ALLONGES, ASSIGNMENTS AND ENDORSEMENTS: THE REAL DEAL

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ALLONGES, ASSIGNMENTS AND INDORSEMENTS

Excerpt from 2nd Edition Attorney Workbook, Treatise and Practice Manual

AND Subject Matters to be Covered in July Workshop

ALLONGE: An allonge is variously defined by different courts and sources. But the one thing they all have in common is that it is a very specific type of writing whose validity is presumed to be invalid unless accompanied by proof that the allonge was executed by the Payor (not the Payee) at the time of or shortly after the execution of a negotiable instrument or a promissory note that is not a negotiable instrument. People add all sorts of writing to notes but the additions are often notes by the payee that are not binding on the Payor because that is not what the Payor signed. In the context of securitization, it is always something that a third party has done after the note was signed, sometimes years after the note was signed.

A Common Definition is “An allonge is generally an attachment to a legal document that can be used to insert language or signatures when the original document does not have sufficient space for the inserted material. It may be, for example, a piece of paper attached to a negotiable instrument or promissory note, on which endorsements can be written because there isn’t enough room on the instrument itself. The allonge must be firmly attached so as to become a part of the instrument.”

So the first thing to remember is that an allonge is not an assignment nor is it an indorsement (UCC spelling) or endorsement (common spelling). This distinction was relatively unimportant until claims of “securitization” were made asserting that loans were being transferred by way of an allonge. By definition that is impossible. An allonge is neither an amendment, nor an assignment nor an endorsement of a loan, note, mortgage or obligation. Lawyers who miss this point are conceding something that is basic to contract law, the UCC and property law in each state.

It is important to recognize the elements of an allonge:

  1. By definition it is on a separate piece of paper containing TERMS that could not fit on the instrument itself. Since the documents are prepared in advance of the “closing” with the borrower, I can conceive of no circumstances where the note or other instrument would be attached to an allonge when there was plenty of time to reprint the note with all the terms and conditions. The burden would then shift to the pretender lender to establish why it was necessary to put these “terms” on a separate piece of paper.
  2. The separate piece of paper must be affixed to the note in such a manner as to demonstrate that the allonge was always there and formed the basis of the agreement between all signatories intended to be bound by the instrument (note). The burden is on the pretender lender to prove that the allonge was always present — a burden that is particularly difficult without the signature or initials of the party sought to be bound by the “terms” expressed in the allonge.
  3. The attached paper must contain terms, conditions or provisions that are relevant to the duties and obligations of the parties to the original instrument — in this case the original instrument is a promissory note. The burden of proof in such cases might include foundation testimony from a live witness who can testify that the signor on the note knew the allonge existed and agreed to the terms.
  4. ERROR: An allonge is not just any piece of paper attached to the original instrument. If it is being offered as an allonge but it is actually meant to be used as an assignment or indorsement, then additional questions of fact arise, including but not limited to consideration. In the opinion of this writer, the reason transfers are often “documented” with instruments called an “allonge” is that by its appearance it gives the impression that (1) it was there since inception of the instrument and (2) that the borrower agreed to it. An additional reason is that the issue consideration for the transfer is avoided completely if the “allonge” is accepted as a document of transfer.
  5. As a practice pointer, if the document contains terms and conditions of the loan or repayment, then it is being offered as an allonge. But it is not a valid allonge unless the signor of the original instrument (the note) agreed to the contents expressed on the allonge, since the proponent of this evidence wishes the court to consider the allonge part of the note itself.
  6. If the instrument contains language of transfer then it is not an allonge in that it fails to meet the elements required for proffering evidence of the instrument as an allonge.

ASSIGNMENT: All contracts require an offer, acceptance and consideration to be enforced. An assignment is a contract. In the context of mortgage loans and litigation, an assignment is a document that recites the terms of a transaction in which the loan, note, obligation, mortgage or deed of trust is transferred and accepted by the assignee in exchange for consideration. Within the context of loans that are subject to securitization claims or claims of assignment the documents proffered by the pretender lender are missing two out of three components: consideration and acceptance. The assignment in this context is an offer that cannot and in fact must not be accepted without violating the authority of the manager or “trustee” of the SPV (REMIC) pool.

Like all contracts it must be supported by consideration. An assignment without consideration is probably void, almost certainly voidable and at the very least requires the proponent of this instrument as evidence to be admitted into the record to meet the burden of proof as to foundation.

The typical assignment offered in foreclosure litigation states that “for value received” the assignor, being the owner of the note described, hereby assigns, transfers and conveys all right, title and interest to the assignee. The problem is obvious — there was no value received if the loan was not funded by the assignee or was being purchased by the assignee at the time of the alleged transfer. A demand for records of the assignor and assignee would show how the parties actually treated the transaction from an accounting point of view.

In the same way as we look at the bookkeeping records of the “payee” on the original note to determine if the payee was in fact the “lender” as declared in the note and mortgage, we look to the books and records of the assignor and assignee to determine the treatment of the transaction on their own books and records.

The highest probability is that there will be no entry on either the balance sheet categories or the income statement categories because the parties were already paid a fee at the inception of the “loan” which was not disclosed to the borrower in violation of TILA. At most there might be the recording of an additional fee for “processing” the “assignment”. At no time will the assignor nor the assignee show the transaction as a loan receivable, the absence of which is powerful evidence that the assignor did not own the loan and therefore conveyed nothing, and that the assignee paid nothing in the assignment “transaction” because there was no transaction.

Any accountant (CPA) should be able to render a report on this limited aspect. Such an accountant could recite the same statements contained herein as the reason why you are in need of the discovery and what it will show. Such a statement should not say that the evidence will prove anything, but rather than this information will lead to the discovery of admissible evidence as to whether the party whose records are being produced was acting in the capacity of servicer, nominee, lender, real party in interest, assignee or assignor.

The foundation for the assignment instrument must be by way of testimony (I doubt that “business records” could suffice) explaining the transaction and validating the assignment and the facts showing consideration, offer and acceptance. Acceptance is difficult in the context of securitization because the assignment is usually prepared (a) long after the close out date in the pooling and servicing agreement and (b) after the assignor or its agents have declared the loan to be in default. Both points violate virtually all pooling and servicing agreements that require performing loans to be pooled, ownership of the loan to be established by the assignor, the assignment executed in recordable form and many PSA’s require actual recording — a point missed by most analysts.

If we assume for the moment that the origination of the loan met the requirements for perfecting a mortgage lien on the subject property, the party managing the “pool” (REMIC, Trust etc.) would be committing an ultra vires act on its face if they accepted the loan, debt, obligation, note, mortgage or deed of trust into the pool years after the cut-off date and after the loan was declared in default. Acceptance of the assignment is a key component here that is missed by most judges and lawyers. The assumption is that if the assignment was offered, why wouldn’t the loan be accepted. And the answer is that by accepting the loan the manager would be committing the pool to an immediate loss of principal and income or even the opportunity for income.

Thus we are left with a Hobson’s choice: either the origination documents were void or the assignments of the origination documents were void. If the origination documents were void for lack of consideration and false declarations of facts, there could not be any conditions under which the elements of a perfected mortgage lien would be present. If the origination was valid, but the assignments were void, then the record owner of the loan is party who is admitted to have been paid in full, thus releasing the property from the encumbrance of the mortgage lien. Note that releasing the original lien neither releases any obligation to whoever paid it off nor does it bar a judgment lien against the homeowner — but that must be foreclosed by judicial means (non-judicial process does not apply to judgment liens under any state law I have reviewed).

INDORSEMENTS OR ENDORSEMENTS: The spelling varies depending upon the source. The common law spelling and the one often used in the UCC begins with the letter “I”. They both mean the same thing and are used interchangeably.

An indorsement transfers rights represented by the instruments to another individual other than the payee or holder. Indorsements can be open, qualified, conditional, bearer, with recourse, without recourse, requiring a subsequent indorsement, as a bailment (collection), or transferring all right title and interest. The types of indorsements vary as much as human imagination which is why an indorsement, alone, it frequently insufficient to establish the rights of the parties without another evidence, such as a contract of assignment.

The typical definition starts with an overall concept: “An indorsement on a negotiable instrument, such as a check or a promissory note, has the effect of transferring all the rights represented by the instrument to another individual. The ordinary manner in which an individual endorses a check is by placing his or her signature on the back of it, but it is valid even if the signature is placed somewhere else, such as on a separate paper, known as an allonge, which provides a space for a signature.” Another definition often appearing in cases and treatises is “ the act of the owner or payee signing his/her name to the back of a check, bill of exchange, or other negotiable instrument so as to make it payable to another or cashable by any person. An endorsement may be made after a specific direction (“pay to Dolly Madison” or “for deposit only”), called a qualified endorsement, or with no qualifying language, thereby making it payable to the holder, called a blank endorsement. There are also other forms of endorsement which may give credit or restrict the use of the check.”

Entire books have been written about indorsements and they have not exhausted all the possible interpretations of the act or the words used to describe the writing dubbed an “indorsement” or the words contained within the words described as an indorsement. As a result, courts are justifiably reluctant to accept an indorsed instrument on its face with parole evidence — unless the other party makes the mistake of failing to object to the foundation, and in the case of the mortgage meltdown practices of fabrication, forgery and fraud, by failing to deny the indorsement was ever made except for the purposes of litigation and has no relation to any legitimate business transaction.

Once the indorsement is put in issue as a material fact that is disputed, then the discovery must proceed to determine when the indorsement was created, where it was done, the parties involved in its creation and the parties involved in the execution of the indorsement, as well as the circumstantial evidence causing the indorsement to be made. A blank indorsement is no substitute for an assignment nor is it evidence that any transaction took place win which consideration (money) exchanged hands. Further blank indorsements might be yet another violation of the PSA, in which the indorsement must be with recourse and be unqualified naming the assignee.

A “trustee” of an alleged SPV (REMIC) who accepts such a document would no doubt be acting ultra vires (acting outside of the authority vested in the person purported to have acted) and it is doubtful that any evidence exists where the trustee was informed that the proposed indorsement or assignment involved a loan and a pool which was five years past the cutoff, already declared in default and which failed to meet the formal terms of assignment set forth in the PSA. A deposition upon written questions or oral deposition might clear the matter up by directing the right questions to the right person designated to be the person who represents the entity that claims to manage the SPV (REMIC) pool. In order to accomplish that, prior questions must be asked and answered as to the identity of such individuals and entities “with sufficient specificity such that they can be identified in subsequent demands for discovery or the issuance of a subpoena.”

Throughout this process, the defender in foreclosure must be ever vigilant in maintaining control of the narrative lest the other side wrest control and redirect the Judge to the allegation (without any evidence in the record) that the debt exists (or worse, has been admitted), the default occurred (or worse, has been admitted) and that the pretender is the lender (or worse, has been admitted as such).

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78 Responses

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  3. […] “The typical definition starts with an overall concept: “An indorsement on a negotiable instrument, such as a check or a promissory note, has the effect of transferring all the rights represented by the instrument to another individual. The ordinary manner in which an individual endorses a check is by placing his or her signature on the back of it, but it is valid even if the signature is placed somewhere else, such as on a separate paper, known as an allonge, which provides a space for a signature.” Another definition often appearing in cases and treatises is “ the act of the owner or payee signing his/her name to the back of a check, bill of exchange, or other negotiable instrument so as to make it payable to another or cashable by any person. An endorsement may be made after a specific direction (“pay to Dolly Madison” or “for deposit only”), called a qualified endorsement, or with no qualifying language, thereby making it payable to the holder, called a blank endorsement. There are also other forms of endorsement which may give credit or restrict the use of the check.” — source article […]

  4. [...] Read more… Posted in Banks, MERS, News Around The Country, States « For My Birthday… Love, Your Broken Home. By Tim Miller Mandelman made $454,000 in 1 year as student loan debt collector? » You can leave a response, or trackback from your own site. [...]

  5. Thank you Neil

    A debt, or loan, thats been securitized has been made into a fixed asset, or part of a capital inventory backing a securities offering. A capital asset can’t be transferred by intentional delivery and endorsement for enforcement purposes. Capitalized assets must be disposed of or abandoned when their usefullness has expired, become non performing, or have become obsolete for their original purpose and a capital gain (or loss) must be reported for tax purposes.

    So did the would be forecloser come to possess the note from a garage sale or the lost and found box? Don’t let the blank endorsement fool you. Disposal and abandonment doesn’t equal transfer. Negotiation must be by endorsement together with intentional and purposeful delivery.

    The terms of the promissory note contract attached as an exhibit to the complaint is facially more restrictive in its characterization of who may enforce it than FL statute 671.201(20) and requires a two part test to determine if an entity is the note holder entitled to enforce the instrument. The note must be acquired via transfer and the entity must be entitled to receive payments made under the note.

    A would be forecloser waiving a note representing a debt that has been securitized didn’t aquire the debt via transfer of the note. Therefore, they cannot avail themselves to the jurisdiction of the court because they experience no economic harm and fail to state a cause of action. Even still, without acquiring the debt evidenced by the note, the lien will not bind or benefit them.

  6. im curious about this with wilshire. i had wilshire as a servicer but they did not move to foreclose–whether they made the decision is another thing and i am working on getting discovery right now frm them. i did at a point in time after wilshire moved out of its offices out weset get a letter from an astrology group. i noticed it had wilshires address on it and wrote the astrology group who said wilshire left all these records in its offices and that is where they got my name. i also know that when ibm bought part of wilshire that their folks could not make hide nor hare out of the documents that wilshire had.

  7. Have a laugh at this LPS/DOCS/Fidelity/Ticor/Wells-Fargo robo-signer’s deposition page 79: http://cdn.americanbanker.com/media/pdfs/012111silvadepo.pdf
    Jones v. Wells Fargo Stanley Silva January 4, 2011
    Q who is the agent of –Of
    Q Of who?
    A Well, I’m signing, in fact, on behalf of Ticor Title of Nevada who is agent for LPS Title who is agent for National Default Servicing.
    Q Who is agent for Fidelity National?
    A Apparently, yes.
    Q Which is a servicer for Wilshire?
    A Apparently.
    Q What does that mean?
    A Other than what it means on the surface.
    Apparently there are a number of business relationships there.
    Q So who actually started this foreclosure among those names that we just talked about?
    A Well, we would suppose through our knowledge of what we understand about the lending servicer industry,I would say it would be Wilshire. They are stating on here that that is the servicer, or Wilshire might be –Excuse me, I looked at that incorrectly. Wilshire might be a beneficiary and Fidelity is claiming to be a servicer for Wilshire.
    Q Or they could all be nobody, right, in connection to this deed of trust, you don’t know?
    A No, I don’t know.
    Q In fact, let’s look at that paragraph that you looked at before to say who the beneficiary was.
    A Yes.
    Q This one says MERS nominee for Mila, Inc., M-i-l-a, Inc.
    A Right.
    Q — as beneficiary.
    None of them are involved in this foreclosure;

  8. Cal-Foreclosure void without recorded assignment http://67.21.3.118/research/CaseLevel3/86405

  9. JG,
    Thanks for the MS Code. I agree with your breakdown of what MERS is/does–a computer program is my beneficiary. That’s insane. But that’s where we are in the brave new world of the 21st century. Supposedly, my Note–but not my DOT–was transferred to the vault of the trustee. My trustee was Recontrust. The Defendants said that my DOT sat in a Recontrust vault in Simi Valley, California for 4 years. They called it the “Fannie Vault” even though it was a Recontrust vault. The judge totes bought all of this bullshit. Or at least put in writing that he did.

    It’s really amazing how the law and the finance people can turn a single item into one or more items, just with language alone. Meaning that the item remains a single item, but it appears to multiply by virtue of the different names for that single item. For example, the single item “title” becomes “legal title” and “equitable title.” MERS has added a third title to that single title: “title to the deed of trust.” Yet there’s still really only ONE title.

    Or you have the single item “vault”: they’ve made that one vault into both the Recontrust vault and the Fannie Mae vault. So when they need it to be a Recontrust vault, it’s a Recontrust vault. When they need that same vault to be a Fannie Mae vault, it’s a Fannie Mae vault.

    There’s only one “beneficiary/mortgagee” but that gets split in two, also–it’s MERS when they want it to be or it’s the “lender” when they want it to be. It’s MAGIC!

    There are other examples…

  10. First off I asked you to give me case law where jurisdiction is not the basis before any equity claim could be raised. Instead you give me reversal then add get off your high horse? What kind of case law is that, but i’ll give you one case supreme court case of freeman v alderson. Read that first, then i’ll give you more.

  11. PS: Regarding the video link I left below – it’s not the fist story that will come up. Move cursor over the boxes below below the screen til you find “Couple forecloses on Bank of America” and click.

  12. Really tony–you wish you could have me as counsel–in 35 years I lost one–one–jury trial in my discrimination/whistleblower litigation and settled all but two cases against every major law firm in the metro arae–that’s a pretty good track record I’d say. I read stern but and foragain, what I don’t agree with is this refusal to acknowledge WHERE you should be for these cases. Stern is interesting but it does not resolve the issues in these cases as to jurisdiction on a day to day basis. Perhaps I have missed it but where are the cases in foreclosure citing Stern. Iv done about 2500 hours of research and written for numerous people on thse cases for a number of lawyers– so get off your high horse tony and show where the stern case has made a difference in actual litigation.

  13. gwen caranchini,

    If you don’t understand the true meaning of Stern v Marshall, then I know I wouldn’t want you as counsel. Again it has nothing to do with fed or state, its about defeating equity claims period and get to the meat of the issue. Who has the right to access this court who has the res via fed or state. Stop looking at equity issue all the time for bases of defense. Read the oral arguments of Stern v Marshall and then if you have any questions or point to raise, we can do it on here. You point your case law and I’ll point mine. After all this is what this site is really suppose to be about.

  14. Challenge the ‘attorney in fact': evidence

  15. Also Florida:
    Title XL
    REAL AND PERSONAL PROPERTY Chapter 697
    INSTRUMENTS DEEMED MORTGAGES AND THE NATURE OF A MORTGAGE View Entire Chapter

    697.01 Instruments deemed mortgages.—(1) All conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.
    (2) Provided, however, that no such conveyance shall be deemed or held to be a mortgage, as against a bona fide purchaser or mortgagee, for value without notice, holding under the grantee.
    History.—s. 1, Jan. 30, 1838; s. 1, ch. 525, 1853; RS 1981; GS 2494; RGS 3836; CGL 5724; s. 12, ch. 20954, 1941.

  16. Florida:

    Title XL
    REAL AND PERSONAL PROPERTY Chapter 689
    CONVEYANCES OF LAND AND DECLARATIONS OF TRUST

    689.01 How real estate conveyed.—No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section. Corporations may execute any and all conveyances in accordance with the provisions of this section or ss. 692.01 and 692.02.
    History.—s. 1, Nov. 15, 1828; RS 1950; GS 2448; RGS 3787; CGL 5660; s. 4, ch. 20954, 1941; s. 751, ch. 97-102; s. 2, ch. 2008-35.

    New? Retroactive? Don’t know

  17. Arizona:
    33-401. Formal requirements of conveyance; writing; subscription; delivery; acknowledgment; defects

    A. No estate of inheritance, freehold, or for a term of more than one year, in lands or tenements, shall be conveyed unless the conveyance is by an instrument in writing, subscribed
    and delivered by the party disposing of the estate, or by his agent thereunto authorized by writing.

    B. Every deed or conveyance of real property must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments.

    C. In every deed or conveyance of real property in which the grantee is subject to regulation pursuant to title 6, 10 or 29, or would be subject to regulation pursuant to title 6, 10 or
    29 if doing business in this state, the grantee’s name and address and the state in which the grantee is incorporated, organized, licensed, chartered or registered shall be set forth
    fully, together with the name of the country under which the grantee is chartered or formed.

    The validity of any deed shall not be affected by any failure to comply with the requirements set forth in this subsection.

    jg: HUH?

    D. For the purposes of this section, a deed or conveyance containing any defect, omission or informality in the certificate of acknowledgment and which has been recorded for longer than
    ten years in the office of the county recorder of the county in which the property is located shall be deemed to have been duly acknowledged on and after the date of its recording.

  18. Miss Code 2010 (most recent?)
    “Title 89
    89-1-3 Land to Be Conveyed only By Writing

    An Estate of Inheritance or Freehold*, or for a term of more than one year, in land shall not be conveyed unless the conveyance be declared by writing signed and delivered.”

    *most real prop estates are ‘”freehold”

    Language in dot:

    “Borrower irrevocably grants and CONVEYS to trustee, in trust, with power of sale, the following described property……”

    MERS is the beneficiary (yawn), but MERS never takes delivery of one DEED of trust (neither does the trustee for that matter). I wonder if the trustee should have taken delivery all this time (back since dots were implemented) in this whole messed up deal. Now there’s a can of worms maybe best forgotton, but not as to MERS as ben. (I think the dot is messed even without MERS, but it worked for years with recordation of assgts). If I qc my home to you, you jez don’t got it til you get deliver of the qc deed – MUST have delivery. Must a dot be delivered, like any other deed, and if so, to whom? I answer the former in the affirmative, but not sure by whom.
    Trustees have never taken delivery of dots that I know of. It’s always been the lender/beneficiary. But, SOMEone, and someone relevant, must take deliver of a dot, it appears to me, for it to be effective (like any other deed).
    Moving right along, according to 89-1-3, all conveyances of an estate in real prop, which is a description of a deed of trust, must be in writing. The language in the dot unequivocally (had to look up that spelling!) states that the document comprises a conveyance. Therefore, it is an agreement which must be ‘reduced to writing’ and that’s that imo: dot not “follow” note.

    I really dont’ mean any major disrespect, but I think the judiciary is smoking something if they find legitimacy in MERS and its m.o.
    Mers is the ben. And / or Mers is a common agent of its club members (“cm’s”). I’m some schmoe muck and I have an idea. I’ll start a club and let you, for a fee of course, put all your dots in the club’s name. The club, which ssshhhh is really only a computer program and nothing but, will be your agent or ben or nominee or something. You heard it here first: a computer program is going to be your common agent / beneficiary /nominee on DEEDS of trust on millions of American homes. I don’t want to be bothered with employees and fica and so on, so I will then do a 180 and deputize anybody and his brother (the computer program/common agent/beneficiary will appoint its cm’s as its agents aka club officers = agent makes principal ITS agent / officer) to do my club’s (computer program) work so I don’t have to. Plus – bonus! My cm’s can do anything they want in the club’s name for a fee, of course. Take possession of the dots? No, no, no. I have no employees for such an idea. Litigate? No, no, no. Our agreement says you will handle that stuff. But, good news! You can do so in the club’s name! (That was the orig idea, but I think today “MERS” / MERSCorp may actually be eating some of it)

    A computer program is a beneficiary on millions of deeds of trust on our homes. I mean, wt you know what?! This isn’t going anywhere in courts, no doubt, but it’s the Truth.

  19. MY servicer added an allonge 2 weeks ago endorsing my note – FROM the originator TO the trustee for the originators Trust BY the servicer as “attorney in fact” It was dated may 25, 2012 and signed by a known robo-signer who had stamp revoked signing not as notary but as a ‘Document Manager.’ The kicker: both the originator (who actually never put up any money but was a “finder) has been bankrupt for 5 years as has the trust. I verified w/Bankruptcy Trustee said servicer has not paid them any money and niether the “lender” or “trust” has been able to receive any money for years and my loan was not listed as an asset in their BK. Said they cannot possibly have POA for lender and past POA would be superceded by BK trustee. NOW WHAT? (Servicer has tried to FC multiple times even though never missed a pymt – like whacka mole they keep popping up for more. Just wonder why they posted this allonge now (on their website not yet recorded anywhere) and how to counter)

  20. what’s the point you are trying to make–i’ve practiced 35 years and I think I know juris. Bankrtupcy court is possible here with motions for lack of standing. But state v. fed? Well I don’t advocate anything at all that puts you in fed court like arguing tila claims whicch I think get you headaches but not good decisions. Stay in state court and argue these are land issues. Why would you want to go to fed court except maybe in New york or mass. The rest of the country still have bs bush appointess (bush 1 and 2 and even some reagan appointees). So why go there? Prevent diversity and add your trustee always because not only do you have claims against the trustee but they are generally of the state where your house is. Difficult to remove unless they claim fraudulent joinder but there are viable claims against trustees–unless the fed judge ignores the law–and my did. But remands based upon state law against the trustee should stop most removals. So what again are you talking about here. Wht the hell does stern have to do with this–ive read it but why are you going there? Ive done some pretty sophisticated discovery against big corps and every federal agency and most cities within 100 miles of KC.

  21. One I am a lawyer able to practice, but that is besides the point. The issue was about jurisdiction period no matter if its state or federal. All courts must point where the res shows them to have jurisdiction. Plus on the other side you are pointing to much on a equitable right. With this kind of defense you are talking about you will always face road blocks. Read the transcripts of Stern v Marshall to understand this matter.

    This is law school 101, equity will always have the judge tell you, that you are trying to have a free lunch. Jurisdiction question will stop judges dead in there tracks to see where they have jurisdiction at. Stern v Marshall was not about standing or real party in interest. It was about constitutional standing, is there a separation of powers. You can lose your claim, but win your case if you study and learn more about this.

  22. Well not exactly tony–if you are not a lawyer–and I practiced for 30 years plus am not licensed currently but you really need to be in STATE COURT because these are state court issues. That is the real issue. You an raise lack of standing in bankrtupcy court and defeat a motion to lift stay and win–but ultimately you need tobe in state court and have PART of your claims be quiet title, decaratory judgment, ucc under state court law, uneta, fraud and conversion at the least.

  23. This endorsement talk is not going to get you a win in court. People need to stop hyping on this issue. The real matter is jurisdiction, plain and simple. Take for instance Stern v Marshall supreme court case. It wasn’t the hyping of the usual legal rhetoric that made this case big, but the issue of that bankruptcy courts are not article 3 courts. Thus it lack article 3 jurisdiction to rule on certain matters. This is the solution in winning any case.

  24. needcaselaw,
    It’s late here–I will read your post more carefully in the a.m. Thank you for the tips. Thank you for your favorable reaction to my brief and its contents. I agree with you that it is solid stuff and that I presented it well. Hell, even tnharry expressed disbelief that with such info I still lost.

    You said that maybe my presentation of the facts to the court was somehow not done properly. I suppose that could be true–I’m not a lawyer. But I really don’t think that’s it. I think what really happened is what happens in most cases–judges don’t want to rule against banks because they think that will “open the floodgates” and somehow unjustly enrich the “deadbeat” borrowers. Also, the judge in my case held stock in Bank of America at the outset of the litigation (which I did not know until later). Despite a standing order in Mississippi that judges must recuse themselves if they own stock in a company that is a party to litigation before them, this judge did not do that. He held the stock for about 4 months after the case was assigned to him and then 10 days after he sold it, he denied our motion to remand to state court. That’s the kind of judge we’re talking about–a real play-by-the-rules kinda guy.

    So again, I don’t think my presentation of the facts had anything to do with it. I don’t think it ever does. These judges aren’t stupid, just corrupt. Maybe they don’t think they’re corrupt or can somehow justify their actions. I don’t know. But presenting the facts is just writing down what went on in as clear a fashion as possible, citing statute and case law where necessary–and I did that. There are no magic words that will make a judge do the right thing.

    Come to think of it, I know for a fact that my presentation of the issues was dead-on and very effective, because whenever I raised something deficient in the defendant’s case, the judge would always give the defendants a way out of it. The best example of this: in their motion for summary judgment, the defendants filed two affidavits that an unendorsed copy of the note was true and correct. In my response to their motion (some of which is quoted below), I pointed out that the lack of endorsement made all the defendants’ claims false.

    Consequently, the judge did not rule on the summary judgment motion for 3 months. Then we were two weeks out from the first trial date (there were 3 total) and motions in limine were due–the judge still hadn’t ruled on the summary judgment. My motion in limine asked the judge to preclude any endorsed note or note with allonge to be used at trial. I told the judge that they had already sworn two affidavits that the note was unendorsed, so presenting an endorsed note at trial would be admitting that they were lying in the summary judgment motion or they’d be lying at trial.

    So what happened? The trial was re-scheduled for 6 months into the future. They knew damn well that I was absolutely correct about the note situation, so the judge scheduled a summary judgment hearing (which a lawyer friend of mine who’s practiced in the state for close to 20 years says NEVER happens), which took place a couple of months after the motion in limine was filed. At this hearing, which lasted about 1.5 hours, the defense attorney talked for about 5 minutes and presented copies of the supposedly original note which now magically had the endorsements of Michele Sjolander and Laurie Meder. The entire hearing was a setup for just that “ta-da” moment. Again, the hearing went on for 1.5 hours, and the defense attorney spoke for 5 minutes. He even admitted that he had done a “poor job” of presenting the facts.

    Sorry to go on so long. I think I should have won, too. Or at least gone to trial. But that didn’t happen.

  25. JG,
    I am in a non-judicial state. DOT’s are the norm. I had a DOT. The judge reasoned that the mortgage follows the note without distinguishing between DOT and mortgage. I agree that if UCC governs notes, S of F governs DOTs.

    But I think the answer of why assignments are being done is for two reasons:
    1. because of the statute of frauds–if challenged in court (not likely in most cases), they have to be able to point to something in writing that at least purports to give them the authority to take a house
    2. where MERS is involved, as I said earlier, the idea of the assignment is to try to create a prima facie case in the document that the note and mortgage/DOT are together even though MERS admits that it purportedly holds the mortgage/DOT while the note is traded separately from the DOT, which is obvioulsy in contravention of all known law and custom. The defendants in my case made that exact argument–MERS holds DOT, note changes hands among other parties. I pointed out that according to the law, that is utter bullshit. Judge didn’t care.

  26. zurenarrh: One more point to bring out: It is universal that one should not be permitted to profit from their crime. This is very well fleshed out in an article from Emory University, including all the cites you’ll ever need. It’s a PDF download, go to page 161.

    http://www.law.emory.edu/fileadmin/journals/bdj/23/23.1/Jacobson-Greany.pdf

    Of course in this regard, you need to bear in mind that no judge (theoretically) is going to allow injustice to flourish if they can avoid it legally. Part of the success of the participants in the Bain case currently before the Washington Supreme Court has rested in the willingness of the complainants to make things right with the party who is actually owed. Of course they can’t produce that (they screwed that party too – long ago). But the bank has painted you as the bad guy/flake who is just trying to get out of repaying what you borrowed (while they “innocently suffer”). Framing your arguments in the affirmative – that you’re not trying to get a “free house” – while the bank is – could potentially change the judge’s polarization.

  27. Zurenarrh: I’m finding it a little hard to believe that you properly presented those arguments in court and the judge ignored you. That’s solid stuff and you express it well. Sorry for the brief silence – I’m finally getting MY Complaint filed tonight so am a bit distracted.

    Johngault, however, filled in nicely what I was about to share. I was checking the Mississippi Code to see if you have a specific Real Estate Statute of Frauds (as Washington does).

    Very few know that the UCC changed in 1993. So, with regard to “The Security follows the Note” I respond with Jesus words, “WHERE I AM GOING YOU CANNOT FOLLOW.” John 13:36

    In Washington all conveyances must be by “deed”, RCW 64.04.010; and all deeds must be “signed by the party bound thereby”, RCW 64.04.020. Prior to 1993 the laws of the Uniform Commercial Code were virtually identical to those of the Deed of Trust and Recording Acts with regard to who had the authority sign a “transfer” in the case of a negotiable instrument, and an “assignment” in the case of a deed of trust. Both contained the above noted exception to the general rule of contracts (enunciated in RCW 64.04.020): before 1993 both negotiable instruments and deeds of trust had to bear the signature of THE PARTY TO BE BOUND in the contract.
    Prior to 1993 – Quoting from current UCC Official Comment: “former Section 3-401(1) stated that ‘no person is liable on an instrument unless his signature appears thereon.’ This was interpreted as meaning that an undisclosed principal is not liable on an instrument. This interpretation provided an exception to ordinary agency law that binds an undisclosed principal on a simple contract.” UCC Official Comment Sect. 3-402(1). This “exception” was virtually identical to that which has always been in place for deeds: a deed must be “signed by the party bound thereby.” RCW 64.04.020 (Part of Washington’s Real Estate Statute of Frauds). To permit an anonymous principal to convey real property interest would eliminate chain of title as the system for establishing property rights, and legalize “wild deeds.” A deed of trust is more than an instrument securing a debt: it is a deed – and all assignments of it are deeds, which if they are to be capable of conveying property interest or power of sale must conform to deed requirements. Id. (and see RCW 65.08.060(3)). Aside from who owes whom what, the sanctity of chain of title for both notes and deeds of trust are defined by statutes.
    UCC revisions adopted in 1993 enabled notes to be held, manipulated AND INDORSED BY ENTITIES OTHER THAN “the party bound thereby”. Yuan v. Chow, 96 Wn. App. 909 (Aug. 13, 1999) stated, “The 1993 amendment to (RCW 62A.3)-401, under which an undisclosed principal is liable on a negotiable instrument signed by an agent, applies prospectively only.” And, ruled that under the previous “signed by the party bound thereby” an undisclosed principal was prohibited: “In 1990, Uniform Commercial Code Article 3, Negotiable Instruments, was significantly revised, and Washington adopted those revisions in 1993. See LAWS OF 1993, ch. 229 (eff. July 1, 1994). RCW 62A.3-401 was changed to the following: “(a) A person is not liable on an instrument unless (i) the person signed the instrument, or (ii) the person is represented by an agent or representative who signed the instrument and the signature is binding on the represented person under RCW 62A.3-402.”(RCW 62A.3)-401 (amended by LAWS OF 1993, ch. 229, § 41). The revised version of section 3-402 further provided that:
    (a) If a person acting, or purporting to act, as a representative (b) signs an instrument by signing either the name of the represented person or the name of the signer, the represented person is bound by the signature to the same extent the represented person would be bound if the signature were on a simple contract. If the represented person is bound, the signature of the representative is the “authorized signature of the represented person” and the represented person is liable on the instrument, whether or not identified in the instrument. RCW 62A.3-402 (amended by LAWS OF 1993, ch. 229, § 42).
    Under former sections 3-401(1) and 3-403(2)(a), Tarn is not liable on the note because Chow signed the note personally without naming Tarn or otherwise indicating that he was signing in a representative capacity. Under revised sections 3-401(a)(ii) and 3-402(a), Tarn is liable on the note if Yuan can establish an agency relationship between Tarn and Chow.” Yuan, 96 Wn. App. at 911-912.
    Where a negotiable instrument may now go under the post-1993 UCC, a deed of trust may not necessarily be able to follow. Yes, a deed of trust beneficiary may appoint an agent to convey his interest on his behalf, but the authority must be identified. Washington Supreme Court: “The rule that recitals in a deed bind parties and privies, but not strangers, needs no citation of sustaining authority. That the rule against parol contradiction of a written contract cannot be invoked by or against strangers to that contract, is well settled.” State ex rel. Wirt v. Superior Court, 10 Wn.2d 362, 368, 116 P.2d 752 (1941), citing 2 Jones on Evidence, Civil Cases (4th ed.), p. 858, § 449; Ransom v. Wickstrom & Co., 84 Wash. 419, 146 Pac. 1041, L. R. A. 1916A, 588.
    RCW 65.08.060(3) defines, “The term “conveyance” includes every written instrument by which any estate or interest in real property is created, transferred, mortgaged or assigned or by which the title to any real property may be affected, INCLUDING AN INSTRUMENT IN EXECUTION OF A POWER…” Id. [emphasis added]. The only exception to this is “an instrument granting a power to convey real property as the agent or attorney FOR THE OWNER OF THE PROPERTY.” Id. Thus, such granting of “agency” – except for a property owner – can only be accomplished by deed in Washington; and under no legal scheme can an agent claim to itself BE the Beneficiary. In other words, “chain of title” is required for all property conveyances in Washington; and liens and encumbrances are considered part of a property’s chain of title, which is established by the recording statute (some new gum for you to chew on).
    “Chain of Title: 1. The ownership history of a piece of land, from its first owner to the present one. – also termed line of title. 2. The ownership history of commercial paper, traceable through the indorsements. For the holder to have good title, every prior negotiation must have been proper. If a necessary indorsement is missing or forged, the chain of title is broken and no later transferee can become a holder.” [emphasis added] Black’s Law Dictionary 222-23 (7th ed. 1999).
    When a real property interest is held in a trust, “the party bound”, and so conveying interest, is the Beneficiary – the owner of that interest. This is the very definition of a “trust.” Black’s Law Dictionary defines, “[A] trust involves three elements, namely, (1) a trustee, who holds the trust property and is subject to equitable duties to deal with it for the benefit of another; (2) a beneficiary, to whom the trustee owes equitable duties to deal with the trust property for his benefit; (3) trust property, which is held by the trustee for the beneficiary.” Restatement (Second) of Trusts § 2 cmt. h (1959).” Black’s Law Dictionary 8th ed. 1999 p.1513.
    In Washington, a “trustee”, by any definition, cannot be a Beneficiary of a DOT. RCW 61.24.005(2) (definition of Beneficiary).
    Check Mississippi law. The Assignment you describe should be impossible anywhere.

  28. @zurenarrh – I can’t agree that a dot follows a note. One who has legitimately purchased a collateralized note has the RIGHT to an assignment of the collateral instrument, but ‘he doesn’t have it til he has it’. If an assgt of the coll instr is not forthcoming, a note buyer may sue to get it. The prudent purchaser will get it concurrently with the purchase of the note (which is how it was done pre-MERS). A mortgage, a lien, might have followed a note in the days of Carpenter, but I’d bet a ranch (if I had one) that the statute of frauds was not then what it is today. Notes, which are only personal property aka personalty, and this is why they aren’t recorded, are regulated by the UCC, but not so a deed of trust. It’s regulated by a totally different set of rules, found in the statute of frauds. A note without an assgt of its coll instrument is an unsecured note. An assgt of the coll instrument without the sale of the note is a worthless piece of paper. The S of F requires a writing (not a following of an instrument reg’d by another set of rules). When AZ, for instance, made that ridiculous ruling this year in some case, I feel certain the court overlooked its own version of the S of F in its entirety. I’d bet your state has dispositive statutes as do all others which are often overlooked by litigants and courts alike.

    If one wanted to get technical, and I believe we do, what happens when A sold the note to B who sold the note to C but A never executed an assgt to B of the dot? Where does that leave C as to the dot? Without, is my opinion. Too late to get it? I’m not sure, but of course they’d play hell if A is toast. Under the statute of frauds, there is no such thing as an ‘equitable assgt’ of an instrument which pertains to interests in real property, which precludes a dot from following a note. Notes = UCC. Dots = Statute of Frauds
    Should a coll instrument follow a note? Got me. I didn’t write the rules. I do know that because dots are about real property, the S of F was created to protect our interests in real property.

    It’s all very tenuous because MERS is named the nominal ben in the dot and courts generally recognize a “MERS” assgt of the dot, but you asked a good question: if assgts of the coll instrument are superfluous (because they follow a note), why are they being done? It’s because they’re not, at the heart of it, and because MERS can’t foreclose any more (Consent Order).
    And if I have (mere) possession of a note, how does that automatically give me the right to assign the collateral instrument to myself or have it assigned to me? I have an unsecured note at best when I do not own the note. I have no right to an assignment of the coll instrument imo. That assgt should be to the note’s owner and I may act only for that party under an evidenced agency with that party or that party must be joined (with more pesky evidence of that party’s consent to joinder).
    Here’s my longer take:

    http://www.sourceoftitle.com/blog_node.aspx?uniq=946

    I’m open to and welcome argument, just as you appreciate tnharry’s.
    Argument is helpful! In the meantime, I can’t see the dot following the note. At any rate, while that argument seems useful, imo it’s also a trap.

    ,

  29. @ tnharry

    We filed a Motion for Continuance to seek new counsel.

  30. @dee – i suspect he’s trying to say that all deadlines remain but the specific trial or hearing dates are canceled pending being reset. for instance, many courts will say that certain motions must be filed 60 days before hearing, or disclosures must be made 3 weeks before a hearing. this would allow part of what’s been set to remain in force while remaining flexible regarding the exact dates. it’s a little hard to decode out of context though. sorry i can’t be more helpful

  31. @tnharry,The judge recused himself. The recusal order stated that language.

  32. tnharry, I don’t want to argue with you at all. I do appreciate your skepticism about the whole fighting the banks thing. I just want to get to the bottom of all this and root it out. I too am surprised I got that far and lost. I really am. Neil is always saying that if you get discovery, you’ll win. I got tons of discovery, a lot of it very damning. Some of it is very public and has been noticed by a lot of attorneys. But it didn’t help me.

    I enjoy your advocacy for the devil (ha!)…it helps keep us sharp!

  33. @dee – can you give a little more background? not sure what you’re asking exactly

  34. @zur – so what’s the rest of the story? what did the note look like? were there endorsements from original lender to BAC? who was the original lender?

  35. @zur – not sure if you’re hoping I’ll argue with you over this, but i don’t disagree with anything you said. i’ve said it before – assignments are virtually meaningless. it’s all in the note and possession/enforcement rights of the note. all the cases are focusing on being a holder or otherwise being able to enforce the note prior to initiating foreclosure. using the assignment as a vehicle to “backdoor” a transfer of the note should have been clear to the judge. i’m frankly surprised you got that far and lost.

  36. @all

    What does deadlines in scheduling orders subsist mean? Court settings are vacated.

  37. Gwen, the email has been sent.

  38. You betcha, Gwen–roger that. Will send momentarily. Remember, a judge in Mississippi didn’t buy this argument at all. So obviously this info has no value.

  39. like that one–what interrogatories do you have that hultman signed? Can you send to gwencaranchini@sbcglobal.net.
    As I said, look at Pacer for my discovery.

  40. @Lorraine – thanks for the info. I want to ascertain that MERS is not ever listed as a named insured – anywhere (not homeowner’s insurance, not title policy and NO doubt not any other kind of insurance). If MERS is the beneficiary, as has been sworn in countless litigation, why is it not a named insured? It’s not an economic beneficiary and this voluntary-entry-computer-system with a national name has no interest in a thing except fees. There is no economic (and therefore true) beneficiary named in a dot. Does one have to be? Does it suffice that so and so is id’d as the “lender” on a dot and then that MERS is the nominal ben? I don’t think so. It would have been so easy to write the dot appropriately, but they didn’t, except that it has suited their purposes of evil-wicked, phantom-foreclosure (at least up until MERS’ Consent Order. But, now they just use the self-assignments of the dots and unbelieveably the notes which imo is directly violative of the Consent Order).

    It’s interesting, too, to note that the servicer is listed on the ho’s ins, but never the sec’n trust. This last one doesn’t necessarily prove anything, but it’s something to remember,like if you want to make them (servicer) p-r-o-v-e an alleged agency agreement with the trust, because in the absence of proof of agency, there just isn’t one as a matter of law. Real property agency may not be inferred by any court in this country, despite the fact that it is nonetheless done rampantly.

    Maybe someone will find this useful. It’s some salient portions of a PSA (warranties, duties, and so on):

    Because it’s not the whole darn agreement, it’s not that dry. Worth an informative look.

  41. Also, the interrogatories were signed by William Hultman. Or someone who could forge his signature. Or maybe like Sjolander, it was a stamp.

  42. Excerpt from one of my briefs which has the exact MERS quotes:

    Indeed, the Corporation Assignment stated that MERS “grants, assigns, and transfer [sic]” to BAC “all beneficial interest” in the Deed of Trust, “together with the Note.” See Exhibit 4. However, in response to Plaintiffs’ Interrogatories, MERS stated that “Any language in the assignment which claimed to assign the note could not do so as notes do not move through assignments in the land records [emphasis added].” See MERS’ Responses to Plaintiffs’
    Requests For Interrogatories and Requests For Production, Response to Interrogatory No. 7 (Exhibit 7).

    MERS also stated that “The MERS assignment can only assign the interest that MERS is holding,” and while the Plaintiffs dispute that MERS holds any “interest” at all, MERS states that it “holds legal title to the Deed of Trust and can assign the Deed of Trust”–but not the Note. MERS further states that, “Unless MERS is the note holder it cannot transfer the note since the note moves through endorsement and delivery pursuant to the Uniform Commercial Code.” See id., Response to Interrogatory No. 13. MERS unequivocally states that MERS “was never the holder of the subject Note” and that “MERS has never owned the Note.” See id., Response to Interrogatory No.1 and No. 14. The Corporation Assignment, then, did not do and could not do what MERS stated in the Corporation Assignment that the Corporation Assignment could do, i.e., assign the subject Note or Deed of Trust to BAC. In other words, BAC is not now and never
    has held the subject Note or Deed of Trust, despite the Corporation Assignment to that effect that is currently of record in the land records.

    Makes perfect sense to me, but keep in mind I lost.

  43. zurrenarh said mers said:

    “MERS only held title to the deed of trust (say what?). Therefore…..”

    Your “say what” is hugely appropriate and on point imo. No s**t, Sampson (not you – MERS). MERS and co. made up this allegedly legal “holding title but no interest” in a dot. Okay. So that’s what they got: no interest to assign; they may only alienate this alleged ‘title” to the dot, I suppose by quit claim. By their own admission, they have nothing to actually assign another. Well, I suppose they could, disregarding every other legit argument in the world, assign the “title-but-no-interest” to another, but that still leaves the assignment of the beneficial interest to be done, does it not?
    Their real problem is their double-speak. They hold only title, but wait! They know they have to be the beneficiary, otherwise there is none named in the dot. There is no real ben named in a dot if MERS, as they swore and then recanted in other cases, holds no beneficial interest, just title to that beneficial interest (and as you said, “say what?!) In the dot, they could have said, should have said, “ABC is the beneficiary and MERS is the nominee of ABC, but they were either willfully crooked (no, not those guys) or just too plain stupid to do so.
    So if MERS only holds ‘title’, there is no beneficiary. Courts are finding beneficiaries, including the original, by equity and that is not legally tolerable with real property tenets. Either that or courts, against what even MERS itself admits here and there, are finding MERS to be the beneficiary. This whole deal smacks of the twilight zone. To acknowledge there is no beneficiary named in the dots would be pure pandomonium, I suppose. But, there isn’t, so……

    This pleading, below, in a 2009 case discusses the representation of banksters and a whole lot more, including plenary hearings. Who do the law firms represent? The law firms have executed assgts by alleged authority from no doubt the one and only Wm Hultman for “MERS” (when the assgts aren’t being done by a servicer-employee to his own employer aka self-assignments) , but the law firm is hired, paid for, and represents the assignee if that assignee is the servicer. “Bit” of a conflict of interest. Darn. Where can we the people get some of this? There is no agreement for representation by the law firms for any alleged trust.
    I give – who would sign such an agreement on behalf of the trusts? I’d like to see one sec’n trustree’s autograph on an engagement letter.

  44. @johngault – we purchased our home in 2008 and I have been looking at our insurance policies wondering why the original lender(broker) GEM is still listed… in 5/2008 the policy started with GEM… was amended to include Guild (servicer) 7/15/2008, then Guild was removed and CalHFA was added on 7/28/2008 (who GEM claims they sold the 1st trust deed to, but CalHFA said up until last December they only hold interest in the silent 2nd down payment assistance)…. every year the policy has listed CalHFA and GEM… the servicer Guild is the one who updates and purchases the insurance every year. Why have they never removed GEM if supposedly they don’t own the note anymore?? Guild provided me a certificate number for our loan but it is only for the silent 2nd. NO ONE will release details on the HMRB series or certificate number for the 1st trust deed CalHFA supposedly bought from Guild. Makes no sense to me. I have not checked who was listed on the title insurance. Can you please tell me why this would be important (sorry I’m not an attorney)

  45. needcaselaw: the case is in Mississippi. I’m in California. Federal Court. You got a tip? I could sure use one. You can email leftbehindchild@gmail.com

  46. zurenarrh; what state are you in? Was the judgment against you in federal court?

  47. Wow Gwen, that sucks. Do you have any reasonable expectation that the appeals court will be any better? I don’t. This week ends my window for appealing. Don’t think I’m going to–it’s more money than I can justify right now, particularly now that I know the judge(s) have the option to just ignore my arguments and evidence.

    But I might.

    My back-and-forth with tnharry was helping me focus what my notice of appeal might say. Harry, any thoughts on my most recent post about what you said? Not calling you out–genuinely curious. I know we can’t all be by the computer every minute.

  48. And, tnharry—you admitted you work for those guys…so YOU are part of the FRAUD.

  49. @tnharry

    I did nothing illegal. THEY DID.

  50. can someone tell me: those who got purchase loans (not refi’s) in the last 15 years or so, who is the named insured on 1) your homeowner’s insurance and 2) who is named as the lender on the title policy? Is it MERS or ? Those who only refi’d in the last 15 yrs or so, who was shown as the insured on your homeowner’s insurance? MERS or ?

  51. they keep getting way with this because people let them. we all ned to got to our individual county court houses and leave information like this web site in the bathrooms, where judges take breaks. we need to get this out there. my question is if the bank presents to you a note that is endorsed in blank but the signature is a rubber stamp??? how authentic is that. anyone can own a stamp and endorse notes. i am confused, and i know its on purpose. please all go to forclosure warriors its a chat room bring what you know and if you need to know somthing ask. we need to keep fighting.

  52. well now “His Honor” does not even allow responses to motions filed by the defendants–just lets them file and he rules for them without my even having an opp to respond. Filed a motion to recuse and again denied and I will be filing another motion to recuse on the latest garbage and will be filing a notice of appeal when he strikes my discovery which is what he wants now to do. What a joke the courts have become. The ‘rule of law’–what’s that? thx for your comment. I just get tired of the ridiculous comments and have been busy studying for he bar.

  53. Gwen, you’re a lawyer from way back. Of course the judge isn’t going to let you win–especially, as in your case, when you should win! You know that! I have missed your comments here, by the way.

  54. Tnharry said “the assignment’s not effective unless or until the note is transferred.”

    I agree. So in my case, the Defendants acknolwedged that the note was never transferred to BAC, but the assignment says that both the DOT and the note WERE transferred to BAC. So that assignment isn’t effective, wouldn’t you agree?

    But BAC used the powers purportedly granted by that assignment to “re-appoint” Recontrust as the trustee of my DOT and Recontrust in turn used that re-appointment to issue a trustee’s notice of sale, citing the fact that Recontrust had been re-appointed by the “legal holder” of my note, BAC.

    Meanwhile, as I just pointed out, the note was never transferred. That doesn’t strike you as problematic in any way? Imagine for a second that it wasn’t a bank that did what I just described–i.e., file an instrument in the county land records that doesn’t do what it says it does but purports to give others authority to take someone’s house–but instead an individual did it. Does that make it any different in your mind?

    I mean, if Fannie Mae held the note the whole time–as they alleged after I sued them–why didn’t Fannie Mae’s name appear in any of the documents related to the f/c? That is to say, why would Fannie Mae (or any company) allow another company to file legal documents that strips them of their interest in an asset? That doesn’t make good business sense. If I owned a note, I wouldn’t want something filed in the land records that says someone else owns the note, would you? Unless of course I really didn’t own the note, then I wouldn’t give two shits about what the land records say.

    What I mean to say is that the county land records say BAC owns my note. That is the notice to the world. But BAC, Fannie Mae, and now the court all say that Fannie Mae has always held my note and still does. So are the county land records correct? No, obviously not, so my title is clouded. Whatever else we might be trying to get at here, that’s the ultimate issue, isn’t it? My title is clouded and the judge couldn’t care less.

    And that cloud opens up a number of questions, not the least of which is: who am I supposed to pay? Who is the “Note Holder” mentioned in my note?

  55. what is wrong with you harry==how about constructive comments–that’s why I gave up writing on this blog because people like you bitch without constructive comments.

  56. @john – interesting read. 6 years is an eternity in this business and apparently the time period in which MERS made a giant shift in their legal model. that, or the law firm was way off the reservation with that argument in the first place

    @carie – not to invoke “playground rules”, but you opened that door first. and you reported on this site the various filings you made in the recorder’s office, none of which were valid. so yes, you “made sh!t up”

  57. Well, praise God and pass the ammo. Thought I lost this (still missing one just like it). In this mtn to dismiss (abbrev’d) in ED MI DC, So. Div, “MERS” (probable read: MERS’ alleged member in MERS name in litigation MERS knew nothing about, as was often rote for years, if not still) says the promissory note is not regulated by UCC art 3 or 4. Who cares? We do, because MERS is on record as saying prom notes are reg’d by article 9. Article 9 has no provisions regarding “holder in due course” (reminder if I may: diff between ‘holder in due course” and mere ‘holder’, anyway: mere ‘holder’ is subject to any number of affirmative defenses). This tells me, and remembering as well as reminding, that I’m no guru on the UCC, that all this possession of bearer notes so can enforce is bs.

    This pleading is good for a study in master manipulation, also, on related issues. I hope someone, some good attorney, or on-it homeowner(s) can make a case for estoppel, which would, I guess, require judicial notice of this mtn to dismiss, including the salient
    statements regarding arts. 3 and 4 vrs. 9. See P. 6 “I.” re: UCC.

    This is from a 2007 case. Guess that didn’t work out so well for that regime, so they switched horses for reliance on holder provisions under art 3. Rat-b’s. (but it’s amazing, and not in a good way, to see what crap they will spew in any given case to get what they want). It’s past time for it to bite them in the heiny.

  58. @tnharry

    I just saw your snide comment. I didn’t make anything up. I made a name correction. Perfectly legal. Even talked with a detective about it. Unlike the crap you and your cronies have been making up. The detective agreed. You and your kind better watch your backs.

  59. I read with interest this post and have attempted getting discovery on these exact issues. Interesting enough the Defendants (BOA, BAC, Wilshire, Merrill Lynch, Countrywide, Citi as Trustee for MLMI 2006 HE-5, MERS and MERSHOLDING) (AEGIS was dismissed upon their giving affidavits at my reequest as to what they did with the loan–sell it ot ML after the trust was closed!) asked for an extension of time to answer the discovery. The Court rather than just grant the extension is apparently now considering striking the discovery for some unknown reason as the efendants never objected to it. The defendants are now uploading the discovery at the request of the Court. You can finnd the discovery at Caranchini v. BOA et al, United States District Court for the Western District of Missouri, Western Division, Case No. 4:10-0672-CV-W- DGK on PACER (only attorneys have access to this that I know of or pro se litigants) It is being uploaded as I write this by defense counsel. Now why would a judge intercede before any objecction? Because in my opinion this Judge is as biased as can be and will not let any discovery take place (he has stalled it for two years) that will let me win. The discovery is quite complete I believe and proves my case beyond doubt consistent with Chicago Title reports that make my title uninsurable and SEC filings that question the trust’s existence. We need discovery folks and until we get it from these courts, we have a problem answering the questions raised by this post.

  60. @zur – the assignment’s not effective unless or until the note is transferred. as you mention, the mortgage follows the note, so the assignment is virtually meaningless anyway. what it does do is clarify the records so the foreclosing party is the same as the party filing notice of default, notice of sale, and substitution of trustee. i fail to see the issue you’re referencing about the assignment being used to “backdoor” a transfer of the note. is that really happening? all of the standing decisions have been pretty clear that you have to have enforcement powers to initiate FC, and that generally requires being a holder of the note. I can’t imagine even the most uninformed judge being bamboozled by an assignment that purports to transfer the note. prove possession and/or endorsements of the note or withdraw the foreclosure should be (and I thought was) the current standard

  61. all of this is OLD news. For example ahmsi assigned untold thousands if not millions of mortgages to DB, yet also testified they have never owned any mortgages. And they continue to foreclose with these bogus documents Huh?

    It’s the courts, stupid. They are ignoring the law. So why recite the law ad nauseam?

    The question is how to reestablish the rule of law for the corporations not just for the “little people.”

  62. Good questions, TN. Below are my answers–I’d appreciate feedback from you or anyone else:

    1. does the inclusion of the useless language in the assignment really matter if there is in fact a negotiation/transfer of the note evidenced by endorsement and/or possession?

    Yes, for a number of reasons. First of all, the deed of trust and note cannot be transferred separately. The note and DOT are inseparable. The mortgage follows the note, not the other way around. That much is indisputable. Even the judge in my case acknowledged that. And that is why these assignments of mortgages/DOTs put in the language about the note, even though they know that assignments of mortgage/DOT do not and cannot transfer the notes. That is to say, by including the language in the assignment about “together with the note” is meant to make it seem legal even when they clearly know it isn’t.

    All case law, statutory law, and the lesser authorities (Restatement, etc.) indicate that transferring the security (i.e., DOT) without transferring the note is a nullity. So as in my case, even if we accept that the assignment’s language about transferring my note was just some sort of formality, boilerplate, catch-all language or whatever, what the assignment purported to do was transfer only the DOT. You can’t transfer only the DOT. The DOT is meaningless without the note. Therefore, assignments that assign only the mortgage/DOT are nullities and transfer nothing.

    BUT, since the language about transferring the note WAS included in my assignment, that purportedly allowed the assignee (BAC in my case) to announce in the notice of sale that BAC was now the “legal holder” of my note, even though everyone including MERS and BAC knew that the assignment did not transfer the note from MERS to BAC. After I sued them, MERS and BAC both said that Fannie Mae is now and always has been the holder of my note. That is where the slander of title comes in–if MERS knowingly put inoperative language in the assignment, that clouds the title and gives purported authority to a party (BAC in this case) to do something which they have no authority to do.

    Further, regarding endorsement and possession, at the time I filed suit, I never received an endorsed note. Fannie Mae and BAC both filed affidavits with their summary judgment motion that an unendorsed note was the true and correct copy. That, as you know, indicates that there was no negotiation.

    2. the assignment transfers the mortgage/deed of trust.

    No it doesn’t, see paragraph 2 of my answer above. Mortgages/DOTs cannot be transferred separately from the Note.

    3. it further puts you on notice that the assignee has been transferred the rights in the note.

    You would think. But as I said above, once I sued them, BAC’s story about being the note holder by virtue of the assignment completely changed.

    4. since the purpose registering/recording is to place “the world” on notice, how is including additional (albeit ineffective) language in the assignment wrongful?

    You call it “ineffective,” most people call it “fraudulent.” These are the property records of our country and they are supposed to be accurate. Otherwise, how do we know who owns what? In short, we don’t. Plus, if they ever wanted to, BAC could sue me on the note in the future on the strength of the “ineffective” language of the assignment since as you say, it puts the world on notice about who owns what. So basically, the records in my country STILL say that BAC holds my note even though the judge and the defendants in my case all say that Fannie Mae does now and always has held my note.

    5. i get that we’re playing in an arena where words mean things, but do you really want to create an incentive to disclose less??

    No, but how does any of this create an incentive to disclose less?

    6. would we be having the mirror image of this conversation if the assignment DIDN’T mention transfer of the Note?

    Not quite sure what you mean.

    7. and don’t forget – assignments are not required to be recorded in some jurisdictions anyway. so what’s the effect of what you allege to be defective wording in a document that isn’t required anyway?

    If assignments aren’t required by law and MERS is supposed to do away with the need for assignments, why is MERS filing assignments? Rhetorical question: the answer is, as I alluded to above, is that the MERS assignment is to attempt to rejoin the note with the DOT at foreclosure time. MERS knows their assignments are a joke. But since the notes have supposedly changed hands so many times with MERS purportedly holding the DOT during that entire circle jerk (again, all law and the DOT itself says mortgage follows note and mortgage cannot be transferred separately from note), the game of musical chairs has to stop somewhere when they decide to take someone’s house.

  63. I’ve never led my life based on “rumors” but then again, there was a time when the important news was being ciruclated. Nowdays, everythinhg crucial for us to know is hushed so much that we have to do a considerable amont of research to even be able to hold on to a hint of hope.

    I came across that. If anyone of you knows first hand a JP Morgan exec. or a PIMCO middle management guy, please contact them and ask them to either confirm or refute. If it is confirmed, that may be a real bombshell!

    Market rumor: Pimco and JP Morgan halt vacations to prepare for economic crash
    Kenneth Schortgen Jr
    Finance Examiner

    On June 1, market rumors were coming out of a hedge fund luncheon stating that Pimco, JP Morgan, and other financial companies were cancelling summer vacations for employees so they could prepare for a major ‘Lehman type’ economic crash projected for the coming months. These rumors came on a day when the markets nearly came to capitulation, with the DOW falling more than 274 points, and gold soaring over $63 as traders across the board fled stocks and moved into safer investments.

    Todd Harrison tweet: Hearing (not confirmed) @PIMCO asked employees to cancel vacations to have “all hands on deck” for a Lehman-type tail event. Confirm?

    Todd M. Schoenberger tweet: @todd_harrison @pimco I heard the same thing, but I also heard the same for “some” at JPM. Heard it today at a hedge fund luncheon.

    Pimco and JP Morgan Chase are not the only financial institutions worried about a potential repeat of the 2008 credit crisis. On May 31, one day before Pinco rumors began to spread around the markets, World Bank President Robert Zoellick issued the same warnings of a potential ‘rerun of the great panic of 2008′.

    The head of the World Bank yesterday warned that financial markets face a rerun of the Great Panic of 2008.
    On the bleakest day for the global economy this year, Robert Zoellick said crisis-torn Europe was heading for the ‘danger zone’.
    Mr Zoellick, who stands down at the end of the month after five years in charge of the watchdog, said it was ‘far from clear that eurozone leaders have steeled themselves’ for the looming catastrophe amid fears of a Greek exit from the single currency and meltdown in Spain.
    – The Daily Mail

    Market indicators over the past two months in Europe have been signalling an economic slowdown, with the potential for total economic collpase increasing over the past few weeks. The US markets have dropped more than 1000 points since their highs in March, and on Friday, all gains for the year were completely wiped out after the shocking jobs report was issued.

    Additionally, a new study from a former hedge fund manager on May 31st outlined that for the first time in the economic cycle, economies did not recover all their losses from prior recessions before going into a new one. The conclusions point to the need for a complete reset of the financial systems, as capitalism and central bank intervention (money printing) no longer have any real effect on economic growth.

    When one company decides to cancel vacations, or impose additional workloads on their employees due to projected events, it is not considered relative news. However, when several institutions, analysts, and even the head of the World Bank acknowledge a coming crisis, then everyone needs to come to the realization that something big is on the horizon that will have an effect on both Wall Street and Main Street. The rumors out on June 1 regarding Pimco and JP Morgan should be a wake up call to all investors that Friday’s market drops across the board are just the beginning of what could be a repeat of 2008, only much worse this time around.

  64. [...] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: allonge, assignment, collection, deadbeats, economic recovery, endorsement, EU, false debt, foreclosure, indorsement, inflated property values, investors, mortgage debt, recording offices, recovery, suicide hotline, unemployment, Wall Street Livinglies’s Weblog [...]

  65. is anyone actually using one assignment to attempt to transfer notes? i really didn’t think that was an issue at all. even MERS says it can’t transfer notes and has had that position for quite some time.

  66. @zur – does the inclusion of the useless language in the assignment really matter if there is in fact a negotiation/transfer of the note evidenced by endorsement and/or possession? the assignment transfers the mortgage/deed of trust. it further puts you on notice that the assignee has been transferred the rights in the note. since the purpose registering/recording is to place “the world” on notice, how is including additional (albeit ineffective) language in the assignment wrongful? i get that we’re playing in an arena where words mean things, but do you really want to create an incentive to disclose less??

    would we be having the mirror image of this conversation if the assignment DIDN’T mention transfer of the Note?

    and don’t forget – assignments are not required to be recorded in some jurisdictions anyway. so what’s the effect of what you allege to be defective wording in a document that isn’t required anyway?

  67. I agree, enraged. MERS agrees too! But if called on it and the judge ignores it, you still lose!

  68. At least, Ohio read it clearly when it ruled, in Huntingtan Bank v. Brown, that: ‘MERS not beinhg the payee, it may not transfer nor assign the note.” That’s a start.

  69. Glad someone is finally broaching that subject. I keep seeing documents titled: “Assignment/transfer/purchase and sale agreement” as though we were talking about one single concept covering all three operations. If we have three different words, it’s because we have three different concepts, governed by three different sets of rules. Yet, no one has paid particular attention to the differences and what they really mean. I think we’ve arrived at the point where defense attorneys will need to demand from plaintiffs clarification of which one they allege to be suing under.

    TnHarry, the fact that the distinctions have been blurred doesn’t take away from the fact that we should be dealing with three different documents rather than one throw-it-all piece of paper. Once again, the intention was for lawyers to cover all of servicers’ bases with complete disregard for the rule of law. It’s up to us now to demand answers and force the courts to re-examine what servicers are alleging and whether what they produce supports said allegations.

    Well, it’s taken 30 years to get to this mess. I don’t see it corrected in less time than that. Every step of the way has to be retraced!

  70. My assignment from MERS to BAC contained language the following language (paraphrase): this instrument assigns the deed of trust AND THE NOTE to BAC.

    MERS later admitted that despite saying what it said, the assignment COULD NOT and DID NOT assign the note from MERS to BAC. Pretty big deal, if you ask me. Did the judge pay a whit of attention to it? Of course not. MERS had this to say in discovery about the assignment (again, paraphrase): MERS never held or owned the note, MERS only held title to the deed of trust (say what?). Therefore, MERS can only assign the interest it holds. Any language in the assignment which purported to assign the note could not do so because notes do not move through the land records, they move pursuant to UCC 3 via endorsement and transfer.

    In my mind, recording an assignment of the deed of trust that purports to also transfer the note–while knowing that notes are not transferred in that manner–amounts to fraud, slander of title, fraudulent conveyance, etc. At the very least, the assignment should be declared void ab initio and at least re-recorded correctly. But the judge didn’t think so, so now I’m just waiting for them to take the house. Whatevs. Now I get it–the courts are corrupt.

    Imagine if you or I filed a document with the county recorder that purported to do things it couldn’t do–we’d get fines, jail, fraud convictions, etc. Not the banks! Not the banks!

  71. SPV/REMIC: if you manage to find REMIC related to your loans check to see if it was CANCELLED or DELETED. some Remic subsections relate to such loans, meaning they don’t exist due to frauds, or that never funded, or whatever else. point is they have been deleted from fraud pool. Finding that would be your ACE.

  72. “because THEY MAKE SH** UP AND RECORD IT!!!”

    kinda like you did, right carie?

  73. I would agree that an assignment recorded at the register/recorder’s office can not transfer a Note. Frankly I thought there was no real dispute over that. Almost all of the forms purport to transfer the mortgage and the note, but that language does not truly effect a transfer under the UCC.

    I would dispute the section regarding allonges though. It appears to be a bit convoluted and appears to me to mix up payee and payor. An allonge is not a document of additional terms as used presently. Further, the use of allonges has been adopted in the last sentence of UCC 3-204 “”Endorsement” means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring endorser’s liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an endorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than endorsement. For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.”

    The paper affixed to the note is the allonge. The endorsement contained on that paper is what effects the transfer or negotiation.

    Further, I have no idea where the statement that the allonge is presumed to be invalid came from. See UCC 3-308 “(a) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature.” The “presumed invalid” statement is completely wrong if your state has adopted 3-308. As always, check local listings.

  74. @java—because THEY MAKE SH** UP AND RECORD IT!!!

  75. it should be as simple as the borrower has every right to know who is the fucking HOLDER OF THE NOTE AT ANY TIME IN THE PROCESS !!!! so they know they are paying the correct entity ……how are they continuing to get away with this fraud ?

  76. I am delighted that this topic is being addressed here, in particular the difference between the “Transfer” of a Note and an “Assignment” of a Note. The filing with the County Recorder of an Assignment of Deed of Trust does not constitute Transfer of the underlying Note. Transfer is a UCC defined term under RCW 62A.3-201, 203 (Washington state nmbers – your state’s will contain the last four digits) as well as being part of the definition of “Note Holder” under most Notes themselves. Look at a copy of the Note: “anyone who takes this note by transfer and is entitled to receive payments under this note is called the “Note Holder.”” Note, Pg. 1, ¶1. This definition contained in your Note is accord with the definition of “Holder” (as regards a negotiable instrument) found in Black’s Law Dictionary. Additionally, Transfer must always include possession of the instrument. Also, check your state’s version of the UCC under “Enforecement of lost, stolen or destroyed instruments” (in Washington state RCW 62A.3-399). Washington does not provide for the trading in lost instruments. Some states do.
    We would all welcome attorneys weighing in on this issue (and as my name says, “case law”) as it should be critical for any party seeking to enforce a note – which is required in most states (note the California exception the way cases have been presented) – secured by a deed of trust, to prove compliance if properly challenged.

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