction documents recorded in the deed or mortgage book in the county in which the property is located. Any loan issued in violation of this subsection shall be void as against public policy.

[(Emphasis added).]

Hough contends that because N.J.A.C. 5:80-26.8(e) provides that “[a]ny loan issued in violation of [the regulation] shall be void as against public policy,” that the regulation prohibits plaintiff from seeking not only to foreclose upon the mortgage, but also from seeking to collect upon the underlying debt instrument. Plaintiff counters that because it has agreed with the Township that it will foreclose upon the condominium unit subject to the affordable housing restrictions, stipulating that any sheriff’s sale will not produce a sale price higher than the maximum resale price as determined by the UHAC regulations, and the property would be sold only to a qualified buyer as determined under those regulations, that we should affirm the trial court’s order denying defendant’s motion to dismiss the complaint. Plaintiff also contends that if we prohibit it from proceeding with its foreclosure action, Hough “would clearly have been unjustly enriched,” when, in fact, her own acts or omissions materially contributed to the mortgage refinance in violation of N.J.A.C. 5:80-26.8(b). In support of that contention, plaintiff cites N.J.A.C. 5:80-26.8(a), which requires an owner to give notice of intent to the administrative agent that the owner intends to incur an indebtedness secured by a mortgage on the affordable housing unit, other than a first purchase money mortgage loan. Plaintiff asserts the record is devoid of any evidence that Hough gave the required notice before she refinanced the property with Mortgage Lenders.

The HMFA, through the Attorney General, contends that N.J.A.C. 5:80-26.18(e) only requires the voiding of the mortgage as against public policy, contending that “[t]he regulation does not affect the underlying debt as that does not undermine the regulation’s purpose.” We agree with the HMFA’s interpretation of the regulation.

“[W]e `give great deference to an agency’s interpretation and implementation of its rules enforcing the statutes for which it is responsible.'” ZRB, LLC v. NJ Dep’t of Envtl. Prot., 403 N.J. Super. 531, 549 (App. Div. 2008) (quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488 (2004)); see also DiMaria v. Bd. of Trustees of Pub. Employees’ Ret. Sys., 225 N.J. Super. 341, 351 (App. Div.), certif. denied, 113 N.J. 638 (1988). “That deference stems from the recognition that agencies have specialized expertise and superior knowledge in the areas of law delegated by the Legislature.” Lourdes Med. Ctr. v. Bd. of Rev., 394 N.J. Super. 446, 458 (App. Div. 2007), rev’d. on other grounds, 197 N.J. 339 (2009).

The agency’s interpretation need not be the only permissible one or even the one that the court would have chosen had the question been first presented to it. Matturri v. Bd. of Trs. of Judicial Ret. Sys., 173 N.J. 368, 382 (2002). So long as the agency’s interpretation is not “plainly unreasonable,” it will prevail. Ibid. Nonetheless, “we are not `bound by the agency’s interpretation of the statute or its determination of a strictly legal issue.'” ZRB, supra, 403 N.J. Super. at 550 (quoting In re Taylor, 158 N.J. 644, 658 (1999)).

Applying these principles, we conclude that HMFA’s interpretation of N.J.A.C. 5:80-26.18(e) is not “plainly unreasonable” because it supports the primary purpose of the UFAC regulations. Thus, plaintiff is only barred from seeking to foreclose upon the mortgage; it is not barred from seeking to collect upon the underlying obligation.

The Legislature enacted the New Jersey Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to 329, to further the goals of the Supreme Court’s Mount Laurel decisions. The Court in Mt. Laurel I declared that the New Jersey Constitution “requires every developing municipality, through its land use ordinance, to provide a realistic opportunity for the construction of its fair share of the region’s low and moderate income housing needs.” In re Adoption of Unif. Hous. Affordability Controls by the N.J. Hous. and Mortgage Fin. Agency, 390 N.J. Super. 89, 92 (App. Div.), certif. denied, 192 N.J. 65 (2007); see also N.J.S.A. 52:27D-302a. In Mt. Laurel II, the Court mandated that “municipalities were required to address not only the housing needs of their own citizens, but also the housing needs `of those residing outside of the municipality but within the region that contributes to the housing demand within the municipality.'” In re Adoption of Unif. Hous. Affordability Controls, supra, 390 N.J. Super. at 93 (quoting Mt. Laurel II, supra, 92 N.J. at 208-09).

To implement the legislative process of the FHA, the Legislature established COAH, N.J.S.A. 52:27D-305a, and appointed the HMFA as the agency to “establish affordable housing programs to assist municipalities in meeting the obligation of developing communities to provide low and moderate income housing.” N.J.S.A. 52:27D-321. COAH and the HMFA are authorized to adopt and promulgate rules and regulations necessary to carry out their statutory charges. N.J.S.A. 52:27D-307.5 and N.J.S.A. 52:27D-321e, f, and g, respectively.

Pursuant to the FHA, the HMFA developed and now administers housing affordability controls. 36 N.J.R. 3655(a). The purpose of those controls is to “ensure the continuing affordability of housing receiving credit from [COAH] or receiving funding under the Neighborhood Preservation Balanced Housing . . . program.” Ibid. (citation omitted).

In adopting N.J.A.C. 5:80-26.18(e), the HMFA pronounced that it is against public policy for a commercial lender to issue a loan secured by an affordable housing unit for an amount in excess of 95% of the units’ maximum allowable resale price. The focus of the regulation is the use of an affordable housing unit as security for an excessive loan. Stated differently, if a lending institution is permitted to make a loan secured by a mortgage against an affordable housing unit in excess of 95% of the maximum resale price of the unit, default on the loan could result in foreclosure, thus leading to the loss of the affordable housing unit. This would countermand the public policy of ensuring that affordable housing units remain affordable and occupied by lower income households. Ibid. It is with this goal in mind that HMFA asserts that “it is the mortgage secured by the affordable property that offends the regulation and is void as against public policy. The regulation does not affect the underlying debt as that does not undermine the regulation’s purpose.”

We reject defendant’s contention that N.J.A.C. 5:80-26.18(e) requires voidance of both the mortgage and the underlying indebtedness. Such an interpretation would unduly enrich Hough, with Hough having contributed to the mortgage refinance. Regulations, like statutes, must be construed “to avoid . . . interpretations that lead to absurd or unreasonable results.” State v. Lewis, 185 N.J. 363, 369 (2005); see also Cosmair, Inc. v. Dir., N.J. Div. of Tax., 109 N.J. 562, 570 (1988) (“[i]f a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words.”) (quoting State v. Clark, 29 N.J.L. 96, 99 (1860)).

We reverse the June 12, 2009 order that denied defendant’s motion seeking to dismiss plaintiff’s foreclosure complaint with prejudice. Plaintiff may file a separate action seeking to collect upon the unsecured underlying indebtedness.

This copy provided by Leagle, Inc.

False Statements

Florida Default Law Group
Jeffrey Stephans

Action Date: September 14, 2010
Location: West Palm Beach, FL

On September 14, 2010, Florida Default Law Group filed “Notices” in foreclosure actions that the firm was withdrawing Affidavits it had previously filed. The Affidavits were signed by Jeffrey Stephan of GMAC Mortgage/Homecomings Financial in Montgomery County, PA. Stephan had previously admitted in depositions that he signed thousands of such affidavits each month with no knowledge of the contents and in many cases without even bothering to read the Affidavits. In the Notices, Florida Default claimed that “the undersigned law firm was not aware” that the Stephans Affidavits were improper and had a good faith belief in the Stephans Affidavits. Stephans signed so many Affidavits, however, on behalf of so many different securitized trusts, that his lack of actual knowledge should have been obvious. Many other mortgage servicing companies and foreclosure firms have filed thousands of other worthless, unfounded Affidavits. Perhaps the Law Offices of Marshall Watson will notify courts that Lost Note Affidavits signed by Linda Green, Tywanna Thomas and Korell Harp are also improper; perhaps The Law Offices of David Stern will notify Courts that their own office manager, Cheryl Samons, had no knowledge and did not even read the Affidavits she signed. The dark days of the foreclosure “robo-signers” seem to finally be coming to an end in Florida. Will the same judges who accepted thousands of these worthless Affidavits now believe the allegations that the foreclosure law firms acted in good faith when they presented these documents to Courts? An example of the Notice filed by Florida Default is available in the “Pleadings” section of this site. Highlights from the deposition of Jeffrey Stephan are available in the “Articles” section. Scott Anderson, Bryan Bly, Margaret Dalton, Erica Johnson-Seck, Crystal Moore and the other professional signers may finally be held accountable for their sworn false statements.

Affidavit in question below courtesy of ForeclosureHamlet:

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Read more on…Jeffery Stephan

Mrs. Berry contacted me through my youtube channel.

For those who may not recall “What’s Happening”…  Back then this was one of the hottest shows along with “Good Times”, “Different Strokes” etc. This was a show that was part of my childhood and enjoyed very much.

Because of “Rerun” we have a dance that was named after him for his unique moves.

There will always only be one Rerun.

EssieRerunBerry1

EVIDENCE OF A 20 MILLION DOLLAR BB&T BANK COVER UP.52-2197854 & 52-2052386

“Fred Rerun Berry” actor from 1970’s sitcom(“What’s Happening”)”Family is asking for a Federal Investigation on a 20 million dollar cover up from Mr. Fred and Essie Berry Tax Identification number.(52-2197854)

Whistle Blower!!! Over the past six years regarding the late Fred Rerun Berry who was an actor from the 1970’s “What’s Happening” Sitcom. Berry died October 21, 2003.

It has been determined that there has been an unauthorized use of Mr. and Mrs. Fred Berry’s personal identification number utilizing this number to establish bank accounts in the form of loans, government grants, saving accounts and lines of credit. Thousands of dollars have been utilized in property developments, purchasing of land and community development projects in the Suitland Maryland, Largo Maryland and New Carrolton areas. Many attempts to gather documents from a Bank and a Corporation in Maryland have been met with roadblocks.

In 2001 Fred Rerun Berry appeared on” The Weakest Link and that is were it all began. Mrs. Berry started receiving paper work from the Internal Revenue, Documents and contracts in c/o Essie Berry for this corporation and Tax Idenification Number. Mrs. Berry requested bank accounts records . The bank teller wanted Mrs. Berry to provided information to confirm her identity. Information was faxed in 2004 to a bank in Maryland still no records.

In 2005, Mrs. Berry meets with the Vice-President of the bank. Mrs. Berry asked for all accounts in reference to Fred Rerun Berry Tax Identification 52-2197854 records were mail but they were incomplete.

Mrs. Berry and Portia Allen, Fred’s daughter in 2007 over heard a phone conversation with a bank employee while holding during a phone conversation say, “That poor, poor lady they drained her husbands’ account.

With all of the compelling evidence, bank records, documents and paper trail and errors that the banks have made in utilizing Mr. and Mrs. Fred Berry Tax Identification number. The Berry family is seeking a full Federal Investigation to this matter. All facts can be proven.

So, how many of the foreclosure mills are now *mandated* to be used in Florida?  That is exactly what CT Attorney General Richard Blumenthal was questioning.  That totally eliminates business revenue for all the other state/*local* foreclosure law firms.

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I just got this tip that DBNT is selling it’s California address that is in many many SEC filings. I wish I can make more comments but am limited. I’ll leave it up to you all.

Source: Loopnet

I was wondering why this site blew up with hits today!

THIS INVOLVES 65 MILLION LOANS…it was ’62’ !!! I have a source that confirmed this.

“The Curse Of The MERS”

READ ALL ABOUT MERS HERE…MERS 101

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“If the people cannot trust their government to do the job for which it exists
– to protect them and to promote their common welfare – all else is lost.”
– BARACK OBAMA, speech, Aug. 28, 2006

Zach Carter

Economics Editor, AlterNet; Fellow, Campaign for America’s Future

Posted: September 12, 2010 02:52 PM

The Washington Post has published a very silly op-ed by Chrystia Freeland accusing President Barack Obama of unfairly “demonizing” Wall Street. Freeland wants to see Obama tone down his rhetoric and play nice with executives in pursuit of a harmonious economic recovery. The trouble is, Obama hasn’t actually deployed harsh words against Wall Street. What’s more, in order to avoid being characterized as “anti-business,” the Obama administration has refused to mete out serious punishment for outright financial fraud. Complaining about nouns and adjectives is a little ridiculous when handcuffs and prison sentences are in order.

Freeland is a long-time business editor at Reuters and the Financial Times, and the story she spins about the financial crisis comes across as very reasonable. It’s also completely inaccurate. Here’s the key line:

“Stricter regulation of financial services is necessary not because American bankers were bad, but because the rules governing them were.”

Bank regulations were lousy, of course. But Wall Street spent decades lobbying hard for those rules, and screamed bloody murder when Obama had the audacity to tweak them. More importantly, the financial crisis was not only the result of bad rules. It was the result of bad rules and rampant, straightforward fraud, something a seasoned business editor like Freeland ought to know. Seeking economic harmony with criminals seems like a pretty poor foundation for an economic recovery.

The FBI was warning about an “epidemic” of mortgage fraud as early as 2004. Mortgage fraud is typically perpetrated by lenders, not borrowers — 80 percent of the time, according to the FBI. Banks made a lot of quick bucks over the past decade by illegally conning borrowers. Then bankers who knew these loans were fraudulent still packaged them into securities and sold them to investors without disclosing that fraud. They lied to their own shareholders about how many bad loans were on their books, and lied to them about the bonuses that were derived from the entire scheme. When you do these things, you are stealing lots of money from innocent people, and you are, in fact, behaving badly (to put it mildly).

The fraud allegations that have emerged over the past year are not restricted to a few bad apples at shady companies– they involve some of the largest players in global finance. Washington Mutual executives knew their company was issuing fraudulent loans, and securitized them anyway without stopping the influx of fraud in the lending pipeline. Wachovia is settling charges that it illegally laundered $380 billion in drug money in order to maintain access to liquidity. Barclays is accused of illegally laundering money from Iran, Sudan and other nations, jumping through elaborate technical hoops to conceal the source of their funds. Goldman Sachs set up its own clients to fail and bragged about their “shitty deals.” Citibank executives deceived their shareholders about the extent of their subprime mortgage holdings. Bank of America executives concealed heavy losses from the Merrill Lynch merger, and then lied to their shareholders about the massive bonuses they were paying out. IndyMac Bank and at least five other banks cooked their books by backdating capital injections.

Continue reading…..The  Huffington Post

Katherine M. Porter
College of Law, University of Iowa

Abstract

The greatest fear of many families in serious financial trouble is that they will lose their homes. Bankruptcy offers a last chance for families save their houses by halting a foreclosure and by repaying any default on their mortgage loans over a period of years. Mortgage companies participate in bankruptcy by filing proofs of claims with the court for the amount of the mortgage debt. In turn, bankruptcy debtors pay these claims to retain their homes. This process is well established and, until now, uncontroversial. The assumption is that the protective elements of the federal bankruptcy shield vulnerable homeowners from harm.

This Article examines the actual behavior of mortgage companies in consumer bankruptcy cases. Using original data from 1700 recent Chapter 13 bankruptcy cases, I conclude that mortgage servicers frequently do not comply with bankruptcy law. A majority of mortgage claims are missing one or more of the required pieces of documentation for a bankruptcy claims. Fees and charges on claims often are poorly identified and do not appear to be reasonable. The bankruptcy data reinforce concerns about the overall reliability of the mortgage service industry to charge homeowners only the correct and legal amount of the debt and to comply with applicable consumer protection laws. Mistakes or misbehavior by mortgage servicers can have grave consequences. Bloated claims can jeopardize a family’s ability to save their home in bankruptcy. On a system level, mistakes or misbehavior by mortgage servicers undermine America’s homeownership policies for all families trying to buy a home.

The data also reinforce concerns about whether consumers can trust financial institutions to adhere to applicable laws. The findings are a chilling reminder of the limits of formal law to protect consumers. Imposing unambiguous legal rules does not ensure that a system will actually function to safeguard the rights of parties. Observing the reality that laws can under perform or even misfire has crucial implications for designing legal systems that produce acceptable and just behavior. *

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Judge Thomas A. Adams knows exactly what he is doing! Watch for more of his slam dunks…

WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS FOR MERRILL LYNCH MORTGAGE INVESTORS TRUST, MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2005

– against –

STUART BRENNER, et aI.

INDEX NO. : 014812/09

AUGUST 20, 2010

Defendant’ s answer contains a defense of “lack of standing.” Plaintiff has failed to establish it was the holder of the note and the mortgage securing it when the action was commenced. In that regard, plaintiff relies on an undated assignment of the mortgage by MERS as nominee acknowledged by a Texas notary on July 18, 2009. The note sued on does not contain an indication it has been negotiated. The undated assignment by MERS contains a provision at the assignment of the mortgage is “TOGETHER with the notes described in said mortgage.” The record before me is devoid of proof that MERS as nominee for purposes of recording had authority to assign the mortgage. However, assuming it had such authority since it is a party to the mortgage and such authority might be implied , there has been a complete failure to establish MERS, as a non-party to the note, to negotiate its transfer. A transfer of the note effects a transfer of the mortgage MERS vs. Coakley, 41 AD3 674), the assignment of a mortgage without a valid transfer of the mortgage note is a nullity (Kluge vs. Fugazv, 145 AD2 537).

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For those who may not know both David J. Stern and Cheryl Samons both were former employees of Shapiro & Fishman prior to Mr. Stern and Mrs. Samons departing from Shapiro & Fishman…“thats all“. <grin>————————–>

180 PAGES!

PROTECTIVE ORDER? Lender Processing Services? Specialized Loan Servicing? American Home Mortgage Servicing? DEPOS? SUBPOENAS?

DISMISSAL WITH PREJUDICE!

(a) Voluntary Dismissal.

(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court

(B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

Many thanks to Foreclosure Hamlet for the documents.

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ASSIGNMENT OF MORTGAGE , “Assignor”

Hmmmm

“Assignment of Mortgage”It is signed by Lisa Wickser who is identified as the Assistant Secretary of

“Assignment of Mortgage”

though the notary says she notarized the signature of Rose C. Lara who is also identified as an Assistant Secretary of that same company,

“Assignment of Mortgage.”

Hat tip to the person who added the markings…now it’s up against a Monet art piece!

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