A LAWYER WITH A CONSCIENCE…IMAGINE THAT

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary CLICK HERE TO GET COMBO TITLE AND SECURITIZATION REPORT

QUESTION:

Neil, the bank attorney for the pretender lender admitted to me and my husband, in the hall,after court, and after I told him that I want to see some discovery, (the note is unendorsed) outside of the courtroom that the loan was never delivered to a trust, there are no assignments, no psa agreement…there is no trustee…the original lender is a failed bank..the pretender lender who brought the fraudclosure is PHH mortgage…The bank attorney told me the allonge is the assignment…I told him that is not true…The judge gave me 21 days to answer the second amended complaint with affirmative pleadings of fraud and forgery…how do you recommend that I proceed? I am in Illinois and there are no attorneys helping homeowners fight a fraudclosure..I have filed 2 motion to dismiss on the fraud and forgery, both were dismissed w/o prejudice..the Judge said he sees my point but I need a hearing..there is fraud everywhere even in the foreclosure..they have stamped over forgeries and alterations from the original foreclosure filing…An attorney advised me to file a motion to dismiss on the altered docs…the judge won’t do it..I told the attorney after his admission, that you are telling me that this is an unsecured debt and you are no more than a third party bill collector..?.he said, I did not say that…What would you do Neil..? I have uncovered tons of fraud and forgery not to mention what the bank attorney told me…he let the cat out the bag..could you please e-mail me or post some advice as how to proceed..I have about 2 weeks left to answer..

ANSWER: I think you have encountered a lawyer with a conscience. He is probably not going to be working for the foreclosure mill much longer. Needless to say I cannot offer legal advice in a state where I am not licensed on a case which I know nothing about. But as it turns out I know of another case in your state where under virtually identical facts the homeowner’s lawyer simply amended his complaint as directed by the information from opposing counsel and then filed for discovery addressing those very issues. The Judge was of course reluctant to allow discovery since that would “encourage frivolous litigation” but the homeowner’s lawyer turned to opposing counsel and said “Are you going to deny here and now that the facts as they have been pleaded by my client won’t find support in the form of admissible evidence if the court allows discovery?” The lawyer from the foreclosure mill said “No, I will not deny that.” Discovery went forward and the case settled in days under confidentiality. The answer is get a lawyer, you are very likely on the cusp of a victory.

About these ads

27 Responses

  1. @Papergate and Johngault,

    I’ve been wondering who, in fact, were the members of infamous MERS. Contrarily to what you said, most of the time, the original lender were (and still are) MERS members. Following is the list. In fact, I’ve come to realize that the many lenders who went belly up in the past 5 or 6 years were… those who weren’t members. That is true for my original one, in 2004 (nowhere to be seen) and for a few others whose name is recorded in the original documents as lenders. Oftentime, the mess started when people refinanced… with a MERS member.

    http://foreclosurefighters4u.org/mers-membership-listing/

    The list is quite exhaustive too.

  2. Remember there are lawyers with good concisions, Just like good men and women they have to be found. We have a lot of good lawyers on the web blogs. We just have to find them in our states and ones that are not brainwashed by the banks and are not in fear of the banks and the bar that goes after them..

  3. Then there is this to help you with this issue.

    MORE NEW YORK LEGAL INSIGHT
    Wal-Mart v. Dukes: Supreme Court announces stricter class-certification standards
    Citigroup settlement rejected, SEC’s rubber-stamp meets the road
    Ascertainability: An implied prerequisite to class certification
    How the America Invents Act will change patent litigation
    Bar review deja vu: Duress and undue influence

    (In)validity and (in)admissibility of out-of-state documents and affidavits: the CPLR 3212/2309(c) – RPL 299-a ‘Bermuda triangle’
    12/5/2011 COMMENTS (0)
    You represent the plaintiff-assignee on motion for summary judgment under Civil Practice Law and Rule 3212 in a commercial mortgage foreclosure action. Your “affirmation of regularity” is supported by a complaint verified in New Jersey. The assignment was effected and acknowledged, in Pennsylvania, under a power of attorney notarized in California. All documents – the power of attorney, the assignment of mortgage and the verification – were properly executed in the jurisdictions where they were signed.
    So “all of your [predicate legal] ducks are lined up.” No heavy lifting here. File the motion and “judgment day” is near. (Sorry for the mixed metaphors.) But wait a minute!! None of the documents signed outside the state contain the so-called “certificate of conformity” required by CPLR 2309(c) and Real Property Law § 299-a. Was the assignment of the mortgage effective? And is your evidence in admissible form?
    THE LEGAL/STATUTORY FRAMEWORK
    In order to obtain summary judgment pursuant to CPLR 3212 a party must present uncontroverted and dispositive proof in admissible form. Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E. 2d 298 (1979). However, such proof, if based upon an “oath or affirmation taken without the state” must, according to CPLR 2309(c), be “accompanied by such certificate or certificates as would be required to entitle a deed acknowledged outside the state to be recorded within the state[.]”
    And RPL 299-a requires validation of an out-of-state acknowledgement “by a certificate to the effect that [the acknowledgment] conforms with [the laws of the jurisdiction where taken].” Without a so-called “certificate of conformity”, as required CPLR 2309(c) and RPL 299-a, is the mortgagee’s motion for summary judgment based upon a defective “house of [inadmissible] cards”: an attorney’s affirmation that is not based upon personal knowledge of the facts, a New Jersey verification of the complaint, a Pennsylvania assignment, and a California power of attorney?
    THE ‘AFFIDAVIT OF REGULARITY’
    CPLR 3212(b) mandates that “[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings, and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts [.]”
    The motion for summary judgment is based upon an attorney’s affirmation. The attorney does not have personal knowledge of the facts. The affirmation may not suffice as any evidence, much more proof, upon the lender’s motion because an attorney’s affirmation that is not based upon personal knowledge of the underlying facts or transactions is of no probative value for purposes of a summary judgment motion. Marcus & Millichap Real Estate Investment Services of NY v. Donegan, 26 Misc.3d 1227(A), 907 N.Y.S.2d 438 (Sup. Ct. Kings Co. 2010); Citibank (South Dakota), N.A. v. Martin, 11 Misc.3d 219, 807 N.Y.S.2d 284, 2005 N.Y. Slip Op. 25536 (Civ. Ct. N.Y. Co. 2005).
    Accordingly, the motion for summary judgment may be denied because the mortgagee has failed to meet its initial burden of establishing prima facie entitlement to judgment as a matter of law. Emigrant Mortgage Company, Inc. v. Fitzpatrick, 29 Misc.3d 745, 906 N.Y.S.2d 874 (Sup. Ct. Suff. Co. 2010).
    Hold on! CPLR 105(u) provides that “[a] ‘verified pleading’ may be utilized as an affidavit whenever the latter is required”. However, the verified complaint fails to satisfy CPLR 2309(c) which requires that:
    (c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.
    And, in this regard, RPL 299-a requires validation of an out-of-state acknowledgement “by a certificate to the effect that [the acknowledgement] conforms with [the laws of the jurisdiction where taken]” – the so-called “certificate of conformity”.
    THE ASSIGNMENT AND POWER OF ATTORNEY
    “Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.” Caprer v. Nussbaum, 36 A.D.3d 176, 182, 825 N.Y.S.2d 55 (2d Dept 2006). If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. Stark v. Goldberg, 297 A.D.2d 203, 746 N.Y.S.2d 280 (1st Dept 2002).
    It is well established that “[i]f a plaintiff lacks standing to sue, it may not proceed in the action.” HSBC Bank USA, N.A. v. Vasquez, 24 Misc.3d 1239(A), 901 N.Y.S.2d 899 (Sup. Ct. Kings Co. 2009), citing Stark v. Goldberg, 297 A.D.2d 203, 204, 746 N.Y.S.2d 280 (1st Dept 2002). It has also been held that only “the owner of the note and mortgage at the time of the commencement of a foreclosure action may properly prosecute said action.” LaSalle Bank Nat. Ass’n v. Lamy, 12 Misc.3d 1191(A), at *1, 824 N.Y.S.2d 769 (Sup. Ct. Suffolk Co. 2006), citing Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (2nd Dept 1988).
    A real property mortgagee lacks standing to sue where the lender cannot establish that it owed the subject note and mortgage on the date the action was commenced. Deutsch Bank Nat’l Trust Co. v. Francis, 2011 N.Y. Slip Op. 50423(U) (Sup. Ct. Kings Co. 2011); LPP Mtge. Ltd. v. Sabine Props. LLC, 2010 N.Y. Slip Op. 32367(U), 2010 N.Y. Misc. LEXIS 4216 (Sup. Ct. N.Y. Co. 2010). Accordingly, where an assignee cannot establish the elements of its claim, because the purported assignment documents are inadmissible, the mortgagee may have failed to establish that it has standing to sue.
    Needless to say:
    a party cannot foreclose on a mortgage without having title, giving it standing to bring the action. (See Kluge v. Fugazy, 145 A.D.2d 537, 538, 536 N.Y.S.2d 92 (2nd Dept. 1988), holding that a “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity”. Katz v. East-Ville Realty Co., 249 A.D.2d 243, 672 N.Y.S.2d 308 (1st Dept. 1998), holding that “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact”. HSBC Bank USA v. Squitieri, 29 Misc.3d 1225(A), 2010 N.Y. Slip Op. 52000(U) (Sup. Ct. Kings Co. 2010).
    The requirement that documents executed out of state be accompanied by a “certificate of conformity” is not waived simply because the mortgagee is an assignee. MBNA America Bank, N.A. v. Nelson, 15 Misc.3d 1148(A), 841 N.Y.S.2d 826 (Civ. Ct. Richmond Co. 2007). Our plaintiff may not be able prove, by the submission of evidence in admissible form, that the mortgage that the assignee seeks to foreclose, and the note allegedly secured thereby, were properly and effectively assigned.1 Chase Bank USA, N.A. v. Cardello, 27 Misc.3d 791, 896 N.Y.S.2d 856 (Civ. Ct. Rich. Co. 2010).
    In Chase Bank USA N.A., the Court refused to recognize an assignment because —
    [T]he assignment is not accompanied by a certificate of conformity establishing the authority of the notary to take the acknowledgment (see Fort Motor Credit Co. v. Prestige Gown Cleaning Service Inc., 193 Misc.2d 262, 264, 748 N.Y.S.2d 235 (2002); CPLR § 2309(c); RPL § 299-a; Raytsin v. Discover Bank N.A. 6 Misc.3d 48, 790 N.Y.S.2d 808 (2004)). The failure to attach a certificate of conformity makes the assignment ineffective.
    Both the First Department and the Second Department have held that out-of-state submissions that lack the required “certificate of conformity” are not properly before the Court. Green v. Fairway Operating Corp., 72 A.D.3d 613, 898 N.Y.S.2d 848 (1st Dept 2010); and PRA III LLC. v. Gonzalez, 54 A.D.3d 917, 864 N.Y.S.2d 140 (2d Dept 2008).
    In Green, the First Department stated:
    Plaintiff fails to show a meritorious cause of action (see Kalisch v. Maple Trade Fin. Corp., 35 A.D.3d 291, 827 N.Y.S.2d 40 [2006]). In order to establish a meritorious cause of action, the affidavit of her nonparty witness who accompanied her to the supermarket, was essential. The affidavit of plaintiff’s witness, purportedly sworn to in the Dominican Republic, lacks the certificate of conformity (Real Property Law § 301-a) required by CPLR 2309(c), and therefore is not properly before the Court (see Matter of Elizabeth R.E. v. Doundley A.E., 44 A.D.3d 332, 841 N.Y.S.2d 871 [2007]).
    In GE Business Financial Services, Inc., 2011 NY Slip Op 33000(U) [Sup. Ct. NY Co. November 11, 2011] (Scarpullo, J.), the Court granted the mortgagee’s motion for summary judgment with respect to its foreclosure claim because, among other things, the affidavit submitted in opposition to the application, executed in Dallas, Texas, was not accompanied by a certificate of conformity.
    In several cases where an out-of-state affidavit submitted on behalf of a mortgagee in a commercial foreclosure proceeding did not contain a certificate of conformity, the Court permitted the plaintiff to cure “this irregularity in its reply papers by submitting an affidavit with a certificate of conformity[.]” See, e.g., Aurora Bank FSB v. ERA International LLC, 2011 NY Slip Op 31351U (Sup. Ct., Q. Co.) (Elliot, J.) [May 16, 2011].
    Many of the issues relating to the requirement for a “certificate of conformity” were recently addressed in MB Financial Bank, N.A. v. 22 Renwick Street, Sup. Ct. NY Co., Index No. 650048/11 (October 12, 2011, Schweitzer, J.). In MB Financial, the Court held that “[t]he irregularity [of the omission of a certificate of conformity attesting to the verification of the complaint] has been rectified nunc pro tunc.” The Court also held that “CPLR 2309(c) does not require a certificate of conformity [with respect to the acknowledgment of the assignments of the mortgages and the power of attorney given by the FDIC] as [such section] relates only to oaths and affirmations [and the acknowledgments] complied substantially with RPL 309-b[.]”
    Parenthetically, authenticating documents as “business records” that were “made in the regular course of business”, pursuant to CPLR 4518(a), creates challenges of its own where, as is often the case in commercial mortgage foreclosure proceedings, the plaintiff is one or more steps removed (by assignment or otherwise) from the original lender/ transaction and/or event of default. See, e.g, Chase Bank US N.A. v. Gergis, 2011 NY Slip Op 51068(U),Civ. Ct. Kings Co. June 15, 2011 (Dear, J.), a suit to collect a credit card account, in which the Court denied “business record” status to documents, and characterized as inadmissible, “robo-testimony” by a witness who had no personal knowledge about the practices and procedures of the predecessor bank that created the proferred documents.
    POSTSCRIPT – STANDING (MERS) UPDATE
    Cases raising the issue of whether MERS, either as mortgagee, assignee and/or nominee, has standing to sue as a mortgage foreclosure proceeding plaintiff are ubiquitous. The Second Department, in Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532, 2011 NY Slip Op 05002 (June 7, 2011), recently head on the issue of whether or not MERS had standing to sue where the mortgage, but not the underlying note, had been assigned to MERS. The Appellate Division started with the premises that: “In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced[;] “a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it[;]” and “the foreclosure of a mortgage cannot be pursued by one who has no demonstrated right to the debt[.]”
    The proceeding involved mortgage documents in favor of MERS, as mortgagee and nominee of Countrywide, that were subsequently assigned to Bank of New York. The Silverberg Court concluded that “because MERS was never the lawful holder or assignee of the notes described in the mortgage consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff.”2
    Silverberg (decided on June 7, 2011) may simply have become a point of departure in the ongoing “does MERS have standing to sue” dispute. HSBC Bank USA, N.A. v. Taher, 3 Misc.3d 1208A, 2011 NY Slip Op. 51208(U), Sup. Ct. K. Co. July 1, 2011 (Schack, J.), was a residential mortgage foreclosure proceeding in which MERS assigned the subject note and mortgage to HSBC. MERS was the assignee of Delta Funding Corporation for the purpose of recording the mortgage; however, Delta was found by the Court to be the actual “note holder”. Citing Silverberg, the HSBC Court concluded that MERS was simply a nominee of Delta for the limited purpose of recording (but not assigning) the mortgage.
    In Deutsch Bank National Trust Company v. Pietranico, 928 N.Y.S.2d 818, 2011 NY Slip Op. 21261, Sup. Ct. N.Y. Co. July 27, 2011 (Whelan, J.), the Court – after referencing Silverberg – noted that “[t]he use of a nominee in real estate transactions, and as a mortgagee in a recorded mortgage, is a long standing practice”; and RPL § 275(3) “recognizes the practice of lenders selling mortgages into the secondary market, as well as the practice of designating ‘nominees’ in such transaction[.]” Justice Shack, as follows, rejected the defendants’ attack against the validity of the assignment of the mortgage: “[S]tanding is demonstrated by possession of the note, under the circumstances of this case, by virtue of the interrelatedness of the note and the mortgage, the role of MERS as the nominee for the underlying lender, and the fact that in the MERS system, members contractually agree to appoint MERS to act as their common agent on all mortgages they register[.]” Accordingly, the Court found “the role of MERS, as nominee is not an impediment to plaintiff’s standing to bring a foreclosure action, particularly where the borrower expressly agreed without qualification that MERS had the right to foreclose in the event of a default[.]”.
    The Court in HSBC Bank relied upon Silverberg in finding that MERS, as agent for Delta, “failed to submit documents authorizing MERS, as nominee for [Delta] to assign [the subject mortgage to HSBC].” The Pietranico Court distinguished Silverberg on the ground that “there is sufficient evidence to demonstrate that MERS had the authority from the lender to assign the mortgage.”
    Thus, Silverberg may not be dispositive of the ordinarily fact (document) sensitive question of MERS standing – which issue, it appears, may have to be resolved on a case-by-case (document-by-document) basis.
    CONCLUSION
    Clearly, New York courts have shown a willingness to enforce CPLR 2309(c) and RPL 299-a as foreclosure proceedings continue to clog the dockets. Due to the sheer volume of foreclosure proceedings, courts are keen to protect debtors against fraudulent and otherwise improper motion papers.
    Further, due to the multi-state reach of the securitization industry, courts must be wary of the legitimacy of out-of-state submissions. In addition, strict judicial enforcement of these seemingly “technical” statutory defenses has the (judicially) desired effect of helping to clear the docket of the avalanche of foreclosure cases. And the Silverberg-HSB-Pietranico MERS-related conundrum remains. For all these reasons, the foreclosing party must be careful to comply with these statutory provisions, and debtors must be alert to these available defenses.
    NOTES
    1 As established by the Court of Appeals in Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985):
    The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, [427 N.Y.S.2d 595, 404 N.E.2d 718 (1980)]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, [144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)]. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Matter of Redemption Church of Christ v. Williams, 84 A.D.2d 648, 649, [444 N.Y.S.2d 305 (3d Dept. 1981)]; Greenberg v. Manlon Realty, 43 A.D.2d 968, 969, [352 N.Y.S.2d 494 (2d Dept. 1974)]. (italics added)
    2 The significance of the decision in Silverberg cannot be either overstated or ignored. As the Second Department noted: “MERS purportedly holds approximately 60 million mortgage loans…and is involved in the origination of approximately 60% of all mortgage loans in the United States.”

    Victor M. Metsch is a senior litigation partner at Hartman & Craven LLP
    ________________________________________
    Register or log in to comment.
    © 2011 THOMSON REUTERS

    New York Legal | Foreclosures – (In)validity and (in)admissibility of out-of-state documents and affidavits: the CPLR 3212/2309(c) – RPL 299-a
    Posted by 4closureFraud on December 5, 2011 • Leave a Comment

    (In)validity and (in)admissibility of out-of-state documents and affidavits: the CPLR 3212/2309(c) – RPL 299-a
    You represent the plaintiff-assignee on motion for summary judgment under Civil Practice Law and Rule 3212 in a commercial mortgage foreclosure action. Your “affirmation of regularity” is supported by a complaint verified in New Jersey. The assignment was effected and acknowledged, in Pennsylvania, under a power of attorney notarized in California. All documents – the power of attorney, the assignment of mortgage and the verification – were properly executed in the jurisdictions where they were signed.
    So “all of your [predicate legal] ducks are lined up.” No heavy lifting here. File the motion and “judgment day” is near. (Sorry for the mixed metaphors.) But wait a minute!! None of the documents signed outside the state contain the so-called “certificate of conformity” required by CPLR 2309(c) and Real Property Law § 299-a. Was the assignment of the mortgage effective? And is your evidence in admissible form?
    THE LEGAL/STATUTORY FRAMEWORK
    In order to obtain summary judgment pursuant to CPLR 3212 a party must present uncontroverted and dispositive proof in admissible form. Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E. 2d 298 (1979). However, such proof, if based upon an “oath or affirmation taken without the state” must, according to CPLR 2309(c), be “accompanied by such certificate or certificates as would be required to entitle a deed acknowledged outside the state to be recorded within the state[.]”
    And RPL 299-a requires validation of an out-of-state acknowledgement “by a certificate to the effect that [the acknowledgment] conforms with [the laws of the jurisdiction where taken].” Without a so-called “certificate of conformity”, as required CPLR 2309(c) and RPL 299-a, is the mortgagee’s motion for summary judgment based upon a defective “house of [inadmissible] cards”: an attorney’s affirmation that is not based upon personal knowledge of the facts, a New Jersey verification of the complaint, a Pennsylvania assignment, and a California power of attorney?
    THE ‘AFFIDAVIT OF REGULARITY’
    CPLR 3212(b) mandates that “[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings, and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts [.]”
    The motion for summary judgment is based upon an attorney’s affirmation. The attorney does not have personal knowledge of the facts. The affirmation may not suffice as any evidence, much more proof, upon the lender’s motion because an attorney’s affirmation that is not based upon personal knowledge of the underlying facts or transactions is of no probative value for purposes of a summary judgment motion. Marcus & Millichap Real Estate Investment Services of NY v. Donegan, 26 Misc.3d 1227(A), 907 N.Y.S.2d 438 (Sup. Ct. Kings Co. 2010); Citibank (South Dakota), N.A. v. Martin, 11 Misc.3d 219, 807 N.Y.S.2d 284, 2005 N.Y. Slip Op. 25536 (Civ. Ct. N.Y. Co. 2005).
    Accordingly, the motion for summary judgment may be denied because the mortgagee has failed to meet its initial burden of establishing prima facie entitlement to judgment as a matter of law.
    To learn more about this click here…
    ~
    4closureFraud.org

  4. Carie, as Pam says it is not!!!! look up “The REMIC’s Have Failed The REMIC’s have Failed on Stop foreclosure fraud or on the web. And read thouroughly and read the new Oppenheim law report. This report should save our homes. The REMIC’s have failed gives you links to the report.

  5. Pam, problem is the lawyer admitted it in the halls and not in the court room. A big difference, unless there was a microphone a top him. He can deny he ever said it. The homeowner has to find a way to make the lawyer prove he has the authority to collect the debt. I am sure this attorney will not claim this in the court room. Dont think it was an act of good, it was said in the halls with walls and no speaker phone. The homeowner has a lot of ammo to push this lawyer to tell the truth. Hope the judge is not so corrupt he turns a blind eye to it. he did give him more time. We have so much corruption in WA that it is hard to trust justice will prevail. I am fighting an attorney that sold me out to the mayor of my town. I have absolute material proof of it and am still fighting for my substantive due process. Our small town mayor is corrupt beyond means and bullies city employees until they wind up in the hospital collapsed from the stress or walk out on city hall.

  6. Pam, Washington is three years for unsecured debt and six years for promissory notes/that include mortgages (written contracts) and deeds of trust. The six years begins at the time of breach, and an unsecured debt begins at the time you quit paying the debt. My son is past his six years, and mine is soon. Our contracts were breached the day we all (all of us signed them). Delaware is only two years for both. Lucky people. Most of Delaware homeowners can claim the debt is time-barred. We have a good adverse possession law also and a castle law. I am pretty sure my sons fight is over for multiple reasons. Flat out default on answers or communication by the other side.

  7. Of course people with lawyers are always better treated than Pro Se.Bought and paid for representation is always better than standing alone,thing about it is you get thrown under the bus easier with paid for representation cause you don’t talk the talk.Lawyers won’t hesitate esp. if they know you don’t know anything.So basically your paying to be thrown under the bus.

  8. google “usedkarguy” and read some of my posts about judges and the pro se experience.

  9. google “usedkarguy” and read some of my posts about judges

  10. The judge here in GA didn’t waste any time browbeating me for not having counsel. He stated that he was a lawyer, and that lawyers are the finite source for all legal information! He dismissed my petition in an angry diatribe, citing failure to properly notify the lender, when his own clerk had told me certified mail was acceptable, instead of a paid process server. The $300 it cost to file went up in the curl of smoke that came out of his ears–an insignificant amount to him–but it was an insurmountable loss to me.
    These asshole, arrogant judges are very much a part of the problem. In another case that came up, the attorney completely controlled the courtroom and the judge, and the bank walked away with another one of those “free houses” they, and they alone can get. The judge just didn’t get it that the bank didn’t suffer any loss, and he doesn’t have any interest in learning about it. The judge wanted to preserve and protect the good old boy system that was working for him, rather than provide me due process.

    It’s discouraging to say the least, that the homeowners, who are in the right, can’t get a fair shake. We can’t afford attorneys because we’re living on half what we used to make, we have to hunt for months in a concentrated effort to find one with the moxie to stand up to the bank, and we run the risk of losing not just the home we rightfully own, but the money we pay the attorney to win or lose.
    This system is in my humble opinion, as screwed up as the banking system. Judges get paid a commission on each case they clear from the docket, whether it is decided according to statutes, or who spent the most on legal counsel. Many of them don’t care about the people who confront the banks in court, I have even heard them talk over a pro se to drown out their testimony, and order them to “shut up and get out”. It’s high on my list of things that need to be addressed when Presiden Paul starts implementing his plan to return us to a country of law, order, and constitutional freedoms. I nominate Max Keiser for vice president! How about Jon Stewart for secretary of state?

  11. @John – that’s what I’ve been hitting at for a few years – the original lender was never a member of MERS so how could there be any alleged ‘updating, instructing, etc.’ if the original member did not possess the ability – legally or otherwise – to manage or even upload info in the first place into an unauthorized arrangement – because IT WAS NEVER A MEMBER – NO K = NO INVOLVEMENT – how could it ‘direct’ MERS thru a database no less to proceed with fabricating docs as a litigation tool etc.. . . it couldn’t and it can’t – the pretender in this case cannot hinge any so called directions instructions or anything else from the named lender when there was never a ‘bridge’ or ‘conduit’ in existence between the original lender to MERS to the pretender – there is a big moat between the original lender/borrower (“K island”) and the rest of the world if there is no device in which anyone or anything can cross the moat to get to both the borrower and the original lender – they may try to use a ‘dingy’ (faux doc) but they still are afloat without a direct connect from the ‘island’ as they will never be able to get out of that dinghy and step onto the ‘island’ (the 2 parties in privity to the K – lender/borrower) and the outside world which is everyone and anything that was not a party (not in privity) with the contract and cannot breach, break, introduce themselves, act or anything else if there is no bridge or bridging factors in existence that weren’t there at origination – the contract is impenetrable by any other – and if there is no bridge for MERS to even connect or even exist (no air to give it life) – then it can never transport rights from the “K island” to the mainland – nada – nothing can be ‘transported’ to or away because there is no vessel in which to do so – so to speak . . . it is the law of physics – a contract is sealed tight and eternally amongst only those within it (hermetically sealed) – if no agreement by way of a membership is in existence for the named party (lender) – then there is no possible way an outsider can transfer, transport, land on, do anything – take or add anything to the “K island”… because they cannot ‘reach’ the island it is off limits – MERS is a fallen coconut floating in the ocean – nothing more. (Idiotic analogies I know – but it seems us non legal people get a better idea of how the paper works in these scenarios thru imagery and I am not an attorney and had to learn to visualize how this whole mess believes itself to exist and attempts to make fools of us because we are not lawyers – well guess what – use of math and physics is free.)

  12. @ papergate, you are SO right. People should start questioning anyone in the chain’s membership in MERS since MERS (oh, it gags me to even write that name) read-members may only act in MERS name if they are members. Even if a member, this is all insanity: the alleged principal is acting in the name of the alleged agent.
    MERS’ membership is one of the reasons I carry on so about WHO owns these notes. If the current ‘owner’ or anyone in the deal were not a member, MERS is toast. Read their membership rules. Like I’ve said, unless there has been an amendment, members are only authorized to execute an assignment in MERS’ name if the beneficial interest in the note is held by a non-member. There is no provision for member-to-member assignments and there is certainly no legitimate provision for self-assignment. IF the note goes to a non-member, the member is to execute and record an assignment of the dot to that non-member in the land records. Trusts aren’t MERS members, are they? This hugely salient issue passes unchallenged in most cases. I knew to challenge it and did, but I did a very lousy job, admittedly. The bankster’s employee simply testified that so and so were MERS’ members. Today I would say prove it. Which reminds me, last time I looked, the originator of a particular loan was still listed as an active member of MERS as its web-site, though they have been toast as an entity since 2008. MERS database is not reliable….for anything.
    I think it was in the highly publicized Walker case (CA bk) where MERS was named in the dot, but the originator was not a MERS’ member at the time. Not sure anyone else caught this.
    But beware the infamous declaration. That’s what you’ll get unless you anticipate this and know how to get around it.
    Not sure this is what you mean, but If a note names a non-existant party as the payee, isn’t it so that there is no note?

  13. Well now, buck, that’s an interesting question and I could only defend my answer(s) with observation of cases over the years, like anyone I suppose. Some judges seem to abhor ignorance and will work against the litigant including counsel who dare to show up unprepared (at least in the judge’s view). Other judges just plain have a bent toward the banks and their attorneys’ jazz is taken as gospel, as seen, for instance, in the acceptance of bs declarations where no credibility is actually warranted. Last night I got around to reviewing a hearing before a judge I had heretofore admired. The hearing involved, as usual, the right of the pretender to take someone’s home. The homeowner’s attorney, who is not a member of the ‘club’, had made persuasive arguments against the pretender. IMO the court didn’t want to hear the homeowner’s particular arguments because ruling on the homeowner’s particular arguments in the homeowner’s favor would have sweeping consequences, huge, at least in that venue. The court set it for an evidentiary hearing, although the judge then referred numerous times to trial briefs, and so on, which as far as I know, aren’t part of a ‘mere’ evidentiary hearing.
    So I wondered ‘is this judge actually setting this for trial?’, which felt like an ambush and there WAS an attorney for the homeowner. It will be interesting to see how the docket reads on this: evid hearing or trial.
    But, what appaulled me big time is the judge actually saying numerous times “There is no free house!” There is no free house!” The judge ordered (essentially) the homeowner to make payments on the house (this is in a bk) which will essentially be escrowed throughout the course of litigation, which the judge sees as possibly three years. Interestingly, she said there is no agreement on these type issues in the DC, so she foresaw this as being ultimately decided by the state SC. The h.o. attorney tried to begin arguments that forcing a homeowner to make payments when there is doubt that a creditor has even made a claim is inappropriate. The court wasn’t having it. The judge said “your client borrowed the money from SOMEone and got the benefit of the money, and so your client is going to make payments throughout this whole deal.”
    From the few words the young attorney was able to get out, I took it he could or might support that the debt had been paid off or at least his client should not be forced to pay for the benefit of an entity which had not shown up.
    So applying this to your question, buck, I think the treatment would have been the same for a pro se, maybe or even probably worse, but not an attorney who is a venerable member of the club. Some attorneys aren’t messed with by courts. Courts know better and so the cases pass “uneventfully”.
    I have a case somewhere around here wherein the judge promised fees to the debtor’s attorney, essentially, if his case were proven against a party with a bs credit card assignment claim, long and short. The debtor proved his case against the credit card jerkies, or at least the jerkies, who were denizens of that court, failed to support their claim. The judge did quite a little jig, and did not award the promised fees. Now, I found this case back in 08 when I was attorney-hunting. I called that attorney numerous times and tried to otherwise track him down with no success. So I began to think what became of him. He was an older gentleman, with some 50 years experience. I don’t know how much of that time was in that particular court. I could feel, just reading, his shock at the betrayal register. I swear his disappointment if not humiliation were palpable and I swear, too, that I could taste it miles away at my own desk. I don’t think he ever practiced law again. Wish I could find that case again. Like him to know someone noticed and got it. It’s also a case for anonymous because it is a great education on the laws regarding claims for credit card debt assignments.

    Most judges have bents, and probably all kinds of them. In my own final analysis, I would say they tolerate more from attorneys than pro se’s. They have a respect for the law degree (remember, they had to get them, too), Does it color their perception of arguments by those without them? Probably more so than not. Some may even think a pro se has a lot of nerve showing up at all. And guess what to those judges? That is truer than they know.

  14. To Nancy Drewe: What do you know about PHH/ERA Home Loans in a PA case? You indicated WF with the Illinois case – what can you determine re invalid info if the so-called pretender is PHH (ERA Home Loans named on Note) not ERA Mortgage or ERA Home Loans, LLC but simply ERA Home Loans – also ERA Home Loans not a member of MERS . . . people should start asserting this – that if no one is in a contract or agreement with MERS – MERS has no authority to act where there is no legal contract or agreement regardless if mentioned in the mortgage – there are only 2 in privity with a contract – the named entity and the borrower – there is a page number on the document as well – that does not give the page number any lawful rights to transfer no more than the mere insertion of the word MERS – if there is no K with MERS there can be no authority or rights as no one in privity to the original docs was a member of MERS – hence no “membership” if your car breaks down and you call “AAA” the first thing they ask is do you have a membership? If you say no, you can’t get any assistance – if you are not a member of MERS you cannot utilize its database, etc., and “it” (MERS) does not have a conduit or bridge between the party asserting a MERS relationship and the transaction – also if there is a “MERS MIN” number on your original docs – check them out they probably belong to someone else and not the named lender – again if the lender on the note does not have a membership or contract with MERS – then how can MERS operate??? Certainly not based on any relationship with the borrower . . . start asserting – basic contract fundamentals – search the lender (original) to see if they are a MERS member…just giving my 6 cents …

  15. I would like to do my own anecdotal survey. How many believe that judges treat lawyered-up litigants better than the pro se?

  16. If true that he is on the cusp of a victory, why would he need a lawyer to muck it up for him? Is it because judges treat the pro se differently?

  17. Nancy Drewe—you are correct about my eyes…I’m a painter…trying to unravel a web of deceit of unprecedented proportions…not sure who to trust.

  18. Carie,no it is not legal you have 90 days to get it to the trust before it closes.If not there it is considered unsecured debt.Check your state statue of limitations for unsecured debt.WA. state is 6 years.Have had this come up before on a house I put a roof on and then lost.& years later they wanted to collect on the debt and could not as the statue had run out.

  19. The party who brings foreclosure is ‘real estate lawyers/brokers’ under contract with FEDERAL HOME LOAN CORPORATION C/O WELLS FARGO DBA PHH MORTGAGE CORP AS ‘DEFENDANT’

    ‘SPECIAL SERVICE MARKS’ ALLOW
    SPECAIL REAL ESTATE LAWYERS/BROKERS TO GET PAID AS BOTH ‘DEBT COLLECTOR’ THEY ARE NOT CREDITOR THEY HAVE IN A PORTFOLIO THEY MANAGE TO COLLECT DEBT OF CURRENT DEFAULT.

    PARTY IN ILLINOIS – THEY ARE SETTING YOU UP TO CLAIM AND ATTACH TO THE ‘NOTE’ – LAW IN ILLINOIS WOULD ALLOW COURT TO RULE IN FAVOR OF ANYONE IN POSSESSION OF NOTE – POSSESSION CAN BE BY TRANSFER OR ENDORSEMENT.

    THERE IS A TRUSTEE – THE ATTORNEY IS TRYING TO CONFUSE YOU.

    DEED OF TRUST – TRUSTEE – NEUTRAL THIRD PARTY – TITLE COMPANY WHO IS RESPONSIBLE FOR BILLING ‘WFHM INSTITUTIONAL’ C/O PHH MORTGAGE CORPORATION…. RELS TITLE & SETTLEMENT ….

    YOU ALL THINK WITH YOUR EYES AND NOT YOUR BRAIN.

  20. First of all—can someone answer this please—HOW is it “legal” to have a “Substitution Of Trustee” dated YEARS AFTER the Trust has been CLOSED??? How are they getting away with this—anybody? Thanks.

  21. When homeowner receives a Notice of Substitute Trustee should the owner of Note and Deed of Trust be listed.

  22. Without hestitation, you must immediately contact LakeLaw of Chicago IL and Waukegan WI: Attorneys David Leibowitz and Ryan Blay are extremely savvy and knowledgable about what is happening. They may hold the keys to your query, and suggest ‘best-practices’ as to how to proceed. Tell them I sent you, via Neil’s website.

  23. Fish/Bridges law firm advertises heavy on the radio for foreclosure defense.

  24. To the author of the original question. Contact Jeff Barnes. It appears he helps other attorneys in other states with many issues. It sounds like you just need someone to tighten up your complaint.

    ~Seeking

  25. Yeah, the judge says: “I don’t care if you’re just a “debt collector”—you still have to try to steal their house—come on—you can do it! I’ll let you!!!”

  26. Wow so the lawyer admits it and the judge still proceeds not to .What a joke.

  27. Dale Wiley has an Illinois licensed attorney that can help you…google Dale and call him…

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 3,119 other followers

%d bloggers like this: