Foreclosure Defense and Offense: The Evolving Mortgage Audit Process

TILA- Disclosure Req, Violations and Remedies

Settlements Under RESPA

Pursuit-v-UBS – Investor case proves homeowners cases

Request to Purchase Garfield Homeowners Workshop Handbook- v3 0210

Request to Purchase Garfiel Lawyers Workshop Handbook-v5 0210

Predatory Lawyers and Modification companies No better than predatory lenders

HOMEOWNERS

 START HERE :  Request for Preliminary Document Review  

The start of every case, as I see it, is the collection of facts and documents, so that a complete mortgage evaluation and status report can be prepared by an independent third party who can serve as an expert witness if the need arises. If you are a lawyer and need assistance with your case contact the email below,  if you are a homeowner and want assistance we first need to gather and understand the basic pattern of facts and parties involved prior to discussing with you so click the link above to request a Preliminary Document Review. Just follow the directions on the form that you download and use it as the cover sheet with your documents.

The current “cottage industry” of TILA audits is insufficient but a necessary part of the entire package that needs to be completed in order to properly advise a homeowner, as well as impressing an attorney with the validity of claims to be made both defensively and offensively.

This requires not only a thorough mortgage audit or review of the loan transaction itself, but a case evaluation from the standpoint of issues raised by securitization of loans. Additionally, the chain of title and the appraisal are necessary elements to consider in a comprehensive “forensic” review.  The current Qualified Written Request form being used by most services dates back prior to securitization, as does the methods and analysis of the of the mortgage process in a specific transaction.

The objective is to get the case in position where it can be settled without litigation. This is not always possible, but there are a number of forms, letters and strategies I have either created or accepted from submissions of other lawyers, in which the Trustee, the mortgage broker, the appraiser, the escrow agent, the title agent, and the “lender” are put on notice that there is a damage claim that might apply against them and that might be covered by errors and omissions insurance policies or other insurance.

The failure of mitigators, auditors,HUD counselors and lawyers to see these transactions within the context of table-funded loans, assignments, pooling and securitization is a serious flaw in the advice and strategies employed.

You can play a part in this movement in which homeowners assert their rightful claims to be restored to the position they were in before the mortgage and appraisal and securities fraud occurred. While we are dedicated, we are not rich  and our site receives over 30,000 visits each week and the all the information here is free, please understand that our own family demands(time & money)  necessitate that we are compensated for getting personally involved in individual matters.  I have brought in some people who are putting our philanthropic efforts into a business model in order to pay those who wish to help but cannot afford to do so without compensation.

We have designed a package of services that in my opinion meets the required criteria for the process to commence — and to enhance the prospect of a favorable result for the homeowner. While I have spoken with and reviewed the work of dozens of mitigators, auditors and lawyers, getting them to accept the criteria, which requires more work and less profit, has been a challenge. However we have one group thus far that is doing the work as I have asked and people capable of doing an in depth forensic review and report — and I am assisting them. And we have many more attorneys now than we had  months ago, but we are looking for more. Let us know if you have an active foreclosure defense/offense law practice and would be interested in taking cases we can refer(no referal fee/no co-counsel fee), we can add you to the list of “Lawyers That Get It” on the left hand side of the landing page of this blogsite.

Contact foreclosuredefensegroup@gmail.com to learn more about our forensic mortgage analysis and  litigation support services for lawyers.

We have 20 million households to reach, some of whom have already been dispossessed out of houses they still legally own but don’t know it.

158 Responses

  1. Hello there! This post couldn’t be written much better! Going through this post reminds me of my previous roommate! He always kept preaching about this. I am going to send this information to him. Pretty sure he will have a great read. Thanks for sharing!

  2. I leave a response whenever I especially enjoy a post on a website or
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    Usually it is caused by the fire displayed in the article
    I read. And after this article Foreclosure Defense
    and Offense: The Evolving Mortgage Audit Process Livinglies’s Weblog. I was actually moved enough to drop a thought :) I do have a few questions for you if you tend not to mind. Could it be just me or do some of the comments come across like coming from brain dead people? :-P And, if you are writing at other social sites, I would like to follow everything fresh you have to post. Could you list the complete urls of all your social sites like your Facebook page, twitter feed, or linkedin profile?

  3. How Amazing !

    You will get many different type question answer.
    The amazing number – (+ eight seven seven eight eight nine four nine six zero).
    I got help from this number.
    You can try . I hope you solve this problem.
    God bless you. Best of luck.

  4. Help!! we’re in Georgia, a non-judicial state. Raymer McCalla, the atty for JP Morgan Chase serve notice in June, 2012 of upcoming foreclosure. We filed a verified complaint, pro se, on June 21, they were served June 22,2012, claimed they weren’t served, I filed an emergency motion for a stay, til case could be heard on July 2nd. Judge Flake denied motion. We were foreclosed on July 3, 2012. I am desperately seeking legal guidance to stay in my home. There was a request for discoveries included in the case, and a letter requesting to validate the debt. Please contact me @470-216-8126. I’m not sure what my next move should be. The case is still pending.

  5. Hi B. Michael White of Big Blue LLC,
    What is your cost to get your program packet? What is the guarantee you can buy back the property that has been foreclose. I am in the process of CH 7. My property is schedule for trustee sale on 3/27/12.
    Thank you

  6. Good News for Homeowners: Consumer Rights Defenders has merged with Western Legal to offer you pro se and attorney representation options at lower cost for “piecemeal” work. You can get counsel only when you need one to keep the cost down. Call us 818.453.3585. Steve or Jacqueline will help you with your questions and get your lawsuit started. Get the documents and don’t wait for QWR or Loan Mods which don’t work.
    We have a discovery production request that will take the wind out of the lender’s sails!
    God Bless America and Neil for his wonderful work!

  7. Western States Funding ….funding short sales to save your homes and give you a long term lease so you can stay!
    Email to us at Esq7777@aol.com
    We are in all 50 states.

  8. Keep in touch with us.
    CRD is here to help fight foreclosures with powerful exit strategies in court with our attorneys and experts. 818.453.3585 – Nationwide.
    Steve or Sara
    M-F 9-5 w/ voice mail

  9. @ James F. (and others seeking representation in MD). My firm focuses primarily on foreclosure defense/offense and consumer protection matters. I’m a former financial services industry attorney (IMF, NAFCU) with an LL.M. in Securities and Financial Regulation from Georgetown now fighting against the banks to save homes. Call my direct line at (443) 857-7740 to discuss.

  10. I loive in the State of MD and I am searching for legal representation to save my home. Any suggestions please??

  11. If you called and could not get through, our new phone system is up and running. Call us at Consumer Rights Defenders have attorneys and paralegals standing by to help. Fed/State lawsuits/Adversaries in BK, TRO’s to stop foreclosures. M-F 9 – 4 PST. Leave message if we are out.
    The tide is changing for the homeowners thanks to Neil and his blog.
    Steve Nelson
    Sara Stephens
    818.453.3585

  12. Consumer Rights Defenders have attorneys and paralegals standing by to help. Fed/State lawsuits/Adversaries in BK, TRO’s to stop foreclosures. M-F 9 – 4 PST. Leave message if we are out.
    The tide is changing for the homeowners thanks to Neil and his blog. Let us help you.
    Steve Nelson
    Sara Stephens
    818.453.3585

  13. I have been served with Foreclosure Papers, My original Lenders were MERS and Taylor Bean Whitiker, they sold my Note to Central Mortgage Company. CMC has be very difficult to work with to try and get a Modification, hence the Foreclosure. What is confusing is that they indicated that there would be no more contact from CMC, and then several weeks ago, they contacted me with information on Forebearance and the possibility of a Short Sale through HAFA? I am so confused, they say they are done then they contact me. I am working with a housing counsellor, but I may need additional advice. PLease Help!
    Thank You

  14. Hello I am Brand new to this information I would like to help a friend stop her foreclosure and get mortgage reduced to the market value what is the process for that in Georgia. She had a mod that did not pan out plus sales date is coming soon, please I need advice

  15. Im looking for foreclosure defense in the Atlanta Georgia area,im about to be dismiss out of bk and need attorney to litigate and take the evil servicer BAC to the court room….thanks all….AL.

  16. I can deliver leased instruments to Organisations or individuals with their preferred text verbiage as been approved by their bankers. We also offer sales option to interested buyers. Our terms and procedures are so flexible and workable by RWA clients. Our lease rate is (5.5+0.5)%+x%. X% IS Lessee broker’s Commission and he determines his commission. Also we have facilities to discount BG and Put you into PPP Trading.

    Contact me through this email:(financialdraft55@gmail.com,) or through
    skype: (besik.katsitadze) in other to furnish you with other information.

  17. ATTENTION ALL HOME OWNERS THAT ARE IN THIS SITUATION!!!
    WE GET IT!! WE GET IT!! WE CAN HELP YOU FIGHT THE BANKS, WE COVER ALL LEGAL EXPENSES WITH NO OUT OF POCKET EXPENSE TO YOU. READ BELOW:

    We are currently only working in these states right now in CALIFORNIA (We need as many California clients as we can get!!) Oregon, Massachusetts, Florida, Illinois, New York and California where our counsel is Mark Zanides, a former US Asst. Attorney General in the Bay area.

    We have a new solution for helping people in difficult situations like yours. In order to help you with your situation you must have recently been discharged from a Chapter 7 bankruptcy and have a loan that is owned in a privately securitized bond trust. Don’t worry if you do not know this answer, we will help you figure this part out. It is important to remember that if your loan is owned by Fannie Mae, Freddie Mac, FHA or VA, we unfortunately cannot help you at this time.

    We are only focusing on Chapter 7 homeowners at this time, as it alleviates for the most part the deficiencies, etc. and they are typically facing losing the home back to the bank very shortly. These homeowners are typically more educated with the process since they have addressed loan mods and short sales throughout the time in foreclosure and we can focus on business of acquiring, litigating and property managing homes. It’s a much simpler process with post 7 people. We will consider Chapter 13 people but for now Marc wants to stay focused on the 7’s as there are so many of them out there.

    The Company was started by former Ohio Attorney General Marc Dann, who is a leading foreclosure defense litigator; Tracey Baron, founder of Turning Leaf Advisors, successful loss Mitigation Company and Robert Mittleman, Director of Education, Laurus Title Group.

    Marc Dann and the Big Blue Legal Team will oversee the efforts to review all of the Chapter 7 Discharged properties to hone in on properties with first mortgage liens that can be challenged through litigation. Lawyers will evaluate the likelihood of success in litigating a lien strip or purchase of the first mortgage note by identifying properties where the mortgages are securitized and the security interest of the bond trust has not been perfected, where there are issues related to the fraudulent assignment of mortgages or failure to indorse promissory notes within in the timelines established by the pooling and servicing agreements that govern the bond trusts comprised of securitized mortgages.

    Big Blue’s legal operation will then oversee and pay for aggressive foreclosure defense or pro-active quiet title actions to challenge the standing of the alleged mortgage and note holders to foreclose on the acquired property. The Big Blue legal team will create brief and discovery banks and standards and intensively monitor lawyers hired to litigate cases.

    What our company and partner Law Firms does is purchase your home subject to the existing mortgages and aggressively fight the lenders who are likely to foreclose on your home shortly. The purpose of this is to settle the outstanding liens using litigation.

    We identify and acquire carefully pre-selected parcels of residential real estate owned by individuals who have been discharged from Chapter 7 Bankruptcy in situations where the Bankruptcy Trustee has abandoned any claim to the property.

    Big Blue Capital Partners will acquire the interest subject to the mortgage after discharge, but before the mortgage holder seeks to foreclose and aggressively litigate the validity of the mortgage lien. Through this process, we will attempt to purchase the security interests in the properties at a substantial discount.

    We are only focusing on Chapter 7 homeowners at this time, as it alleviates for the most part the deficiencies, etc. and they are typically facing losing the home back to the bank very shortly. These homeowners are typically more educated with the process since they have addressed loan mods and short sales throughout the time in foreclosure and we can focus on business of acquiring, litigating and property managing homes. It’s a much simpler process with post 7 people. We will consider Chapter 13 people but for now Marc wants to stay focused on the 7’s as there are so many of them out there.

    Our team, led by experienced Lawyers, Mortgage experts, Title experts and Real Estate professionals, will take your place in the foreclosure process and if your property qualifies, and is accepted by us, we will aggressively litigate the imminent foreclosure process by the bank or lender, and take over the property entirely.

    Should you be accepted into either of our programs all of the responsibilities related to the ownership of your home will shift to Big Blue Capital Partners, LLC and it’s Law Firm. Should you decide to stay in your property, you will become a tenant with a genuine opportunity to regain ownership of your home if we are successful in our efforts by receiving an option to purchase the property back at some time in the future.

    BIG BLUE LITIGATION TEAM:

    BOWLES FERNANDEZ LAW LLC
    Lake Oswego, OR

    DANN, DOBERDRUK & WELLEN
    Cleveland, OH

    THE LARSEN LAW FIRM, LLC
    Chicago, IL

    MARK ZANIDES LAW OFFICES- a Former US Asst. Attorney General in the Bay Area.
    Santa Ana, CA

    LUSK, DRASITES, TOLISANO & SMITH
    Cape Coral, Florida

    PADDY DEIGHAN, Esq. PhD
    Haddonfield, NJ

    PROSPER LAW CORPORATION
    Los Angeles, CA
    Las Vegas, NV.

    We are currently only working in these state right now in Oregon Massachusetts, Florida, Illinois, New York and California, where our counsel is Mark Zanides, a former US Asst. Attorney General in the Bay area. We are being as conservative as we can in this area to make sure that we have all of our ducks in a row. We don’t take on a property until we analyze the Pooling and Servicing Agreement and have a good handle as to the underlying issues with the mortgage.

    We cannot help everybody, we do not work with GSE loans as they do not have the same improprieties as the privately secured bond trusts and they do not have the same type of guarantees that come along with government loans.

    Listen Ladies and Gentleman, this is a true way to fight these lenders, our team is experienced and we want to help.

    We will not be successful 100% of the time, however if we are careful with analyzing the characteristics of the underlying loan, we should be able to increase the likelihood of potential success, based on the current case law in each respective state, which is changing every day. The homeowner will have the option of staying in the home at a below fair market value rent during the litigation process. Our law firm & partners will only litigate through our program, To be considered into our program email me at: bmw@bigbluellc.com leave your contact info so we may send you the program packet.

    B. Michael White
    Big Blue LLC
    Partner
    925-478-1949
    bmw@bigbluellc.com

  18. I need help with a foreclosure please.

  19. Wrongful foreclosures are governed in some states by statute and whether your property was sold to a BFP [3d party purchaser]. If not and you are within the statute you can sue and go for a TRO. Even if you can’t get the property back you still can sue for money damages.
    Attorneys here can help. 818.453.3585. Ask for Steve.

  20. Need help

  21. In 2006 the mortgagor transfered title to me with a Warranty Deed Subject to Debt in Texas. I am trying to see if I have grounds for cause of action to set aside a foreclosure due to failure to give proper notice. Although they are not obligated to give me proper notice, they are required to give proper notice. Furthermore, there was a Foreclosure Order that ordered the mortgagee to send a copy of the order with the date time and location of the foreclosure which did not happen.

    I want to get a TRO to stop an eviction and hopefully get the foreclosure set aside. I am just worried they are going to say that I don’t have grounds to bring a cause of action.

  22. Dottie: No. But we may be able to provide pro se support if you are in need. Drop us an email to cr.defenders@yahoo.com with your confidential information and someone will contact you. We have attorneys, paralegals and staffers trained in this litigation to give you assistance.
    Keep up the fight!
    Steve
    Consumer Rights
    818.453.3585

  23. Do you know of any attornies in Northeast Penna. I have already sent discovery & admissions to BOA. My mortgage was sold on Wall St , I traced it thru the Mers system & Sec & Exchange Comm . They listed Bank Of New York Mellon . They said they are only trustees & have not answered discovery yet . Thank You

  24. Give us a call. We have paralegal help and attorneys depending on your budget and have strategies that are proven to hold off the banks and get your litigation started. Wearing the banks down in the face of obvious corruption is beginning to work nationwide.
    818.453.3585. Ask for Steve or Sara M-F 10 to 4 PDT. Leave message for call back.
    God bless Neil and America for this great website!

  25. I found a recent lawsuit filed in Maryand against A.H.M.S.I. and its end “trustee” which are both registered under the state comptrollers office as having one Wilbur Ross and one Michael O Gibson as “president” and “trustees” of both A.H.M.S.I. and Deustche Banks. They acted in collusion to create
    a new concept of FORECLOSURE BY DESIGN.

    This lawsuit alledges that over 40% of the loans originated by them have bee foreclosed upon or are in forced foreclosure due to falsely imposed escrows, insurance etc.. and this is all in a four year period.

    Here is the case info: Circuit Court in Hartfort County Maryland, filed April 22, 2011. Case number 12C11000359 Plaintiff Donna Bolling vs American Home Mortgage Servicing Inc.

    We all need to take a few minutes today to read this complaint and let in really slip in as to what the financial sanctions will be if this case gets the exposure it deserves. If we ALL take to the internet and start discussing FORECLOSURE BY DESIGN and mention any and ALL of the perpetrators of MERS and Securitized Mortgage backed assets, etc.. etc..

    READ THIS CASE and you will see how and why they want your home and everything in your bank accounts, your 401k, all your liquid assets and are not the LEAST bit interested in doing a loan mod or any other loan revision.

    PLEASE DO THIS AND THEN TAKE TO EVERY FORUM YOU CAN FIND AND START USING THE PHRASE “Foreclosure By Design” until it starts to
    become a catch phrase in consumers psyche and maybe, just maybe it will give this case the publicity it deserves. NOT because the plaintiff is any better or any different than us or what we all are going through is any kess horrendous than what she has experience.

    But because her attorney has done his homework and is not coming from a defensive standpoint but an OFFENSIVE attack and he is using FACTS and
    allowable sanctions of monetary fines to fight for his client.

    You will be glad you did. Stay strong and stay informed and KEEP fighting these bastards.

  26. Jeff: Its a pro se filing who does not want to be identified or contacted. Her OSC re preliminary injunction is next month. Thanks for inquiring.
    Steve

  27. Hi Steve,

    Can you provide the case number of your Riverside stay?

  28. We are excited about developments in Calif. We have obtained another stay for a homeowner, this time in Riverside County. Give us a call. We have paralegal help and attorneys depending on your budget and have strategies that are proven to hold off the banks and get your litigation started. Wearing the banks down in the face of obvious corruption is beginning to work nationwide.
    818.453.3585. Ask for Steve or Sara M-F 10 to 4 PDT. Leave message for call back.
    God bless Neil and America for this great website!

  29. HOMEOWNERS, IF THIS LAW FIRM DEFRAUDED YOU, A LAWYER WHO WAS SUPPOSEDLY GETTING IT RIGHT????? CALL JULIA PORTER AT ABA DC l\i~trtct of QColumbia
    QCour ~ of ~ppeal~
    No. 11-BG-258
    IN RE: WILFREDO PESANTE,
    Respondent.
    Bar Registration No. 457512 BDN: 73-10, et al.
    BEFORE: Reid, Associate Judge-Retired; and Newman and Terry, Senior Judges.
    ORDER
    On consideration of the petition of Bar Counsel, on behalf of and at the direction of the
    Board on Professional Responsibility (the “Board”), pursuant to DoC. Bar Rule XI, § 3 (c), for a
    temporary suspension of respondent, Wilfredo Pesante, a member of the Bar of the District of
    Columbia; Bar Counsel’s verified motion before the Board, with attachments, requesting that the
    Board petition this court for an order temporarily suspending respondent; the Board’s order
    directing Bar Counsel to file the petition supported by an affidavit showing that respondent
    appears to pose a substantial threat of serious harm to the public; the affidavit of the Senior
    Assistant Bar Counsel; respondent’s motion for extension of time to answer order of temporary
    suspension, and Bar Counsel’s motion for leave to file under seal Bar Counsel’s lodged
    opposition, it is
    ORDERED that Bar Counsel’s motion is granted and the Clerk is directed to file Bar
    Counsel ‘s opposition under seal. It is
    FURTHER ORDERED that respond~nt’s motion for extension oftime to answer order
    for temporary suspension is denied. It is
    FURTHER ORDERED that the petition is granted and respondent Wilfredo Pesante is
    hereby temporarily suspended from the practice of law in the District of Columbia, effective
    immediately, on the ground that he appears to pose a substantial threat of serious harm to the
    public, based upon allegations of serious misconduct, including intentional or reckless
    misappropriation of client funds, dishonesty.conduct seriously interfering with the
    administration ofjustice, neglect, intentionally prejudicing clients, failure to communicate,
    failure to refund unearned fees and surrender client papers, and other ethical misconduct; and it is
    FURTHER ORDERED that respondent Wilfredo Pesante is r~lFAff disclose to the
    Board and Bar Counsel within ten (10) days ofthe date of this order the’fckntlty ofall accounts
    where he maintains funds subject to Rule 1.1$ (a) of the District of Columbia Rules of.U1JCa.,tfn;,
    Professional Conduct (“Rule 1.15″)’ and it is CkrR..oJ tfie District ~I ({J(um6ia Cout:
    , 0 :=tPJ •
    EPUTYCLERK
    Julio Castillo
    Cler~ of the District of Columbia
    Court of Appeals

  30. i live in new york and i was foreclosed for indymac.
    i bought my house in nov 6 2006 from indymac but later on i fall behind and i was foreclosed, so indymac sold it to deutsche bank for $1,000.00
    now i am facing eviction and it hard to find a lawyer in new york.

    luis martinez
    917 254 2749
    anybody can call me

  31. “SHOW ME THE NOTE” NOT ENOUGH IN 30 NON-JUDICIAL FORECLOSURE STATES.

    If you’re in a non-judicial foreclosure state, you have to bring more to the suit than “show the note.”

    ———————————————————————–

    Michael Robinson; Christine Robinson, Plaintiffs, vs. Wells Fargo Bank, N.A., Michael A. Bosco, Jr., Defendants.

    No. CV 09-2066-PHX-JAT

    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

    2010 U.S. Dist. LEXIS 60648

    June 18, 2010, Decided
    June 18, 2010, Filed

    CORE TERMS: right of action, deed, cause of action, foreclosure, holder, modification, mortgage, conversion, re-allege, recipients, notice, trustee’s sale, leave to amend, factual allegations, recorded, promissory note, unjust enrichment, plausibility, cancellation, cognizable, waived, Helping Families Act, failure to state a claim, citations omitted, private cause of action, financial institutions, non-judicial, undersigned, beneficiary, fraudulent

    COUNSEL: [*1] For Michael Robinson, Christine Robinson, Plaintiffs: Larry Joseph Busch, Jr, Busch Law Center LLC, Anthem, AZ.

    For Wells Fargo Bank, N.A., improperly named as Wells Fargo, N.A.; including administrators, devisees, trustees, creditors, sucessors and assigns of any parties that are or were partners or in partnership; et al, Defendant: Colleen Schiman, Gregory James Marshall, Snell & Wilmer LLP, Phoenix, AZ; John Michael DeStefano, III, Snell & Wilmer, Phoenix, AZ.

    JUDGES: James A. Teilborg, United States District Judge.

    OPINION BY: James A. Teilborg

    OPINION
    ORDER

    Currently pending before the Court is Defendant’s Motion to Dismiss Second Amended Complaint. (Doc. # 39.) For the reasons given below, the Court will grant the Motion.
    I. BACKGROUND

    Plaintiffs Michael and Christine Robinson purchased real property located at 42968 N. Challenger Trail, Anthem, Arizona 85086 (the “Property”) in early 2005. (Motion to Dismiss, Doc. # 39, Exs. A & B.) 1 Shortly thereafter, Plaintiff Michael Robinson quitclaimed his marital interest in the property to Plaintiff Christine Robinson. (Doc. # 39 Ex.B.) But in April of 2006, Mrs. Robinson conveyed a marital interest in the Property back to Mr. Robinson. (Doc. # 39 Ex.C.)

    - – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -
    1 The Court can [*2] consider the Deeds, Notes, and other loan origination documents attached as Exhibits to the Motion to Dismiss without converting the Motion to a motion for summary judgment because Plaintiffs’ claims necessarily rely on those documents and Plaintiffs do not dispute the documents’ authenticity. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1997), superseded by statute on other grounds, as stated in Abrego v. The Dow Chem. Co, 443 F.3d 676 (9th Cir. 2006). Further, the Court can take judicial notice of any Exhibits that are matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

    - – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

    The purchase of the Property was financed with a mortgage from Union Federal Bank of Indianapolis in the amount of $ 172,000, evidenced by a Promissory Note (the “Note”) and a recorded Deed of Trust (the “Deed of Trust”). (Doc. # 39 Exs. D&E.) The Deed of Trust named Lee Crosby, Attorney, as Trustee. (Doc. # 39 Ex.D.) The executed Deed of Trust contained a provision allowing non-judicial foreclosure in the event of default. (Doc. # 39 Ex.D § 22.) The Deed of Trust also contained a section providing that the Note (or a partial interest in the Note) and Deed of Trust could be [*3] sold one or more times without prior notice to the Borrower. (Doc. # 39 Ex.D § 20.)

    At some point, Defendant Wells Fargo
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    assumed servicing rights for the Plaintiffs’ mortgage. Because Plaintiffs defaulted on the Note, Wells Fargo
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    commenced nonjudicial foreclosure on the Property pursuant to the Deed of Trust. (Doc. # 39 Ex.D § 22.)

    In May 2006, an assignment was recorded conveying the Deed of Trust to Mortgage Electronic Registration Systems, Inc. (“MERS”). (Doc. # 39 Ex.F.) In June 2009, MERS recorded an assignment of the Deed of Trust and Note to Wells Fargo
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    as Attorney-in-Fact for U.S. Bank, N.A. (Doc. # 39 Ex.G.) Attorney Mark Bosco, acting by limited power of attorney, then recorded a Substitution of Trustee appointing Michael A. Bosco Jr. as Successor Trustee under the Deed of Trust. (Doc. # 39 Ex.H.) Michael Bosco then recorded a Notice of Trustee’s Sale. (Doc. # 39 Ex.I.) The Trustee’s Sale took place on November 23, 2009, which resulted in a conveyance of the Property to Funk Family Enterprises for $ 112,100. (Doc. # 23-1, p.7.)

    Plaintiffs filed this case in state court on September 14, 2009. Wells Fargo
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    removed to this Court on October 1, 2009. Wells Fargo
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    filed a Motion to [*4] Dismiss on October 8, 2009. (Doc. # 12.) Plaintiffs opposed that motion. (Doc. # 20.)

    On January 4, 2010, Plaintiffs moved to join Funk Family Enterprises as a defendant. (Doc. # 23.) The Court interpreted that motion as a motion to amend the complaint to add an additional defendant. (Doc. # 25, p.1.) The Court pointed out that Plaintiffs could amend their Complaint once a matter of right pursuant to Rule of Civil Procedure 15(a) because the Defendants had not yet filed a responsive pleading.

    Plaintiffs thereafter filed a First Amended Complaint, but named only Wells Fargo
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    as a defendant. (Doc. # 26.) Before Defendant filed a response to the First Amended Complaint, Plaintiffs filed the Second Amended Complaint (the “SAC”). 2 (Doc. # 28.) Plaintiffs named Wells Fargo
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    and Funk Family Enterprises as defendants in the SAC. (Doc. # 28.)

    - – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -
    2 The Court notes that Plaintiffs filed the SAC without leave of the Court, which Plaintiffs should have sought because they already had amended their complaint once as a matter of right. Nonetheless, the Court hereby grants Plaintiffs leave to amend and accepts the SAC (Doc. # 28) as the operative complaint in this case.

    - – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

    Plaintiffs later moved to voluntarily [*5] dismiss Funk Family Enterprises as a defendant. (Doc. # 33.) The Court granted the motion to dismiss Funk Family Enterprises. (Doc. # 35.) The Court also denied the original motion to dismiss (Doc. # 12) as moot because, after Plaintiffs filed the SAC, the original motion no longer responded to the operative pleading. (Doc. # 36.) Defendant Wells Fargo
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    filed the pending Motion to Dismiss the Second Amended Complaint (Doc. # 39) on February 22, 2010.

    Plaintiffs moved to dismiss Michael A. Bosco Jr. as a defendant on March 31, 2010 (Doc. # 44.) The Court ruled that “to the extent an order of this Court is required to dismiss Michael A. Bosco Jr. from this action, Plaintiffs’ Motion to Dismiss . . . Michael A. Bosco, Jr., is GRANTED.” (Doc. # 45.) The Court included the qualifier because the Court did not need to dismiss Michael A. Bosco. When Plaintiffs filed the First Amended Complaint and then the Second Amended Complaint without naming Michael A. Bosco as a defendant, Mr. Bosco ceased to be a party to the case. 3 Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)(“The fact that a party was named in the original complaint is irrelevant; an amended pleading [*6] supersedes the original.”).

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    3 After the Court’s Order granting Plaintiffs’ motion to voluntarily dismiss Funk Family Enterprises, Wells Fargo
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    is the sole remaining Defendant in this case.

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    II. STANDARD OF REVIEW

    The Court may dismiss a complaint for failure to state a claim under 12(b)(6) for two reasons: 1) lack of a cognizable legal theory and 2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

    To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).

    Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader’s obligation to provide the grounds for relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause [*7] of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). The factual allegations of the complaint must be sufficient to raise a right to relief above a speculative level. Id. Rule 8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202, pp. 94, 95(3d ed. 2004)).

    Rule 8′s pleading standard demands more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)(citing Twombly, 550 U.S. at 555). A complaint that offers nothing more than naked assertions will not suffice. To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” Iqbal, 129 S.Ct. at 1949. Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that [*8] the defendant is liable for the misconduct alleged. Id. Plausibility does not equal “probability,” but plausibility requires more than a sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557).

    In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986).
    III. ANALYSIS AND CONCLUSION
    A. Original Complaint

    Most likely out of an abundance of caution, Wells Fargo
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    moves to dismiss the claims in the original complaint that Plaintiffs did not re-allege in the SAC. Wells Fargo
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    does not need to move to dismiss those claims because Plaintiffs waived them by failing to re-allege them [*9] in the SAC. See, e.g., King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)(“All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.”). Once a party files an amended pleading, the original pleading no longer performs any function and thereafter is treated as “non-existent.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). “The rationale behind this rule is stated bluntly in Studio Carpenters Local Union NO. 946 v. Loew’s, Inc.: ‘If appellant desired to rely upon the original complaint, it should have refused to plead further.’” Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996)(quoting Studio Carpenters Local Union No. 946 v. Loew’s, Inc., 182 F.2d 168, 170 (9th Cir. 1950)). An amended pleading cannot incorporate by reference any part of the preceding pleading, including exhibits. L.R.Civ.P.15.1; see also Dowdy v. Raman, 2008 U.S. Dist. LEXIS 49354, 2008 WL 1901330, *3 (E.D. Cal. 2008)(stating that an amended pleading must be complete in itself without reference to a prior, superseded pleading).

    Plaintiffs alleged the following causes of action in their original complaint, but did not re-allege them in the SAC: “Cause of Action and Claim for Usury,” [*10] “Cause of Action and Claim for Ultra Vires,” “Fraudulent Inducement,” “Cause of Action for Cancellation Return Promissory Note for Cancellation,” “Civil RICO,” and a cause of action for TILA and RESPA violations. (Doc. # 1-1.) The Court deems those causes of action waived because Plaintiffs did not re-allege them in the SAC. 4 See, e.g., King, 814 F.2d at 567 (“All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.”). The Court therefore need not address the merits of those claims here.

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    4 Plaintiffs did not re-allege the claims through incorporation by inserting the following preamble in the SAC: “Plaintiffs, and for their Second Amended Complaint, . . . add the following claims to their original Complaint.”

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    Nor will the Court grant Plaintiffs leave to amend the SAC to re-allege those claims because granting leave to amend would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)(A court does not have to grant leave to amend if amendment would prove futile). For all the reasons stated in Defendant’s Motion and Reply, the Court finds that Plaintiff’s claims for usury, ultra vires, fraudulent inducement, cancellation return promissory [*11] note for cancellation, civil RICO, and for TILA and RESPA violations found in the original complaint would be subject to dismissal. And the Court, “does not err in denying leave to amend where the amendment would be futile . . . or would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (citations omitted).
    B. Claims in the SAC

    The Court will now address the claims actually alleged by Plaintiffs in their Second Amended Complaint.
    1. Wrongful Foreclosure

    The Court interprets the Plaintiffs’ claims in Count I as an attack on MERS and as a holder in due course/show-me-the-note argument. Plaintiffs claim that they never consented to the subsequent assignments of their Note and Deed, that MERS is some sort of straw man with no rights, and that Wells Fargo
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    did not have the right to institute a Trustee Sale of the Property because Wells Fargo
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    did not possess the original Promissory Note.

    First, Plaintiffs did consent to the assignment of their Note and Deed of Trust without prior notice by entering into the Deed of Trust, which contained a subsequent sale/bundling provision. (Doc. # 39 Ex.D § 20.) Second, the undersigned previously has rejected attacks on the MERS [*12] system. See Cervantes v. Countrywide Homes Loans, Inc., 2009 U.S. Dist. LEXIS 87997, 2009 WL 3157160, at *10-11 (September 24, 2009). 5 Like the plaintiffs in Cervantes, the Plaintiffs here have failed to demonstrate how the MERS system’s alleged status as a “sham” beneficiary affected their obligation to repay the Note. 2009 U.S. Dist. LEXIS 87997, [WL] at *10.

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    5 The undersigned wrote in Cervantes: “Plaintiffs allege that MERS never owns or acquires any beneficial interest in any of the loans it is named as the beneficiary under a deed of trust. As such, Plaintiffs allege that the MERS system is a “sham” beneficiary. Plaintiffs, however, have not directed this Court to any Arizona case that finds that the MERS system is fraudulent.” 2009 U.S. Dist. LEXIS 87997, 2009 WL 3157160, *10.

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    Third, this Court repeatedly has rejected debtors’ attempts to assert the so-called “show me the note” theory. See, e.g., Diessner v. Mortgage Elec. Registration Sys., 618 F. Supp. 2d 1184, 1187 (D.Ariz. 2009); Mansour v. Cal-W. Reconveyance Corp., 618 F.Supp.2d 1178, 1181 (D.Ariz. 2009). Plaintiffs claim that Defendant was not a “holder in due course” because it did not possess the original Note and therefore could not foreclose on the Property. But Arizona’s non-judicial foreclosure statute [*13] does not require presentation of the original note before commencing a trustee’s sale. Diessner, 618 F.Supp.2d at 1187.

    Because this case involves the non-judicial foreclosure of a real estate mortgage under an Arizona statute that does not requirement presentation of the original note, Count I of Plaintiffs’ SAC fails to state a claim upon which this Court may grant relief. The Court therefore grants the Motion to Dismiss Count I.
    2. Breach of Contract

    Plaintiffs’ Count II breach of contract theory is premised on the idea that various recent statutes and programs enacted to stimulate economic recovery, specifically the Troubled Asset Relief Program (“TARP”), provide a private right of action against lenders and loan servicers. Plaintiffs argue that because Defendant Wells Fargo
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    received TARP funds, Defendant had a duty to renegotiate Plaintiffs’ mortgage and stay foreclosure on the Property. Plaintiffs have not identified a contract between themselves and Defendant that Defendant allegedly breached. Instead, Plaintiffs seem to argue that Defendant breached an agreement with the United States Treasury.

    Plaintiffs cite the Emergency Economic Stabilization Act of 2008 (“EESA”) and programs [*14] instituted pursuant to EESA as authority for their breach claim. President Bush signed EESA into law on October 8, 2008. 122 Stat. 3765 (codified at 12 U.S.C. § 5201 et seq.). Section 101 of EESA authorized the Secretary of the Treasury (the “Secretary”) to create TARP to purchase troubled assets from financial institutions. 12 U.S.C. § 5211. Among other provisions, Section 109 of EESA requires and permits the Secretary to take certain measures to encourage and facilitate loan modifications.

    As authorized by EESA, the Secretary established the Home Affordable Modification Program (“HAMP”). On April 13, 2009, Wells Fargo
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    executed a Commitment to Purchase Financial Instrument and Servicer Participation Agreement for the Home Affordable Modification Program under the Emergency Economic Stabilization Act of 2008 (the “Agreement”). The Agreement applies to non-Fannie Mae/Freddie Mac mortgages and generally provides that Wells Fargo
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    will perform loan modification and other foreclosure services as directed by the Treasury.

    On May 20, 2009, President Obama signed into law the “Helping Families Save Their Homes Act of 2009,” Pub. L. No. 111-22, 123 Stat. 1632 (the “Helping Families Act”). The [*15] Helping Families Act led to a variety of new measures designed to reduce foreclosures, preserve home ownership, and fight the contraction of the real estate market. Congressional findings stated that it would be necessary to allow loan servicers to enter into loan modifications consistent with guidelines from the Secretary under EESA. Passage of the Helping Families Act caused a moratorium on certain foreclosure proceedings and sales “until the foreclosure mitigation provisions . . . and the President’s ‘Homeowner Affordability and Stability Plan” have been implemented and determined to be operational.” Id. § 401(a).

    Because Plaintiffs base Count II on Defendant’s receipt of TARP funds, the Court will analyze whether TARP creates a private right of action against financial institutions. “The fact that a federal statute has been violated and some person harmed does not automatically give rise to a private right of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979)(internal quotation omitted). 6 “Instead, the statute must either explicitly create a right of action or implicitly contain one.” Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223, 1230 (9th Cir. 2008).

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    6 The [*16] Court makes no determination in this Order regarding whether Wells Fargo
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    actually violated any statutes.

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    A statute expressly creates a right of action when the statute contains language that defines the cause of action. Id. Statutes that explicitly provide a private right of action identify the people allowed to bring suit, those that are potentially liable, the forum for the suit, and the potential remedy available. See id. (holding that § 304 of the Sarbanes-Oxley Act, which does not give those details, does not provide an express private right of action).

    In creating TARP, Congress expressly gave a private right of action to those specifically harmed by the Secretary to challenge the actions of the Secretary. 12 U.S.C. § 5229. This right of action is limited to causes of action for which there is no other adequate remedy in court. 5 U.S.C. § 704. While Congress created a right to sue the Secretary, the judicial review section of TARP never mentions a right of action against non-governmental entities, such as financial institutions receiving TARP funds. The Court therefore finds that Congress did not create an express right of action against TARP funds recipients. Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1185 (N.D.Cal. 2009).

    Because [*17] the Court finds that no express right of action against TARP fund recipients exists, the Court must consider whether TARP implies such a right. Univ. Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 770, 101 S. Ct. 1451, 67 L. Ed. 2d 662 (1981). The Court must proceed with caution in deciding whether a statute provides an implied private right of action because “Congress rather than the courts controls the availability of remedies for violations of statutes.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 509 n.9, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990). A court can find an implied right of action “only if the underlying statute can be interpreted to disclose the intent to create one.” Stoneridge Inv. Partners, LLC v. Scientific-Atlanta Inc., 552 U.S. 148, 164, 128 S. Ct. 761, 169 L. Ed. 2d 627 (2008)(internal citations omitted).

    The Supreme Court has created a four-factor test for determining whether an implied right of action exists in a statute that does not expressly provide for one. Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). In determining whether a private right of action is implied, the Court considers:

    (1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted-that is, whether the statute creates a federal right in favor of the plaintiff; (2) whether [*18] there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; (3) whether the cause of action is consistent with the underlying purposes of the legislative scheme; and (4) whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.

    In re Digimarc Corp., 549 F.3d at 1231 (internal citations and quotations omitted). The Court, however, does not afford all of the factors equal weight. Touche, 442 U.S. at 575. The second factor — Congressional intent — is the determinative factor. Id.; see also Thompson v. Thompson, 484 U.S. 174, 189, 108 S. Ct. 513, 98 L. Ed. 2d 512 (1988)(Scalia, J., concurring)(“[W]e effectively overruled the Cort v. Ash analysis in [Touche], . . . converting one its four factors (congressional intent) into the determinative factor.”); Stupy v. United States Postal Serv., 951 F.2d 1079, 1081 (9th Cir. 1991)(holding that courts do to need to evaluate the remaining Cort factors if they conclude that Congress did not intend to create a private right of action).

    In analyzing whether a private right of [*19] action was intended under a statute, courts look to Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) for guidance. “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Id. at 286. A court’s task is to interpret the statute to determine whether the statute displays an intent not just to create a private right, but also a private remedy. Id. Without statutory intent, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id. at 286-87.

    The Court in Sandoval began and ended its search for Congressional intent with the text and structure of the statute at issue. Id. at 288. 7 The Court will do the same here. TARP’s provisions focus on the parties regulated and the agencies tasked with overseeing the regulations, rather than the individuals protected, and “[s]tatutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’” Id. at 289. (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981)).

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    7 When analyzing Congressional [*20] intent to create a private right of action, courts limit their analysis to three relevant sources: 1) rights-creating language in the statutory text; 2) the overall statutory structure; and, only if the statutory text and structure do not yield a definitive answer, 3) the legislative history of the statute. In re Digimarc Corp., 549 F.3d at 1230-34.

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    Further, Congress has demonstrated in TARP that it knows how to create a private cause of action if it intends to do so. Congress expressly gave a private right of action against the Secretary to persons directly harmed by the Secretary’s actions. It is highly unlikely that “Congress absent mindedly forgot to mention an intended private action” against TARP fund recipients. See Transamerica Mortg. Advisors Inc. v. Lewis, 444 U.S. 11, 20, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979)(internal quotations omitted). By providing a cause of action against the Secretary, but not mentioning a cause of action against non-governmental entities, Congress demonstrated its intent to limit private action under TARP solely to actions against the Secretary and not to extend any obligations or liabilities to those receiving TARP funds. Pantoja, 640 F.Supp.2d at 1185; see also Touche, 442 U.S. at 572 [*21] (“when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly”).

    Because the Court determines that Congress did not intend to create a private cause of action against TARP fund recipients, the Court does not need to consider any of the other Cort factors. Stupy, 951 F.2d at 1081. The Court finds that TARP does not create, either explicitly or implicitly, a private right of action against TARP fund recipients. This conclusion is supported by the decisions of other courts that have analyzed whether TARP and other economic rescue legislation provide private rights of action against nongovernmental entities. See, e.g., Logan v. U.S. Bank Nat’l Assoc., 2010 U.S. Dist. LEXIS 46314, 2010 WL 1444878 (C.D. Cal. April 12, 2010)(holding that section 702 of the Helping Families Save the Home Act does not provide a private cause of action); Santos v. Countrywide Home Loans, 2009 U.S. Dist. LEXIS 103453, 2009 WL 3756337 (E.D.Cal. Nov. 6, 2009)(holding that the plaintiff had no private right of action under EESA or the Hope for Homeowners Act); Pantoja (holding no private right of action against TARP fund recipients).

    Plaintiffs’ breach of contract claim fails as a matter of law because 1) TARP does not create a private [*22] right of action in Plaintiffs against Defendant and 2) Plaintiffs have not alleged that Defendant breached a contract with them. The Court therefore grants Defendant’s Motion to Dismiss with regard to Count II.
    3. Misrepresentation and Breach of Duty of Good Faith & Fair Dealing

    In Count III, Plaintiffs again makes the holder in due course/show-me-the-note argument, albeit in a slightly different way. Plaintiffs argue that Defendant did not have a right to request loan modification documentation or to actually modify the loan because Defendant did not possess the original Note and therefore was not a holder in due course. For the reasons stated in its discussion above of Count I’s wrongful foreclosure arguments, the Court will grant the Motion to Dismiss Count III.
    4. Fraud

    Plaintiffs’ Count IV fraud claim is just another iteration of the holder in due course/original Note argument. Plaintiffs allege that Defendant represented and stated to the Plaintiffs that Defendant owned the Note and/or that it had authority to modify the loan. For the reasons previously stated, the Court finds this argument has absolutely no merit. The Court therefore dismisses Count IV.
    5. [*23] Breach of Fiduciary Duties

    In Count V, Plaintiffs allege that Defendant undertook duties to negotiate with the Plaintiffs to modify their loan and that Defendant had a duty to inform Plaintiffs that Defendant did not “own the Deed of Trust or [N]ote.” (Doc. # 28, p.8.) First, Plaintiffs have not made any allegations demonstrating that Defendant was in a fiduciary relationship with them. Second, the Court once again rejects Plaintiffs’ attempt to assert a holder in due course argument.
    6. Conversion

    In Count VI, Plaintiffs argue that Defendant has taken the Note and created a mortgage-backed security, thereby transferring title to the investors in the security and away from Defendant. Plaintiffs allege that Defendant unlawfully took the Property and sold it.

    The undersigned previously has rejected a conversion theory in a mortgage foreclosure case. Cervantes v. Countrywide Home Loans, Inc., 2009 U.S. Dist. LEXIS 87997, 2009 WL 3157160 (D.Ariz. September 24, 2009). Plaintiffs allegations amount to conversion not of chattel or personal property, but real property. But Arizona has no tort of conversion of real property. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 207 P.3d 654, 659 (Ariz.Ct.App. 2008)(distinguishing different [*24] types of water rights and stating, “[W]ater rights are real property interests, and thus cannot be converted because they are not chattels.”). The Court therefore grants the Motion to Dismiss with regard to Count VI.
    7. Count VII

    Plaintiffs did not allege a Count VII. The SAC skips from Count VI (Conversion) to Count VIII (Lack of Consideration).
    8. Lack of Consideration

    Plaintiffs denominated their Count VIII as “Lack of Consideration.” (Doc. # 28, p. 10.) They argue that Defendant did not provide any consideration for the conversion of the Note into a securitized investment instrument. “Lack of Consideration” is not an independent, cognizable legal claim. Plaintiffs have not alleged a contract between them and Defendant that lacked the requisite consideration. This claim therefore fails as a matter of law and the Court will dismiss it.
    9. Unjust Enrichment

    In their final Count, Count IX, Plaintiffs argue that Wells Fargo
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    was unjustly enriched by using the Note to create a mortgage-backed security investment vehicle. Plaintiffs allege, “The Defendant Wells Fargo
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    has profited and stands to continue to profit from creating the MBS while preventing the Plaintiffs from contacting the true owners [*25] of the note in an effort to obtain a loan modification, workout plan, or other financial assistance.” (Doc. # 28, p.11.) The unjust enrichment claim seems to be just one more stab at the holder in due course argument. The Court has stated that the holder in due course argument in all its permutations is unavailing.

    To the extent Plaintiffs attempt to state a true unjust enrichment claim under Arizona law, they cannot. One of the elements of an unjust enrichment claim is an absence of justification for the “enrichment” of the defendant and the “impoverishment” of the plaintiff. Cmty. Guardian Bank v. Hamlin, 182 Ariz. 627, 898 P.2d 1005, 1008 (Az. Ct. App. 1995). This Court already has found that the Deed of Trust allowed the original lender to sell the Note and Deed and that Defendant had the right to institute a trustee sale of the Property even if Defendant did not possess the original Note, so Plaintiffs cannot allege a lack of justification. Thus, they cannot state a claim for relief. The Court therefore grants the Motion to Dismiss Count IX.

    Because the Court finds that Plaintiffs have failed to state a single cognizable legal claim, the Court will grant the Motion to Dismiss the Second Amended [*26] Complaint in its entirety.

    Accordingly,

    IT IS ORDERED GRANTING Defendant’s Motion to Dismiss Second Amended Complaint (Doc. # 39). The Clerk will dismiss this case.

    DATED this 18th day of June, 2010.

    /s/ James A. Teilborg

    James A. Teilborg

    United States District Judge

  32. My house is scheduled for auction in October 2010.
    I was ill and could not attend concilation hearing.In
    Philadelphia.Pa.
    My brother had power of attorney but did not attend
    which led to house going up for auction.

    I am going to hire an Attorney but need advice
    regarding a letter I can send to the bank or lender
    that will benefit me until I hire an attorney to fight
    the foreclosure in October. I appreciate any and all
    advice in advance.

  33. Happy Fourth of July everyone. Let us celebrate the independence of stopping the banks and wall street fat cats from taken peoples homes! Anyone in Rhode Island or Massuchusetts can call us for a free consultation and a budget plan for everyone.No family
    will be turned away for lack of funds. Call Kim Thomas
    at George E.Babcock Esquire at 401-274-1905 for a Lawyer that gets it. Over 300 MERS Cases pending.

  34. I need some help here in Milwaukee, WI. Go you know of any attorneys here that know these tactics and how to use them to stop the crooks that pose as bankers and trust.
    Deutsche Bank National Trust Company filed May 25th for foreclosure on our home, however we never got served, and as far as i know we are still waiting to hear about the MHAP decision as we are still making the requested payments.

    Deutsche Bank National Trust Company is known for pulling shady practices and foreclosing and selling home out from under folks. I only found out because i was getting a great deal of advertisement mail regarding foreclosure protection, I checked Wisconsin Court Access to see what they did.

  35. Hey Neil –

    Just wanted to drop our new web address and tell you we added a research attorney to our staff to help write Pro Se complaints for our clients. As you know, that is as far as we can go, but we have a couple agressive lititagors if the case has to go further.

    We are always looking for strong, sharp litigators, please have them contact us!!

    http://www.forensicmortgageauditors.org

    James Pantera, MBA
    Managing Partner
    San Diego, CA

  36. THE ILLEGAL ALLONGE FORM
    Quote From Matt Weidner’s Blog

    “I seek comments and input from all interested parties”…

    “Read on, reply and tear this apart people….let me know what you think”…

    Below are excerpts from my memorandum which addresses the problems with Allonges in foreclosure actions. It is a work in progress, but my comprehensive research reveals that there are very real questions about whether an allonge (as opposed to an endorsement) can be used to evidence ownership of a note when a Plaintiff is trying to foreclose. It is published here in draft form…I seek comments and input from all interested parties. We are learning from depositions that the primary reason lenders are using allonges over endorsements is because they can prepare an allonge and affix it to the note later without having to get possession of the actual note…a practice in conflict with the very purpose of an endorsement/allonge. Read on, reply and tear this apart people….let me know what you think.

    According to the only Florida appellate case which deals with these ancient instruments, “[a]n allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla 1st DCA 1998). See also U.S. Bank National Association v. Weigand, 2009 WL 1623764 (Conn. Super. 2009); P&B Properties I, LLC v. Owens, 1996 WL 111128 (Del. Super. 1996). Furthermore, while “Florida’s Uniform Commercial Code does not specifically mention an allonge, [the Code] notes that ‘for purposes of determining whether a signature is made on an instrument, a paper affixed to the instrument is made part of the instrument.’ Fla. Stat. §673.2041(1) (1995).” Booker, 707 So. 2d at 886 (Fla. 1st DCA 1998).

    LEGAL MEMORANDUM IN SUPPORT OF DEFENDANT’S ARGUMENT

    I. Plaintiff’s Complaint Should Be Dismissed for Failure to be Prosecuted in the Name of the Real Party in Interest

    a. Legal Standards
    Fla. R. Civ. P. 1.210(a) provides, in pertinent part, that “[e]very action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.”

    Recently, the Second District held that Plaintiffs in foreclosure actions are required to establish, through admissible evidence, that it held the note and mortgage in question and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. BAC Funding v. Jean-Jacques, 2010 WL 476641 (Fla. 2d DCA 2010). Furthermore, the Second District held that whether such a Plaintiff does so through valid assignment, proof of purchase of the debt, or evidence of an effective transfer, they are nevertheless required to prove that it validly held the note and mortgage which it sought to foreclose. Id. In BAC Funding, the Second District ultimately ruled that an incomplete, unsigned and unauthenticated assignment of mortgage attached as an exhibit to the Plaintiff’s response to the Defendant’s motion to dismiss did not constitute admissible evidence establishing the Plaintiff’s standing to foreclose on the note and mortgage in question.

    Additionally, the Bankruptcy Court of the Middle District of Florida recently denied a movant’s motion for relief from stay so the movant could foreclose on real property owned by a debtor, in part, because the movant did not establish that it was the real party in interest through a valid allonge. In re Canellas, 2010 WL 571808 (Bankr. M.D. Fla. Feb. 9, 2010). There, the movant accompanied its motion with a mortgage and note which were endorsed to someone other than itself. Some three months later, the movant filed an allonge with the Court which purportedly endorsed to it the mortgage and the note. However, the allonge was not notarized nor was it dated. The Court ultimately denied the movant’s motion and questioned the veracity of the allonge because, amongst other reasons, the allonge was not: (1) dated; or (2) notarized.

    Here, the Plaintiff has failed to provide any admissible evidence that it is entitled to proceed in this action. The named lender according to the Plaintiff’s own Complaint is SAND CANYON CORPORATION F/K/A OPTION ONE MORTGAGE CORPORATION; however, Option One, the actual named lender on the Mortgage and Note, has had its corporate status suspended since 1990 and the Record is completely devoid of how Sand Canyon has come into existence or how it can legally hold a mortgage or note. Furthermore, the purported allonge which the Plaintiff alleges gives it the power to enforce the Mortgage and Note in question is not dated nor is it notarized. Option One’s suspended corporate status, the unclear and undefined existence of Sand Canyon, and the lack of a date or notarization on the purported allonge itself are firm grounds for the Court to doubt the veracity of this document and, as an extension, the Plaintiff’s status as the real party in interest.

    II. Plaintiff’s Complaint Should be Dismissed for Failure to State a Cause of Action Because the Purported Allonge was not Firmly Affixed to the Promissory Note
    a. Legal Standards
    Fla. R. Civ. P. 1.140(b)(6) provides, in pertinent part, that “the following defenses may be made by motion at the option of the pleader…failure to state a cause of action.” In ruling on a motion to dismiss for failure to state a cause of action, the trial court must assume that all allegations in the complaint are true and decide whether the Plaintiff would be entitled to relief. Carmona v. McKinley, Ittersagen, Gunderson & Berntsson, P.A., 952 So.2d 1273 (Fla. 2d DCA 2007). Nevertheless, as indicated in the Standard of Review discussion, supra, exhibits attached to the Plaintiff’s complaint are part of the complaint, and where the allegations made in the complaint do not agree with the exhibits attached, the exhibits control.

    There is no Florida case on point which provides guidance as to how an allonge must be physically attached to an instrument in order for it to become “firmly affixed” to same. Therefore, the Court may look to decisions of courts in other states for persuasive authority. To begin, two reasons have been cited for the “firmly affixed” rule: (1) to prevent fraud; and (2) to preserve a traceable chain of title. See Adams v. Madison Realty & Development, Inc., 853 F. 2d 163, 167 (3d Cir. 1988). A draft of the 1951 version of the UCC Article 3 included the comment that “[t]he indorsement must be written on the instrument itself or an allonge, which, as defined in Section _____, is a strip of paper so firmly pasted, stapled or otherwise affixed to the instrument as to become part of it.” ALI, Comments & Notes to Tentative Draft No. 1 – Article III 114 (1946), reprinted in 2 Elizabeth Slusser Kelly, Uniform Commercial Code Drafts 311, 424 (1984). More recently, however, courts have held that “stapling is the modern equivalent of gluing or pasting.” Lamson v. Commercial Cred. Corp., 187 Colo. 382 (Colo. 1975). See also Southwestern Resolution Corp. v. Watson, 964 S.W. 2d 262 (Texas 1997) (holding that an allonge stapled to the back of a promissory note is valid so long as there is no room on the note for endorsement). Regardless of the exact method of affixation, numerous cases have rejected endorsements made on separate sheets of paper loosely inserted in a folder with the instrument and not physically attached in any way. See Town of Freeport v. Ring, 1999 Me. 48 (Maine 1999); Adams v. Madison Realty & Development, Inc., 853 F. 2d 163 (3d Cir. 1988); Big Builders, Inc. v. Israel, 709 A. 2d 74 (D.C. 1988)

    Here, the Plaintiff’s purported allonge, as found in the Court File, is in no way so firmly affixed to the Promissory Note as to give the Plaintiff the ability to raise a cause of action for foreclosure of a mortgage and note which is made out to someone other than itself. Specifically, when undersigned counsel examined the Court File, this purported allonge was not affixed to the Promissory Note nor, upon information and belief, is this purported allonge currently affixed to the Promissory Note. Because the purported allonge is not affixed to the Note, the twin aims of affixation, namely to prevent fraud and to preserve a traceable chain of title, have expressly not been met.

    III. Plaintiff’s Complaint Should be Dismissed for Failure to State a Cause of Action Because the Promissory Note Contained Room for Endorsement

    a. Legal Standards
    There is also no Florida case law which provides guidance on how to decide “No-Space Tests”, or how to proceed when there is room on the instrument for an endorsement but an allonge is nevertheless attached instead. However, numerous jurisdictions permit allonges only where, because of multiple endorsements, no additional space for signatures remains on the negotiable instrument. See Shepherd Mall St. Bank v. Johnson, 603 P. 2d 1115, 1118 (Okla. 1979); Tallahassee Bank & Trust Company v. Raines, 187 S.E. 2d 320, 321 (Ga. App. 1972); James Talcott, Inc. v. Fred Ratowsky Assoc., Inc., 38 Pa. D. & C.2d 624 (Pa. Ct. of Common Pleas 1965). But see Crosby v. Roub, 16 Wis. 616, 626-27 (Wis. 1863) (allonge permitted even where space remains on note). Perhaps the seminal case which deals with the issue is Pribus v. Bush, 118 Cal. App. 3d 1003 (Cal. App. 1981), which reasoned that

    the law merchant rule [which permits the use of allonges only when there is no room on the instrument itself]…was developed as a refinement of the basic rule that an indorsement must be on the instrument itself. This basic rule must have become impractical when strictly applied in certain multiple indorsement situations, due to the finite amount of space on any given instrument. The allonge, then, was apparently created to remedy the inconveniences of the basic rule, not as an alternative method of indorsement. Id at 1008. Emphasis added.

    The Pribus court ultimately decided that the majority view is to follow the law merchant rule and only permit allonges when there is no physical space left on the instrument itself. Id.

    b. Argument
    Here, the allonge was improper because there is ample blank space on the Promissory Note filed with the Plaintiff’s Complaint to stamp an endorsement. This includes abundant space both below the Plaintiff’s alleged signature and on the back of the Note. Florida courts, in the absence of a Florida case directly on point, should follow the majority rule which only allows the use of an allonge when there is no room on the instrument itself for endorsement. Doing so preserves the law merchant rule, an ancient principal of commercial law. Because the allonge was improper, the Mortgage and the Note are endorsed to someone other than the Plaintiff, and therefore the Plaintiff does not have the ability to raise the cause of action for foreclosure.
    To make comments and suggestions to Matthews request go here…

    4closureFraud

  37. Why cant we find the CUSIP number of the promissory note security instrument and see who has it. Yes they all go to a pooling spv, however we at least will know where it is. Is getting the CUSIP of any advantage, if indeed we can get it and use it. If we know where it is then demand it back after all it is ours ,right.

  38. Quote from http://www.mattweidner.com

    FORECLOSURE CASE LAW UPDATE
    March 10th, 2010 · 2 Comments · Foreclosure
    For a short period of time in Florida, pretender lenders and their attorneys had a field day in Florida courts, obtaining foreclosure judgments and title to property based on the flimsiest of evidence. Now courts are aware of many of the problems with these files and lenders can no longer count on a free ride to the foreclosure auction. Below is a sampling of case headnotes from recent circuit court opinions that denied foreclosure. Judges in circuits across the state are now standing up for consumers (or at least for the rule of law) and requiring lenders to prove their right to claim the relief they seek. A sampling of the headnotes follows:

    Mortgages — Foreclosure — Stay — Foreclosure action is stayed until mortgagor has been afforded mitigation and modification opportunities of home affordable modification program

    Mortgages — Foreclosure — Standing — Motion for final judgment of foreclosure denied — Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action — Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage — Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge.

    Mortgages — Foreclosure — Complaint — Plaintiff has failed to state cause of action where partial terms sheet attached to foreclosure complaint omits details as to who gets paid, when and where payment is due, and amount of payment — Further, assignment that is dated after filing of suit is at variance with complaint — Complaint dismissed with leave to amend.

    Mortgages — Foreclosure — Standing — Motion to dismiss is granted with leave to file new or amended complaint to allege that plaintiff is owner and holder of note and mortgage and to allege additional facts that support that allegation.

    Mortgages — Foreclosure — Where note filed by plaintiff is endorsed but does not name entity to which it is made payable, plaintiff failed to plead in complaint that it is owner of note or mortgage, mortgage names entity other than plaintiff as mortgagee, plaintiff has filed assignment of mortgage executed and recorded after complaint was filed, and complaint does not demonstrate equitable assignment of mortgage to plaintiff before complaint was filed, plaintiff must amend complaint to allege that it is owner and holder of note and mortgage and identify documents upon which it relies to establish that it holds and owns note and mortgage

    2 Comments so far ↓

    Thanks for the re-cap. So many of the pleading deficits some Judges are only now catching simply did not exist before when foreclosure actions were fully pled and documented upfront. When I was involved in forclosure cases in the 1980’s and 90’s plaintiffs were proud to lay out their proof of loan ownership and their identity in the complaint. That they now play this game of hide and seek not only in their complaints but in discovery should alert any judge of serious due process problems that if ignored and not corrected will simply cloud our real estate title records. I call it “fundamental non-disclosure”. As a dirt lawyer writing title for the past 30 years the title defect caused by these deficit complaints are apparent on their faces and are never cured with the type of authentication necessary to clear marketable title standards. The conclusory form affidavit offered to and relied on by the judge, unwittingly, not only fails marketability standards, but fails to meet the test for admissability as evidence. Add this to the fact that the plaintiff never offers up proof of its chain of ownership of the mortgage loan in any other fashion and or fails to even sufficiently identify itself or it’s principal, the note owner, and the title to this property becomes even more obscured. Were I a judge I would simply make the plaintiffs, at inception of the suit, come out of the woods and declare themselves clearly and lay out the chain of mortgage loan ownership, with definition.

    That they don’t do it voluntarily, upfront – like the good old days -should be a warning, and a prompt for a judge to ask the simple and direct one word question: Why?

    G.
    Reply
    I had a mediation last week in which the Plaintiff’s difficulty in proving its case went a long way toward settling the case. That wouldn’t have happened a year ago. In the end, both sides were happy. The rapidly evolving nature of foreclosure law makes these cases really interesting to mediate!

  39. My husband signed the note I am on the mortgage – he is deceased. I am looking for something that will help me to keep the house. Thanks. d

  40. Persons in Northern Virgina and DC facing wrongful foreclosure by a non-secured party are encouraged to contact Bryl Law Offices through bryllaw.com

  41. Quote from 4foreclosureFraud’
    New York Bankruptcy Lawyer Triumphs Over Shoddy Mortgage Lender Practices
    Manhattan condominium owner, victim of shoddy record-keeping at mortgage giant JPMorgan Chase, fights back and wins with the help of New You bankruptcy lawyer David B. Shaev.

    New York, NY (PRWEB) March 4, 2010 — New York homeowners filing for bankruptcy are breathing a sigh of relief, knowing that the courts are on their side. In a scathing opinion issued recently by US. Bankruptcy Court Judge Martin Glenn, JPMorgan Chase Bank was effectively denied payment of their entire alleged mortgage claim because they refused to prove their ownership of the loan. The case is In re Minbatiwalla, Chapter 13 Case No. 09-15693 (MG) (Bankr.S.D.N.Y. 2009).

    New York bankruptcy lawyer David B. Shaev
    “The homeowner won the battle today. But with so much mortgage servicer abuse in bankruptcy, the war wages on.” – David B. Shaev, New York Bankruptcy Lawyer
    Kerman J. Minbatiwalla, a Manhattan homeowner, filed for Chapter 13 bankruptcy to repay his debts over time and save his East Side condominium. Though he was current on his mortgage at the time his case was filed, Minbatiwalla is the poster child for a system gone horrible wrong at the hands of shoddy recordkeeping at his mortgage company.

    Minbatiwalla had two mortgages with various JPMorgan Chase entities. On filing of his bankruptcy, Chase Home Finance, LLC filed papers with the court on behalf of U.S. Bank as well as an unknown mortgage trust asking for payment of pre-bankruptcy arrears; a second claim was filed by JP Morgan Chase Bank N.A. also demanding payment of arrears.

    Minbatiwalla’s attorney, Manhattan bankruptcy lawyer David B. Shaev, looked on both documents with suspicion. “My client wants to pay his mortgage, but now he doesn’t know who is the rightful recipient of the money. There was nothing but a summary attached, with nothing to indicate which party was which, or to whom the monies should be paid,” Shaev said. “A string of mortgage trusts and servicers only confused the situation, and we needed to be sure that the property parties would be paid.”

    Though Shaev demanding more information on the transfer of the loans and the relationships of the parties, he was met with no response. Undeterred, he demanded that the claims for payment be denied in full.

    Bankruptcy Court Judge Martin Glenn, in a 26-page written opinion, found that Chase’s failure to attach documentation and respond to the Shaev’s information requests is fatal to their claims for payment. “Here it is not clear whether the claim was assigned to Chase, or whether Chase was the original party on the mortgage and the note,” Glenn wrote. “[The Debtor requested additional information from the claimant in October and has received no documents.”

    A copy of the full opinion is available from the Court’s website here.

    This is not the first time Shaev has seen mortgage servicer abuses in the bankruptcy courts. He has recently fought – and won – in cases against a variety of lenders who have refused to treat bankruptcy debtors with the fairness the law demands.

    “The homeowner won the battle today,” Shaev said on hearing of the decision. “But with so much mortgage servicer abuse in bankruptcy, the war wages on.”

    David B. Shaev is a New York bankruptcy lawyer and partner at Shaev & Fleischman, LLP

    Unquote

  42. Emmanuel,
    feel free to send me something via email. send it to atsolutionsllc@yahoo.com

    thanks.

  43. Milesius I don’t know how your plan will work You need more than that. You must show that the entire scheme is a total
    fraud. Don’t expect the court to do your due diligence for you. Give me you email and I will send you something

  44. Storm:
    I don’t have any lawyers in my area, or within 300 miles. I am forced to fight Pro Se and appreciate your advice. I am filing a motion for hearing to stop foreclosure and am preparing the statement, can you make any recomendations?
    “After exhausting all efforts to negotiate my mortgage with BAC I was forced to hire an attorney. BAC who has recived financial bailouts intended to aid homeowners such as myself appears to use the process to identify and forclose on home owners. I intend to show to the court that BAC knowingly and maliciously is attempting to foreclose on my home after causing a manufactured defualt through desceptive practices. Further, I intend to show that BAC mishandled my mortgage, failed to give proper disclosure and refused me due process. I will explain how BAC enticed me, has harrased me, threatened me, attacked my dignity and attempted to discredit me. By way of the law I will also show that BAC must halt its foreclosure and realease its claim to the note/mortgage/security of my home. Finally I will ask the court to identify the fraudulent behaviour with which BAC has conducted itself in its lending, securities and legal practices. “

  45. Storm,

    If you are, or know of an attorney who specializes in this kind of work in Los Angeles, and if not, a place where I can locate competent reasonable work in this field, or a legal aid group, please post the link(s) or send an email to jast11@sbcglobal.net.

    There are many lawyers who claim expertise on the internet, but as you know, this is now such a lucrative field, and when the clock ticks there is no time to do the research on the lawyer…so the depserate homeowner goes with his instincts…and April Charney is in Florida…

  46. Catherine:

    I agree with you except for a couple of problems.

    First, you need some evidence, how does anyone expect to win if they have nothing to use against the bank? Where do you get the evidence? Well, you don’t get it from some inadequate software audit. Attorneys, who REALLY know what they’re doing will tell you software audits are “useless!”

    What you need is a full examination of the mortgage transaction, to include a forensic appraisal, performed by specially trained legal professionals who know contract law, and how to look for the legal idiosyncrasies that may be present, not just some statutory or regulatory, nominal violations that most have a statute of limitations of one year, excepting rescission.

    Secondly, MOST pro se’s will get hung out to dry! Why? A pro se is fighting attorneys who are doing foreclosures all day, everyday, and who have heard ALL of the defense arguments with answers to thwart them. If not will just refile when they do.

    You win cases three ways. If the law is on your side, you argue the law. If the facts (evidence) are on your side, you argue the facts. If neither is on your side, you beat them procedurally. But, most pro se’s don’t know or fail to understand the procedural side and that’s where the foreclosing lawyers will crush the pro se 99% of the time!

    The borrower NEEDS to get competent legal counsel, as described above! I know a lot of individuals don’t have the money to hire an attorney, if that’s the case, they need to go to the local legal aid society for help. These legal aid attorneys DO know what they are doing, as evidenced by the likes of April Charney. Competent legal counsel will tell you, just attending a seminar on foreclosures or reading some books, WILL NOT sufficiently prepare the pro se for the beating he’ll get in court!

  47. fighting consumer fraud at the state level,

    The true challenge that every predatory lending victim homeowner faces,
    is not actually in correctly pleading and presenting their cases, citing the correct case laws and precedents,

    but that the courts are inclined to trample the In Pro Per property owner’s rights, and illegally ignore all their pleadings, (no matter how valid and well presented) and inappropriately discard all the homeowner’s evidence for the purpose of crippling the loan fraud victim, to illegally favor and support a corrupt mortgage and mortgage servicing industry.

    I have worked relentlessly, for almost 3 years, as a anti-foreclosure, and consumer law activist, and have come to believe thatv Jury can and will provide relief, if we do our homework correctly and the judges will then be helpless to circumvent the law and prevent justice.

    If you are a In Pro Per defendant the trick is to submit your timely demand for jury trial, and then do your homework, regarding presentation. you may find that

    if you are In Pro Per plaintiff, you must assume the property is alrerady yours, and they have defrauded you and /or if it is already lost sue for damages.
    Remember plaintiff can only qualfiy for damage relief not injuctive relief (you can only ask for money )

    When you cannot convince a judge of your rights, a jury may be more sympathetic.

    Catherine from carlsbad (koldesigns@yahoo.com)

  48. I certainly hope the judiciary is NOT corrupt. Otherwise, we are truly screwed since the politicians and executive branch are already bought and paid for.

  49. Darrell-
    I did a preemptive strike and sued the lender in court, filing a one page “Request for Judicial Notice”. I’ve kept picking at the lender until they forced me to submit a complaint, which they promptly removed to Federal court. At first I thought that was a good thing, but I have since discovered that the Federal judges can be very tricky. During the entire case, the lender never once answered any of the charges, yet the Judge refused to rule in my favor based on their failure to respond. They don’t want this argument in their court and will do whatever they can to dismiss the case quickly.

    I’ve learned a lot since then. I have not heard back from my Lender so I am dutifully monitoring the Clerk’s office to make sure they don’t try to sell it without informing me.

    I plan to file a Quiet Title action or something similar to force everyone to state their claim. It beats my other option, which is to hunt them all down and commit what I think would be justifiable homicide.

    They are all criminals and I think more Americans need to wake up and realize that we are at war with the banks and the corrupt judiciary.

    Follow the money.

  50. karen (from january 27th, 2010) your comment stated that you are still in your house more than 2 years after the notice of default, and still fighting ! good for you !!!
    my question is , how ? i received my NOD on sep 11th, and the 90 days, (here in Ca) was over on dec 11th. now today is jan31 st and Bof A has not filed a notice of sale. don’t know what they are waiting on. i filed no paperwork against them of any kind, because i don’t have thousands up front to spend on a lawyer, and i don’t know how to do it myself.
    do you ever hear from your lender or anyone else involved w/ the mortgage or nod ? thanks, Darrell

  51. I am in default on my loan. Even though I have asked them to verify the debt, which they did not do. Since I am in default, does that mean that the mortgage company was already paid for the house in full with the default insurance. How can I buy your DVD`s. Thanks.

  52. I don’t know where to put this so I will put it here. I just found out tonight, that the bank sold my home a week ago while it was undergoing a loan modification. I had no notice, no letters, no phone calls, nothing taped to my door – NOTHING! These banks are crooks!

  53. Things are turning around…..

    http://www.baltimoresun.com/news/opinion/editorial/bal-ed.forecolsure02nov02,0,2288411.story

    Fighting foreclosure

    Our view: Too many Marylanders are losing out to unscrupulous predatory lenders
    With the number of home foreclosures on the rise again in Maryland, Gov. Martin O’Malley’s plan to require mediation before banks can begin proceedings to seize the houses of delinquent borrowers is a good idea, but it doesn’t go far enough to help struggling property owners stay in their homes. What’s needed are more resources to ensure adequate legal representation for troubled homeowners who have been the victims of predatory lenders.
    Unscrupulous brokers and agents pocketed millions in fees during the housing bubble by targeting unsuspecting borrowers whom they knew could never repay the loans. Many of those homeowners are now losing their houses because they didn’t know how to navigate the thicket of state and federal lending laws or interpret the fine print on their mortgage notes. But many could stay in their homes if they were able to obtain qualified legal guidance.

    In addition to requiring mediation, as Mr. O’Malley intends to propose when the General Assembly returns in January, lawmakers need to increase funding for legal assistance to homeowners through nonprofit groups like the Legal Services Corporation, especially in areas of the state like Baltimore and Prince George’s County, where low-income and minority communities have been particularly hard hit. Expanding access to the courts for homeowners facing foreclosure could help stabilize troubled neighborhoods and arrest falling home values until the market recovers.

    Last year, the O’Malley administration pushed through a package of reforms aimed at helping struggling homeowners stay in their houses. They included slowing down the foreclosure process, establishing criminal penalties for mortgage fraud and requiring lenders to confirm borrowers’ ability to pay. The package also included refinancing programs to help people who owe more than their houses are worth because of plummeting home prices and a public service campaign to encourage homeowners in trouble with their lenders to seek help from nonprofit housing counselors.

    These reforms offered a temporary respite, but as unemployment continued to rise, the number of foreclosures also resumed climbing, nearly doubling in the past year. Many people are now just a paycheck away from losing their homes if they lose their jobs; others are threatened with eviction as a result of catastrophic illnesses that have left them unable to pay both their mortgages and their medical bills.

    A recent report by the Brennan Center for Justice at New York University School of Law found that between 60 percent and 86 percent of homeowners facing foreclosure in the jurisdictions it surveyed were unrepresented by counsel last year. Low-income and minority homeowners in areas targeted by subprime lenders were the most vulnerable, researchers reported, with up to 92 percent of them facing foreclosure proceedings without the advice of counsel.

    As a result of last year’s reforms, the state has taken some positive steps. A pilot program in Prince George’s County backed by the Maryland Bankers Association allows homeowners to seek mediation if they can show the loan involved fraud or if the lender didn’t meet other requirements enacted by the legislature.

    And some lenders are working through a federal loan modification program aimed at avoiding foreclosure for borrowers who want to stay in their homes, although the process remains painfully slow.

    Mediation, which depends on voluntary agreement between lenders and borrowers, can be a useful tool to settle disputes if both sides negotiate in good faith, and we applaud the governor’s readiness to build on his previous foreclosure reforms. But the predatory lenders who are responsible for the most egregious abuses aren’t likely to own up voluntarily to their wrongdoing. In those cases, the state must do everything in its power to ensure that innocent victims of such schemes can have their day in court.

    Copyright © 2009, The Baltimore Sun

  54. Attorney General Martha Coakley Reaches $10 Million Settlement with Subprime Lender Fremont Investment and Loan
    Thousands of homeowners protected from foreclosure

    BOSTON – Today, Attorney General Martha Coakley’s Office entered into a settlement with Fremont Investment & Loan and its parent Fremont General Corporation (“Fremont”) to resolve the Commonwealth’s lawsuit against the California-based lender. Fremont has agreed to pay the Commonwealth $10 million in consumer relief, civil penalties and costs. Fremont has also agreed not to foreclose upon unfair loans without certain protections for borrowers or originate unfair loans in the Commonwealth. Those protections against foreclosure, which have been in place since the Superior Court issued a Preliminary Injunction in March 2008 are now permanent and also apply to the loan holders and servicers who acquired the Fremont loans since the injunction issued.

    “The American dream of homeownership has turned into a nightmare for many borrowers because of predatory lending practices. We have vigorously sought to hold companies accountable for these practices, and today we have taken another important step toward achieving that goal.” said Attorney General Coakley. “With the $10 million we have obtained through this settlement, we have an opportunity to provide consumers and the Commonwealth with additional relief from the predatory lending practices that have besieged our state and nation. We will continue to hold companies responsible for their role in the foreclosure crisis.”

    Under the terms of the settlement, Fremont has agreed to pay the Commonwealth $10 million, including $8 million in consumer relief, $1 million in civil penalties, and $1 million in costs, including attorneys’ fees. The consumer relief funds will be used to redress the negative impact of mortgage foreclosures, predatory lending practices, and to provide relief to Massachusetts borrowers.

    Additionally, the settlement makes permanent the terms of the preliminary injunction granted in February 2008. In that preliminary injunction, the Superior Court held that certain Fremont loans were “presumptively unfair” because by their very terms—short term interest rates followed by payment shock, plus high loan-to-value and high debt-to-income ratios—were likely to lead to default and foreclosure. For those loans, the court established a notice and objection process before Fremont or its assignees or servicers could initiate foreclosures. Under this process the Attorney General’s Office receives:

    30 days’ advance notice for loans that are either (1) ‘not presumptively unfair’; (2) vacant; or (3) not the borrowers’ primary residence.
    45 days’ advance notice for loans that are ‘presumptively unfair.’
    If the Attorney General’s Office objects after initial notice then the parties have 15 days to resolve their dispute. If the dispute remains then Fremont must seek court approval to foreclose. After the notice and objection process, Fremont may only proceed with a foreclosure to which the Attorney General objects if Fremont requests and receives approval from the Superior Court. In considering whether to allow the foreclosure, the court will consider, among other factors, whether the loan is unfair and whether Fremont has taken reasonable steps to work out the loan and avoid foreclosure. Fremont also agreed not to originate unfair loans.

    The Attorney General’s Office filed suit on October 5, 2007, in Suffolk Superior Court against Fremont and its parent company, Fremont General Corporation based on the defendants’ unfair and deceptive loan origination and sales conduct. The complaint specifically alleges that the company was selling risky loan products that it knew was designed to fail, such as 100% financing loans and “no documentation” loans. The complaint further alleged that the company sold these loans through third party brokers and provided financial incentives to these brokers to sell high cost products.

    As a result of the lawsuit, up to 2,200 Fremont-originated loans have been protected from unrestricted foreclosures, because the preliminary injunction allowed foreclosures to proceed only after the underlying loan was analyzed for unfair, ultra-risky loan criteria. Although Fremont originated about 15,000 loans in Massachusetts from 2004 through 2007, only 2,200 of those loans remained “live” when the lawsuit commenced. Even though most of the 2,200 loans had been transferred to new holders and servicers, the Superior Court’s preliminary injunction required that those holders also were restricted by the court’s order.

    The enforcement action against Fremont is a central part of Attorney General Coakley’s initiative to combat predatory lending. The settlement follows the unanimous decision from the state’s highest court, the Supreme Judicial Court, in December 2008 which affirmed the Superior Court’s order barring Fremont from foreclosing on any structurally unfair loan without court approval. That decision confirmed the fundamental aspects of the Commonwealth’s case against Fremont, namely that a lender’s failure to reasonably assess a borrower’s ability to repay his or her loan and the use of loan features that predictably lead to foreclosure is unfair and deceptive in violation of Massachusetts law. The SJC further affirmed it is unfair and a violation of the Massachusetts law to originate loans in such a manner that would lead predictably to a borrower’s default and foreclosure, even if such loans are underwritten with the assumption that borrowers could refinance out of the loans.

    Attorney General Coakley has undertaken a multifaceted approach to combat the foreclosure crisis and predatory lending. This initiative includes Attorney General Coakley’s latest inquiry into the role of securitizers—those who bundled mortgage loans and sold them as mortgage-backed securities or other investments—and recent $60 million settlement with Goldman Sachs for its role in securitizing subprime loans, including subprime loans originated by Fremont. The Attorney General’s Office has also sued Option One and its parent H&R Block, alleging unfair, deceptive and predatory lending practices, and obtained preliminary injunctions against those companies. The Office also promulgated consumer protection regulations, effective in January 2008, governing mortgage lenders and brokers. In addition, the Attorney General’s Office has also brought civil and criminal actions against local lenders and brokers who engaged in fraudulent lending activity, or who perpetrated foreclosure rescue or loan modification scams.

    This matter was handled by Assistant Attorneys General Jean Healey, John Stephan, and Shannon Choy-Seymour of the Consumer Protection Division, Financial Investigator Christine Murphy, and Assistant Attorney General Christopher Barry-Smith, Chief of the Public Protection and Advocacy Bureau.

    ##########
    http://www.mass.gov/?pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2009_06_09_fremont_agreement&csid=Cago

  55. Thanks, MJ. I appreciate your questions and input.

    According to the FDIC’s Cease & Desist (3/07/2007), Fremont Investment & Loan was required to restructure its existing loans because of its predatory lending tactics as well as other disturbing practices.

    They did not restructure our loan. Instead, it transferred its loan to Wilshire Credit Corp. on 8/17/2007. Fremont should be liable for not following the FDIC’s requirements. Wilshire shares liability with Fremont Investment & Loan by purchasing our loan in the secondary market knowing our loan, according to the FDIC should have been restructured to make it a fair, affordable amount. Instead, Wilshire increased our payments higher than Fremont’s by nearly $360.

    Apparently Martha Coakley, Attorney General of Massachusetts, disagrees with you MSoliman. Fremont Investment & Loan has consented to pay a $10 million settlement for its predatory lending tactics. I will post the FDIC’s Cease & Desist and the Fremont’s Consent Judgment pay out $10 million in consumer relief, penalities and costs. It’s not only important to my case but I suspect a lot more.

    This site should post publicly available filings to read specifically what is occurring in the courts – it’s a LOT happenning and the tide is turning for homeowner victims.

    In the case of Fremont Investment & Loan and Wilshire Credit Corp., it’s not a matter of whether or not it engaged in illegal predatory lending but is the Consent Judgment in Massachusetts applicable for victims in Maryland (like me)?

    I plan to contact AG Douglas Gansler to stand up for homeowner victims in Maryland like AG Coakley did for Massachusetts.

  56. MSoliman:

    How do you go about attacking the security?

    I have read your arguments with respect to accounting irregularities but fail to see how a homeowner can use those arguments to cancel a mortgage.

    You say forget about fraud, however that is the one key ingredient that exists across most mortgages today.

    Why would you waive a potential claim from the start?

    Especially one that allows for common law rescission?

    Please elaborate.

  57. foreclosuresurvivor, on November 4th, 2009 at 1:46 pm Said:

    Our originator was Fremont Investment & Loan in Dec. 2006 shortly before FDIC implemented a ‘cease & desist.”

    M.Soliman – correct

    They transferred my loan to Wilshire Credit Corp., a shady mortgage servicing company.

    NO Not shady – aggressive maybe.

    They proceeded to foreclose on our home in January 2009.

    M.Soliman – because they can!

    We signed fraudulent closing papers with Fremont – a lender that was forced by FDIC to “cease & desist” it’s lending! I had an audit done and found violations.

    M.Soliman – Audit is not accredited or sanctioned – sorry but worthless.

    Oh, I requested the “Note” from Wilshire and they apparently don’t have it – which appears means they weren’t in the position to foreclose.

    M.Soliman – You’re lost – more than the note!

    Who do I sue the originator (Fremont Investment & Loan) or mortgage servicing company (Wilshire)?

    M.Soliman – There you go…good question. Now we are talking!

    At this point, I would like to utilize Fremont & Wilshire’s fraudulent practices in leveraging Wilshire to take the foreclosure off my credit report and grant me monies the court deems appropriate.

    M.Soliman-Hold on. You’re ahead of yourself. Attack the security. People on this site obscure the message I am sending. Forget the obligation and fraud squad. Attack the security and seek to have the courts deem the mortgage or deed defective. Not fraudulent, just defect.

    There you stay in the home and look to the lender to figure a way out of the hell you brought them, not the hell YOU are putting yourself through.

    M.Soliman
    admin@borrowerhotline.com
    http://www.foreclosureinfosearch.com

  58. Does anyone know if a company goes “under” if it can still report to your credit files?

  59. Our orginator was Fremont Investment & Loan in Dec. 2006 shortly before FDIC implemented a ‘cease & desist.”

    They transferred my loan to Wilshire Credit Corp., a shady mortgage servicing company. They proceeded to foreclose on our home in January 2009.

    We signed fraudulent closing papers with Fremont – a lender that was forced by FDIC to “cease & desist” its lending! I had an audit done and found violations.

    Oh, I requested the “Note” from Wilshire and they apparently don’t have it – which appears means they weren’t in the position to foreclose.

    Who do I sue the originator (Fremont Investment & Loan) or mortgage servicing company (Whilshire)?

    At this point, I would like to utilize Fremont & Wilshire’s fraudulent practices in leveraging Wilshire to take the foreclosure off my credit report and grant me monies the court deems appropriate.

  60. john, you’re doing the right thing with calling out maher soliman….his threats of libel..are you kidding??? telling your story of the truth is no crime!!!!!! that is the purpose of these web-site’s to help people not hurt them!!! i applaud you for telling your story. he’s using this web-site as a vehicle to promote his business. you are obligated to tell everyone your story good, bad, or indifferent. especailly when so many are taking advantage of the distressed homeowners.

  61. john, don’t feel bad. maher got me & a whole bunch of people…he has assisted in the loss of many homes to foreclosure on his bad advice and empty promises. plus referrals to awful attorneys that did nothing but take money and did nothing to earn it……i have a good resouce if interested email me at blujuarez@yahoo.com

  62. I would like some advise on what I should do. I filed a complaint against my lender and broker Pro-Per back in October 2007. The basis of my complaint is that my loan documents were forged and was the victim of predatory lending. I filed Pro-Per because I was unable to afford a lawyer. I have been able to survive two different Demurs and Motions to Strike and Motion for Judgement on the Pleadings and have a trial date in March 2010. Over the past two years I was always careful to follow the court’s procedures and comply with all deadlines. In May 2009, I hired a lawyer that read my story that I posted on this website. When I met with her, she was confident that she could help me and was very convincing. I felt she had the same passion that I did to fight against predatory lenders and win my case. I informed her up-front that I did not have much money. I paid her a retainer and she said I could work on her home and also file court papers as she needed me. At the time that I hired her, I was about to attend a deposition by defendant. She attended the depo with me, but she stated that she was unaware of the details of my case, so she was not objecting to anything, so I left the deposition feeling that it did not go well. When I first met with her, I informed her that I needed her to send out discovery and set up depos, She stated that she wanted to Amend the Complaint to add additional defendants and Causes of Actions. None of this has been done as of today. Seven days after I paid her the money, she was threatening to withdraw from my case because she said that I was not complying with her requests for my documents, which was not true. I gave her all the documents that I had. She also said that she was unable to get in touch with me, which was also not true because I had been to her house numerous times to do work. Defendants served a Request for Production of 22 different documents, and the day before they were due, she called and informed us that she was not able to prepare the documents and that we needed to do retrieve the files from her home, which is at least 25 minutes from where we live, put the documents in order and make copies and bring them back to her. She was very verbally abusive toward us and after a confrontation occurred between my girlfriend and her she informed me that I was not to discuss my case with her or she would resign. This made it very hard for me because my girlfriend has helped me from the beginning. She never should have had us doing her job to begin with. We are not attorneys’ and that is why I hired her. She became very negative and said that I was going to lose my case and the judge was going to dismiss it.
    After her first CMC (which she filed the statement late), the judge required a status letter to be filed by a certain date with she did not do. Over the next several months, I was at her home at least every other weekend and during the week, filing documents, all over the bay area, never missing any of her deadlines for her other clients, always available when she needed me. I had requested more than once that we discuss the details of my case and our strategy’s and she refused stating that there was no time for that and she was not going to waste time listening to me. As the next court date approached, she did not file a timely CMC statement or a status letter. I sent her a lenghly e-mail with my concerns that she was not properly representing me and did not treat me with respect. After several attempts to contact her, she finally telephoned me and informed me that she wanted to withdraw from my case, and that I needed to sign a Substitution of Attorney and that the judge would most likely be dismissing my case and trying to intimidate me by saying that I was going to lose my home. I refused to sign anything and told her that I would see her in court. This was the third time she had threatened to withdraw and it had only been three months since I hired her. By the day we appeared in court, she had not filed a substitution of attorney or had she filed the CMC statement. She arrived late to court and immediately informed the judge that she would be resigning. The judge wanted us to try to work it out. As soon as I requested to speak, my attorney said that she would be willing to step outside and talk to me. We worked out our differences and informed the court that she no longer was resigning and the judge assigned my case to mediation. Again my attorney stated that she wanted to amend the complaint to add additional defendants. The judge said that she should do this immediately. The judge ordered that we choose a mediator and inform the court within 30 days and set a Compliance hearing. My attorney again did not comply with this request even though I worked for her again and sent her a reminder email to notify the court. She not only didn’t send a status letter, she also failed to appear at the compliance hearing and now is subject to sanctions. The judge has ordered both attorneys to appear to show cause why she should not sanction them further or dismissal of the actions/striking of the pleadings pursuant to CCP 177.5 and 575.2.
    This is where I stand now. I sent her an e-mail asking her why she had not complied with the court and that I was very concerned because she had not done anything she said she was going to do. I also asked her what the judge meant by that. She said that she had chosen a mediator and did not know why the court did not receive any documents from the mediator. It is not the mediator’s responsibility to notify the court. It was hers. She then informed me verbally of the mediation date. The OSC hearing is set for 11/05/09 and she is to file a declaration by 10/29/09. She has not filed anything in my case since June 8, 2009 which was one week after she was retained. She has not provided me with the legal representation that I am entitled to, nor has she conducted any discovery or responded to any of my requests. I don’t know what my legal rights are. What happens to my case, if she continues to be noncompliant. Would the judge actually dismiss, and if so, what is my recourse?
    I have worked so hard fighting lenders, brokers, and their attorneys. I have gone to the Department of Real Estate, Department of Corporations, District Attorney’s office, Department of Justice, and even appeared on Channel 7 on your side with my story. I have stopped the illegal sale of my home five times, with the last time on the court steps at 12:05 p.m. on the day of the sale. I have never given up and am still in my home and intend to remain here for a long time.
    I believe in what I am fighting for and intend to try to help innocent homeowners who are victims of Predatory Lending Practices and against crooked lawyers who are misleading and taking their monies.
    This is why I am asking you for your advise as to what I should do. I am posting this on your site because this is where she found me and I don’t want this to happen to anyone else.
    I want you especially to become aware that this is happening on your website. I was told that I should not make a complaint with the State Bar while she was still representing me. I do not have money to hire a different lawyer, but can I proceed with a lawyer that I do not trust.

    Neil, thank you for taking the time to read my story. I anxiously await your reply and the comments and advise of your readers.

  63. I find it strange Soliman that you state you are not an attorney and yet you act like one. So did you take $1,000 from me, (I have the cancelled check) did you provide me with an attorney, the answers are yes you did, have you worked on my case since then the answer is no, you provide all of this advice yet can you tell me that you have representated any one and have one, no because you are not an attorney! We, my family and I live everyday with the fact that the bank is coming for my home. I have read your articles you know a lot yet do you practices this, not in my case like I wrote to you directly fix my problem and you will have my vote until then I have every right, with evidence, that you did nothing for me except take $1,000 cash from me and others! I sa a list of cases e-mail me the case numbers, every court case has a case number email them to me prove me wrong, I’m ready to dance in any court you choose, you might think you know civil law well I know criminal law and I’m ready to lead the charge.
    John-you know how to get a hold of me!

  64. ALWAYS SEEK OPINIONS AND OTHERS ADVICE BEFORE REQUESTING AN AUDIT.
    Contact me at admin@borrowerhotline.com
    *SAMPLE* SAMPLE*SAMPLE*
    TESTIMONEY OF THE WITNESS:
    Although foreclosure sales are typically public sales, frequently no third party purchaser bids in excess of the lender’s lien because of the difficulty of determining the exact status of title to the property, the possible deterioration of the property during the foreclosure proceedings and a requirement that the purchaser pay for the property in cash or by cashier’s check.

    Thus the foreclosing lender often purchases the property from the trustee or referee for an amount equal to the principal amount outstanding under the loan, accrued and unpaid interest and the expenses of foreclosure.

    Thereafter, the lender will assume the burden of ownership, including obtaining hazard insurance and making such repairs at its own expense as are necessary to render the property suitable for sale. The lender will commonly obtain the services of a real estate broker and pay the broker’s commission in connection with the sale of the property. Depending upon market conditions, the ultimate proceeds of the sale of the property may not equal the lender’s investment in the property.

    EQUITABLE PRINCIPLE
    Courts have imposed general equitable principles upon foreclosure.

    Such principles are designed to mitigate the legal consequences to the borrower of the borrower’s defaults under the loan documents. Some courts have been faced with the issue of whether federal or state constitutional provisions reflecting due process concerns for fair notice require that borrowers under deeds of trust receive notice longer than that prescribed by statute.

    For the most part, these cases have upheld the notice provisions as being reasonable or have found that a trustee’s sale under a deed of trust does not involve sufficient state action to afford constitutional protection to the borrower.

    NOTE – As counsel for the parties and including the actions and instructions set forth by your client to the Trustee, be advised the subject trustee sale is in material violation of proper compliance with the California civil code of procedures.

    (d) A trustee named in a recorded substitution of trustee shall be deemed to be authorized to act as the trustee under the mortgage or deed of trust for all purposes from the date the substitution is executed by the mortgagee, beneficiaries, or by their authorized agents.

    Notice of Default:
    Delivered to the trust as follows:
    1) The NOD was allegedly prepared on 04/8/2008 by First American Title (no way to verify) as agent for the Trustee DEUTSCHE BANK as the Trustee for FFMLT 2006-FF4, Mortgage Pass through Certificates, Series 2006-FF4.

    STIPULATE: The Notice of default was recorded on 04/9/2008. In the upper left hand corner of the document you’ll see the name of the trustee, agent or beneficiary that maintains the right to request the notice be filed. The shows the following recording instructions:

    RECORDING REQUESTED BY:
    TD Services Company,

    TO BE MAILED TO:
    TD Services Company at
    1820 E First Street,
    Suite 210 P.O.Box11988
    Santa Ana, CA 92711

    STIPULATE – The document also gives notice that: Notice is hereby given that TD Service Company is the dully appointed trustee under the following described deed of trust.

    STIPULATE-The document also is signed by Julie White. Ms. White has no title or company name associated with her signature and she presumably signed it on the document date of 04/08/2008.

    STIPULATE -First American is acting as the Agent for DEUTSCHE BANK as the Trustee for FFMLT 2006-FF4, Mortgage Pass through Certificates, Series 2006-FF4

    STIPULATE – The document
    1) requires critical information for filing purposes and must identify what party is requesting the information. 2) That party is assumed to be the trustee, authorized and appointed agent for the beneficiary or beneficiary.
    3) TD service does in fact state in the document they are the duly appointed Agent for the trustee.
    4) A substitution of trustee notice is dated on April 8th 2008 and must be executed (not necessarily recorded) by the original trustee, authorized and appointed agent for the beneficiary or beneficiary in favor of the substitute trustee.
    5) TD Services is listed as substitute trustee and shall upon execution of the document thereby allow for them to replaces the original trustee named in the deed.

    SUBSTITUTION OF TRUSTEE
    STIPULATE – The substitution of trustee was not requested not by the original trustee or beneficiary. It was requested by TD services with no standing to do so and executed by the Servicer “Home Loan Services Inc.”
    STIPULATE – The document requires a signature and notary jurat to be properly executed. The Notice of default was executed on April 11th, 2008 or 48 hours after the Notice of default was recorded. Also note the document was endorsed in the State of Pennsylvania.

    A security interest arises when in exchange for a loan a borrower agrees, in a security agreement, that the lender (the secured party) may take specified collateral owned by the borrower if he or she should default on the loan. Under the Cccp 3439.03 value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or an antecedent debt is secured or satisfied. Value does not include an unperformed promise made otherwise than in the ordinary course of the promisor’s business to furnish support to the debtor or another person.

    HOLDER IN DUE COURSE
    The true beneficiary for the mortgage loan in question is in fact an Investment Trust which is duly represented by Duetsche Bank National Trust Company.

    CONCLUSION – The mortgage is
    1) a valuable asset that originated on December 16th 2005 for which no valuable consideration transferred amongst the parties.
    2) If the borrower’s obligation was not delivered but only pledged to the Trust no real transfer of the asset was completed, only intended and registered presumably in accordance with a UCC filing.
    3) The guidelines and guidance set forth under GAAAP and in accordance with FASB FAS FAP140-3Cccp 3439.09.
    4) A cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished unless action is brought pursuant to subdivision (a) of Section 3439.07 or levy made as provided in subdivision (b) or (c) of Section 3439.07:
    5) Under paragraph (1) of subdivision (a) of Section 3439.04, within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant.
    6) Under paragraph (2) of subdivision (a) of Section 3439.04 or Section 3439.05, within four years after the transfer was made or the obligation was incurred.
    7) Notwithstanding any other provision of law, a cause of action with respect to a fraudulent transfer or obligation is extinguished if no action is brought or levy made within seven years after the transfer was made or the obligation was incurred.
    9) Under section 3439.10. Unless displaced by the provisions of this chapter, the principles of law and equity, including the law merchant and the law relating to principal and agent, estoppel, laces, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other validating or invalidating cause, supplement its provisions.
    10) Notwithstanding any provision of this section or any provision in any deed of trust, unless a new notice of sale is given pursuant to Section 2924 after execution of the substitution, any sale conducted by the substituted trustee shall be void.

    THE WITNESS SO STATES AND ATTESTS THAT THE INFORMATION IS TRUE AND CORRECT – Counsel to defendants may seek to rescind the sale of the subject property by trustee for errors and ommissions in violation f the indenture trustees specific instructions, Cccp 2923.5 and the instructions, terms and definitions of the Purchase and sale understanding.

    msoliman
    admin@borrowerhotline.com

  65. John aka (requested by web master)

    The willingness to construct, propagate, dispel, distribute and solicit misleading information subject to discrediting a witness who currently testifies in civil matters and District jurisdiction is subject to a federal comlaint and criminal action. The information you write here seeks to interfere and protect an attorney’s identity and implicate me in something that is neither true or can be corroborated.

    Your records are on file with the domain herein and you will be requested to indentify yourself voluntarily (like others) where comments are made in an unawful manner.

    Unwarrented attacks beyond newsworthy information, views and libelous comments hurt others and myself while seeking to create tortous interference with matters currently being heard in trial.

    Making baseless and unverifable statements are unwarrented attacks intended soley to discredit public perception and a witnesses efforts while in trial.

    Contact me to discuss at admin@borrowerhotline.com immediately

  66. i need a lawyer in the east bay area of califonria i used the advice of mahor soliman and he aassigned me to some work comp attorney who is just taking my money and wants to get GMAC to do the cash for keys i want to keep fighting they are only the servicer not the owne rof my note so fat soliman and the attorney have soaked me for over $15,000 john

  67. For People in NJ. We have an audit. Yes, TILA violation (papers submitted/dated the day before we even signed them), a few other contract law no-no’s, you’d think a bad instrument would be unenforceable and any law school student would pick up that plackard or at least cite NJ real estate statutes about “illegal Flipping of a loan” (which was done to us but nervously sidestepped by EVERYONE we have talked to like their afraid to admit THEY DON”T KNOW WHAT THE H### THAT LAW PROTECTS/Prevents and I keep screaming OUR SITUATION!!!– nothing but head shakes) but, my husband & I took the report to a consumer protection lawyer (there aren’t that many in NJ & I’ll leave judgment on them to God) we were referred to by the auditor (Action Plan Network) in NJ, only to be given an appointment to be left waiting for 3 hours in the waiting room and then have to plead the ‘head’ lawyer to see us before he shut off the lights on his way out the door. This is what he said: “I have a $10K/week payroll, we cannot take a case against IndyMac Bank. Any other bank we might but your bank is owned by the federal government and we don’t have the resources.”

    This whole experience has me communicating in run on sentences and I’m so tired of running in circles looking like a lunatic or worse, a negligent borrower who created all of my current problems (I’ve paid everybody everything my entire life until now). They can have our money pit. Few recognize the homeowner as an investor. But EVERYONE is prepared to park ALL the investment RISK on the backs of the homeowner – even the federal government.

    My husband & I just took a hardship withdrawl from his 401K (before we loose any more and before the foreign currency markets break the US dollar, because after losing $5K in 1 qtr. we took everything out of stocks to put it in low risk (?!) bonds),…breath…,

    we’ve bought a no frills motorhome. We’re done with it. The whole system. Cash only now & forever. Banks will not have a chance to gut us any more. But, I’m here waiting in the wings and you better believe if the time comes for displaced peoples to be heard we will be there, in the parking lot, serving coffee and consolation to our neighbors and to fight against systems based on profiting from the misfortune of others. We would sue for punitive damages if case law evolves that way (hopefully for the countless victims it will), but at this point we wouldn’t buy a house with it – we’d donate it to a working stiff who would make weatherproof mobile living facilities for us to give to people living in boxes.

    Change will come only when the paradigm of the American Dream changes. Owning ‘Things’ does nothing to improve managing the quality of your time. The more material possessions you have the less time you have to give of yourself and the further you drift from the neighborly shore. Just how many private islands can a CEO afford anyway…the world may never know.

    “…Freedom’s just another word for nothing left to lose…”

    We’re almost free.
    We wish all of you peace.

  68. The audit that I perform investigates the circumstances surrounding the issuance of the Note. I address the holder in due course requirements of the original payee and address the fact that the payee took the note in bad faith and without value.

    I then investigate the pooling and servicing agreements to identify what information the trust was provided before it too took the note from the original payee, or the SPE.

    The purpose is to eliminate holder in due course status. Once this is accomplished, the loan contract is considered a simple payment contract and all contract defenses are now available.

    I then investigate the evidentiary problems with the business records exception to the hearsay rule and the best evidence rule.

    I am about 60 days away from being able to assist the filing of a Defendant’s Motion for Summary Judgment.

    I will keep you posted.

  69. TILA and other Concerns
    TWITTER FEED: http://twitter.com/foreclosurefish

    He’s certainly ON TOPIC, his accuracy may be questioned in some cases though.

    # Bankruptcy, Foreclosure, and Late Fees: http://EzineArticles.com/?i…12:58 PM Sep 18th from EzineArticles

    # Foreclosure rescue scams can often be recategorized in court as loans instead of lease/options8:45 AM Sep 18th from txt

    # How Mortgage Servicing Companies Escape Liability for Truth in Lending @ http://aclnk.com/ar21849611:03 PM Sep 17th from API

    # How Ridiculous Appraisals Helped Fuel the Real Estate Boom… And How to Hold Appraisers Liable @ http://aclnk.com/ar21807471:03 PM Sep 17th from API

    # How Foreclosure Works with Homeowner Association Fees and How to Negotiate a Repayment Plan @ http://aclnk.com/ar21715291:03 PM Sep 17th from API

    # Truth in Lending Act and Foreclosure: http://EzineArticles.com/?i…12:38 PM Sep 17th from EzineArticles

    # Applying Truth in Lending to mortgage servicers a problem – http://bit.ly/xgIQP9:59 AM Sep 17th from web

    # Mortgage servicers escaping more liability http://icio.us/v4vphe9:59 AM Sep 17th from API

  70. Opinions?

    Court Ruling Upholds Foreclosure Sale Despite MERS’ Appeal

    By AUSTIN KILGORE
    September 14, 2009 3:02 PM CST

    A ruling by the Kansas Supreme Court determined Mortgage Electronic Registration Systems (MERS) was not a “necessary party” in a mortgage foreclosure proceeding initiated by a first lien holder.

    MERS acts as the representative for lenders and services in county land records for mortgages registered with the company. MERS keeps track of the loan, even when servicing rights are traded or sold, and notifies lender and servicer clients of action against the property.

    The court’s ruling involves a case where MERS was listed as the mortgagee of a second-lien mortgage originated by Millenia Mortgage Corp. When the primary lien holder, Landmark National Bank went to court to seek foreclosure action, MERS wasn’t notified. Although Millenia was notified, it already sold its interest in the loan to Sovereign Bank.

    Representatives from the second lien loan were not present at the hearing. The lower court allowed Landmark to proceed with the foreclosure and sell the property at sheriff’s sale. In response, Sovereign and MERS attempted to vacate the judgment, which was denied by the trial court. The ruling to deny the motion was upheld by the state’s court of appeals and later, its supreme court.

    In its ruling, the supreme court said that MERS was not a “contingently necessary party.” It added since Sovereign Bank didn’t register its interest with the county’s register of deeds, it had no rights in the foreclosure preceding.

    In response to the ruling, MERS president and CEO RK Arnold said the firm was disappointed, but respected the court’s decision, and said it is considering its options, including filing a motion for reconsideration.

    MERS has defended its operations in court. According to the company’s Web site, MERS was successful in getting a class action suit dismissed in 2007 that was filed in US District Court and that questioned the firm’s right to operate. The Second District Court of Appeals of Florida ruled in 2007 that the company has a right to be a party of foreclosure actions in the state. The New York Court of Appeals also ruled in the company’s favor in 2006 in a similar case.

    Write to Austin Kilgore.

  71. Neil and Brad did my audit for $1800. It was very thorough and the QWR that resulted also very thorough and impressive. I highly recommend these guys do your audit. They call their audit biz foreclosure defense group.

    They do this website too btw. In my view, go to the real expert. That would be Neil Garfield.

  72. Download this Foreclosure Defense Manual at
    http://www.msfraud.org/LAW/Lounge/BasicForeclosureLitigationDefenseManual.pdf

    Hope this will help.

  73. To Blu Juarez,
    Who’s that legal guy that you’re using now? I have a similar sad story to yours. Can you share his name?

  74. Are the banks not required to a QWR under RESPA

  75. what is the right thing to do?

    the banks and courts will automatically put you as the underdog without legal counsel. yes, it sucks but it’s the truth.

    you have to have a very detailed audit of your loan. without it you don’t know all of your avenues to fight the lender. once you have this you will know what and why you are fighting – and you’ll see how bad the bank really screwed you.

    you have a lot more on your side than just the RESPA & TILA laws….don’t forget Home Ownership & Equity Protection Act -HOEPA, Equal Credit Opportunity Act – ECOA, Gramm, Leach, Billey Act – GLB, Fair & Accurate Credit Transactions Act – FACTA, and Underwriting Issues as well. if you have a good auditing company this should be a no brainer. and it should also include a mortgage compliance analysis report – this will be another eye opener to help summarize that stack of papers and you’ll identify all the fees you were charged and spell out who really got what.

    Q.W.R. are flooding in to the servicers. they are not responding because they don’t have too. its a courtesy notice that attorneys are accustomed to sending. when consumers’ are sending you are telling them you don’t have any legal representation. and they are not taking you seriously. yes, they should respond however, they are not required to by law. these are rats and will take every loop hole within the parameters of the law. attorneys are sending Q.W.R.’s and they too are not being responded to either.

    if you have good legal representation. your legal will pick up the phone – theirs a concept. make sure your legal is specalized in real estate law.

    that is the biggest problem for all of us. how to find the right person and department to speak with. the 800 customer service numbers are horrible!!!!!

    From personal experience you don’t want the lender to file in civil/local court (occupancy/ownership issue). that will happen when the house goes to trustee sale. and they want the house and are trying to toss you out. i found out after the trustee sale that you have to go directly to federal court. and sue your lender to get relief.

    they foreclosed on my birthday of all days….we fought for 8 months. hired a horrible auditing company in So. Cal. paid a small fortune for it and I still don’t have a copy of it that is how bad it was. they gave me a verbal summary of my loan…that was interesting. also hired an attorney referred by my auditing company..think you know where this is going..yes, he was about as helpful as they were. he sure did take my money and didn’t have a problem calling me when he wanted more and more money with no results.

    good news! we had to move and it wasn’t the end of the world. were still alive! my family and dogs (our other children) are closer than ever. we have our health and are recoverying.

    more good news! i’m still able to sue my lender for punitative damages. my lender was wrong and took my home unfaily. my rights were violated and i may not be able to get my home back. but i’m getting money. my legal filed suit in federal court about and we are negotiating a settlement. its not the lottery but its a nice amount for us to pay cash for a new home and have a few bucks left over to give us some financial security again.

    its a hard price to pay….but in the end its forced us to get out of the box and there’s a whole world out there that we were missing and have been forced to find.

    good luck to all in your future endeavors! you always have options before, during, and after a foreclosure.

    were survivors!

    there is hope once you can breath again. my biggest mistake i didn’t shop around and i didn’t ask enough questions. i don’t blame anyone but myself and i’m over it. but looking back on the money we spent on bogus audits and idiot attorneys..i did ask anything of them, their education, how long have you been in biz, let me see a sample report..so many things.,,,,,the list is endless. they said what i needed to hear and i bought in to it.

    good luck to all and i hope my info. and story is helpful to someone..i’ve walked in your shoes…

  76. yeah well i didnt stop paying my mortgage because i wanted to… money is very tight.

  77. Pdx,
    Take out your checkbook and write a check to an attorney who knows what they are doing. Probably cost you $2000 as a retainer. You are not paying a mortgage payment, so you should be able to pay an attorney.

    Let the attorney who ‘gets it’ do all the heavy lifting. They are a fiduciary to you.

    Good luck,
    AO

  78. M Soliman

    Thx for the response. Does this “stand still” just buy more time? How do I permanently stop the trustee sale until they can prove I owe them? My family will be kicked out of this house in the winter. This just can’t happen. How can I force them to prove they own the note? Is there a way to change the trustee? I possess the original “warranty deed” not a copy. Does that help me at all? I really need to stop this auction and make a plan of attack. Is bankruptcy a way to force this into judicial proceedings? I have limited money… should i save all my money for a proper audit. I can only spare so much money so I need to make it all count. I have already wasted $ on some joker locally who wasn’t helping and that burns.

    how to I stop the auction and make them prove i owe them. How do I force due process?

  79. Oregon

    Get an attorney to write you a “stand still” letter of understanding. We provide arguments to counsel for determining real claims against the lender or parties of interest.

    These claims are difficult to dispute and force a trustee to consider assuring the lender of the opportune time spent evaluating the claims or considering a recession prior to the trustee sale.

    We received 90 days for two clients and 120 days for another all in Oregon.

    MSoliman
    Admin@borrowerhotline.com

  80. Hi guys, sorry we have been out of touch with all for such a long while but are of course staying our course in this fight against the scummy banks and corrupt lawyers.

    Well consumers, things still suck really bad! We have chewed through our 4th lawyer now and what a joke he was if we must say!

    This scummy lawyer, blows on the scene and promptly files 2 boiler plate HOEPA lawsuits on our behalf and, to which, the first suit was riddled with factual case errors, not to mention he plead a statute, devoid of relation back to our rescission and our first timely suit filed, that was so sorely plead the lender rallied behind the dumb ass lawyer and submits 52 pages of valid motion to dismiss! We believe the error ridden suit was designed to ensure our lawsuit would get dismissed, therefore barring us thru res juridicta from litigating our valid causes of action!

    This joker then pleads our case facts WRONG! THAT IS RIGHT, WRONG! HE PLEADS WE DEFAULTED ON THE LOAN WHEN IN FACT, WE WERE VICTIMS OF TWO WRONGFUL FORECLOSURES WHEREIN WE WERE NEVER………….EVER……..LATE! WHAT A SCUM BAG HE TURNED OUT TO BE AND, OH, BY THE WAY, ANY READERS THAT ARE READING THIS POST WHO HAVE BEEN REFERRED TO OUR LAWYER, YOU MAY WANT TO CONTACT US ASAP, AS YOU MAY BE IN SERIOUS TROUBLE AND WE MEAN SERIOUS, timcotten@mris.com or 410-257-5283! We have already identified 7 other consumers who sadly we referred to this joker and to who were essentially provided NO, SERVICES FOR THE ENORMOUS AMOUNTS AND SUMS OF MONEY PAID THIS SCAMMER AND JOKER! IN FACT, ONE COUPLE LOST THEIR HOME AND ANOTHER COUPLE PAID THE SLIM BAG 13.5K TO PRODUCE TWO DRAFT LAWSUITS THAT WERE AN ABSOLUTE JOKE BECAUSE THEY PLEAD A TILA HOPEA CLAIM, BUT THE LOAN WAS A NEW CONSTRUCTION AND AN EXEMPT……LOAN, BY THE WAY!

    OUR hearts go out to any consumer who we may have unwittingly referred this joker to! It appears he is running nothing other than a foreclosure rescue scam and we are composing a letter to all AG’s of the 7 victims states, including our state, who we have identified who have been scammed by this lawyer and who received NO LEGAL VALUE FOR THE SUMS EXPENDED! SO BE CAREFUL CONSUMERS!

    We told the joker lawyer there was a problem with our presiding judge and that the judge was being unduly confrontational and hostile towards us, the victims, minding all that the lender and defendants are in criminal violation of TILA, 15 USC 1611 WHEN FORGING OUR DOCS AND WILLFULLY CONCEALING THE REAL LOAN STRADDLED UPON US AND, WHO, THE BANK IS ALSO IN VIOLATION OF THE STRICT REQUIREMENTS UNDER RESCISSION and that we felt he was not being unbiased but was favoring the scummy banks and therefore asked that he please check the judge out to make sure he had no interest that would otherwise prevent him from presiding over our case.

    To no avail, the joker lawyer turns the abuse on us, victimizes us, tells us, the judge is just pissed off because we filed PRO SE, a 175 PAGE COMPLAINT! NOW, we respond to the this joker telling him that is outrageous, REMINDING THE READERS HERE WE POSSESS THE WHOLE NCLC CONSUMER LAW PRACTICE LIBRARY AND THAT, IN THIS LIBRARY UNDER TILA, THE AUTHORS/LAWYERS PROVIDE LAWSUITS THAT ARE FAR MORE VOLUMINOUS THAN OUR PALTRY 175 PAGES; IN FACT, THERE IS ONE SAMPLE SUIT THAT IS IN EXCESS OF 290 PAGES SO, we tell this joker lawyer of ours that is not sufficient cause for the scummy judge to have such hostile opinions against WE BIG BAD CONSUMER PRO SE LITIGANTS! He tells us it is!

    Guess what we found out consumers, it was not the 175 page complaint the scummy judge is pissed about, not at all, IT IS THE STOCK HE HOLDS IN THE SCUMMY BANK WE ARE SUING, CITIBANK!!!!!!!!!!! That is right, the freaking judge has a conflict that requires he recuse or step down from our case! BUT OUR SCUMMY LAWYER EITHER DID NOT FOLLOW HIS CLIENTS INSTRUCTIONS TO CHECK OUT THE FREAKING JUDGE OR, KNEW THE JUDGE POSSESSED THE CONFLICT, ONE OR THE OTHER OR, WE THINK BOTH! GETS BETTER CONSUMERS, SO JUST HOLD ON HERE NOW AS WE KNOW YOU ARE HANGING ON FOR MORE!

    OUR scummy lawyer then files a second complaint that is still legally deficient to say the least, GENERATES ANOTHER 50 PLUS PAGES OF MOTION TO DISMISS FROM OUR ADVERSARIES, and that is destine to be dismissed and that dose not state OUR DAM CLAIMS THAT ARE NOT HOEPA BUT ARE, FORGERY, FRAUD, FRAUD IN THE INDUCEMENT, ILLEGAL FORECLOSURE TWICE, FDCPA, TILA VIOLATION FOR RESCISSION, JUST TO STATE A FEW HERE GUYS!

    THIS scab then comes back to us and renders an opinion that we, GET THIS, SHOULD JUST DISMISS OUR DAM COMPLAINT AND PURSUE A LOST NOTE THEORY IN STATE COURTS, OH, DID WE LEAVE OUT THE FACT THAT WE ARE NOT EVEN IN FORECLOSURE AND ARE NOT DEFENDING AGAINST A FORECLOSURE, HELLOOOOOOO, WHERE ON EARTH IS THE SCUM BAG LAWYER WITH A LICENSE FROM ANYWAY, CLEARLY NOT OUR LITTLE CONSUMER EARTH!!!!

    WELL, IT KEEPS GETTING BETTER CONSUMERS, WE TELL THE BASTARD HE IS OUT OF HIS FREAKING MIND AND THAT NO WAY ARE WE GOING TO DISMISS OUR DAM TILA VIOLATION FOR RESCISSION AND THAT HE CAN JUST HANG IT UP! BY THIS TIME WE HAVE PAID THE DAM SLIM BAG OVER 6K FOR THE AWFUL DIS-SERVICES AS HE DID NOTHING OTHER THAN PISS THE JUDGE OFF EVEN MORE WITH THOSE TWO SCREWED UP LAWSUITS!

    FINALLY WE ASK HIM TO TELL US THE EXACT TIL CASES HE HAS LITIGATED AND HOW HE BECAME A FORECLOSURE EXPERT, HE GOES ON TO TELL US, GET THIS, HE IS NOT AN EXPERT AT ALL! WE THEN ASK HIM IF HE IS PRACTICING LAW WITH THE AID OF THE NCLC CONSUMER TILA BOOKS AND, GET THIS, HE TELLS US NO!!!!!!

    THIS JOKER THEN BEGINS TO BE VERY UGLY AND SMART TO US AND WE THEN KNOW THE GIG IS OVER AND THAT IT IS A MATTER OF TIME BEFORE WE ARE GOING TO HAVE TO LET HIM GO! NO PROBLEM, HE QUITS! TAKING WITH HIM OUR HARD EARNED MONEY OF AROUND 8K AND LEAVING US NO BETTER OFF THAN WE WERE A YEAR AGO!

    WE NOW HAVE RETAINED ANOTHER LAWYER WHO, AFTER JUST UNDER A MONTH, IS STARTING TO LOOK AS THOUGH HE IS QUESTIONABLE TOO! WHAT IS WRONG WITH THESE GREEDY BASTARDS OUT HERE, THEY HAVE ALL SOLD THEIR SOLES TO THE DEVIL AND WILL DO ANYTHING FOR MONEY!

    OUR SCUMMY LAST LAWYER COULD HAVE SAVED US A FREAKING YEAR BY JUST CHECKING OUT THE FREAKING JUDGE!!!! WE WOULD HAVE CHECKED THE FREAKING JUDGE OUT OUR SELVES HOWEVER DUE TO NO DAM FREEDOM OF INFORMATION ACT, NO, BECAUSE YOU CANNOT FIND THE DAM INFORMATION ANY DAM WHERE, WE COULD NOT DISCOVER THIS OUR SELVES UNTIL JUST LAST WEEK WHEN, AFTER TWO DAM DAYS OF SEARCHING WE FOUND THE SITE THAT DISCLOSES THE JUDGES FINANCIAL INFORMATION!!!!!!

    CONSUMERS, CONSUMERS, CONSUMERS, IF THIS STORY SOUNDS LIKE YOURS, CHECK THE DAM JUDGE OUT AND, IF YOU DO NOT UNDERSTAND THE FINANCIAL DISCLOSURES, GOOGLE THE COMPANIES IN WHICH THE JUDGE IS BEING PAID A DIVIDEND AS THAT SUGGEST IT IS A STOCK/INTEREST! IF THE FREAKING JUDGE HOLDS GOLDMAN SACHS, I WOULD REQUEST AN IMMEDIATE SUBSTITUTION OF THE FREAKING JUDGE AS YOU DO NOT KNOW HOW DAM MUCH MONEY HE HAS LOST AND HOW PISSED OFF HE IS GOING TO BE AT YOU, JUST AS OUR JUDGE IS AT US!

    TO REALIZE THAT OUR SCUMMY JUDGE IS PRESIDING OVER OUR CASE AND KNOWS HE IS NOT ALLOWED TO IS SUCH A BUNCH OF BULLSHIT! HE IS GOING TO SEAL THE DEAL FOR HIS TEAM/CITIMORGAGE, THAT IS WHAT HE IS GOING TO DO! AND WORSE, OUR DAM LAWYER SHOULD HAVE KNOWN AND, AS I HAVE LEARNED, IT SHOULD BE THE CLIENTS LAWYERS FIRST CONSIDERATION BEFORE THE CASE GETS UNDERWAY!!!!!

    NOW, WEARY, EXHAUSTED CONSUMERS, WE ARE NOT GOING TO TAKE YOU ALL THIS WAY AND NOT SHARE WITH YOU THE WEB PAGE TO WHERE YOU MAY CHECK OUT YOUR JUDGE! THE SITE IS HERE AND IT IS REALLY EASY TO USE ONCE YOU GET THERE SO JUST PLAY AROUND WHEN YOU DO GET THERE AND, BY THE WAY, ALL NON-COMMUNIST AMERICAN CITIZENS SHOULD CHECK OUT EVERYONE OF THOSE JUDGES WHO HAVE HANDED DOWN RULINGS THAT ARE INCONSISTENT WITH THE LAW AND SEEK TO HAVE THOSE JUDGES IMPEACHED! A JUDGE MAY NOT USE HIS GAVEL FOR PERSONAL GAIN AND WE NON-COMMUNIST AMERICANS HAVE A RIGHT TO HAVE THOSE JUDGES THAT DO SO IMPEACHED! SO CHECK OUT THOSE RULINGS, WRITE COMPLAINTS OF IMPEACHMENT TO OUR FRIENDLY CORRUPT U.S. JUDICIARY COMMITTEE AND HOLD YOUR DAM ELECTED TO THE TASK AND MAKE THEM IMPEACH THE ROTTEN BASTARDS SUCH AS OUR JUDGE! WE WILL BE HAPPY TO SHARE THE LETTER WE ARE GOING TO BE SENDING WITH ANY OTHER CONSUMER WHO WISHES TO CONTACT US AT timcotten@mris.com or, 410-257-5283.

    CHECK THOSE JUDGES OUT WHO HAVE MADE TREASONS UPON THE COURTS AND ARE IN VIOLATIONS OF OUR CONSTITUTION AND WHO ARE TRESPASSING UPON OUR LAWS AND MOLESTING OUR COUNTRY! DO NOT STAND FOR JUDICIAL MOLESTATION, IT MUST STOP! GRANTED, THE DISCLOSURES ARE 2 YEARS BEHIND BUT, AT LEAST YOU CAN DISCERN IF YOU MAY HAVE CAUSE TO BE CONCERNED! IT MUST STOP AND WE, THE PEOPLE ARE THE ONLY ONES WHO CAN BRING ABOUT THIS CHANGE!!!!

    CHECK THE JUDGE OUT HERE:
    http://www.judicialwatch.org/browse-JFD-by-court

    WE MUST REPORT BAD LAWYERS AND LAWYERS WHO ARE NOT GETTING IT RIGHT AND WHO ARE STEALING FROM THEIR CLIENTS! AGAIN, IF ANY CONSUMER IS READING THIS BLOG AND MYSELF OR MY WIFE KAT REFERRED YOU TO OUR LAWYER AND HE HAS INJURED YOU, WE ARE SORRY! IF HE DID NOT INJURE YOU, WE WANT TO HEAR FROM YOU AND IF HE DID INJURE YOU WE STILL WANT TO HEAR FROM YOU, timcotten@mris.com, 410-257-5283!

    HE DID THINGS SUCH AS FAILED TO EVER PROVIDE US WITH A MONTHLY BILL, FAILED TO EARN HIS FEES AS FILING BOILER PLATE LAWSUITS THAT DO NOT STATE OUR CASE CLAIMS IS NOT LEGAL REPRESENTATION, HE REFUSED TO FILE OUR FDCPA CLAIMS, HE FAILED TO SITE THE CORRECT RESPA SERVICING STATUTES THAT ALLOW A CONSUMER A PRIVATE CAUSE OF ACTION UNDER SECTION 6 OF THE TITLE, HE STATED STATUTES THAT ONLY A REGULATOR HAS A RIGHT TO ENFORCE, HE FAILED TO CORRECTLY STATE OUR CLAIMS, HE ADVISED US TO DISMISS OUR LAWSUIT AND FILE IN OUR STATE COURTS UNDER GOD KNOWS WHAT CLAIMS OR, HE WAS JUST GOING TO HAVE US DISMISS OUR CASE AND THEN WAIT UNTIL WE WERE SUED AGAIN AND PUT US IN A DEFENSIVE POSITION TO WHICH, BY THE WAY CONSUMERS, WE WOULD HAVE BEEN FORCED TO PRODUCE A HEFTY BOND FOR A TEMPORARY RESTRAINING ORDER ACTION, JUST WHAT HE DID TO OUR GOOD FRIENDS WE REFERRED TO THE SCUMMY BASTARD! HE SCREAMED AND INSULTED US THROWING TEMPER TANTRUMS AND TRYING TO INTIMIDATE US, WE LEANED HE BETRAYED ANOTHER CONSUMER AND WHILE HE WAS SUPPOSED TO BE REPRESENTING THAT CONSUMER, HE SHOWS UP IN THE LENDERS BK CASE AND DISTANCES HIS SELF FROM HIS CLIENT AND THEN TELL HIS CLIENT HE IS NOT GOING TO REPRESENT HER, AND WE CAN GO ON, AND ON, AND ON BUT EVERYONE HE HAS COME IN TOUCH WITH THAT WE HAVE REFERRED TO HIM HE HAS DONE MORE HARM TO THEM AND BROUGHT NO GOOD AND CAUSED TWO CONSUMERS THEIR HOMES SO WE ARE VERY SORRY IF WE REFERRED THIS PIG TO YOU! HE IS SO FREAKING BUSTED THOUGH!

    IT WAS SO NICE THIS MONTH TO NOT HAVE TO DEAL WITH THE BASTARD AS WE DREADED HIM HAVING TO DO ANYTHING IN OUR CASE AS WE HAD TO STAND ON TOP OF HIM TO GET HIM TO DO IT AND, IT EVEN LOOKED AS THOUGH TO US THAT HE WAS AIDING OUR ADVERSARIES IN WINING THEIR CASE AGAINST US, DISGUSTING!

    WE ARE SORRY WE HAVE NO GOOD NEWS TO SHARE WITH YOU ALL AND ONLY HOPE THAT WE DID NOT GET TOO CARRIED AWAY REFERRING THIS JERK TO OTHER POOR CONSUMERS.

    WE ASK AND PLEAD AGAIN THAT CONSUMERS PLEASE TAKE ACTIVE PART IN FIXING OUR COURTS AND JUDICIARY SYSTEM AS WE MUST POLICE THE JUDGES OURSELVES AS THEIR BOSSES POSSESS NOT INTEREST AT ALL IN DOING SAID! I REMIND ALL READERS OF THE RECENT RULING REGARDING THAT SLIMY JUDGE OVER IN VA WHO DID THE SAME AND WHO POSSESSED STOCK AND WHO HAD AN INTEREST AND THAT THE SUPREME COURTS RULED THEY MAY NOT HOLD AN INTERESTS, HELL, THE DAM JUDGES CANNONS STATES THE SAME CLEARLY SO WHY IN THE HELL IS THERE ANY DAM CONFUSION IS BEYOND US!

    CONSUMERS, HOPE YOU ARE GEARING UP FOR OUR UPCOMING ELECTIONS AS PATHETIC CHRIS DODD IS HIDING BEHIND HIS PROSTRATE IN ORDER TO KEEP HIS DAM JOB SO DO NOT FEEL SYMPATHY FOR THAT SLIMY BASTARD AS HIS 30 YEARS AS THE BANKING CHAIRMAN, IS THE CAUSE OF WHAT HAS HAPPENED TO OUR COUNTRY AND, BY THE WAY, WHILE THE BALLS ARE OUT, ON THE TABLE AND ROLLING, LETS DO AWAY WITH BARNEY FRANK AND OUR WHOLE GOVERNMENT! LET THERE BE CAKE FOR AMERICANS AND OFF WITH THEIR HEADS FOR THE BASTARDS WHO HAVE DONE THIS TO US!!! OBAMA IS ALSO TOAST IN OUR BOOK AND IS A JOKE AND MUST GO TOO!

    OTHER USEFUL LINKS FOR THE WEARY, SCREWED CONSUMER ARE, http://courthouseforum.com/forums/forum.php?id=1556

    http://www.therobingroom.com/Default.aspx

    WE ALSO WANT TO LAMENT ON THIS NEW SCAM THAT IS ABOUT, THE QUITCLAIM DEED SCAM WHEREIN THE LAWYER TELLS YOU HE WILL SCRUB YOUR DEED CLEAN BUT THAT BECAUSE HE DOES NOT GET ANY LAWYERS FEES FOR FILING A QUIT CLAIM IN STATE COURTS, HE WILL TAKE 20% OR WHATEVER, OF YOUR/CONSUMERS FREE AND CLEAR PROPERTY! WHAT A BUNCH OF POOH THAT IS CONSUMERS AND DO NOT FALL FOR IT AND, IF YOU HAVE A TILA VIOLATION FOR RESCISSION CLAIM, YOU WIN THE DAM HOUSE ANYWAY SO WHAT THE HECK IS THAT CRAP ALL ABOUT! JUST A WAY FOR THE SCUMMY LAWYER TO WIN YOUR HOUSE IF YOU CANNOT AFFORD TO PAY HIS ASS WHAT HE COULD HAVE WON FOR YOU IN LITIGATING YOUR TILA CLAIMS! ALSO, THIS IS NOTHING OTHER THAN A FORECLOSURE RESCUE SCAM THAT SHOULD BE REPORTED TO YOUR STATES AG, FYI!

    OH, BY THE WAY, RESPONDING TO A READER BACK A FEW WEEKS ABOUT ABOUT RESCISSION IN THE 13TH OR 9TH DISTRICT COURTS, THE GUY HAD TO BE A BANK IMPLANT AS HE WAS POOHING ALL OVER RESCISSION WELL, HELLS SPELLS AND BELLS MY MAN FAILED TO TELL THE READERS THERE ARE MANY LAWS/WAYS TO RESCIND AND UNDER A WIDE RANGE OF LAWS ON WHICH RESCISSION IS GIVEN SO DO NOT GIVE THAT PIG MUCH WEIGHT AS HE IS NOT TELLING THE WHOLE TRUTH!

    PURCHASE MONEY LOANS AND NEW CONSTRUCTION LOANS MAY BE RESCINDED UNDER UCC TITLE 3 STATUTES, UCC, ARTICLE 3, 3-202 WERE THERE WAS FRAUD IN THE INFANCY AND, GUESS WHAT GUYS, THERE WAS A WHOLE LOTS OF FRAUD IN THEM THERE INFANTS SO SEND THOSE NOTICES OF RIGHT TO CANCEL AND, OH, CONSUMERS WHO ARE PAST THE 3 YEAR STATUTE FOR RESCISSION UNDER TILA, YOU MAY ALSO RESCIND UNDER UCC ARTICLE 3 FOR MUCH LONGER, 6 DAM YEARS, 6 DAM YEARS, THAT IS RIGHT, 6 DAM YEARS, FYI!!!!!!
    § 3-202. NEGOTIATION SUBJECT TO RESCISSION.
    · (a) Negotiation is effective even if obtained (i) from an infant, a corporation exceeding its powers, or a person without capacity, (ii) by fraud, duress, or mistake, or (iii) in breach of duty or as part of an illegal transaction.
    · (b) To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good faith and without knowledge of facts that are a basis for rescission or other remedy.
    NEIL IS RIGHT IN WHAT HE IS PUTTING OUT AND ALL NEED TO READ THE UCC LAWS, http://www.law.cornell.edu/ucc/3/overview.html#3-202 , AND APPLY THEM AS THERE IS A LOT OF GOOD STUFF THERE FOR THE CONSUMER!

    HERE IS AN EXCELLENT UCC RESCISSION LETTER WE CAME ACROSS IN OUR TRAVELS SO NEIL MAY WANT TO COMMENT BUT IT LOOKS GOOD TO US AND, OH, THE STATUTE IS LONGER TO RESCIND UNDER UCC, FYI, 6 YEARS VS. 3 YEARS UNDER TILA;

    August 6, 2009

    Washington Mutual CONSUMER
    Customer Service Dept. CONSUMER
    Rescission Dept. 666 SCREW YOU BANK WAY
    P.O. Box 2441 Bowie, MD 20720
    Mailstop N010207
    Chatsworth, CA 91313
    Phone: 866-926-8937

    cc:
    Long Beach Mortgage
    Customer Service Dept.
    Rescission Dept.
    1400 S. Douglass Road
    Anaheim, CA 92806

    bcc:
    Bierman, Geesing & Ward, LLC
    4520 East West Highway, Suite 200
    Bethesda, MD 20814
    Phone: (301) 961-6555
    Fax: 301-961-6545

    RE: Notice of Right of Exercise of Rescission, CONSUMER and CONSUMER
    Account Loan No’s. 1st Lien 000000, 2nd Lien 00000

    Dear Washington Mutual, (WAMU), Right of Rescission Department Customer Service Agent AND Mr. Jacob Geesing, Esq.:

    On August 2, 2006, we entered into a mortgage loan with Long Beach Mortgage and Washington Mutual, secured by a security interest taken in our primary residential home.
    Be advised, pursuant to Uniform Commercial Code, Article 3, § 3-202, Negotiation Subject to Rescission AND, OR, other like state or federal statute, these consumers hereby rescind the above noted first and second loans secured by said instruments.

    The exercise of rescission by these consumers puts into affect a strict liability for compliance against WAMU and its agents.

    Notice of this rescission, negates the “Trusts” claims to foreclose.

    Pursuant to Uniform Commercial Code, Article 3, § 3-305, WAMU AND ITS AGENTS AND TRUST, are advised by this rescission, these consumers are raising all claims known or that will be discovered and which include all or some of the following, incapacity, infancy, duress, illegality and fraud in the factum.

    Moreover, should the Trust/Trustees maintain and or continue with any purports of any right to foreclose the above loans, these consumers will hold all said liable for fraudulent actions as they failed to take the instrument in, good faith, for value, without notice that the loan is overdue and without notice that the consumer has a defense, as is the case here and now with these consumers.

    We are further demanding a payoff statement reflecting the effects of the recession and are demanding the production of the original, ink signed Deed of Trust and Note, verification of the disputed, averred to debt, an exacting accounting of mortgage payments and actual loan disbursement history on this loan, a date, time and place where we may schedule an inspection of the complete mortgage file and all assignments to any party claiming interest in our property, including all vendors or third parties as a part of this loan consummation transaction on August 2, 2006.

    Best Regards,

    I WISH TO CANCEL

    __________________________ August 7 ,2009
    CONSUMER, Signature Date

    I WISH TO CANCEL

    __________________________ August 7, 2009
    CONSUMER, Signature Date

    WELL EXHAUSTED CONSUMERS, UNTIL WE CAN TALK AGAIN, GOD BLESS AND PLEASE FIGHT THAT FIGHT AND DO NOT LET THE SOBS GET AWAY WITH ANYTHING! GOD BLESS TIM AND KAT, timcotten@mris.com, 410-257-5283

  81. Hello to all. I live in OREGON which is a non-judicial state.

    Loan Servicer = BofA
    House purchased = summer 07

    I recently received by certified mail..
    ” Trustee’s Notice of Sale ” dated july 14 2009

    Upon receipt (of no less than 8 copies of this letter) I started hitting google and found Neil’s blog. A God-send! Still, there are so many ins-and-outs to this whole debacle. My head is spinning. I am ready to fight but don’t know the rules of engagement yet.

    Here’s what I have done so far.
    About 10 days after receiving the letter from the “trustee”…
    I downloaded “initial debt dispute” & “objection to trustee sale” from this blog and sent them by certified mail to the “trustee”.

    MY house is scheduled for Auction nov 09 (3 months away). I have no idea what the correct next steps are. How do I suspend the auction? I feel like I need to pause that before I can go on the offensive… but i don’t know.

    Let’s say I get the Auction stalled or suspended somehow… (ideas?)

    The next steps from what i gather are… sending a Qualified Written Request & Recision Letters ? But to whom? The “trustee”, the title company, the pretender lender? I just don’t know.

    Cash is tight (obviously) so I am pro se, at present. Some of document templates such as the QWR has “lawfirm” in the document. If I am pro se do I just put my name? So far I have only sent the objection letter and dispute of debt to the “trustee” not my pretender lender.

    To whom and which documents need to be sent next? How do I get this stuff properly recorded? What do I need to be doing on the county level or federal level?
    I have tried to read and re-read posts and comments before posting. Everyone’s situation is different and there is also cool high level intellectual banter on this blog.A lot of you seem to be in Florida which has a different set of legal steps vs non-judicial state like OR. So for this Oregon dude what is next. Wait? Attack? Who, What, Where, and When :D ?

    Thanks so much!!! (sorry for all the questions at once I just dont want to fudge up)

    - Oats & Treebark in Oregon ;)

  82. Dyrell:

    Three years is the term defined by the Federal Reserve Board in their official commentary on Regulation Z. Although it is not binding on courts they do give it great deference.

    The 11th circuit has followed the guidelines set out by the Federal Reserve and ruled that rescission ends at exactly 3 years from closing, assuming it was a remedy that was available to you.

    Being in foreclosure after 3 years will not revive the remedy of rescission, at least not in the 11th circuit.

  83. Neil,
    i am in MI still waiting for a lawyer to “get it. ” In the meantime I would like to find a reputable company to do an evolving audit. Preferbly someone who has experience with WORLD SAVINGS audits as they will already know where some of the “BODIES” are buried !

    I’ve contacted you before but, i havn”t given up.
    SANDISUE

  84. I suppose I should just do some homework. But, maybe you can help me out! My question is as follow:
    With regards to TILA, why is it that if a refinanced-loan is beyond 3 years, and at that point recission is not an option….only until the homeowner goes into default is recission again relevant. Why is that?

  85. can i request my original loan documents from my loan company? i,m about 135000 upside down on my loan and trying to get them to modify my loan. i,m a disabled veteran living on a fixed income and it,s getting harder to keep up with this home.all my savings are gone and i,m living month to month. any help would be greatly welcomed thank you

  86. The preceeding post regarding MERS is thought-provoking and raises issues I haven’t seen before either on this site or elsewhere. MERS appears to be nothing more than a tax-evasion tool, they have stated in state and federal courts that they never hold mortgages, yet they are holding mortgages(I have one, no problems yet) someone maybe George Babcock in RI will unmask them for what they are, which is unprintable, having caused marital strife, divorce, suicide, etc. in their drive to foreclose (illegally) on hundreds of thousands of hardworking US citizens. Please, someone more knowledgeable than I give them both barrels, they deserve it.

  87. A typical mortgage contract is between 3 parties. MERS, lender and borrower.

    However only the borrower signs the contract. MERS and the lender never sign the document.

    The statute of frauds says this

    Agreements required to be in writing

    To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him:

    Any contract for sale of lands, or any interest in, or concerning lands.

    MERS, the lender and the borrower all make promises and covenants to each other but only the borrower signs the contract.

    Could the mortgage be considered illusory in that MERS and the lender could say they never gave their assent to the contract therefore the contract is void.

    If a contract is not signed, usually there is no contract and the party cannot be held to something they never agreed to.

    I think the lender could argue that by transferring monies they gave their assent, but MERS has no plausible argument that I can think of. They have take no affirmative steps to ratify the contract and have in fact participated in an illegal scheme.

    By way of example MERS states that it is the nominee for all the lenders successors and assigns and can do anything the lender or the lenders successors and assigns can do.

    This statement is patently false. MERS can only be an agent for a party that appoints MERS as its agent.

    If Bank of America sells a loan to Argent MBS 2005-09 and Argent has no agency agreement with MERS then MERS has no authority to foreclosure on your home, despite what the mortgage actually says.

    The language in the mortgage states the MERS will always have the same rights as the lender, as I have pointed out this is not true.

    Another example is that MERS has taken the definition of a corporation to new heights never before seen or heard of.

    The mortgage contract makes no mention of the fact that MERS has several thousand Vice Presidents and anybody can become one for a day. You mortgage can be transferred on a whim by anyone of several thousand people located throughout the United States and you will never be notified.

    So back to the question, do we have a legally binding contract between 3 parties?

  88. Hi John H.,

    Have you considered doing a Pro-Per filing? Maybe you should research that, and what you need to do for California. It is very simple. I can research the documentation you need. It is all part of public record, and can be acquired through the internet.

    John Jennings
    877-728-7376

  89. Marcus,

    It doesn’t matter what the home is used for. Whether it is primary residence or investment property, the law is the law, and that is very clear. If they violate your rights in the loan docs, it is a violation of law. Research the TILA, RESPA, HOEPA, REG. Z Violations, and Predatory Lending. That will give you a huge jump on what your rights are, and how they violated them.

    I own The Investment Group, and I fight for homeowners and vehicle owners across the nation. I believe that everyone should follow the law, whether it is the lenders or consumers. In most cases, the lenders are in violation, and should be corrected. It is very difficult to make them adhere to the law, but it can be done. I am successful in almost every instance. Let me know how it goes for you.

    John Jennings
    877-728-7376

  90. I am not a lawyer, I was in the mortgage industry from 2003 to 2006. I shopped mortgage on a regular basis. I have not found any portion of your blog site that refers to using fraudulant misrepresentation specifically on the “Pay Option ARM” by the lown originator, which is in of itself enough to have the contract declared invalid. Due to the fraud they could sue to recover damages, especially if it was originated by one of the Nation’s much to big to fail banks. They need to fail, and we need small community banks which actually competed with one another and made profits by offering service as opposed to excessive, immorral, and/or illegal service charges. Here is the complaint filed by California’s AG, it speaks of Pay Option ARMs in about section 49.
    The “First Amended Complaint” filed against Countrywide Mortgage. at the following address: http://mortgage-loan-solutions.com/1588_firstamendedcomplaint.pdf. Please let me know where on this website I can find information. I am looking for attorney’s who get southern California, I will be actively contacting owners of the “Pay Option ARM”s in existence which must be several million.

    If I am missing something, a reason why this is not being pursued as a legal offense and/or defense, please let me know

  91. John,
    What I am trying to determine is the affirmative defense to use for TILA violations in which the property is not a primary residence. Rescission is a powerful remedy for homestead properties. What about secondary residences or investment properties?

    Marcus

  92. Hi Marcus,

    Every original loan package has numerous violations in them, to include the possession of the actual original loan docs. You can always demand the original loan docs, no matter if it is your primary residence, or investment property. And did you sign on the security instrument when the lender sold your loan? There are a lot of securities issues that are involved with your loan. You should find out these questions. Let me know what they say.

    John

  93. If there are TILA violations for a property that is not a primary residence, what are the options available to that homeowner?

  94. You said this in this blog:

    We have 20 million households to reach, some of whom have already been dispossessed out of houses they still legally own but don’t know it.

    What does that mean? Does it mean that even though the lender has foreclosed on a property, the owner still owns it, or can get it back? If so, how?

  95. Dear Don, we value your contributions to this blog and since your an auditor by trade as well as a lawyer.

    Tim,

    I’m a computer technician helping my mom get through an illegal foreclosure.

    Think you may have me mixed up with someone else. You can email me at dnd1190@gmail.com if you like.

    Don

  96. MORE TO DON;

    Dear Don, we value your contributions to this blog and since your an auditor by trade as well as a lawyer, we would very much welcome your spin on another area I am going to touch on briefly today; the requirement of the lender to properly identify the loan transaction, subject the TILA disclosures; disclosures must be accurate, sequential and consistent, and must disclose the loan being offered in the process among other things.

    We feel we may have identified how all the sub-prime loans were sold to investors and were packaged as A paper and, guess where it rest, right upon the HUD-1, right under A. Settlement Statement, there is B. Type of Loan; now, what this means is that this is the disclosure to the consumer of the amortization schedules used to compute the loan, that said. ALL HUD-1’s WE HAVE EVER SEEN ALL INDICATE THE LOANS TO BE CONV. UNIN. LOANS OR, ONE OF THE 5 AMORTIZATION SCHEDULE BOXES PROVIDED HOWEVER, WHERE THIS BECOMES A PROBLEM AS FAR AS WE SEE IT, REMEMBER READERS WE ARE NOT LAWYERS AND ARE NOT ASSERTING SAID, IS THAT WHEN IT IS AN EXOTIC LOAN PRODUCT, SUCH AS AN ARM 5/1, OR INTEREST ONLY ARM WITH A BALLOON PAYMENT, ETC., THE LENDERS FAILED…….AT ALL TIMES TO UTILIZE THE B. SECTION SPACE RIGHT ABOVE THE BOXES WHEREIN THEY HAVE THE ABILITY TO MODIFY OR ADD TO AS NEED BE AND COULD/WERE SUPPOSED TO SPECIFY THE EXACTING AMORTIZATION SCHEDULE EMPLOYED! THEY HAVE NOT DONE SO, SO, CONSUMERS, IF WE ARE RIGHT AS OUR PRELIMINARY RESEARCH AFFIRMS, THIS TOO COULD AMOUNT TO AND WOULD BE, A MATERIAL DISCLOSURE VIOLATION ENTITLING RECESSION IF YOUR NOTE AND OTHER DISCLOSURES ARE IN CONFLICT WITH THE HUD-1 DISCLOSURES, I.E, all disclosures must disclose the same Conv. Unins loan and schedules in accord, fyi. This is a new theory of ours but we are have tested out and believe we are correct however, we welcome in put please FROM AN INDUSTRY PROFESSIONAL SUCH AS YOURSELF DON SO KINDLY ENRICH US ALL PLEASE.

    I, we want to expound further about the TILA pre Simplification and the laws Don provided below and comment; those laws further rest on and are founded prior to Congress enactments of lender liability making “ANY” LENDER VIOLATION, NO MATTER HOW TECHNICAL A VIOLATION IN AND OF ITSELF OF TILA AND, A VIOLATION OF THE ACT AND SUBJECT TO THE HARSH REMEDIES AND, WHILE DON NOTES THIS, IT IS NOT CLEAR FROM HIS POSTING BELOW THAT THOSE CASES CITED BY DON, WERE PRIOR TO CONGRESSES IMPOSING LENDER LIABILITY FOR ANY VIOLATION UNDER THE ACT NO MATTER HOW……TECHNICAL. THE CREDITOR POST SIMPLIFICATION OF THE ACT IS SUBJECT TO A STRICT LIABILITY THE WHY AGAIN CONSUMERS SHOULD OBJECT TO THEIR LAWYERS RELYING ON AND NOT OBJECTING AND RESPONDING APPROPRIATELY TO THESE PRE TILA SIMPLIFICATION CITING OF CASE LAWS THAT WERE PRIOR TO 1983! CONSUMERS DO NOT BE HOOD WINKED BY YOUR LAWYER AS THEY ARE ALWAYS LOOKING TO TOMORROW AND WANT THAT PROMISE OF BANK WORK, FYI $$$$$$$$$$$$$$$$$!

  97. At our settlement hearing my attorney is trying to get the case dismissed and filed a motion to dismiss with prejudice on the grounds that the assignment to Wells was after we were served, and MERS was in charge of this assignment, which that had no standing, and the assignment was signed off by a secretary. Does this sound at all unique and what are our chances of having any luck with this.

  98. FYI DON;

    Hi Don, fyi, okay we accept that at face value however we do feel our missions are one in the same and we stress to all regulars who know us here in this forum as they all know we do not charge or attempt to make money off of anything we do or send out to the consumers who cannot afford a lawyer. Most consumers we have met thru this site know this and we have an on going share/share relationship as anyone of them who either myself or Kat have talked with over the past year plus that we have been contributing our……experiences here on Neils blog, thank you again Neil for this needed forum.

    Please share with us your professional background as we all are all very interested in hearing about you too and your practice and what you did before the market crash, and when you began providing forensic audits and the other areas of law you have practiced in either by consulting or what have you; also, yes, if you are who I think you are, you have talked to me under Don Q-something so why not your true name please, and with all due respect too? You may answer this outside of this forum as we understand ones need for privacy too.

    Kat shared with me your very spirited and lively conversation of yesterday and if you have a fax # you could share with us, we have some things we wanted to fax over to you as it just makes it so much easier.

    We still challenge you to please provide TILA Recession Cases post 1983 that were not based on pre TILA reform and the courts reliance on draconian state equitable laws as you have scared the pooh out of the consumers who have an absolute right to rescind the loan upon discovery of Material Disclosure Violations.

    Thanks for asking about Kat and her blood pressure. She has lost some weight and is starting to focus on her health a bit more these days as you can imagine, it has been a very stressful ordeal for us having had 2 illegal and fraudulent foreclosure filed against our home when no default existed! Yes, we sure would like to see those scummy sobs get there’s however OBAMA, has insured a witch hunt will ensure against victimized consumers with his allocation of funds and addition of FBI agents to assist the banks in further prosecuting the American public so, consumers beware of seeking a loan modification and you have been victimized by the recent economy downturn and loss of jobs as our president is getting ready to ensure Mr. Lehmans private prison system is filled to the brim with consumers displaced from their homes by the banks and Let the Witch Hunts Begin, OH, MR. CONSUMER, THEY ARE COMING FOR YOU, FYI! HOPE THAT SCARES THE POOH OUT OF THE CONSUMERS AND THAT WE ALL GET OFF OUR CANS AND IMPEACH OUR WHOLE GOV. AND COURTS SYSTEM, THEY NEED TO BE TOSSED ASIDE OR EXILED TO THEIR OWN ISLAND, NOW THAT WOULD BE A REAL TV SERIES I WOULD EVEN PAY TO SEE!

    Please know too, I am a commercial construction manager and Kat is a real estate professional of over 25 years who does a lot of community work helping the under served consumers who are less fortunate. By fact, Kat is disgusted with her industry on a whole and is contemplating letting her license laps as the system is hopelessly broke, she knows, she is a lic. appraiser in our state and, frankly, honest, ethical appraisers do not get the work they deserve because they will not lie for the scummy banks, bottom line! We are not in the industry of making any…. money off of any consumers and audits, that is not what this is about for us.

    WE ARE MERELY CONSUMER HELPING CONSUMERS NAVIGATING A WEB OF LIES DESIGNED TO FURTHER OPPRESS THEM, STEAL EVERYTHING THEY HAVE BY MORALLY BANKRUPT JUDGES, LAWYERS AND GOV.!!!!

    Our mission is one of equipping the public at large and consumers with sufficient information to make it thru this vexing, corrupt tunnel of lies and to inspire consumers and the public to not give in to what our corrupt government, judges and lawyers are doing to our country all for serving their lord all mighty $$$$$$$$$$$$.

    Our mission is and will remain until we are gone from this earth, to help the little guy/us, make it thru these awful, awful, awful times of greed and corruption just as they were during the first Depression when the gangsters and shin runners ran our country…….It is amazing how history repeats its ugly self too as today it is our Gov. and Now President who has failed us all except corporate America and his judge, lawyer and bank buddies as well as Wall Street, the Scummy 19 Big Banks who got our tax dollar to continue their atrocities against us, WE THE PEOPLE! Though, sadly we voted for his crock of pooh but should have known he was just another gangster from Chicago, the home of the hoods, who was full of @#$% just like his last two predecessors! Has any little guy other than us notice how many lawyers make to the white house please, hhhhmmmm, maybe their is a link there MR AND MRS AVERAGE CONSUMER JOE!

    Don, we have also talked with a lot of lawyers over these hell ridden long 7 years and are appalled and shocked to see a trend in lawyers desiring to litigate the lost note in the consumers state courts vs. doing said in the Fed courts and, please, before we go there, we more than understand Federal standing, amount in controversy and that the consumer would be proceeding on Fed, UCC Laws, so there would be a Fed question so we just want to skip the engaging and spirited debates please.

    Our point here is that when a property case of rescission is brought in the consumers state courts or in reply to a banks foreclosure, they are going to be subjected to THOSE STATE DRACONIAN, BARBARIC EQUITY LAWS, for the most part, unless they live in MI so, our take on this is just more good old fashion rolling over for the scummy banks by the consumers lawyers wherein the lawyer, though also able to practice in Fed Courts, refuses to take the consumers case there AND, WE DO NOT MEAN BK! Consumers please read our past blogs about the broken state of affairs rampant in our US FED BK COURTS, i.e., most of the judges, trustees, doj ARE EMPLOYED BY THE BANKS, HECK ONE OF THE CHAPTER 13 TRUSTEE’S HERE IN MD EVEN THREATENS THE CONSUMER THAT THEY ARE THEIR TO COLLECT THE CREDITORS DEBT, NOT THE WAY THE BK ACT AND THE DOJ TRUSTEE PROGRAM WAS DESIGNED TO WORK SO CONSUMERS, GET TO KNOW YOUR BK COURTS FIRST BY READING THEIR CASE RULINGS AT YOUR LOCAL FED COURTHOUSE UNDER PACER COURT SYSTEM!

    What consumers do not know about their laws is going to hurt them and they will be hurt at the hands of their very own lawyers, fyi, malpractice is rampant today in consumer law, heck, why not, no one, i.e. gov or regulators or the BAR, is going to do anything to these Teflon Dons HOWEVER, consumers remember, every Teflon Don has his day, so, theirs will come too and it will not be too soon for our civilized society!

    Again, no one has contacted us to tell us a bank performed tender first as THEY ARE REQUIRED TO OR, have they received the payoff statement reflecting the effects of the rescission or have they called us all excited that at last the scummy sobs want to avoid regulator complaints and lawsuits and want to make things right! So again, consumers, do not be scared by these post up here and, besides purchasing Neils books, we urge you to please purchase the NCLC Consumer Series Truth in Lending, Cost of Credit and Foreclosure Series at best but, if you can, and you can for what you will be paying a lawyer for about 2 hours of his time, buy the Unfair and Deceptive Practice Acts too as at least you will know when your lawyer is attempting to take a dump on you when telling you to just dismiss your TILA case and to just go to your state courts and litigate the lost note theory OR, AS HE DID IN OUR CASE, FILES TWO HOEPA LAWSUITS DESIGNED WITH FOR SURE DISMISSAL IN MIND AND, what they did not tell you is what Don has so aptly told you here in his post, YOU ARE GOING TO BE TOSSED OUT OF YOUR HOMES, so Don is right about that, fyi, for sure because they can and will, trust us!

    Again, the NCLC web site is http://www.consumerlaw.org/ AND, NO, I/WE DO NOT WORK FOR THEM AND ARE MAKING NO MONEY FORM TELLING YOU THIS, WE JUST KNOW THE ONLY WAY YOU CAN STOP VIOLATIONS OF LAW AND MALPRACTICE IS TO KNOW THE LAW AND COMBAT THE LAW WITH THE LAW, as we have done repeatedly! Most lawyers, as we have experienced first hand with ours, when confronted with the law, and case law to support the consumers theories, will back off because you are now educated!

    Also before I leave for work today, I just want to make sure consumers, you understand what a lawyer is saying when he tells you “Well yes, but that is not how it really works”, when a lawyer answers your assertions like this, proceed with extreme caution! I do agree with Don that the laws are exceedingly vexing and overly complex but just put some serious time into reading and it will all fall in place! What does not make sense, is because it is not sensible, so know that too and, remember, laws are largely interpreted opinions, (the later being the operative words here), by lawyers, judges and courts and while they may all have pie wholes as we, they do not always arrive at the legally correct opinions to and of a particular law and, when this happens, in a consumer setting, the best way a consumer can spot a treason by the public and their courts, (i.e. a judge who is a trespasser of the law when he ignores the laws and holds his opinions above plan law), or their friend, the lawyer, and upon making up his own laws, is to know the laws as very best as you can, same applies with your lawyers!

    Please remember all, we are not lawyers and are not attempting the illegal practice of the law, (boy consumers that just sounds gangster from the go, but yet we must uphold the laws we cannot practice; are you not practicing when upholding the laws……food for the public), seek ethical, competent legal advise always as there are some good lawyers still about, they are just too blasted busy to help everyone! God bless Neil and this site, contributors such as Don and please lets all keep up the good works of contributing here in this forum, tim and kat, timcotten@mris.com, 410-257-5283

  99. Tim,

    Just an FYI, I am not a lawyer for the banks as you stated. I’ve spoken to you before and your wife Kat. I hope she is feeling better and her blood pressure is ok.

    Yes, God will bless me in the fight to keep the thieves from our home.

    Don

  100. MORE REPLY TO DON;

    SORRY DON, GOT TO LOVE A WHIPPING POST,
    GOD BLESS YOUR FIGHT!

    Don, why are you also missing the fact the lender must tender first please as they are required and, again, you are relying outdated cases. Again, Consumers reading this, please make sure you request in the letter of rescission the bank provide the payoff statement reflecting the affects of the rescission, hence the consumer has tendered first so your points are moot please, with all due respect.

    Moreover, Material Disclosure Violations are evident on the face of the documents, therefore these cases just exemplify exactly what we blog about, consumer lawyer how help the lender lawyers to rig the outcome of the case and as this happens when the consumer lawyer fails to properly argue the lender was not EVER BLIND TO THE VIOLATIONS AND KNEW OF THEM AT ALL TIMES WHEN HE PRETENDED TO NOT KNOW WHAT THEY WERE! MOREOVER, IF THE LENDER HAD ANY DOUBT, HE WAS, CONTRARY TO DON’S ASSERTIONS, TAKE LEGAL ACTION VIA INJUNCTION WITHIN THE SAME 20 DAYS! LENDERS DO NOT DO THIS BECAUSE THEY KNOW THEY HAVE VIOLATED MATERIAL DISCLOSURES MOREOVER, THE SERVICER IN DUE COURSE ALSO KNOWS THESE FACTS SO, AGAIN THESE ARE OLD CASES AND ARE MOOT HERE AND NOW UNDER POST SIMPLIFICATION!

    THANKS DON FOR SUCH A VERY LIVELY DISCUSSION AND BLOG, WE ARE LOOKING FOR MORE OF THE SAME, GOD BLESS, TIM

  101. REPLY AGAIN TO DON;

    Hi Don, you must be a lawyer for the banks; Again, you are citing state equity laws and not TILA laws that take into the account the egregiousness of the violation and, fyi, if the violation also included a fraud, the lender is toas, so, again this is not so!

    Please provide laws after the TILA overhaul of 1980 wherein TILA was virtually rewritten and included important and substantive changes to retire the bad practices you are referring to of forcing the consumer to hack up a replacement loan and treated Material Disclosure Violations as nothing more than an accounting error!

    Your cases you have provided in support of your points are largely from 1964-1979, SO YOUR POINTS ARE IRRELEVANT AND FAIL TO HIT HOME BECAUSE THOSE CASES ARE OBSOLETE AS MENTIONED IN THE CURRENT NCLC EDITIONS. YOUR CASES COME FROM THE REGULATORY ERA KNOWN AS PRE-SIMPLIFICATION PRIOR TO THE ACT BEING ALMOST COMPLETELY REWRITTEN IN 1980, UNDER THE TRUTH IN LENDING SIMPLIFICATION AND REFORM ACT, ADOPTED AS TITLE V OF THE DEPOSITORY INSTITUTIONS DEREGULATION AND MONETARY CONTROL!

    While these cases could still have some meaningful purpose today, and every consumer fighting their lender should read these cases as we have done over the years as you will learn from these cases and in comparing them to current, relevant cases post simplification just why changes were made to the laws. RELEVANT CASE LAW UNDER THE TITLE V, WOULD BE FROM 11/1/1982 , I.E., A LAWSUIT FILED AFTER THAT DATE TO PRESENT SO PROVIDE THOSE LAWS AND, AS FOR CONSUMERS READING THIS BLOG, PLEASE GO OUT RIGHT NOW AND PURCHASE YOUR OWN COPY OF THE NCLC TRUTH IN LENDING BOOK AND REFER TO SUPRA 1.1.1 The Purpose of the Truth in Lending Act, 2nd paragraph from the end of this section.

    Don, we do not feel your cases reflect the new TILA, 1980 Simplification of the Act and the many changes therein as implemented in full as stated above. I am concerned your cases provided are compiled in such a way as to scare the consumer form exercising their rescission rights in the event the lender failed to make all Material Disclosures! Consumers, not to worry, the scummy banks almost never comply with rescission and I have found little if any laws post simplification wherein the lender has complied and rescinded as he is statutorily required to!
    MOREOVER, IF THE LENDER FEEL HE HAS VALID REASONS FOR NOT RESCINDING, THE LENDER MUST SUE YOU AND DO SO WITHIN THE 20 DAYS OR HE WAVES HIS RIGHTS TO RECOURS!

    Don, since you are apparently advancing a lenders agenda, kindly provide us all here on this blog with some of those wonderful horror stories about the lender complying with the rescission! Also, the lender does not get the house, so, again, provide us with those cases too noting we would certainly like cases post 1983, i.e., the litigation was commenced post simplification and the loan was a post simplification loan!

    Rescission is not a dance card for the lender wherein he is invited to a dance, so hang it up Don! And no, he does not get a song either so, please try harder and provide us with plenty of those good old Post-Simplification case laws, readily available in the NCLC TILA current books! Consumers only, you may email me and I will share with you the case laws we have compiled over the past 7 years regarding this matter citing the case rulings are not these draconic and barbaric rulings pre-simplification of TILA.

    There is plenty of current case law out there form 1983 on so lets have that please, Mr. Don! Moreover, due to the simplification of the Act and the many things Congress took away from the consumer, they did empower the consumer WITH A WINDFALL WIN, WHEN THE LENDER FAILS TO COMPLY WITH RESCISSION AND, DON, YOU WILL BE VERY HARD PRESSED TO NOT FIND PLENTY OF CASES WHEREIN THE CONSUMER WAS PROVIDED THE DUE CONSUMER WINDFALL WIN, WHICH IS USUALLY THEIR HOUSE AND DAMAGES when a lender fails to rescind the loan in the twenty days allowed!

    Moreover, the consumer does not have to do a thing, nothing, as Congress intended rescission to be a substantive remedy awarding a windfall when the lender failed to comply as they more than not do! Don describes a scenario of extreme hardship for the consumer wherein often the lender has destroyed the consumers credit, what the scummy banks love to do as there is nothing like having their mouse/prey in their clutches until they can scare them or consume them!

    Consumers BECAUSE THERE IS PLENTY GOOD, CURRENT SETTLED CASE LAW ABOUT, THERE IS LITTLE IF ANY REASON YOUR LAWYER IS USING THE OLDER CASE LAWS AS DON HAS DONE IN MAKING HIS POINTLESS POINTS.

    CONSUMERS, PLEASE QUESTION YOUR LAWYER IF HE IS USING OLDER CASE LAW FROM 1983 AND BEFORE PARTICULARLY AS IT APPLIES TO RESCISSION AND THE LENDERS STRICT LIABILITY TO PERFORM AND CONGRESSES INTENTION TO ENSURE THE CONSUMER IS AWARDED A “WINDFALL WIN” UPON THE LENDERS FAILURE TO PERFORM AND COMPLY!

    DO NOT LET YOUR LAWYER ALLOW YOUR LENDERS LAWYERS TO CITE ANTIQUATED CASE LAW THAT IS OF NO RELEVANCE UNDER THE IMPLEMENTATION OF TITLE V AS THIS WOULD AMOUNT TO AN INJUSTICE TO THE CONSUMER WHERE THE LAW IS ANTIQUATED AND STATE LAWS THAT WERE BARBARIC WERE USED.

    CONSUMERS YOU CAN GO TO YOUR LOCAL COURTHOUSE LAW LIBRARY AND REVIEW THE OLDER CASE LAWS DON IS REFERRING TO AS MOST OF EVEN THE FEDERAL LAW BOOKS STILL CITE THESE OUT DATED CASES. IT IS BEST TO WORK FROM THE NCLC TILA, FORECLOSURE AND COST OF CREDIT BOOKS AS THEY CONTAIN THE MOST RELEVANT AND CURRENT LAWS. OUR POINT STILL REMAINS THAT YOU MUST READ EACH AND EVERY CASE STAYING MINDFUL THE REGULATIONS WERE DIFFERENT PRIOR TO FEDERAL PREEMPTION, ANOTHER FACTOR A CONSUMER MUST CONSIDER AS MOST FAULTY CASE LAW FROM THIS ERA WAS FOUNDED UPON STATE EQUITY LAWS THAT WERE DRACONIC AND PLACED HARDSHIPS ON CONSUMERS WHEN THEY WERE FORCED TO GO UP AGAINST THEIR LENDERS. HOWEVER POST TILA SIMPLIFICATION, STOPPED THIS PRACTICE AND FEDERAL PREEMPTION AND THE FED BOARD OF GOVERNORS CLARIFICATIONS THEREOF STATES WHERE A STATE LAW IS CONTRARY TO FEDERAL STATUTE, THEN FEDERAL STATUTE PREEMPTS THE STATES LAWS. THIS IS WHAT CONGRESS INTENDED AT ALL TIMES AND IS WHY TILA WAS OVERHAULED FURTHER!

    CONGRESS INTENDED A LENDERS REFUSALS TO RESCIND AND OR FILE AN ACTION AGAINST THE CONSUMER WITHIN THE SAME 20 DAYS THE LENDER WAS DUE TO PERFORM UNDER THE ACT, A WAIVER OF THE LENDERS RIGHTS, BOTTOM LINE AND A WINDFALL WIN FOR THE CONSUMER! NO, THERE IS NO MOTIONING THE COURTS TO MAKE AN EXCEPTION AND NO, THERE IS NO SECOND CHANCE OR BIT AT THE APPLE FOR THE LENDER TO PERFORM THE VOIDING OF THE DEED OF TRUST, NOTE AND TRANSACTION WHEREIN HE FAILED TO DO SO TIMELY AND WITHIN THE 20 DAYS ALLOWED OR, TO FILE NECESSARY LEGAL ACTION AGAINST THE CONSUMER, THE LENDERS ONLY TWO CHOICES UNDER CURRENT POST-SIMPLIFICATION OF THE ACT! NOTE, CONSUMERS IF YOUR LAWYER DOES NOT KNOW THIS AND IS RELYING ON STATE EQUITY LAWS, WE WOULD BE VERY WORRIED IN YOUR CASE!

    ALSO, CONGRESS INTENDED LENDERS WHO VIOLATED TILA TO NOT BE GIVEN EQUITABLE CONSIDERATION AND IS WHY…….CONGRESS TOOK THE STEPS OF STATING THAT ONLY BY AN ACT OF CONGRESS MAY TILA RESCISSION EFFECTS OF VOIDING THE DEED, NOTE AND TRANSACTION BE ALTERED. THEY FURTHER MADE FEDERAL LAWS PREEMPT STATE LAWS WHERE THEY WERE IN CONFLICT TO TILA, FDIC REG. Z SO, NO, THERE IS NO EQUITY FOR THAT POOR SCUMMY LENDER SOB WHO VIOLATES TILA MATERIAL DISCLOSURE LAWS BAITING THE CONSUMER INTO HIS DEN IN ORDER TO STEAL THEIR HOME EVENTUALLY AS IS THIS TYPE OF LENDERS AGENDA, BOTTOM LINE. A CONSUMER AND THEIR LAWYER SHOULD FIGHT THIS HARD AND LONG AND USE ALL CURRENT LAW AND ARGUE ANTIQUATED CASES THAT DO NOT EMBODY THE POST SIMPLIFICATION OF TILA AND ALL OF THE SUBSTANTIVE PROVISIONS THEREIN!

    CONSUMERS DO NOT LET YOUR LAWYERS MISHANDLE YOUR CLAIMS OR MITIGATE THEM AS THE LESS HONORABLE LAWYERS LOVE TO DO AT THE CONSUMERS EXPENSE! MAKE SURE THEY ARE RELYING ON CURRENT, RELEVANT CASE LAW THAT WOULD BE AFTER…………11/1982, i.e., the first lawsuit would have been filed after this time AND NOT BEFORE; MAKE SURE THAT IF CASE LAW IS CITED AND THAT IT IS FROM THE EARLY 80”S THAT YOU GO TO THE LAW LIBRARY AND LOOK THE CASES UP TO SEE IF THE COURTS WERE IMPOSING THEIR STATE EQUITY LAWS OF RESCISSION PROCEDURES WHICH WERE AND ARE JUST AS DON HAS APTLY POINTED OUT IN THIS LITTLE EXERCISE OF POINTS, BARBARIC!

    JUDGES THAT USE CASE LAW FROM THE PRE-SIMPLIFICATION OF THE ACT AND THAT SAID CASES ARE GROUND IN THEIR STATE EQUITY AND RESCISSION LAWS, ARE JUST PLAIN DENYING THE CONSUMER HIS RIGHTS AND THE CONSUMER SHOULD COMPLAIN TO CONGRESS ABOUT THOSE JUDGES CITING THOSE CASES THAT ARE INTENDED TO PUT THE CONSUMER IN A LESS THAN BETTER THAN POSITION. DON IS WRONG WHEN STATING THAT THE OFFENDING LENDER IS TO BE TREATED EQUITABLY; HE IS NOT, IF HE DOES NOT COMPLY WITH TILA; MOREOVER, WEIGHT AND EXTREME CONSIDERATION MUST BE GIVEN TO THE LENDERS VIOLATIONS, I.E, IF THEY ARE EVIDENT ON THE FACE OF THE DOCUMENTS THEN ALL PARTIES INVOLVED ARE LIABLE ALSO TO THE CONSUMER TOO!

    AGAIN, THE LENDER HAS EXACTLY 20 DAYS TO PERFORM UNDER RESCISSION NOTIFICATION AND, NO, HE CANNOT WRITE THE CONSUMER A DEAR JOHN LETTER NOTIFYING THE CONSUMER THAT THEY ARE SIMPLY SORRY THEY MUST DENY THE RESCISSION AS WE DO NOT AGREE WITH THE RESCISSION! THIS TACTIC AMOUNTS TO NON-COMPLIANCE OF THE ACT AND THE CONSUMER IS ENTITLED TO A “WINDFALL WIN FOR THE LENDERS VIOLATION OF RESCISSION, A VIOLATION OF THE ACT IN AND OF ITSELF, SEE TILA 1635(b)”! AGAIN, THE LENDER IS TO FEEL MUCH, MUCH, MUCH, MUCH PAIN FOR FAILURE TO PROVIDE MATERIAL DISCLOSURES AND RESCISSION IS A TOOL OF DETERRENCE AND NOT PETULANT INDULGENCE AS DON WOULD LEAD EVERYONE READING THIS BLOG TO BELIEVE!

    LENDERS WHO ROUTINELY DO NOT COMPLY WITH RESCISSION, ALL THE BIG 19 BAILED OUT BANKS ARE REGULAR VIOLATORS AND OF THE WORSE OFFENDERS BUT, ARE USUALLY THE MOST SCUMMY OF THE SCUM AND IT IS THEIR PATTERN AND PRACTICE TO NOT DISCLOSE AND DECEIVE CONSUMERS BY GUILE INTO THE LOAN BY OFTEN FORGING DOCUMENTS AS THEY DID IN OUR CASE, BOTTOM LINE!

    So thanks Don but no thanks, we will take some good old fashion current law please and will be looking forward to your spirited reply!

    God bless Neil and all you consumers having to fight these nasty banks and their devious lawyers, tim, timcotten@mris.com

  102. Hi Tim, KEEP IT UP, you know how to block the rolling stones.

    One quick question for “D” after rescission by operation of law the lender looses its position from secured to unsecured and their interest in property and the promissory note is NEGATED.
    What lenders have done is separated the note from mortgage and when the note is separated from mortgage by definition the mortgage is unenforceable and when the mortgage is unenforceable all is VOID. What standing these scummy, impostor and thieves have? These SOBs have destroyed the entire nation just for their own GREED.This action of their is worst than the TREASON.
    They have sold my loan more than 10 TIMES and received the money which is more than 10 to 15 times of the actual loan. I do not understand why evil is supporting the evil.Probably we are heading towards the END OF TIME.

  103. Something to consider in TILA cases is the fact that courts will act to put the parties in the position they were in at the time of the closing. You get back anything you’ve paid but the “lender” still owns the house.

    In other words, to stay in the house you may have to show the court that you’re prepared to immediately replace the bogus loan with a new one from another source. Some rulings have even required a bond to be presented at trial.

    The link below cites lots of case law and it says that the courts will not give the victim their home for free. You get everything rolled back to before the loan and you have to be able to refinance it.

    This strategy Tim talks about would work for me, but the case below shows me it not be wise to attempt this TILA strategy as a remedy:

    (this went through appeals & everything)

    Here You Go Went Through Appeals & Everything

    Harry T. Howard, III, New Orleans, La., for defendant-appellant.

    R. Collins Vallee, New Orleans, La., for plaintiffs-appellees.

    Appeal from the United States District Court for the Eastern District of Louisiana.

    Before COLEMAN, HILL and RUBIN, Circuit Judges.

    JAMES C. HILL, Circuit Judge:

    The case on appeal raises the question of the appropriate remedy for a creditor’s failure to comply with 15 U.S.C. § 1635,[fn1] the rescission provision of the Truth in Lending Act. The district court held that the defendant-creditor in the case on appeal forfeited its right to recover the property it had delivered to the obligor because the creditor did not perform those duties prescribed in § 1635(b). We reverse this holding.

    The plaintiffs-appellees, Joseph E. Gerasta and Josefina E. Gerasta, received a home improvement loan from the defendant-appellant, Hibernia National Bank. The loan was secured by a second mortgage on the Gerastas’ property. Approximately six months after receiving the loan, the Gerastas discovered that the Bank had not made all the material disclosures required by the Act, and they exercised their statutory right to rescind the transaction pursuant to § 1635(a). Within ten days after receipt of the notice of rescission, the Bank was statutorily required to return to the Gerastas all money received from them and to take all necessary actions to reflect the termination of the security interest created by the second mortgage in the Gerastas’ property. 15 U.S.C. § 1635(b). If the Bank had performed these duties within ten days, the Gerastas then would have been required to tender the loan proceeds to the Bank. The Bank, however, took no action after receipt of the Gerastas’ rescission notice. Therefore, the Gerastas did not tender the loan proceeds to the Bank, and they filed this suit.

    The district court held that the loan to the Gerastas fell within the ambit of the Truth in Lending Act and that the Bank had not made all the statutorily prescribed material disclosures, thereby entitling the Gerastas to rescind the loan transaction pursuant to § 1635. After a careful review of the record we affirm these holdings. See Powers v. Sims and Levin, 542 F.2d 1216, 1219 (4th Cir. 1976); Simmons v. American Budget Plan, Inc., 386 F.Supp. 194, 200 (E.D.La. 1974). We must reverse and remand, however, on the issue of damages. In accordance with § 1635, the district court entered a judgment recognizing the Gerastas’ rescission of the loan agreement and recognizing their right to a complete refund of the money they had already paid to the Bank, plus interest. The district court also entered judgment for the Gerastas for a costs and a reasonable attorney’s fee and for the cancellation of any inscription in the public records of the second mortgage on the Gerastas’ property. The district court also held, however, that the Gerastas are entitled to retain the loan proceeds without any obligation to the Bank, because the Bank did not perform those duties imposed by § 1635.

    This court has recognized that the Truth in Lending Act Provides “detailed remedial machinery” to redress violations of the Act. Sosa v. Fite, 498 F.2d 114, 117 (5th Cir. 1974). Therefore, courts should apply those remedies provided in the Act. Burgess v. Charlottesville Savings and Loan Association, 477 F.2d 40, 45 (4th Cir. 1973); Jordan v. Montgomery Ward & Co., 442 F.2d 78, 81-82 (8th Cir.), cert. denied, 404 U.S. 870 , 92 S.Ct. 78, 30 L.Ed.2d 114 (1971). Section 1635 does not expressly provide a remedy for the situation in which the creditor fails to take any action upon receipt of a rescission notice and the consumer does not tender the creditor’s property. Section 1640(a),[fn2] however, provides the remedy for a creditor’s failure to comply with “any requirement” imposed by certain provisions of the Act, including § 1635.

    Section 1635 and § 1640 are not mutually exclusive remedies; a consumer may be entitled to both rescission pursuant to § 1635 and damages pursuant to § 1640. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 376, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Sellers v. Wollman, 510 F.2d 119, 123 (5th Cir. 1975). That Congress intended the § 1640 liability provision to apply to creditors’ violations of § 1635 is confirmed by the 1974 amendment of § 1640. Before amendment, § 1640(a) provided that it applied only when a creditor failed “to disclose to any person any information required under this part to be disclosed to that person . . . .” As stated, § 1640 now expressly applies whenever a creditor fails to comply with “any requirement” imposed by certain provisions of the Act, including § 1635. Although the amended version of § 1640 did not become effective until after the present cause of action arose, the amended version of § 1640 is applicable to the case on appeal. Mirabal v. General Motors Acceptance Corp., 537 F.2d 871, 875-76 (7th Cir. 1976). See also Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1977).

    Section 1640 does not provide for forfeiture of the creditor’s property. It provides in relevant part for an award of actual damages, a reasonable attorney’s fee, and twice the amount of any finance charge in an amount up to $1,000 and not less than $100. Application of § 1640 thus serves the congressional purpose of restoring the parties to the status quo ante and is consistent with the Act’s remedial character. Murphy v. Household Finance Corp., 560 F.2d 206, 208-11 (6th Cir. 1977); Binnick v. Avco Financial Services of Nebraska, Inc., 435 F.Supp. 359, 364-66 (D.Neb. 1977); Porter v. Household Finance Corp. of Columbus, 385 F.Supp. 336, 340-43 (S.D. Ohio 1974). If, after a hearing, the court determines that the consumer is entitled to rescind, the consumer will be recomposed for any additional damages and costs he has incurred as a result of the litigation.

    The statement of law contained in this opinion may be usefully illustrated by its application to the facts involved in the case on appeal. The Gerastas determined that the defendant Bank had violated the disclosure provisions of the Act. Therefore, the Gerastas notified the Bank of their intention to rescind the loan transaction pursuant to § 1635. The Bank did not perform its statutorily prescribed duties within ten days, allegedly because the Gerastas’ rescission was equivocal and because the Bank was uncertain whether the transaction came within the ambit of the disclosure and rescission provisions of the Truth in Lending Act. The Banks’s noncompliance exposed the Bank to the possibility of increased liability pursuant to § 1640(a).

    It has now been judicially determined that the Gerastas were entitled to rescind their transaction with the Bank and that the Gerastas’ notice of rescission was valid. Therefore, the Bank now must return to the Gerastas any money or property that it has received from them in connection with this transaction. The Bank also must take any action necessary to reflect the termination of any security interest created in the Gerastas’ property by the transaction. Upon the Bank’s performance of its duties, the Gerastas must tender the loan proceeds to the Bank. They should be given a reasonable time within which to do so. Unless the Bank fails to take possession within ten days of tender, its interest will not be forfeited.

    This court’s decision in Sosa v. Fite, 498 F.2d 114 (5th Cir. 1974), does not require a different result. In Sosa, as in the case on appeal, the creditors did not perform their statutorily prescribed duties after receiving the consumer’s notice of rescission. In Sosa, however, the consumer’s notice of rescission was accompanied by the Consumer’s express offer to return the creditor’s property. The court in Sosa emphasized that the consumer’s obligation to restore the creditor to the status quo ante was discharged by the tender. In the case on appeal, on the other hand, the Gerastas stated in their rescission notice that they refused to tender the loan proceeds until the Bank performed its statutorily prescribed duties.[fn3]

    On remand, the district court should award the Gerastas the amount of damages to which they are entitled pursuant to § 1640(a). The award should include a reasonable attorney’s fee for the services rendered on this appeal because the suit was a “successful action.” See Powers v. Sims and Levin, 542 F.2d 1216, 1222 (4th Cir. 1976); Sosa v. Fite, 498 F.2d 114, 122 (5th Cir. 1974); 15 U.S.C. § 1640(a)(3). In determining an appropriate fee, the district court should consider the factors stated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). McGowan v. King, Inc., 569 F.2d 845 (5th Cir. 1978). The district court judgment also should make clear that the Bank is entitled to a return of the loan proceeds, though the debt is no longer secured by a second mortgage on the Gerastas’ property and though the Bank’s duties are in no way conditional upon the Gerastas’ tender of the loan proceeds.

    The district court held that the Bank should have disclosed to the Gerastas that a materialmen’s lien could be created in their property pursuant to state law. La.Rev.Stat. § 9:4801. Since the district court rendered its decision, however, the Federal Reserve Board has issued an official staff interpretation that creditors need not disclose statutory materialmen’s liens running in favor of a noncreditor-contractor or its subcontractors. Federal Reserve Board Official Staff Interpretation (Sept. 30, 1976). This official staff interpretation does not affect the result in the case on appeal, however, because the Bank violated other disclosure provisions of the Act, and a creditor’s liability is not directly affected by the number of violations it commits. Turner v. Firestone Tire and Rubber Co., 537 F.2d 1296, 1297-98 (5th Cir. 1976); 15 U.S.C. § 1640(g).

    On this appeal, the Bank alleges for the first time that the Gerastas used a substantial portion of the loan proceeds to improve rental property. Because the Bank did not make this allegation in the district court, we will not consider it. United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 840 n. 13(5th Cir. 1975); Commercial Credit Business Loans, Inc. v. St. Louis Terminal Field Warehouse Co., 514 F.2d 75, 77 (5th Cir. 1975).

    AFFIRMED in part, and REVERSED and REMANDED in part.

    ALVIN B. RUBIN, Circuit Judge, concurring:

    The opinion is so thorough that I concur completely. I add simply what may be a personal gloss: the forfeiture provision contained in Section 1635(b) is still a part of the Statute; it should be enforced as written in an appropriate case; but, in the absence of the tender by the obligor that the Section specifically requires, it is not applicable.

    [fn1] Section 1635 provides in relevant part:

    (a) Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.

    (b) When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within ten days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it.

    [fn2] Section 1640(a) provides in relevant part:

    Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part . . . of this subchapter with respect to any person is liable to such person in an amount equal to the sum of –

    (1) any actual damage sustained by such person as a result of the failure;

    (2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, . . . except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000; . . . and

    (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.

    [fn3] Sosa was decided pursuant to the pre-1974 version of § 1640, which limited the applicability of § 1640 to creditors’ failures to make required disclosures. We do not consider the question of the continued validity of the Sosa decision in light of the 1974 amendment.

    http://www.wjfa.net/mf/mf_TILA.html

  104. REPLY TO D:

    Hi D, it is Tim here, you must be a foreclosure mill lawyer, banker or industry related but, you are wrong and your commentary is way the heck off the mark! You may want to purchase the NCLC Consumer Credit Series and this is why, however first, we are not lawyers and are not providing you/anyone with legal advise, this is only what we have been forced to learn over the past 7 hell ridden years we have been ensnarled with our scummy lenders, Lehman and CitiPigMortgage;

    There are no inherent problems with TILA tender! The best way to address tender is to request in the rescission letter the lender not only produce the mortgage file, the original note, deed and all assigns thereto, they also have requested the creditor apply the affects of the rescission to the payoff statement the consumer is requesting upon the issuing of the rescission therefore nicely volleying the ball back to the lenders court! The lender is required to return all sums given or paid to anyone on the behalf of the consumer including the CONSUMER!!!!! Again, at this stage of the preliminary rescission phase, your are also wrong about the deducting the proceeds paid out to the consumer, that comes later on down the line after the :”Equitable Value of the Property” has been determined!

    TILA PROVIDES SPECIFICALLY THE CONSUMER IS TO BE PLACED IN A BETTER THAN POSITION THAN THEY ENJOYED PRIOR THE TOXIC, TILA RIDDEN LOAN, SO AGAIN YOU ARE WRONG, THE CONSUMER IS TO FEEL NO PAIN, NONE, FYI, produce your law please, send it to timcotten@mris.com!

    Any consumer who timely rescinds the loan before allowing the bank to destroy their credit will have preserved their credit IN TOTAL, as long as they have not fallen behind on cc or other credit obligations, another fact you are wrong about as many of the consumers have a right to be returned to their previous credit status if they rescinded before it was destroyed, FYI, produce the law please so we may debate it.

    The creditor is BARRED……FROM REPORTING NEGATIVE CREDIT INFORMATION AGAINST A CONSUMER WHO HAS RESCINDED AND HAS BEEN INJURED BY A LENDERS TILA VIOLATIONS. THE REPORTING OF SAID NEGATIVE INFORMATION AGAINST THE CONSUMERS CREDIT WILL LEAVE OPEN A VERY BIG DOOR FOR THE CONSUMER TO WALK THRU WHICH LEADS TO AT BEST, CLAIMS OF FRAUD AGAINST THE LENDER, OVERREACHING, RETALIATION AND, CLAIMING A DEBT THEY HAVE NO LEGAL RIGHT TO CLAIM; AS SUCH, THE CREDITOR WILL BE SUBJECT TO ALL LEGAL RECOURSES AVAILABLE TO THEM UNDER FDCPA claims, so again, I cannot help but to think you are working for the BANKs, sounds like a duck, walks like a duck and quacks like a duck, hhhhhmmmmm, must be a DUCK, NO!

    What I failed to highlight above here is that any lawyer who is so foolish enough to initiate any collection action against a consumer who has rescinded the loan or any credit transactions, he would be an absolute fool to file any legal suit against the consumer for said collection of their purported debt unless, of course, it is within the twenty day time frame in which the bank must perform under the rescission!!!! Any other action after said period and the creditor did not rescind as required by law OR, i.e., VIOLATED THE RESCISSION REQUIREMENTS UNDER TILA, the consumer would be absolutely foolish to not immediately, in tandem with a good old fashion FDCPA AND FRAUD lawsuit, file a complaint for malpractice with the lawyers local AG office, Financial Regulators Business Labor and Regulation Complaint against the lawyers collection license as most are collection companies too, and Petition the Bar for Disbarment of the lawyer for his attempts to exact a fraud and treason upon the courts and public in the filing of an action upon a transaction that has been voided and is of no legal force, FYI!

    It is illegal for a lawyer to use his license for a purpose of which it has no legal purpose, so, consumers, pay very close attention to this very powerful redress here and start writing those letters to every AG and as stated above wherein the lawyer has violated said and demand the lawyer be fined and disbarred stat!

    Reality is, ALL the consumer must do is send proof of the rescission to the credit reporting agencies and demand the mortgage account OR ANY RESCINDED CREDIT ACCOUNT, be removed from their credit history.

    Upon the reporting agency having been presented with said proof of the rescission, they have no recourse other than to delete the account from the consumers credit history or the reporting agency will face the prospects of a legitimate lawsuit THAT HAS MERIT AND BIG, SHARP TEETH, so consumers, pay attention to this too!

    TILA expressly provides that upon the consumer issuing rescission, i.e., mailing it, the Loan, deed of trust NOTE and ENTIRE TRANSACTION, becomes voided, provide your law in support of your narrow and unfounded assertions the NOTE remains in tact AND IN FORCE, you are wrong and may send your law to, if not post it here, timcotten@mris.com, we will look to get that asap please so we may comment further UPON YOUR PROOF.

    Fact is, TILA rescission does not operate the same as equitable rescission under most state laws and is the WHY…..IT IS PREEMPTED BY FEDERAL LAW!!!!!! Where and always when, the consumer is met with such bs, their lawyer or they must and need to evoke Federal Exemption, F.Y.I., maybe you just did not know in providing your narrow views on the supposed INHERENT PROBLEMS WITH TILA, NOT, NONE EXIST!

    Moreover, any consumer who is being handled in this barbaric manner, or as such as you describe by any court, needs to take action against the judge who has handed such rulings down as ONLY CONGRESS, MAY CHANGE THE REQUIREMENTS UNDER TILA, AND, THEY CANNOT CHANGE THE VOIDING OF THE TRANSACTION, NOTE, AND DEED OF TRUST F.Y.I. and, if they have, the consumer has a hell of a lawsuit on their hands and can also seek out CONGRESS FOR INTERVENTION, SOMETHING I RATHER TAKE A KEEN LIKING TO AS THE LAW STATES ONLY CONGRESS CAN ALTER THE VOIDING OF THE TRANSACTION!

    A judge may, alter step 2 of the rescission process BUT HE MUST BE PRESENTED WITH EXTREMELY PERSUASIVE REASONS IN ORDER TO DO SO DEVOID OF LIABILITY, FYI, with most of the law where this has happened has long been remanded and overturned, some still exist but it is frowned upon and the consumer has a legitimate claim against the judge that needs to be addressed with congress and a petition to set aside the voided order as a judge cannot make up the law as he goes! More than not, I suspect the consumers lawyer was working both sides of the case in consort with the lender, so again, provide the law and cases you have referenced posting them preferably on this web site or mail them to me at the above please!

    As for your grossly unfounded assertions characterized under “The Inherent Problem with TILA Rescission”, you are again referring to the effects of an equitable rescission under state laws!!!!!! Again, TILA is preempted anywhere a state law is contrary to the Reg. Z, FDIC, so I suggest you revisit FDIC Reg. Z 1601 and read for a while because you are absolutely wrong therefore I ask you provide the law again in support of your assertions, see, http://www.fdic.gov/regulations/laws/rules/6500-1400.html#6500226.1 and see http://www.fdic.gov/regulations/compliance/handbook/manual%20195-196.pdf.

    Because Congress wanted and intended TILA to be easily to use for the consumer, they took painstaking efforts to ensure THE CREDITOR CARRIED ALL THE BURDEN AND RESPONSIBILITIES IN CARRYING OUT TILA and rescission remedies, remembering this was the banking industries concession to stringent regulation and oversight! Bottom line and the skinny, as punishment to the creditor FOR VIOLATING TILA, THE BANK IS TO FEEL LOTS AND LOTS AND LOTS AND LOTS AND LOTS AND LOTS OF PAIN, IT IS TO BE AN EXTREMELY PAINFUL DETERRENT TO THE BANK TO VIOLATE TILA, again provide case law contrary!

    The consumer is to be returned to A BETTER THAN POSITION, THE WHAT, CONGRESS INTENDED!!!!!!! Congress knew the consumer would need the playing fields to be even and they ensured so under TILA when placing the consumer in a better than position! The creditor bears the ABSOLUTE AND COMPLETE burden of proving they have not violated TILA, and upon identifying a violation, no matter how technical of a violation, the BURDEN STAYS WITH THE BANK! IT IS AN OUTRAGE YOU SUGGEST THE CONSUMER IS TO BE FORCED TO TENDER FIRST AND FORCED TO OBTAIN A LOAN AND HECK, you just sound like you are working for the BANKS LAWYERS, by the way? Give us the law please, you have the TILA LAWS, WE NEED TO SEE YOUR LAWS, SPECIFICALLY WHERE IS PROVIDES AS YOU PURPORT! HERE DUCKY, DUCKY………

    Note, while there are judges who openly defy Congress, as Congress is the only authority who can change the steps of the rescission, I doubt many judges under take such a farce knowing they are accountable to CONGRESS AND THE CONSUMER FOR INJURIES AND, ENTERING A VOIDED ORDER OR ORDER OF NO LEGAL FORCE, AGAIN I SUSPECT THE CONSUMERS LAWYER WAS TAKING A DIVE FOR THE LENDER, AT THE EXPENSE OF THE CONSUMER, BOTTOM LINE!

    As noted in the NCLC TILA, FORECLOSURE AND COST OF CREDIT SERIES, IF, OR WHEN, A TENDER ARISES, (THEY NEVER DO BECAUSE THE LENDER DOES NOT COMPLY WITH TILA AND INSTEAD OPTS TO VIOLATE TILA), however, according to the industry experts noted above, the properties “Equitable Value” NOT EQUITABLE RESCISSION VALUE UNDER STATE EQUITY LAWS, would need to be determined AND, as the experts state in these TILA LAW BOOKS, OFTEN THE “EQUITABLE VALUE” of the home is far, far, far, far less if of any value even remains with all THE INFLATED APPRAISALS THAT HAVE BEEN RAMPANT OVER THE LAST 8 YEARS, SO, AGAIN, you are wrong and have placed all your little eggs in the wrong basket that has just been CRUSHED, provide the law MR D, please!

    Now, on to your further unfounded assertions, the lender will motion to modify TILA; first lets address the ONLY TWO RESPONSES THE LENDER HAS WITHIN THE 20 DAYS THAT ARE, rescind the loan, file canceling or termination documents in the county courthouse reflecting the termination of the DEED OF TRUST AND THE NOTE, REMEMBERING AT ALL TIMES THE TRANSACTION HAS BEEN VOIDED AND IS OF NO LEGAL FORCE ANY LONGER AND THE CREDITOR MUST REFLECT SUCH IN THE COUNTY RECORDS AND RETURN THE CONSUMER TO “A BETTER THAN POSITION” THAN THEY WERE AT THE CLOSING OF THE LOAN, FACT!

    The lender may not ignore the rescission and if, they fail to take the necessary legal action against the consumer to uphold their rights WITHIN THE 20 DAYS THEY HAVE TO PERFORM AND, THERE HAVE BEEN NO TILA VIOLATIONS, THEN THE LENDER MUST COMMENCE AND ACTION AGAINST THE CONSUMER IN RESPONSE THERETO! THEY MAY NEVER PETITION A COURT FOR AMENDING THE RESCISSION STEPS WHEN THEY WERE IN FACT IN DEFAULT OF THE TILA, I.E, THEY FAILED TO RETURN THE CONSUMER TO THE BETTER THAN POSITION AND THE CONSUMER WAS ALLOWED TO ESCAPE THE ONEROUS LOAN, SO, AGAIN THE LAW MR. D, WE JUST ARE INTERESTED IN THE EXACT STATUTES YOU REST YOUR UNFOUNDED ASSERTIONS ON AS, AGAIN, YOU ARE DEAD WRONG!

    The creditor must perform and, I suspect as we have seen over the years, the consumers lawyer plead the case wrong or failed to answer a collection action wrong and plead the consumers case under 1640e! The lawyer more than not did so knowingly and the consumer should look into a malpractice suit against the lawyer as, more than not, he was working both sides of the case and took a dive for the lender and prospects of lender work! I am not buying any of your assertions and will gladly share the experts with you from the NCLC research we have amassed over the 7 long hell ridden years of fighting scummy banks and their equally scummy lawyers, fyi so please produce the laws you are relying on stat.

    Neil, in closing we just want to let you know we have been flogged to death with HUD-1s affirming our assertions of bank theft by stick up by HUD-1 with no one producing yet one HUD-1 that exhibits proper crediting of rebates for title insurance, taxes, hazard insurance and interest in refinance transactions.

    Another area I am going to touch on briefly today is the requirement of the lender to properly identify the loan transaction, subject the TILA disclosures; disclosures must be accurate, sequential and consistent, among other things. We may have identified how all the sub-prime loans were sold to investors and were packaged as A paper and, guess where it rest, right upon the HUD-1, right under A. Settlement Statement, there is B. Type of Loan; now, what this means is that this is the disclosure to the consumer of the amortization schedules used to compute the loan, well, ALL HUD-1 WE HAVE EVER SEEN ALL INDICATE THE LOANS TO BE CONV. UNIN. LOANS OR, ONE OF THE 5 AMORTIZATION SCHEDULE BOXES PROVIDED HOWEVER, WHERE THIS BECOMES A PROBLEM AS FAR AS WE SEE IT, IS THAT WHEN IT IS AN EXOTIC LOAN, SUCH AS AN ARM 5/1, OR INTEREST ONLY ARM WITH A BALLOON PAYMENT, THE LENDERS FAILED…….AT ALL TIMES TO UTILIZE THE B. SECTION SPACE RIGHT ABOVE THE BOXES WHEREIN THEY COULD TYPE IN THE EXACTING AMORTIZATION SCHEDULE EMPLOYED! THEY HAVE NOT DONE SO, SO, CONSUMERS, THIS IS A MATERIAL DISCLOSURE VIOLATION ENTITLING RECESSION IF YOUR NOTE AND OTHER DISCLOSURES ARE IN CONFLICT WITH THE HUD-1 DISCLOSURES, I.E, all disclosures must disclose the same Conv. Unins loan and schedules in accord, fyi. This is a new theory of ours but we are have tested out and believe we are correct however, we welcome in put please and you may do so by emailing us at timcotten@mris.com or calling us at 410-257-5283 or, just reply to this post!

    God bless Neil and please keep up the great blog as we remain grateful you have provided this forum! tim.

  105. D:

    I certainly appreciate your enthusiasm in correcting Tim, however I feel I must correct an error with respect to your answer. You cannot “opt to tender the house back.” You can ONLY tender back what you received–money!

  106. COUNSEL, ACCOUNTING, REG REQUIREMENTS AND TRUSTS INVESTMENTS – ADD CONFUSION

    June 21st 2009
    By MSoliman

    With limited exceptions, the Trust Pass- thru structure is found to mirror one an other as we look to the FSB for ultimately documenting the Holder in Due Course ( FBO and while held by a “Nominee”). FASB guidelines for GAAP reporting (accounting) mandates the loan or borrower “obligation” be entered according to establishing its basis Same is true for aggregate production and assets booked accordingly over term.The Income earned versus received over time is set forth over the actual life of each receivable and likely entered under some other line item e.g. “Loans Held for Sale” or even “Loans Sold” [Subpoena (?)]

    MERS will assure the Transferor (QSPE) as intermediary of the right to maintain delayed and future delivery “delayed transfers” of assets as a nominee at some appropriate later time (trigger event). What is critical is Federally insured saving’s institution’s “FSB” cannot make a sub prime loan and shall limit itself to FDIC regulatory guidance on the subject. (FIERRA Legislation). An FSB can lend unopposed if the subject asset and obligation is “covered” according to:

    1) A SALE – for the benefit of another party and.
    2) NET WORTH – The party is credit worthy with a substantial net worth to offset risk and
    3) COVERAGE: the loan is committed using a Purchase or take out commitment from a legit purchaser.

    Wall Street Trust Investment
    The Streets brilliance was intended to expand markets and compete with quasi-go. Programs under Freddie and Fannie; to raise capital needed to trade mortgage assets that fell outside of GSE criterion (admirable innovation when looking back) and provide an agency alternative product mix and secondary source. The Sub-Prime takeout commitment or transferee is nothing new to the seller, A QSPE acting on the part of it ownership and control over a FSB ; e.g. WaMU Fed Savings Bank, Countrywide Fed Savings Bank, Lehman Brothers Fed Savings Bank. Etc.

    STRUCTURE AND CASH FLOW
    We step out and cause controversy labeling the seller as the QSPE, or an agent for the transferor, a FSB. Whereby both act as “Obligor” MERS and Lost Notes aside….The investors are collectively earning high returns from fractional cash proceeds that flow up to the Trust from a structured finance platform “Depositor” . Trustees are overseeing a lucrative business through Trust departments and custodial services represented by the Trustee (Wells Fargo, La Salle, and Credit Suisse & Duetsche) who acts on behalf of each as a creditor.

    The QSPE uses the sub-servicing company ASC, SAXON or AHLS in a maintenance role to assure timely earnings as Master Servicer FBO the investment (CDO and REMIC varying yield and term instruments from investors. AB 1122 under SEC guidance and commission’s enforcement maintains criterion over servicers for primarily disclosure purposes and ensuring quality of earnings (at least to the extent of discouraging foul play).

    THEREFORE let’s assume the transaction and collateral never leaves the FSB . . .assume It receives its yield while holding these assets on or even of balance sheet as it fits under the lax and unregulated QSPE method of reporting earnings. Note however, de-recognition is a threat to the structure). As I know from experience and from trades while acting as Principal (MGCA 1996 -2002 through City-Financial Group and Nat City both warehouse lenders) the obligations (loans) can be and are represented to be sold in order to generate cash flow before their due dates…nothing new there. However -

    I. If the transferor has no continuing involvement with the transferred assets (loan) or with the transferee (QSPE) it is clear a sale has taken place.
    II. Assuming under GAAP, a gain on sale or loss will be booked accordingly and recognized.
    III. If the transferor has any continuing involvement or the slightest control in the assets transferred (e.g. it sells with recourse for uncollected amounts, retains and interest in the receivable or agrees to service the receivables after sale – - – the sale must fail.

    The greater the control that the transferor has retained over the receivable the more likely that the transfer will be accounted for as secured borrowing and open arguments that a Fed insured institution was in fact using bank assets to lever reserves and open arguments for de-recognition as debt rather than a sale. The Federal government MUST focus on making the business environment SAFER stable and predictable by making changes in the legal and regulatory environment only after serious and long term contemplation.

    Sudden crisis management reactions to use new regulatory laws that many times duplicate existing regulatory frameworks create duplicity of cost for further compliance. Some contest a review of the true-cost burden of the Sarbanes-Oxley Act in relation to the potential benefits seems a useful start. SOX have opportunity to emerge here in issues of transparency and claims borrowers were not dealt with in a straight and forward manner. It’s the ideal support for lack of transparency claims that does have merit. Where it placed a heavy compliance burden on the smaller public institutions and if not applied here may offset many of the benefits in transparency and accountability SOX was meant to instill.
    ——————————————————————
    Attorneys – see GAAP FAS 140 accounting for transfers and servicing of financial assets and extinguishing liabilities… “If control has not been surrendered the transfer of financial assets is accounted for as a secured borrowing”

    We offer full compliance with USPAP, FIERREA, Regulatory Agency and FHLMC/FNMA standards, utilizing our own MiNUTE i3 technology and qualified outsourcing technology. Each report is reviewed by an experienced quality control specialist upon receipt and before delivery to our clients. We will also support your QC evaluation process based on risk based loss mitigation underwriting requirements.

    msoliman@borrowerhotline.com
    borrowerhotline@gmail.com
    http://www.foreclosureinfosearch.com

  107. Tim:

    I certainly appreciate your enthusiasm and you highlighting the strengths found in the the Truth in Lending Act however I feel I must correct some errors with respect to your two posts.

    1. If a homeowner elects to rescind the security interest (Mortgage/Deed of Trust) becomes void, not the note. The homeowner is still liable for the monies advanced at closing minus a credit for all payments that were made toward the loan.

    A homeowner can opt to tender the house back and avoid the inherent problem with a TILA rescission. Most homeowners have no ability to refinance or pay the monies owed to the lender. Courts have consistently ruled that unless your are in bankruptcy the lien will not be removed until the homeowner pays the amount due on the note.

    After all the definition of rescission is to return the parties to their respective position as if the transaction had never occurred.

    2. The lender will file a motion to modify the rescission process under 15 U.S.C. § 1635(b) and it will be granted.

    This means that no security interest will be released until the homeowner tenders the net amount due on the loan, or the property.

    Again this does not apply in bankruptcy court. A valid rescission voids the security interest and the Trustee or Debtor in Possession with the strong arm powers of the Trustee can avoid the lien and the debt becomes unsecured.

    Finally, the Truth in Lending Act and Regulation Z is very long and complicated. For instance a rescission request could very easily be accepted in California and denied in Georgia. This is due to the way the respective courts have interpreted Regulation Z.

    Essentially this is what you pay a lawyer to do. Evaluate you claims, the relevant law, case law and provide his or her professional opinion on the strengths as well as the weak points of your case. $2500 for a complete audit including verifying compliance with TILA, title work, reading the securitization reports and the mortgage backed security prospectus and in my case also verifying compliance with the Georgia Fair Lending Act (anti-predatory loan statute) and Mortgage Broker’s Act seems reasonable in light of all this, in my opinion.

    D

  108. Finally, I have my first court day this Tuesday on the case I filed against JP Morgan Chase. I filed it in January and JP Morgan and WaMu did not respond to the complaint. Although, it was discussed when we appeared in an exparte hearing to consolidate and again at the UD hearing. I lost posession of my home last month… So, what happens on Tuesday at the conference hearing? Does the JP Morgan Chase get to respond?

    Back in February, I followed examples on this site to dispute the debt validation and also demanded the name(s) and contact info of the owner of my note/loan. Just two weeks ago, WaMu responded that JP Morgan Chase is now the servicer and that it is forwarding the letter to them (which I already sent to them). Comptroller’s office told JP Morgan Chase to respond to me back in March (still nothing).

    So, what do I do (or not do) on Tuesday? At this point, I don’t want to live in that house ever again. I want my money back and damages. What should I expect on Tuesday?

    Thank you,
    G

  109. I have a suggestion:
    Would it be possible to add a section to the web site where the homeowners and lawyers could keep a running narrative as to how their cases are progressing? I read the site every day trying to put everyone’s story together, but have found it impossible as I do not have a photographic memory. Possibly it could be done as a link from this site. I am donating money to the livinglies site today. I have a lawyer, am in foreclosure, but my lawyer doesn’t have time to talk to me, so I read the site everyday to trying to keep up on how the battle is proceeding. I have great admiration for the homeowners who are fighting pro se. I feel very fortunate to have a lawyer fighting for me, but it must be very gratifying to do it on your own, win or loose.

  110. UGENT MATTER

    Dear Neil and Brad:

    I had my hearing for me demurrer on Friday, May 22 at 2:30, which was followed by an unlawful detainer.

    This is what happened, at hearing:

    #1. Attorney for Deustche Bank did not show up.

    #2. Attorney for Deustche Bank did not put their opposition 9 days before court date

    #3. Commision ruled, that we get an answer to unlawful detainer within 5 days, and we did file it yesterday.

    I’m so confused as to why commisioner would still give a great opportunity to attorneys to clearn up their screw up and come back to assult me. Please call Delia Home (925) 684-9523, Cell (925) 726-9551

  111. Questions:

    Neil, when can you do a seminar in Arizona?

    How do you research you loan to find out if it’s been securitized? And, what if it hasn’t been?

  112. Hi, anyone can email us about our below post, god bless,
    tim, timcotten@mris.com

  113. Dear Neil, we just want to share our findings thus far but as we suspected and confirmed from the large majority of people we have talked to regarding proation of rebates and credits applied on HUD-1 but, we have only had a couple people say the had credits however we are still waiting on their HUD-1s.

    We wish to thank you Neil for continuing to provide this forum for all concerned, we are all grateful and thankful to your endless good works and ask that you please continue and never take personally our opinions that may be contrary as it is not intended to ever be a personal attach on anyone, god bless and thanks!

    Still, as for pricing of current audits, we see much money is being wasted by auditors developing legal theories to which the consumer is time barred from asserting so, in these tight credit and economic markets, why be paying for what is essentially useless to your lawyer or the consumer?

    In situations where the consumers 1 year rights have tolled or run in complete, more correctly and due to consumer restraints on money, an analyses of only the extended rights of rescission for “Material Disclosure Violations”, is really all the consumer needs because they are the only violations on which you may exercise the extended rights pursuant to TILA 1635(a)(f) Reg. Z. 226.17, 226.18, 226.23 and, except, the consumers absolute right to raise TILA as a defense to foreclosure as stated below.

    The Fed Box violations are found on the Final Truth in Lending and if you have access to the NCLC books, it is covered in them in the back section of the books under calculating consumer disclosure TILA violations and consumer math.

    The other analyses most audits, even the pricey ones, are failing to catch, and, especially when the consumer has been issued an acceleration/demand etc., letter to foreclose, is rescission as an absolute defense to foreclosure, TILA 15 USC 1635(i)(b)(B), which by the way, must be raised in response to the foreclosure action in order to be valid for those stated violations under said statute and, thus provides a remedy to any consumers in foreclosure however, if TILA 15 USC 1635(i)(b)(B) has been violated, then the consumer may rescind.

    We are not lawyers but offer this opinion upon reading TILA cases for almost 7 years now, we have seen little successful litigation on this particular statute because we feel most lawyers file the complaint wrong, failing to file the responsive pleading to the action and or, the complaint generally alleges disclosure defects under RESPA, sections 8 & 9 that only provides a consumer with the right to bring said actions within a year from closing and 3 years for regulator enforcement actions so, these are what we see as flaws in this new found audit system that is essentially doing for the consumers would be lawyer, what the lawyer needs to be qualified to do and identify himself if, he is expected to take litigation against the lenders on the consumers behalf.

    Our other consumer concerns is that when the lawyer is not identifying your claims separate from the auditors audit, than the consumer has no way of gauging the lawyers real skill set, knowledge and expertise in this very complex area of real estate and consumer law litigation, a sad fact we have been subjected to ourselves as consumers, in other words, the lawyer can not walk the talk and the consumer must identify this or risk having their case mishandled or, worse yet, dismissed because the lawyer plead it wrong and used the wrong statutes, TILA is a very Technical law and requires technical precision in application and know how to be the effective remedy Congress intended for e consumers!

    While we believe a lawyer can overcome incompetence issues by having a senior lawyer/mentor/manager or paid industry pro coach, advise and monitor the novice TILA consumer lawyer however, many lawyers are not fulfilling requirements under their licensing Ethics and preambles and are failing to disclose their lack of experience in the area of TILA law and, even worse yet, are charging high fees of as much as $ 300.00 and hour however are failing to hire an experienced consumer trial case coach to mentor the inexperienced trial lawyer along to an ultimate consumer “windfall” for the injured consumer as they are so deserving!

    The way we see it, is many of these inexperienced consumer lawyers and pro se litigants are causing the settled law pool to become tainted and spoiled with erroneous judgments that, had the case otherwise been handled better, would not and should not have resulted,(the later is why it is always important to read the TILA case laws cited in a ruling which you can find for free fed rulings at, http://www.websupp.org. We maintain these badly litigated cases and consumer cases now, are causing many screwed up judgments that are diluting the power of TILA, especially when a wrong decision is not appealed or challenged.

    It is our opinion, though we are NOT LAWYERS and are only sharing what we have learned over these past long, hell ridden 7 years of being forced to deal with our lender but, Lost note and security can be raised in TILA litigation also and should be raised in tandem to TILA and FDCPA claims for legal fees and servicing fees prohibited under UCC, 15 U.S.C. § 1692a of the Act which treats assignees as debt collectors, particularly if the initial servicer transferred the loan and it was purported to be in default at time of said transfer, just look at the statements and attach them to the complaint proving it but pursuant, an assignee who acquires a debt that is already in default, either for its own
    account or for purposes of collection, meets the definition of “debt collector” under the
    FDCPA, 15 U.S.C. §1692 et seq. (“FDCPA”). Kimber v. Federal Financial Corp., 668
    F.Supp. 1480 (M.D.Ala. 1987). A debt collector as defined by FDCPA, attorneys who regularly collect debts by foreclosing on real estate meet the definition of “debt collector.” Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000). These are other legal theories we do not see being examined and challenged by most current consumers and their lawyers. Fact is, FDCPA offers strong recourse in these situations when the servicer and collector/lawyer charge the prohibited default related fees, moreover, the consumer had three years from every violation to bring a private cause of action for said violation but, these laws are under used at this time!

    We, thank you Neil for your continued work and dedication to bringing us all together, god bless you and all our fellow injured consumers, tim

  114. Cindy; this same thing happened to us!
    File a complaint with the Bar, we did and
    we are suing the scummy sob lawyer!!!
    Call or email us and we will share what we
    have done as these pigs need to have their
    lic. taken and you can see to it by filing a
    complaint with the bar. Worse case, you
    that lawyer gets taken on the streets and
    cannot harm another citizen! THE BK
    COURTS ARE CORRUPT AND BROKEN

  115. We just want to share with Neil and his readers the great successes with many homeowners saving their homes and we wish to share their secret potions for saving their homes.

    If the mortgage was a refinance loan and it is your primary residence and the loan was a residential loan, it qualifies for Truth in Lending Act “Material Disclosure Violations” under Regulation Z., 226.15 and 226.23, and in tandem with disputing standing and demanding production of the deed and note, your rights under the Fair Debt and Collection Acts as well as Uniform Commercial Code of Law, then consumers must then identify if they have TILA Material Disclosure Violations, and, for right now, we are assuming the consumer has a TILA material disclosure violation and therefore has a right to rescind the loan.

    The consumer sends the notice of rescission simply stating they wish to cancel for material disclosure violations presenting on the face of the documents, the later being also key as it imputes servicer responsibility for those violations that are evident on the face of the loan documents and holder in due course rules will not apply to the service and ANY VIOLATION RELATING TO THE FEDERAL BOX is a violations that is evident on the face of the documents.

    In the rescission letter you are also going to demand a payoff balance, accounting of all payments and disbursements and PRODUCTION OF YOUR LOAN FILE, ORIGINAL NOTE AND ORIGINAL DEED, both of which consumers have been doing in sending their letters of rescission therefore killing two birds with one stone when time is of an essence but, first you must look the loan documents over to discern if you have “ANY” material disclosure violations, the later will be dealt with further down below.

    Assuming you have found material disclosure violations that allow you to rescind the loan, you have sent your rescission letter off via certified return receipt mail and, when doing this, you should send it to the current servicer, the former servicer as the lender almost always transfers the loan to a collection servicer, the originator of the loan and then cc the foreclosing law firm. Finding out all the persons in the title and thru the holding certificates and servicing certificates is not essential at this phase of issuing the notice of rescission so just keep it simple here and just issue the servicers and originating lender and the foreclosing lawyers.

    The lender has 20 days to reply or to give you back all money and property given or taken on your behalf. LOOK PEOPLE, SCREW TENDER HERE, WE HAVE NEVER SEEN OR EVEN HEARD OF ONE LENDER, ONE, JUST ONE LENDER, WHO COMPLIED WITH NOTICE OF RESCISSION! WE HAVE NOT EVEN FOUND ANY CASE LAW EXHIBITING A LENDER THAT HAS RESCINDED AS THEY ARE STATUTORILY REQUIRED TO UNDER LAW AND CONGRESS BUT, WE KNOW OF NO RECENT, (THE PAST 6 YEARS), LAWSUITS WHEREIN THE LENDER RESCINDED THE LOAN SO, AGAIN, IF YOU HAVE THAT CASE LAW PLEASE PROVIDE IT TO US BUT WE KNOW FOR A FACT AND OUR OWN EXPERIENCES, LENDERS DO NOT COMPLY WITH RESCISSION ESPECIALLY WHEN THERE ARE MATERIAL DISCLOSURE VIOLATIONS.

    Next step, the consumer must wait 20 days, if you are offered a tender by the lender or the lender applies the effects of the rescission to your payoff balance, you should be getting a check from the lender, fat chance as we have never seen this occur in the past 7 years we have been fighting our lender but, then you must decide if you want the house or not and determine fair value and an exchange HOWEVER, DO NOT HOLD YOUR BREATH CONSUMER, YOU ARE NOT GOING TO BE GETTING A CHECK FROM YOUR BANK!!!!!

    What has been happening regularly is that the lenders are sending letters of denial telling the consumers of course they found no material disclosure violations and that nothing is wrong with the loan documents and that everything is fine and your loan is in tip top shape and that all the numbers were correct, NOT!!!!!!

    The lenders letter of rescission denial is and represents a TILA violation in and of itself that is actionable under 15 USC 1640(a) for violations of 1635(b).

    Now phase two of the plan that has worked for distressed consumers who do not have money for a lawyer or Neil’s books but, because the foreclosing loan servicer is a collector as defined by 15 USC 1692(a) as is the foreclosing mills lawyer, the consumer next, upon the passing of 20 days from the date signed by the lawyer and servicer, remember you are sending cc to the foreclosure lawyer of the copy of the rescission too.

    Upon the passing of the 20 days or upon and in reply to the lender/servicer sending their letter of rescission denial, the consumer is then to compose a Cease and Desist letter that is to be sent to both the servicer and the foreclosure lawyer. This letter is going to reiterate the loan, deed of trust and note are void and that this occurred automatically by statutory process and you are going to advise them they are collectors under the law and that their failure to comply with the cease and desist notice will result in complaints against the lawyers license, complaints against them both under state business regulations for collection companies, RESPA servicing violations for the servicer and all other recourses available to the consumer.

    The consumer is also going to inform the foreclosure lawyer and servicer that their continued collection of a debt that was voided by automatic statutory process will result in a sham collection and a treason upon the courts and consumer should they pursue said debt because they lack standing to proceed due to the rescission, the contract has been terminated and the deed is void. It is always a good practice to enclose a copy of rescission letter and certified return receipt in with this correspondence.

    Now, in closing of this cease and desist letter you are going to demand the production of the consumers mortgage file and its contents and that said production must include the original note, deed of trust and all riders etc., and you are going to clarify again they lack standing to make any claims against the consumers property. This cease and desist letter must be sent certified return signature receipt so the consumer has proof. The letter to the servicer should be sent to their alternate address they disclose on your mortgage statements as it constitutes also a Qualified Written Statement, again killing two birds with the same stone.
    The above toxic potion has been working like a charm! Moreover, what consumers also fail to realize and what Neil has failed to let his readers know is that under Fair Debt and Collection Practices Act, mortgage servicers and foreclosure lawyers are PROHIBITED, PROHIBITED, FROM CHARGING DEFAULT RELATED FEES AND SERVICING FEES!!!!!!!! VERY POWERFUL STUFF FOR THE CONSUMER! FDIC Regulation Z and by law or contract pursuant to, 15 U.S.C. §§1692e(2)(B), U.S.C. §§1692f(1).
    We have not encountered 1 FORECLOSURE LAW FIRM yet who did not drop their client LIKE A RED HOT POTATO AND CANCEL THE foreclosure SALE OF THE PROPERTY UPON RECEIVING THE CEASE AND DESIST LETTERS COMPOSED AS STATED ABOVE as a lawyer can have his license taken for using it for illegal purposes such as filing fraudulent affidavits to foreclose when they know they lack standing, i.e., the automatic voiding of the note and deed by way of rescission!!!!!!
    We are vexed why more web sites are not telling consumers these easy avoidance techniques available to them!!!!!! Email us for a free samples of a good cease and desist letter that we are willing to share with any consumer facing foreclosure and that has worked for many consumers to date when employed as discussed herein!
    This will be a start and if the consumer has at least 30 days out from the sale date and the loan is a consumer residential loan on their residential property as noted above, this has worked successfully for many consumers to date! Most of the consumers who have not yet filed their TILA lawsuits, report no contract from the servicer and no further foreclosure actions have been filed. Consumers who have timely rescinded should respond to every item or correspondence from any lender, servicer or foreclosure firm immediately with a cease and deist letter and request for the same document production as noted above noting these notices should be kept in an file and should be always sent certified return receipt! Each contact thereafter constitutes a Fair Debt and Collection Violation for the injured consumer to use in their TILA lawsuit!
    Consumers must remember that while the statute does not require the consumer to sue for rescission violation enforcement actions, the consumer will only have a year or must bring the rescission violation enforcement lawsuit within one year unless is has been statutorily tolled pursuant to TILA. Again, consumers, buy the National Consumer Law Center TILA and Credit Series as you will at the very least, you will need these books to defend yourself in a court of law, do not be fooled thinking you can get this stuff from the web, YOU CANNOT!
    Now we move on to identifying your TILA Material Violation Claims that allow for rescission of the refinanced consumer loan transaction on a residential property used for the consumers place of residence. If the later is the consumers criteria then finding the TILA Material Disclosure Violations is easy and we are horrified by many of the sham and bogus audits we are seeing that do not identify the TILA statute the consumer needs to know requisite to identify if they can rescind the loan so consumers be careful before throwing your money away at these rip off audit companies who promise they know what they are doing but really do not!

    We advise the consumer to demand a sample audit by any auditor and even lawyer first before paying for an audit and if the audit makes not mention of your Truth in Lending Material Disclosure Violation Statutes, under 15 USC 1635(f), Regulation Z., 226.15 and 226.23, n48, then you are getting screwed by the auditor as RESPA is a big fish with no teeth and if they are going in this way, you must have a servicer violation under section 6 2506, which allows you 3 years to bring a private cause of action but most of what we are seeing by way of these sham audits are RESPA Violations under section 8 & 9 to which you may only bring the claim within a year of the violation or after the loan closing however, a wee too very short and brief window so we do not know why the auditors are citing these violations as many of the consumer audits we have seen, the consumer is well past his statutory rights to bring a lawsuit!!!!!!

    Courts hate the RESPA YSP lawsuits and throw them out regularly so it is best the consumer find Material Disclosure Violations that are rampant in our opinion and upon the documents we have personally inspected!

    Consumers just be careful out here as you can buy for just around $ 700.00, the National Consumer Law Center TILA and Essential Credit Series Professional Law Practice series and obtain better self help out of these law books than what we are seeing by way of these fly by night auditors and deficient audits we have been seeing for months now so do not get reeled in by these scam artist and no, we do not agree with Neil that the lawyer fees should be around $ 2500.00 for a lawyer audit and QWS letter, that is simply egregiously high and represents double payment for what the lawyer must do to identify if you have a claim on which relief can be sought or, what you are paying the lawyer for anyway when you schedule a meeting to discuss the brining of a TILA lawsuit but, we suggest the consumer just buy the books first is our consumer friendly advise!

    We have found from viewing hundreds of refinance loan documents over the past long hell ridden 7 years of fighting our lenders that it is a standard banking industry practice for the piggy banks to steal from innocent consumers their due rebates for property taxes, title insurance and property insurances and any deposits the consumer had to pay the lender that was refinanced or the loan subject to the refinance, per diems and even escrows but, fact is, the banks and mortgage brokers steal these sums from consumers and NEVER BRING THE REBATES FORWARD OR CREDIT THE REBATES ON THE HUD-1! NOW, if there is a consumer out there who has a refinanced loan within the past eight years and has a HUD-1 with credits/rebates issued on your HUD-1 from a refinance transaction, we want to talk to you and see your HUD-1 please!!!!!! You may scan your HUD-1 and email it to timcotten@mris.com and please call me at 410-257-5283, but we will not be shocked to find no one comes forward and that this is how common of a practice this theft is!

    Fact is, we have discovered an industry dirty little secret that the banking and lending industry has been stealing Americans blind for years and we were just so stupid and had no idea they were stealing via stick up by HUD-1 when retaining due consumer rebates, per diems and credits! Even these tight ass consumers who believe this only happens to NINJA Loans but, everyone has been getting the screw from these pigs for years now, pull out your HUD-1 and look if your loan was a refinance!

    What these greedy bankers failed to realize while they were stuffing the cash in their pockets upon absconding with proceeds and profits they were not due, is the one thing they failed to realize is that they would eventually get caught and that day is here today!

    Every consumer facing foreclosure on a refinanced loan should run now to find their HUD-1 and look to see if there are any credits brought forward on the HUD-1 under insurances, property taxes and interest as you should have CREDIT LINE ITEM ENTRIES if your loan was a refinanced loan, bottom line!!!!!!

    A credit adjustment will have a negative in front of it so that it is deducted from the total amounts due. Why you should have credits is that these items when paid on your behalf as they were by your servicer must be prorated and accounted for said in the HUD-1!

    What prorated means is if you financed your home on 1/2009 and paid a years worth of property taxes, a years worth of property insurance, 30 years worth of title insurance and origination fees/per diems, and all yearly payments thereafter by the servicer. Then when you refinanced your loan six months later or anytime there after,(using the tax or insurance payment date as prorate date), all these fees/interest were due to be prorated, i.e., you used six months of insurance and had a 6 month credit coming forward on the HUD-1 for the unused insurances, you paid a years worth of property taxes and therefore have 6 months coming forward as a credit on your HUD-1, you used 6 months of your 30 year title insurance policy then you have 29.5 years of credit coming forward on the HUD-1, if it was mid month when you refinanced the loan so you have 15 days of interest that is due to come foreword as a credit on the HUD-1, if your servicer just paid your property taxes for the year or your insurances, except for title insurance which is just prepaid insurance subject to a refund, then you would prorate according to when they were paid by your servicer, this NEVER HAPPENS AND THE SERVICERS STEAL THESE CREDITS!!!!!!!!.

    NOW, THE ABOVE HAS NOT BEEN HAPPENING PEOPLE! AND, AUDITORS ARE NOT CATCHING THE MOST COMPELLING TILA VIOLATIONS ANY CONSUMER COULD HAVE AS WHEN THE SCUMMY BANKS DECIDE TO SCREW THE CONSUMER AND STEAL THESE REBATES OR RETAIN THEM AS ADDITIONAL PROFITS/PROCEEDS FROM YOUR LOAN, THEY HAVE CAUSED A MATERIAL DISCLOSURE TRUTH IN LENDING VIOLATION THAT ENTITLES THE CONSUMER TO ONE OF THE MOST POWERFUL REMEDIES AROUND, RESCISSION OF THE LOAN IF WITHIN THE 3 YEAR PERIOD!!!!!

    What happens is that this little theft of the consumers equity has caused all Material Disclosure in the “Fed Box” of the Final Truth in Lending Disclosure to be wrong! EVERYONE!!!!!!!! The APR is wrong because the loan Amount was over inflated or higher than what it should have been had the due consumer rebates, per diems, etc., been applied as credits thus reducing the amount due to be financed. This in turn causes the rest of the disclosure to be wrong as one screw up in the federal box of the Truth in Lending Final Disclosure and the lender is toast! This particular form of violation is so powerful and unique as it essentially gives the consumer a violation in every essential category, the APR, THE AMOUNT FINANCED, THE INTEREST, THE TOTAL OF PAYMENTS AND SCHEDULES AND THE AMOUNT THE CREDIT WILL COST THE CONSUMER AFTER MAKING ALL PAYMENTS, and IT JUST DOES NOT GET ANY BETTER THAN THAT!

    While, there are many ways to rescind, what we are sharing here and now is what is working for the consumers we are talking to and tracking.
    \
    We have witnessed this theory in action and should and can include the lost note theory and has been used by not only us but by many consumers who have a loan that was refinanced, so go and get that HUD-1 out and you will see there are no credits that have been applied by the lender who was being paid off! The new lender/originator in a refinanced loan transaction is responsible for the correct payoff sums and must further disclose to the consumers in their good faith estimates any prepayment penalties and rebate, per diem cost you would be subjected to as a result of your refinancing the loan and improper or lack of crediting due rebates is a cost and is furhter unearned INTEREST, BOTTOM LINE!!!!!

    Settlement and Real Estate Lawyers have known about this dirty little industry secret for year and is the why these lawyers will not litigate TILA claims for consumers because they do not want consumers to know the truth as it would shut down the biggest theft ring ever to take hold of our country in the past 10 years!

    AGAIN, WE CHALLENGE ANY CONSUMER WHO HAS HAD THEIR PROPERTY REFINANCED IN THE PAST 8 YEARS TO PULL OUT THEIR HUD-1’s and give it a good going over and IF YOU HAVE CREDITS UNDER INSURANCES AND INTEREST AS STATED ABOVE, PLEASE SHARE YOUR HUD-1’s with us AS WE HAVE NEVER SEEN A REFINANCE HUD-1 WITH CREDITS ON IT! NEVER…………..

    These are just some helpful things consumers can do in addition to Neil’s advise to save their homes and stop the foreclosure! Any consumer may email us at timcotten@mris.com or call at 410-257-5283, god bless Neil and all consumers facing these battles, tim

  116. IUM: Just go to the homeowner’s section for “IN trouble Now” and download the form. You’ll get a referral to an audit firm that does things my way.

  117. Neil mentions an audit company that audits according to his specifications, but doesn’t include any info on them. Does anyone have a good audit provider? Thanks. reinvestments@cox.net

  118. I am interested in helping. Would like to discuss in further detail what is needed most.

  119. Neil:

    Do you have any information on how to perform a tila audit in dept? Thanks,
    Charles Powell

  120. Also MBS’s are defaulting like crazy and being re-securitized into a CDO (collateralized debt obligation) and the Trustee for the deal is changing.

    ABSNET provides all these updates real time.

    If the old Trustee for the MBS is attempting to foreclose they no longer have standing.

    MJ

  121. I use http://www.absnet.net/

    It contains every mortgage and asset backed security ever issued and you get monthly master servicer reports for all the MBS’s.

    It cost 20k a year though…

  122. MJ,

    Where do I look to see if an MBS exists? Thanks

    Alina

  123. Cindy: Your problem is duplicated by hundreds of thousands of other petitioners for bankruptcy relief. You should check with local counsel as there might be an action for attorney negligence or malpractice and you have the option of filing a grievance with the State Bar Association. Before doing any of that you mist want to contact your current attorney and get her up to speed. She should have shown up at the hearing in all events. But more than that she probably had the option of challenging the standing (the right to be in court) of the party seeking lift from stay. In addition, if the loan was securitized, which it probably was, your attorney could have advised the Trustee and the Judge that the note was paid by a third party, that there was no security, that the “creditor” was an impostor, and that any obligation that still exists after the federal bailouts, insurance, collateralization etc., is unsecured. Thus NOBODY is entitled to lift the stay, and in all probability, if there is any obligation left, it is the Federal government that used your taxes to pay off your obligation.

  124. Is there any interest to provide attorneys claiming to be Bankruptcy attorneys who in short, allow the lender to obtain relief from stay. My attorney did not show up to the relief from stay hearing. She did nothing, filed nothing, gave confidential information to the opposing attorney, took my money, and in front of creditors and the judicial staff, slandered me with lies in order to get the judge to allow her to remove herself from my case. She would not refund my money so I wasn’t able to pay another attorney. I found it impossible to find an experienced bankruptcy attorney willing to take my Chapter 13 case that had already been in motion for 9 months without the required schedules filed.

    I’m a single mother of 4 school aged kids and stressed (hair falling out, lost job, etc). Shortly thereafter, the Jr lienholder foreclosed without court approval and within days after the chp13 trustee had my case dismissed for failure to file the schedules.

    This same attorney did the same thing to another person I ran into. I think other people should be aware of these attorneys. She was hired to for an adversary proceeding against the Jr Lienholder and the accounting issues from the Sr Lienholder (WAMU). Now I’ve lost my home.

  125. For all you auditors out their, I work at a law firm and have been surprised to see clients come in being foreclosed on by a Mortgage Backed Security that does not even exist. Be sure and check it out thoroughly.

    Also just becuase the MBS was issued does not mean the mortgage is even a part of the MBS anymore. Get you hands on the monthly master servicer report for the MBS to see if the mortgage is actually in the MBS.

  126. All this info has been very helpful. Where do we begin to look and how do we prove the note was not properly handled or is lost. We do not understand we to begin. We do have an attorney helping us to seek modification, yet he doesnt seen too interested in the note. Our servicer (Countrywide) has took over 5 months to review our fie to tell us the investor does not accept any modifications. Please Help!

  127. Has anyone ever heard of a trustee having 2 different sale dates? One day after another?

  128. Attention: Any & or all victims of Law Offices Of David J. Stern, Default Law Group P.L. please state your contact info because there is buzz brewing of a class actin law suit against these foreclosure law firms. Please also review topics on Rip-off-report.com becuase you will find info there on these with GMAC too! Plus if anybody has some mortgage company called Nationstar mortgage there is talk in close circles of the inside of bankruptcy for them & a cancellation pending of their business licensing by May. Please be wary. God Bless all!

  129. I hope that this will help those that are fighting to save their homes. If I can be of service please contact me by email.

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

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

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

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

    WHERE’S THE NOTE, WHO’S THE HOLDER

    INTRODUCTION

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

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

    UCC SECTION 3-309

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

    WHO’S THE HOLDER

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

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

    BRIEF REVIEW OF UCC PROVISIONS

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

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

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

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

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

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

    THE RULES

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

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

    STANDING

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

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

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

    A BRIEF ASIDE: WHO IS MERS?

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

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

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

    RULES OF EVIDENCE – A PRACTICAL PROBLEM

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

    FORECLOSURE OR RELIEF FROM STAY

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

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

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

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

    SOME RECENT CASE LAW

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

    Massachusetts

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

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

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

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

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

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

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

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

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

    Ohio

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

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

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

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

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

    Illinois

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

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

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

    New York

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

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

    California

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

    and

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

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

    Texas

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

    and

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

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

    SUMMARY

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

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

    (1) It is the holder of this note original by transfer, with all necessary rounds;
    (2) It had possession of the note before it was lost;
    (3) If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be prepared to post a bond;
    (4) If the person seeking to enforce is an agent, it must show its agency status and that its principal is the holder of the note (and meets the above requirements).

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

    Thanks,
    Mortgage Audits

  130. Livinglies,

    If Chase underwrote my mortgage initially, through the local Chase office, and the note says that they can sell or assign the note after that, then how can Chase really be PRETENDING to have been a bank whom underwrote the note initially? My suit may be being brought by Citibank (as trustee for a Lehman Bros CDO), but if Chase allowed the note to be sold to the CDO, then I can’t see the pretend argument you are making.

  131. Hi Neil,

    I tried contacting you via email last week and received no reply. I’m in a very bad situation and needed your input on how to proceed with this. I don’t know if you saw this today on the TODAY Show but here’s the link – awesome stuff.
    http://today.msnbc.msn.com/id/26184891/vp/29771503#29771503

    Please contact me at your earliest convenience. My final judgement was already entered and although there’s no assignment the judge will not listen.

  132. A California Home Owner is breathing a heavy sigh of relief thanks to the efforts of The Dorton Firm. Riverside Sheriff Deputies were set to physically eject Carlos Martin from his home Monday morning at 6:01 a.m. (March 16th) when a Federal Judge issued an injunction to temporarily stop the eviction late Friday evening (March 13th).

    Fred Dorton, managing attorney at The Dorton Firm calls it an much needed action for foreclosure defense. Dorton said, “Homes are being sold at foreclosure sale by trustees and servicers who do not have the legal right to foreclose.”

    A California state court had already ruled against Mr. Martin when the Supervising Federal Judge of the U.S. District Court George King issued a temporary restraining order, Carlos Martin v. GMAC Mortgage LLC, et. al., stopping the process in order to take a closer look at how one of the biggest mortgage industry leaders does business.

    Carlos Martin said the District Court’s decision is like a light at the end of a tunnel. Mr. Martin is happy that he can stay in his home and he said that, “right now, I feel relieved that I have a fighting chance to keep what we have” and an opportunity to “live our lives again.”

  133. Charlie: NO! They SAY they are exempt but they are not. The real lender was an entity NOT chartered as a bank or lender under state or federal law. The real lender was not disclosed and paid the “bank” a fee to PRETEND (that’s why we call all these people pretender lenders). They pretended to underwrite the loan which means they did asset, income and loan verification. They did loan to value verification and funded the loan out of their own bank. None of that happened. It was a farce. Make them prove that they were the lender. Demand the proof in a QWR, debt validation or discovery procedure. The fact that they were named as payee on the note and mortgagee on the mortgage or beneficiary under the deed of trust does NOT make them the real lender. And if they want to say it did then your response is that they were paid by a third party who does not appear in the chain of title on record and therefore you are entitled to a satisfaction (release and reconveyance in non-judicial states). You do that either by filing the satisfaction yourself as agent for the originating lender who was indisputably paid in full PLUS undisclosed fees which violates TILA in several respects. Ignore the bookkeepers (Servicers) and administrators (MERS) trying to put their hand in your cash drawer (your equity in the house). They have no right to it — not on record, not legally, not morally, ethically or any other way. ONLY the party who ACTUALLY lost money can sue for relief in court. It isn’t up to YOU to prove that they didn’t lose money it is up to them to prove that they did. And you do that through the QWR, debt validation letter andd iscovery process. When they can’t or won’t answer, the case ends. You win, they lose.

  134. Charles:

    The banks are at least 24 moves ahead of us. They are exempt for Predatory Lending Laws. I couldn’t believe it either!

    The Office of Thrift Regulation occupies the entire space when it comes to lending with respect to banks, something called pre-emption allows banks to be exempt from state lending laws. Of course the OTS is silent when it comes to predatory lending.

    Then we have Truth in Lending. Any class action there is capped at 500K or 1% of net worth, I think the banks would argue the 1% of net worth is a negative few billion.

    Do you have something more specific?

  135. Predatory lending is just one bad practice. I was curious if you think it makes sense to create a class and sue the investment banks for creating this whole mess in the first place.

    I would think it makes sense to start a class action where homeowners can band together as a class and sue the Wall Street firms including Lehman Brothers, who happens to allegedly own my note via a CDO(collateralized debt obligation), which are these securitized bundles of mortgages. Everyone who has a mortgage is part of a CDO.

    The problem is that way back when, Wall Street firms (Lehman, Merrill, Bear Stears, etc) decided they could bundle mortgages into multi-layered single securities and sell these like hotcakes if they were to successfully obtain a AAA rating on the top layer. They were able to obtain this and they did sell the heck out of these to all kinds of investors everywhere including whole governments, banks, money market funds, and insurance companies.

    This led to the housing bubble which I and everyone else participated in via our owner-occupied home purchases and home improvements. Others participated via housing speculation (flipping and the like).

    These Wall Street firms started owning increasing amounts of CDO’s on their balance sheets. The former Merrill CEO was quoted as saying Merrill Lynch started “committing suicide” in 2005 by never selling any of it’s CDO’s and completely removing their risk. Lehman and Bear Stearns were no different.

    Seeing this increased concentration of assets that were benefiting from the housing bubble, Hedge Funds (these evil unregulated inefficient and costly mutual funds) decided a great strategy to capitalize on this was to buy insurance on the bet that the Wall Street firms would be succumbed by their risky CDO holdings and that this would cause the entire firm to fail. Such insurance (a.k.a. credit default swaps) was happily sold to the hedge fund firms by the largest of insurance companies – AIG, and the hedge funds were even allowed to buy, if they wanted to, up to 40 times (40x!) the amount of the risk, a completely irresponsible practice but I digress.

    The hedge funds knew they would benefit if they were able to sink Lehman and the rest as they would cash in on the insurance. So they issued press releases essentially warning about the failure of the Wall Street firms. This caused traders everywhere to sell Lehman stock. And these very same hedge funds who sent the press releases started shorting the stock of these firms at the same time! Since the “uptick rule” was abolished by President Bush, another irresponsible act but I again digress, anyone could short a stock (betting on the stock price going down, not up) to their heart’s delight. The uptick rule allowed shorting twice only after a stock price’s “uptick” or increase in it’s price, but the rule was not in effect. All of this shorting and all of the negative press releases, drove the Wall Street firm’s stock price into the gutter and caused the firm’s to fail.

    Washington’s first reaction, thanks to the self-regulation ideology of the Bush administration, was to let the first of these firm’s to simply fail. This happened to be Leman Brothers.

    And so the hedge funds were victorious in their strategy because they not only made billions shorting Lehman stock, but could also now cash in on the AIG swap insurance policies.

    Yet these very insurance policies bankrupted AIG or could bankrupt them. Having learned that letting Lehman fail was a terrible mistake because of the message it sent and the ensuing financial panic that resulted, the Bush administration and later the Obama administration decided to bailout AIG multiple times and with multiple billions of dollars.

    Once the housing market bubble finally popped, it was learned that these AAA CDO’s, that originally started this whole mess, were really not AAA and were very sensitive to the housing market going down and foreclosures going up. This began the falling of the “house of cards” that CNBC reported David Fabier so eloquently reported on, because it decimated the CDO market and caused further financial panic because banks held a lot of these and they were required to mark the value of these CDO’s to their market price (a.k.a. mark to market). Well, there was no market anymore and a zero value meant banks could not lend anymore. They were essentially “maxed-out” in a credit card analogy of sorts.

    This caused the feds to bail them out, pumping more and more of our taxpayer money into banks to keep them alive and lending.

    Meanwhile, the folks who are bailing everyone out, the taxpayer, are left holding the bag. Many taxpayers are also homeowners. And even though we are bailing out the banks with tax dollars, for generations to come I might add, these same banks are breathing down our thoats with foreclosure lawsuits because we cannot either sell our home at all or for any reasonable amount, or we were stuped into mortgages that were ridiculous to any trained eye, and aren’t even sold anymore, or we simply have less income thanks to this whole economic mess brought on by the Wall Street firm’s way back when they decided to create mortgage-back CDO’s and sell them to everyone.

    The start of the house of cards being built was the creation of the mortgage-CDO.

    Thus, I think a new defense for us homeowners in trying to save our homes is to sue the owners of the notes, or the alleged owners as it is in most cases. In my case, this would be Citibank as trustee for Lehman Brothers (Lehman has failed and Citibank is working things out for their assets I guess). Other firms are still in business such as Merrill Lynch. Or they have been taken over as is the case with Bear Stearns who is now owned by JP Morgan. Banks such as BofA and Chase should also be sued, but many were simply servicers, although they certainly benefited from the bubble.

    All of these firms contributed to this whole mess and have shared culpability in my view. Homeowners are now having to pay for the cleaning up of this mess while also having to pay increased taxes for generations to come.

    In essence, we are being forced to pay twice the amount borrowed for our homes because of the increased taxes that will definitely be needed to pay this nation’s deficit.

    That was not part of the deal when we took out our mortgages. That is wholly unfair. And that is just plain wrong.

    We need to sue these firms, as a class action, to at least get our note returned to us free-n-clear because getting cash in these class actions is, generally, not going to happen since the atty’s get the lion’s share of settlements, which is fine by me, and that is only after expenses which will be sizeable(years of court battles). But we can be given our notes back while any cash can go to the attorney’s for fighting the good fight. Fine by me.

    Ultimately, I think it is in the nation’s interest to simply give the mortgagees back their notes from the lenders because of the situation created. We don’t ask for free housing. We are going to pay for our housing, believe me. All of us. Increased taxation is the only way to crawl out of this. So, it is not a handout. It is a bailout, which if it is good for banks, it darn well should be good for us homeowners.

    This will cure the property tax problem that so many cities are now suing for damages. People will start paying taxes again, having a home free and clear.

    A class action lawsuit seeking to obtain relief from the alleged owners of the CDO’s is just what is needed in addition to the standard fights everyone should already be doing alongside their good real estate attorney or other advocate like Livinglies.

  136. Hi Neil
    Looks like you are too busy.I posted 03 blogs but did not get answer.i sent you a personal email with the lender’s letter in which it has accepted as the service r and also gave the name of the investor.Case is very strong and I have pushed them in corner and now they need a strong punch and they will explode.Please advise or leave your phone no so that I can discuss with you the real punch.My case will be an example and reference for all home owners who are in trouble.

    Thanks and Be Safe

  137. Dear Mr. Garfield or Mr. Kaiser,

    Can a Tila audit be done based on the note and riders?
    If this is done when compared to the Disclosure statements given to the borrower at settlement the understatements are tremendous. Obviously this contrasts with the directive from the FRB Staff Commentary.

    The attorneys are looking into filing TILA claims based on the failure of the lender to reflect the legal document on the Truth in Lending Statement.

    The TILDS for ARM’s are misleading to say the least but they are allowed under the Staff Commentary…

    In many situations some loans pass TILA testing even though the consumer had no idea they were acquiring a toxic mortgage.

    Can this argument be made????

    They way the Staff Commentary is written on variable rate mortgages the lender can use the data available at the time of consummation and that is it. The client signs blindly on the doted line. No wonder we were told we could qualify and the lenders and brokers abused this loop hole to show a nicer picture of the mortgage they were selling. Add to this the fact that many people never got a GFE or any disclosure prior to settlement.

    If you use the mechanisms present in the note and riders of the deed of trust, the TILDS given to most consumers would be highly irregular to say the least, specially negative amortization loans, and ARMS. OF course, When I read the Staff Commentary I can appreciate how lenders in combination with the Federal Reserve Board diluted the rights of consumers and made it easy for creditors to shaft us big time.

    It is sad, let us hope this financial debacle makes it perfectly clear that the borrower must be fully informed, and that there is not such a thing as information overload, a lack of it is a dangerous thing.

    Thanks Mr. Garfield for giving us the information and a glimmer of hope, it is all we want. Thanks to Brad as
    well !!!!

    JLS
    703-946-5851

  138. Hello Neil and all,

    I’m very sorry to hear what happened to JD, I truly hope that case could be Invalidated somehow.

    I want to know if the lender has been sent a DEMAND FOR VALIDATION OF DEBT via certified service and they DO NOT respond within the 21 days, therefore…”technically extinguishing the debt”… HOW DO YOU PROCEED TO ENFORCE THAT AND WHAT ARE THE NEXT STEPS and what is the wording or paperwork to present to the judge to vacate judgement and the case?

    Also, a copy of the Demand for validation of debt is filed in the courthouse.

    Please inform since I am getting mixed and varied info here in Florida. God Bless

  139. I would like to purchase the Garfield Lawyers workbook. The link on the page for it is no longer working. I am not an admitted lawyer but have a JD and am going to take my case pro se. The information provided so far has been more than helpful and I would like to purchase the entire workbook if possible. Kindly let me know howIi can get a hold of it. Thank you

  140. Obviously there are a lot of home owners in trouble. You need to warn them of a trap that has been set for them. I’ve given you some information concerning my case, but I would appreciate 5 minutes of “talk time” at your convenience.

    The “trap” is the use of a forbearance agreement. I can go into greater detail and show you the proof if you have the time. Here is how it works:

    My case sets legal precedent in the mortgage loan industry. With the recent Court decisions the loan servicer’s plan for stealing a home is as follows:

    HOW TO STEAL A HOME BY ORANGE COUNTY SUPERIOR COURT JUDGE ANDREW BANKS APPROVED PLAN

    1. File a Notice of Default

    2. Within the 90 calendar days allotted for the Notice, stall the consumer’s rights for information concerning debt validation. RESPA Section 6 requires a loan servicer’s response within 60 business days (excluding holidays and weekends) of receipt of a Qualified Written Request. Mathematically, (lay out a calendar to prove it to yourself) the 90 calendar days is only 5 days longer than 60 business days and less than that if a holiday falls within the 60 days. For the 60 day response to “beat” the expiration of the Notice of Default the consumer would have to write a letter the very day a Notice of Default is filed (the consumer is seldom aware of the day of filing or that one is even being filed) because the lag in “mail time” will erase the 5 day “cushion”.

    3. Toward the end of the 90 day Notice of Default timeframe the loan servicer contacts the consumer and offers a Forbearance Agreement to “postpone” the sale “until the details of the discrepancy of the records can be worked out”. The consumer hesitates to sign an agreement that overstates the amount they owe. The loan servicer refers to the language of the agreement that declares that “Unless all payments are made in accordance with the agreement, the agreement may immediately terminate and revert to the terms of the Original Note.” The loan servicer explains that all the consumer has to do is not make a payment if they “aren’t satisfied” with the results of the verification or for any other reason. They go on to explain that “The forbearance agreement is only a ‘time out’, giving all parties the opportunity to get to the truth and avoid the sale of the property”.

    4. Once the forbearance agreement is signed, according to the Court’s decision in my case, the debt is forever verified and the consumer has no further rights under RESPA Section 6 or Section 809 (b) of The Fair Debt Collection Practices Act.

    Apparently a few Courts disagree with Judge Banks and agree with me on questioning the validity of such agreements.

    In Waters v. Min Ltd., the court framed the question as whether the contract

    “was such as no man in his senses and not under delusion would make on the

    one hand, and as no honest and fair man would accept on the other.

    ” 412 Mass. at 66, 587 N.E.2d 231.

    The court noted that “[i]n Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945), the Supreme Court addressed the question of waiver under the Fair Labor Standards Act. The Court held that “a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy”…“The public benefits from enforcement of TILA because it creates a system of disclosure that improves the bargaining posture of all borrowers.” Therefore, such a waiver is unenforceable with regards to the TILA. (I have many more references concerning our situation).

    The legislation that must be enacted, with the least cost to the taxpayer or the government and quickest remedy for the consumers, is to allow a certified program of Mortgage Loan Auditors, under the affiliation with or supervision of one or more of the already established organizations like HOPE NOW. The borrower pays an upfront audit fee and presents all necessary documentation, (original note, cancelled checks, etc.) that is required to preform a verifiable loan audit. The auditor’s work is then compared with the information provided to the borrower from the loan servicer. If there is a discrepancy between the two positions and the loan servicer is overstating the amounts owing, the independent auditor’s information is presented to the loan servicer for verification and proof positive to substantiate the difference. If the difference cannot be proven by the loan servicer, according to the terms of the original note and subsequent signed modifications, the loan servicer must immediately adjust the balances and credit any and all related charges and credit the cost of the loan audit that was pre-paid by the consumer. The result of finding of the discrepancy of the loan records is reported to HUD and any other regulatory agency that monitors loan servicers so any patterns of abuse can be compiled.

    This process provides the transparency we have all so desperately sought and finally makes the loan servicer accountable for their mistakes. It costs the government nothing, it prevents loan servicing abuse. It finally makes enforcement of the statutes that have been unenforceable for decades possible. It makes finally allows each of us little people live longer in the homes we love so dearly on “Main Street”. Thank you for your time and HOPE you will make this CHANGE!

  141. This is all quite confusiong for the lay person. My question is: What are the evaluation parameters used by Wells Fargo Mortgage in determining whether to foreclose a property or work out a modification. No so much the general guidelines but the cost benefit formula and values built into it.

    Thanks

  142. Countrywide received my QWR on Feb 2. 30 days later, no reponse. Now what?????

    Thanks!

  143. Would you please send me a copy of your QWR – The one I have is 20 pages long

  144. Hi there. I am a non-attorney. Your website has had a profound impact on my companies operations. We have incorporated the use of “compliance ease” software and understand that this is not the end all tool. We started out thinking that the only documents we would need could be retrieved from the title company. Well, we’ve had a rood awakening and now we’re behind the promised timelines to a client, simply because we may now have to submitt a QWR (printed from your site). Unfortunately this may take an additional 60 days. My question is as follows: to what degree do we really need the final TILA document if we have the TILA documents from both lender and broker? Meanwhile, our intintion is to come up to speed but just looking for options with what we have right now.

    Sincerely,
    Dyrell Bevels
    916-671-0585

  145. Would you please be so kind to send me an updated QWR, as well

  146. Wells Fargo produced current assignment from original lender dated after complaint was filed. Complaint mention only Wells Fargo NA as trustee, no trust was mentioned. How can I be certain that they are now the owner.

  147. what about land patent.

  148. Ok, let me help you all on this one… Appeals Courts in FLA have allowed MERS to have standing, but they MUST plead the correct facts. If they plead they OWN and HOLD the note, that is a false pleading and actionable.

    If they say they are nominee, that is OK. However, you can NEVER EVER take the word or the “paper trail” or “electronic trail” of MERS, the servicer or whoever is foreclosing. CHALLENGE and make them PROVE UP everything from the amount claimed owed to the actual transfers and assignments.

    Depose each person on EACH ASSIGNMENT and have them bring in their driver’s license, and other affidavits and assignments they have witnesses and executed. Make sure their “signatures” match. If you find a single initial or a squiggle mark, then chances are the signature was a forgery or was pre signed.

    Check who they work for and have them bring in their w-4 and 1099s for 3 years.

    Have the notary bring in their register and log for the month before and after the notary.

    Then depose the people who made the assignments. Did they actually have PHYSICAL POSSESSION OF THE NOTE AND MORTGAGE WHEN THEY TRANSFERRED IT.

    They claim they can assign from ONE HAND/ONE PARTY TO THE OTHER HAND/PARTY but are their finger prints on the Original (“client’s ink signed) and they they actually hold and transfer the note.

    If at a custodian (99% of time) holds it, where are the instructions and POAs and other communications to show someone that had a right to hold and own actually did hold and own.

    The same applies to lost notes. See State St Vs Hartley Lord in FLA Supreme Ct. also see this appeals decision

    http://www.4dca.org/July2003/07-23-03/4D02-4051.pdf

    “State Street sought to establish the promissory
    note and mortgage under section 71.011, Florida
    Statutes. State Street alleged that Hartley
    executed the note and mortgage and that, after
    multiple assignments, the documents were
    assigned to State Street by EMC Mortgage
    Corporation. Although State Street alleged in its
    pleading that the original documents were received
    by it, the record established that State Street never
    had possession of the original note and, further,
    that its assignor, EMC, never had possession of
    the note and, thus, was not able to transfer the
    original note to State Street.
    The trial court correctly concluded that as State
    Street never had actual or constructive possession
    of the promissory note, State Street could not, as
    a matter of law, maintain a cause of action to
    enforce the note or foreclose the mortgage. The
    right to enforce the lost instrument was not
    properly assigned where neither State Street nor
    its predecessor in interest possessed the note and
    did not otherwise satisfy the requirements of
    section 673.3091, Florida Statutes, at the time of
    the assignment. See Slizyk v. Smilack, 825 So. 2d
    428, 430 (Fla. 4th DCA 2002).
    To maintain a mortgage foreclosure, the plaintiff
    must either present the original promissory note or
    give a satisfactory explanation for its failure to do
    so. § 90.953(1), Fla. Stat. (2002); W.H. Downing
    v. First Nat’l Bank of Lake City, 81 So. 2d 486
    (Fla. 1955); Nat’l Loan Investors, L.P. v. Joymar
    Assocs., 767 So. 2d 549, 551 (Fla. 3d DCA 2000).
    A limited exception applies for lost, destroyed, or
    stolen instruments, where it is shown that “the
    person was in possession of the instrument and
    entitled to enforce it when loss of possession
    occurred.” § 673.3091, Fla. Stat. (2002).”

    So the same applies. Make them prove they owned and held the mortgage before assignment. Plead they did not. Make them show where they paid for the note and how much they paid via a cancelled check or wire transmittal. Do not accept a spreadsheet entry or computer entry on a sheet. Make then prove they paid for it. Make them prove they owned it. Make them prove they held it on date of assignment and that the person assigning actually held it.

    Make them prove the balance is correct. make them prove they paid for the actual charges assessed or charged to the loan…

    I hope by now, you get my drift and remember this one word.

    NEVER ACCEPT ONE FACT PLED IN THE PLEADING OR IN AN ASSIGNMENT WITHOUT PROVING IT UP. ASSUMING SO MAKES YOU AN XXX AND SUBJECT TO MALPRACTICE SUITS!

  149. Herer is a Link for some of Deutsche Bank Trust stuff.

    https://tss.sfs.db.com/investpublic/

    786 274 0527
    malibubooks@gmail.com

  150. In re: “Ok, well sir, MERS is named as the mortgagee even though they were not the original lender, I would agree with you, that wouldn’t be the proper way to do it, however the appellate courts have said that MERS does have the authority to make these transfers, so I am bound by their decisions there.”

    I had a friend of mine with a similar ruling. He did everything by the book, by the civil codes and still lost. One thing we found out and that’s that these judges, when you’re in pro se are reluctant to look at your case. They feel that you’re guilty right from the beginning. The answer is a Tacit Procuration letter; send one to the judge if you have to. They’re 2 things that needs to be done. 1. Try to get the court to dismiss or 2. Convince the opposition that its time to pack it in and find another victim. Try both but, if one fails, attack the opposing lawyers, how, make them admit they are in a joint venture to defraud you and the court; how, ask them questions via Tacit Procuration. On Mers and the judge, if Mers never owned the notes, what transfer is he relating to? ask the jusge and when he refuses to answer, send him a request by mail with 10 days to answer.

    http://www.scribd.com/doc/7552113/Tacit-ion

    http://void-judgments.com/combating%20judgments.htm

    Remember, you’ll only lose if you give up.
    God bless

  151. Would you please send me a copy of your QWR – The one I have is 20 pages long and I just received a response back from Litton Loan citing a bunch of case law that says they only have to provide me with documentation in regards to servicing the loan and nothing more

    please email me at mrlinton82@aol.com or mike@mikelinton.com

  152. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellant,
    v.
    George AZIZE; Unknown Spouse of George Azize; John Doe, Jane Doe as Unknown Tenant(s) In Possession of the Subject Property # 1; John Doe, Jane Doe as Unknown Tenant(s) In Possession of the Subject Property # 2, Appellees.

    No. 2D05-4544.

    District Court of Appeal of Florida, Second District.

    February 21, 2007.

    MERS alleged that it is the owner and holder of the note and mortgage, and that allegation has not been contested by responsive pleading. Assuming that the complaint properly states a cause of action to reestablish the note and that MERS can show prima facie proof of such allegations, MERS would have standing as the owner and holder of the note and mortgage to proceed with the foreclosure. We also note that the trial court’s conclusion that MERS further lacked standing because one corporation cannot serve as the agent for another corporation is incorrect. See 2 Fla. Jur.2d Agency and Employment § 3 (2005). Although the trial judge was particularly concerned about MERS’s status as nominee of Aegis, in light of the allegations of the complaint, the language contained in the note and mortgage, and Azize’s failure to contest the allegations, the issue of MERS’s ownership and holding of the note and mortgage was not properly before the trial court for resolution at this stage of the proceedings. Accordingly, we reverse the dismissal and remand for further consideration.

    Reversed and remanded.

    NORTHCUTT and SILBERMAN, JJ., Concur.

    If this is the case the Judge is referring to, then as it says in the last sentence, the borrower did not try to might the foreclosure and therefore that issue was not before the court.

  153. Neil Garfield or Steve Dibert,

    Would you send me a copy of your updated QWR? Who should be its recipients?

    Thanks,
    Allan
    BeMoved@AOL.com

  154. Mia, there is an well-documented amicus brief relating to MERS put together by several consumer law groups, which I found in NCLC’s book on Foreclosures.

    I hope this helps.

    Allan

    PS Is Foreclosure Education and Strategy your website?
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    Chapter 2 Challenge to Standing of MERS (Mortgage Electronic Registration Systems, Inc.) to Foreclose in its Own Name

    Brigitte Amiri is an attorney with the Foreclosure Prevention Project of South Brooklyn Legal Services, 105 Court Street, Brooklyn, New York 11201, (718) 237-5500. The Foreclosure Prevention Project provides advice, referral and representation to low- and moderate-income homeowners who have been victimized by the predatory practices of unscrupulous mortgage lenders, mortgage brokers, home improvement contractors and real estate companies. Predatory lending practices may involve high-pressure sales tactics; highly inflated fees or interest rates; deceptive and misleading representations regarding the amounts to be financed or the monthly payments, lending when the borrower cannot afford to make the payments; intentional overappraisal of properties in poor condition, fraud; and other illegal conduct and loan terms. The Project provides legal representation for homeowners who are facing foreclosure due to abusive and illegal lending practices, advice and referral for homeowners at risk of foreclosure, workshops and outreach for low- and moderate-income homeowners regarding predatory lending practices, training and advice for community advocates and attorneys who serve at-risk neighborhoods

    April Carrie Charney is an attorney with the Jacksonville Area Legal Aid, a non-profit agency that provides civil legal assistance to low income persons who cannot obtain private legal assistance. It also provides legal aid to people who are over 60, suffer from HIV/AIDS, have been victims of housing discrimination or are living with domestic violence. Their office is located at 126 West Adams Street, Jacksonville, Florida 32202, (904) 356-8371.

    Mr. Daniel P. Lindsey is Supervisory Attorney of the Home Ownership Preservation Project (HOPP) of the Legal Assistance Foundation of Metropolitan Chicago (LAF). HOPP’s core mission is to help homeowners victimized by predatory lending and by other types of fraud and overreaching to avoid the loss of their homes. Project attorneys represent homeowners in state and federal court litigating claims against lenders, brokers, home improvement contractors, and real estate speculators. In many cases, HOPP attorneys seek to reduce a homeowner’s mortgage debt through loan modification or refinance, putting them into a new, affordable loan. In other cases, the goal is to quiet title and to eliminate fraudulently obtained mortgages. HOPP also works for better laws and regulations to protect homeowners. Mr. Lindsey has specialized in housing and consumer fraud litigation and advocacy for over ten years. He worked previously at the Sargent Shriver National Center on Poverty Law, and at a private consumer fraud law firm. Mr. Lindsey clerked in the United States District Court for the Eastern District of Pennsylvania for the Honorable James T. Giles. Mr. Lindsey is a 1990 graduate of Harvard Law School and a 1985 graduate of Davidson College.

    This chapter includes litigation against the assertion by the Mortgage Electronic Registration Systems, Inc., “MERS,” that it has the legal authority to stand in for the mortgagee in foreclosures across the country: “MERS was created by the mortgage banking industry to streamline the mortgage process by using electronic commerce to eliminate paper. Our mission is to register every mortgage loan in the United States on the MERS® System. Beneficiaries of MERS include mortgage originators, servicers, warehouse lenders, wholesale lenders, retail lenders, document custodians, settlement agents, title companies, insurers, investors, county recorders and consumers. MERS acts as nominee in the county land records for the lender and servicer. Any loan registered on the MERS® System is inoculated against future assignments because MERS remains the nominal mortgagee no matter how many times servicing is traded. MERS as original mortgagee (MOM) is approved by Fannie Mae, Freddie Mac, Ginnie Mae, FHA and VA, California and Utah Housing Finance Agencies, as well as all of the major Wall Street rating agencies.”

    Section 2.1 is an amicus brief by all three of the attorneys explaining what MERS is and why MERS’ vision of foreclosure does not square with state rules of civil procedure or advance public policy. Section 2.2.1 to 2.2.3 are Florida motions to dismiss foreclosures brought in the name of MERS because MERS was not the owner or holder of the mortgage or note on which it seeks to foreclose. Sections 2.3.1. and 2.3.2 are memoranda in support of motions to dismiss. Section 2.4 is an order of dismissal.

    2.1 Amicus Brief Explaining MERS and Its Vision of Foreclosure

    TABLE OF CONTENTS

    TABLE OF AUTHORITIES
    INTERESTS OF AMICI CURIAE
    PRELIMINARY STATEMENT
    ARGUMENT
    I. The MERS System Was Designed Without Regard to Consumers’
    Rights.
    II. Because MERS Has No Beneficial Interest in the Mortgage, Recording MERS Instruments and the MERS System as a Whole is Detrimental to Borrowers and Contravenes Public Policy.
    A. MERS’ Claims that the MERS System is Beneficial to Consumers
    are Unsupported and Unpersuasive.
    B. Despite Significant Complexities in the Modern Mortgage Market, Consumers Have a Right to Know Who Owns Their Loan.
    C. The MERS System Causes Significant and Detrimental Confusion Among Borrowers.
    D. Courts Have Cast Significant Doubt on MERS’ Purported Standing
    to Bring Foreclosure Actions its Name.
    III. MERS’ Subversion of the Public Policy Behind Public Recordings Costs County and City Clerks Over a Billion Dollars.
    CONCLUSION

    TABLE OF AUTHORITIES

    FEDERAL CASES
    Davanzo v. Resolute Ins. Co., 346 So. 2d 1227 (Fla. Dist. Ct. App. 3d Dist. 1977)
    Downing v. First Nat’l Bank, 81 So. 2d 486, 488 (Fla. 1955)
    In re Shelter Dev. Group, Inc., 50 B.R. 588 (Bankr. S.D. Fla. 1985)
    Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178 (Fla. Dist. Ct. App. 3d Dist. 1985)
    Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. Dist Ct. App. 1st Dist. 1966)
    Media Placement v. Combined Broad., Inc., 638 So. 2d 105 (Fla. Dist. Ct. App. 3d Dist. 1994)
    MERS v. Bomba, No. 1645/03 (N.Y. Sup. Ct., Kings County) (Complaint filed Jan. 15, 2003)
    MERS v. Estrella, No. 04-2078, 2004 WL 2650795 (7th Cir. Nov. 22, 2004)
    MERS v. Garwacki, 04 CV 50283 (N.D. Ill. Nov. 30, 2004)
    MERS v. Griffin, No.16-2004-CA-002155, slip op. (Fla. Cir. Ct. May 27, 2004)
    MERS v. Rees, No. CV03081773, 2003 Conn. Super. LEXIS 2437 (Conn. Super. Ct. Sept. 4, 2003)
    MERS v. Walker, 03 CH 06342
    MERS, Inc. v. Parker, No. 017622/2004, slip op. (N.Y. Sup. Ct., Suffolk Co. Oct. 19, 2004)
    MERS, Inc. v. Schoenster, Index No. 16969-2004, slip op. (N.Y. Sup. Ct., Suffolk Co. Sept 15, 2004)
    MERS. v. Burek, No. 12488/03, 2004 Slip. Op. 51135U, 2004 N.Y. Misc. LEXIS 1652 (N.Y. Sup. Ct., Richmond Co. June 7, 2004)
    Merscorp, Inc. v. Romaine, No. 9688/01, slip op. (N.Y. Sup. Ct., Suffolk Co. May 12, 2004)
    Nedeau v. Gallagher, 851 So. 2d 214 (Fla. Dist. Ct. App. 1st Dist. 2003)
    Tamiami Abstract & Title Co. v. Berman, 324 So. 2d 137, 139 (Fla. Dist. Ct. App. 3d Dist. 1975)
    Taylor, Bean & Whitaker, Mortg. Corp. v. Brown, 583 S.E.2d 844 (Ga. 2003)

    STATE CASES
    735 ILCS 5/15-1504(N)
    New York Real Property Actions and Proceedings Law § 1921
    RPAPL § 1921
    CASES
    HUD-Treasury Report on Predatory Lending, available at http://www.hud.gov/library/bookshelf18/ treasrpt.pdf
    Informal Op. Att’y Gen 2001-2 (April 5, 2001)
    MERS Internet Cite, http://www.mersinc.com/why_mers/index.aspx

    RULES
    Andrew Harris, Suffolk Judge Denies Requests by Mortgage Electronic Registration Systems, N.Y. Law J. (Aug. 31, 2004)
    Phyllis K. Slesinger and Daniel McLaughlin, Mortgage Electronic Registration System, 31 Idaho L. Rev. 805 (1995)
    RICHARD LORD, AMERICAN NIGHTMARE: PREDATORY LENDING AND THE FORECLOSURE OF THE AMERICAN DREAM (Common Courage Press 2005)

    INTERESTS OF AMICI CURIAE

    Amici are non-profit legal services organizations, namely South Brooklyn Legal Services (“SBLS”), Legal Assistance Foundation of Metropolitan Chicago (“LAF”), and Jacksonville Area Legal Aid, Inc. (“JALA”), which provide free legal representation to low-income individuals. In their respective organizations, the undersigned have developed special expertise in defending foreclosures, typically in situations where the homeowner has been targeted for a predatory loan.
    Amici strive to assist all low- to moderate-income homeowners who are in need and eligible for their services. Collectively, amici represent or counsel thousands of low-income homeowners each year. Amici’s efforts to prevent foreclosure include defending foreclosure actions in court and raising additional legal claims against bad actors; negotiating with the foreclosing lender to modify the mortgage to give the client a fresh start; filing administrative claims with city, state, and federal agencies; conducting community outreach and education on the issue of predatory lending; and working on various policy issues to protect consumers and prevent predatory lending. As described below, the MERS system is disadvantageous to amici’s homeowner clients in several respects, and therefore amici urge this court to find in favor of Respondents-Respondents-Appellants.

    PRELIMINARY STATEMENT
    Through their experience in representing individual homeowners, amici have learned first-hand the nationwide effect of the Mortgage Electronic Registration Systems, Inc. (“MERS”) on homeowners. Although the instant action turns on a question of New York law, amici and the homeowners they represent have experienced the same obstacles, confusion, and frustration that are created by the MERS system nationally.
    Although the MERS system impacts borrowers in many ways, amici would like to focus on three issues relevant to the instant action. First, because MERS obfuscates the true owner of the note, MERS creates significant and detrimental confusion among borrowers/homeowners, their advocates, and judges. Indeed, the MERS system is so confusing that the attorneys hired to represent MERS in foreclosure actions often do not understand the MERS system or know the identity of their client. Second, MERS routinely commences foreclosure actions solely in its name, even though it is not the true owner of the note. Third, MERS frustrates established public policy, which dictates that title information must be publicly available, and deprives the county clerks of millions of dollars. Accordingly, amici urges this Court to find in favor of Respondents-Respondents-Appellants cross-appeal, and against Petitioners-Appellants-Respondents.
    ARGUMENT
    I. The MERS System Was Designed Without Regard to Consumers’ Rights.

    It is well settled that MERS is not a mortgage lender; additionally, it never owns the note or mortgage, nor does it have any beneficial interest in the note or mortgage. See, e.g., Merscorp, Inc. v. Romaine, No. 9688/01, slip op. at 2 n.3 (N.Y. Sup. Ct., Suffolk Co. May 12, 2004); Informal Op. New York State Att’y Gen 2001-2 (April 5, 2001); see also Record on Appeal (hereinafter “R.__”) 430. Instead, MERS is the brainchild of the mortgage industry, designed to facilitate the transfer of mortgages on the secondary mortgage market and save lenders the cost of filing assignments. See, e.g., Brief for Petitioners-Appellants-Respondents (hereinafter “MERS Br.”) at 5 (listing the founding members of MERS as, inter alia, Mortgage Bankers Association of America and Federal National Mortgage Association). The rights, interests, and input of consumers were completely absent from the MERS’ initial design. See, e.g., Phyllis K. Slesinger and Daniel McLaughlin, Mortgage Electronic Registration System, 31 IDAHO L. REV. 805, 811, 814-15 (1995) (stating that MERS initially sought input from industry representatives).
    Similarly, the end MERS product ignores the rights and interests of consumers. Although MERS claims that the MERS system is beneficial to consumers because the “cost savings are substantial,” the flow of funds are speeded up, and the consumer can determine which company services her mortgage by calling a toll-free number, MERS Br. at 52-53, these arguments, which are unsupported and unpersuasive, disregard the significant obstacles and confusion that is created by MERS. As described below, the smokescreen that the MERS system creates to hide the true note and mortgage holder, and insulate that entity from potential liability in situations involving predatory loans, substantially outweighs any purported benefit to consumers of the MERS system. Indeed, the MERS system is fundamentally unfair to homeowners who are trapped in MERS’ system because information about who holds their mortgage debt is not publicly, and therefore readily, available.
    II. Because MERS Has No Beneficial Interest in the Mortgage, Recording MERS Instruments and the MERS System as a Whole is Detrimental to Borrowers and Contravenes Public Policy.

    A. MERS’ Claims that the MERS System is Beneficial to Consumers are Unsupported and Unpersuasive.

    MERS seeks to persuade this Court that it has ushered in a beneficent new regime in the mortgage lending industry, one that will impart both cost savings and greater access to information to homeowners everywhere. See MERS Br. at 49-54. In fact, as described below, the opposite is true. The true beneficiaries of the MERS system are MERS itself and its member lenders. The losers are county clerk’s offices and the tens of millions of homeowners who are unwittingly drawn into MERS’ virtual black hole of information. Indeed, rather than filling an “information void” as MERS repeatedly claims, see, e.g., MERS Br. at 50, the MERS system, by supplanting the county clerks’ public recording function, actually erects significant barriers to previously public information by hiding the true note holder’s identity. To some extent the losers are also the judges and the other court staff who are forced to deal with the confusion spawned by the increasing number of foreclosures brought in the name of MERS.
    MERS claims that it saves money. Indeed, its raison d’être is to save money, namely, the costs of filing mortgage assignments. The punch line of the “What is MERS?” glossy in MERS’ promotional materials sums up its core purpose: “This [MERS process] eliminates the need to record an assignment to your MERS® Ready buyer, saving on average $22 per loan.” Again, on the “Benefits” glossy, the first benefit listed is: “Save at least $22 on each loan by eliminating assignments.” See also http://www.mersinc.com/why_mers/index.aspx (last visited Dec. 13, 2004).
    MERS disingenuously attempts to persuade this Court that it is the tens of millions of homeowners whose mortgages name MERS as nominee for the original lender, or whose mortgages have been assigned to MERS who are the beneficiaries of the MERS system. MERS Br. at 52-54. MERS claims that its member lenders pass on savings to their borrowers. MERS Br. at 53. While perhaps in theory it is possible for a lender to pass the savings on to the borrower, there is no indication this is actually happening, and it is certainly not part of the MERS sales pitch to lenders. To the contrary, thanks to MERS, an additional fee is beginning to appear on the HUD-1 Settlement Statement: a MERS fee of $3.95. See R. at 48. MERS itself encourages its member lenders to charge this additional fee, as per its “FAQ” glossy in MERS’ promotional materials:
    Q. Can I pass the MERS registration fee on to the borrower?
    A. YES. On conventional loans you may be able to pass this fee on to the borrower, but you should check with your legal advisors to ensure that you are in compliance with federal and state laws. On government loans, please check with your local field office for availability and approval.

    It is a stretch, to say the least, that MERS would encourage its members to pass on the MERS registration fee to borrowers while at the same time expect its members to pass on the (larger) savings on assignment fees.
    Indeed, there is no indication that any costs savings are being passed on to borrowers. There is no “assignment fee,” denominated as such, which is now disappearing. Rather, anticipated assignment fees are built into the standard fees charged by lenders at closing and variously (but meaninglessly) denominated as “origination fee,” “underwriting fee,” “processing fee,” “administration fee,” “funding fee,” etc. There is no evidence that these fees are now decreasing to reflect “no-assignment discounts” being passed on to borrowers. Under the MERS system, it is MERS and its member lenders who are winning financially, and consumers who are losing (as well as clerk’s offices around the country, as described below, who are losing valuable operating funds).
    MERS also touts its system as providing greater access to information. See MERS Br. at 50. It is true that the MERS system affords the option of calling the toll-free number to learn who is servicing the loan, but MERS’ repeated emphasis, MERS Br. at 9-10, 50, of this issue is a red herring; indeed, access to the identity of the servicer has nothing do with the instant action. Moreover, the homeowner already knows who is servicing the loan: that is who contacts the homeowner on a monthly basis to collect payments. However, a homeowner caught in the MERS’ system doesn’t know who owns her note and mortgage.
    B. Despite Significant Complexities in the Modern Mortgage Market, Consumers Have a Right to Know Who Owns Their Loan.

    In recent years it has become very rare for a mortgage lender that originates a loan to keep that loan in its portfolio. Instead, most loans are sold into the secondary mortgage market to create capital for originating mortgage lenders to perpetuate the lending cycle. The secondary mortgage market is an industry that has boomed in the last few years. For example, the issuance of mortgage-backed securities – mortgage which are sold to Wall Street firms in pools and securitized – increased from $11 billion in 1994 to $83 billion in 1998. See HUD-Treasury Report on Predatory Lending at 2, available at http://www.hud.gov/library/bookshelf18/ treasrpt.pdf. (last visited March 28, 2003)
    Although the secondary mortgage market involves several different entities, a consumer is usually most familiar with her mortgage servicer, the company that sends bills and collects payments on behalf of the mortgagee, the owner of the mortgage and note. A consumer also has the right to know which entity is the actual mortgagee; although the servicer usually has the authority to act in many respects for the mortgagee, the mortgagee also retains the power to make certain decisions about the loan. Often a servicer will tell amici that it must obtain permission from the holder of the note prior to agreeing to resolve issues. For example, some servicers will (or must, depending on the loan servicing agreement) defer to the mortgagee when making decisions about structuring a modification of the loan if the borrower has fallen behind in her payments. If a servicer is not helpful to the borrower, she should be able to turn to the true mortgagee for assistance. It may be beneficial for the borrower, and her advocate or attorney, to contact the mortgagee directly, especially since the servicer’s primary purpose is to collect payments and may not be as amenable as the mortgagee in finding a way to get the borrower back on track in her payments.
    Normally, the easiest way to determine who currently owns the mortgage is to check the public records for the last assignment of the mortgage. The recording of an assignment is beneficial to the borrower, and the public, by openly stating the current owner of the mortgage. In the MERS system, however, assignments are never filed except when the mortgage is initially assigned to MERS or assigned to a non-MERS member mortgagee. Accordingly, when MERS is the nominee for a mortgage, the homeowner cannot determine who owns her note by checking the public records. The MERS system actively subverts the public policy of maintaining a transparent, public title history of real property.
    C. The MERS System Causes Significant and Detrimental Confusion Among Borrowers.
    In a recently published study of the predatory mortgage lending industry, the author summarized the MERS system as follows:
    MERS . . . represents the future of foreclosure: a brave new world of anonymity and unaccountability . . . The ostensible purpose is to save companies the county filing fees they often must pay when they buy mortgages or transfer servicing. An added benefit: if a foreclosure filing becomes necessary that filing, too, can be in MERS’ name. That makes it harder for journalists, community groups and researchers to determine whose mortgages are actually ending in foreclosure. If MERS has its way, it will become increasingly difficult to tell whose mortgages are failing.

    RICHARD LORD, AMERICAN NIGHTMARE: PREDATORY LENDING AND THE FORECLOSURE OF THE AMERICAN DREAM 157 (Common Courage Press 2005).
    The confusion and obstacles that are created by the MERS system are significant. Many of amici’s clients are unaware of MERS’ involvement in their mortgages and are thoroughly confused when MERS begins to act on behalf of their servicer or mortgagee. For example, one of SBLS’ elderly clients was in default on her mortgage and was receiving a tremendous number of solicitations from “foreclosure rescue” companies and mortgage brokers and lenders which were purportedly offering to save her from foreclosure. When she received the foreclosure summons and complaint naming MERS as the plaintiff, she disregarded it because she thought that MERS was simply another company trying to scare her into thinking that she would lose her home. As a result of her confusion over MERS, the client nearly lost her home.
    Similarly, the attorneys who represent MERS in foreclosure proceedings often do not know the identity of their client, the true note holder. In fact, most of them don’t know who or what MERS is, or how it works. For example, in one foreclosure case filed by MERS in Illinois state court, MERS v. Walker, 03 CH 06342 (Cir. Ct. of Cook Co., Chancery Div.) (Complaint filed April 8, 2003), initial foreclosure counsel withdrew, telling amicus LAF that another firm would substitute in. None ever did, and eventually the foreclosure complaint was dismissed for want of prosecution. However, LAF had also filed a third-party complaint against the original lender, Novastar, who was listed on the original note and mortgage (with MERS as nominee). As prosecution of the third-party complaint has continued, LAF asked counsel for Novastar who owns the note and mortgage; thus far, counsel have stated that they do not know. LAF is still litigating its third-party claims, but to this day do not know for sure who is the current holder of the note and mortgage (and it is not apparent from looking at the public record, which only lists MERS).
    A recent decision by the Seventh Circuit Court of Appeals highlights another aspect of the problems and confusion created by the MERS system. In MERS v. Estrella, No. 04-2078, 2004 WL 2650795 (7th Cir. Nov. 22, 2004), the Seventh Circuit dismissed the appeal of a foreclosure case for lack of jurisdiction because the case was not final and appealable. In addition, the court noted:
    [T]here may be a problem with subject-matter jurisdiction as well. MERS is not the lender. It is a membership organization that records, trades, and fore-closes loans on behalf of many lenders, acting for their accounts rather than its own. Its web site, , describes its organization and operation. MERS is a Delaware corporation with its principal place of business in Virginia, and as the Estrellas are citizens of Illinois everyone (including the district judge) has treated complete diversity as established. Yet it is the citizenship of the principal, and not that of the agent, that matters.

    Id. at *4. As the court noted, MERS “is a nominee only, holding title to the mortgage but not the note.” Id. at *5. Having ruled that there was a lack of finality depriving it of jurisdiction, the appeals court did not rule on the issue of diversity jurisdiction, and instead instructed the district court to do so upon remand. However, the appeals court noted that the lender was identified in district court pleadings as an Illinois corporation, “so federal jurisdiction is doubtful.” Id. at *5. Accordingly, the Estrella decision demonstrates yet again that MERS is not the note-holder and has no beneficial interest in the loan.
    D. Courts Have Cast Significant Doubt on MERS’ Purported Standing to Bring Foreclosure Actions its Name.
    Despite MERS’ contentions to the contrary, see MERS Br. at 35-40, MERS’ standing to commence a foreclosure action in New York is highly suspect. While MERS is correct that it can act as agent on behalf of the true note-holder in some respects, it does not inevitably follow that MERS can commence a foreclosure action on behalf of the true mortgagee. For example, MERS points to New York Real Property Actions and Proceedings Law (“RPAPL”) § 1921, which affirmatively requires mortgagees to issue and record a satisfaction for a mortgage once it has been paid off and provides a cause of action if the mortgagee fails to comply with this provision. MERS Br. at 35. The definition of “mortgagee” in RPAPL § 1921, which includes a mortgagee’s agent, only applies to that statutory section and has no bearing on MERS’ purported standing to bring foreclosure actions.
    Moreover, the cases cited by MERS, MERS Br. at 36, also do not establish that MERS can commence a foreclosure in its name. None of the cases cited by MERS directly address the issue of whether MERS – which is not a servicer or mortgagee and has no beneficial interest in the mortgage – can commence foreclosure. Recently, however, the Supreme Court of New York in Richmond County considered precisely this issue and refused to grant summary judgment in favor of MERS. MERS. v. Burek, No. 12488/03, 2004 Slip. Op. 51135U, 2004 N.Y. Misc. LEXIS 1652 (N.Y. Sup. Ct., Richmond Co. June 7, 2004). In Burek, the foreclosure was brought in MERS’ name and the complaint alleged, upon information and belief, that MERS is “the sole, true and lawful owner of the bond/note and mortgage securing the same.” Burek, 2004 N.Y. Misc. LEXIS 1652, at *4-5. In denying MERS’ motion for summary judgment, the Burek court determined that MERS was not the true owner of the note and stated that the “plaintiff is merely the self-described agent of a principal, and may not have the standing it asserts.” Burek, 2004 N.Y. Misc. LEXIS 1652, at **2, 4-5. The Burek court also rejected MERS’ reliance on Fairbanks Capital Corp. v. Nagel, 289 A.D.2d 99, 735 N.Y.S.2d 13 (N.Y. App. Div. 1st Dep’t 2001), cited in MERS Br. at 36, because in Fairbanks, the plaintiff “‘expressly maintained that [the] action in its capacity as servicing agent for the Trustee, which the complaint identified as the mortgage holder.’” Burek, 2004 N.Y. Misc. LEXIS 1652, at **4 (quoting Fairbanks, 289 A.D.2d at 100).
    The insufficient and incorrect pleadings in the Burek complaint are not an isolated incident with respect to MERS foreclosures. Amici have witnessed several cases in which MERS has commenced a foreclosure in its name, withheld the true note-holder’s identity, and claimed to own the note and mortgage. For example, in Kings County Supreme Court, MERS sued Jean Roger M. Bomba and Martin C. Bomba in a foreclosure action. MERS v. Bomba, No. 1645/03 (N.Y. Sup. Ct., Kings County) (Complaint filed Jan. 15, 2003). The Bomba complaint is riddled with mistruths and obfuscations, including: (1) the true note holder is never mentioned; (2) MERS alleges that its address is 400 Countrywide Way, Simi Valley, CA 93065 (which is actually Countrywide Home Loans’ address, not MERS’ address); and (3) MERS alleges on information and belief that it is the “sole, true and lawful owner of said bond/note and mortgage.” Id. Amicus SBLS is representing Martin C. Bomba, and has raised defenses, including the lack of MERS’ standing to bring the foreclosure, but the merits have not yet been reached in the case.
    Moreover, there have been a recent wave of unreported decisions in New York in which courts have prohibited MERS from foreclosing because MERS is not the true owner of the note. See Andrew Harris, Suffolk Judge Denies Requests by Mortgage Electronic Registration Systems, N.Y. LAW J. (Aug. 31, 2004) (discussing four foreclosure cases in Suffolk county that were dismissed in one day because the judge held that MERS cannot foreclose because it is not the owner of the note or mortgage). For example, in MERS, Inc. v. Schoenster, the court refused to grant MERS a default judgment against the defendant homeowners and denied MERS’ motion to appoint a referee to conduct a foreclosure sale because “the moving papers establish that the plaintiff has no interest in the subject note and mortgage sought to be foreclosed herein by assignment or otherwise.” Index No. 16969-2004, slip op. at 2 (N.Y. Sup. Ct., Suffolk Co. Sept. 15, 2004) (raising the issue sua sponte and citing, inter alia, Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 (1988)); see also MERS, Inc. v. Parker, No. 017622/2004, slip op. at 2 (N.Y. Sup. Ct., Suffolk Co. Oct. 19, 2004) (same).
    Additional frustration arises as a result of the secrecy of the true note-holder’s identity when a borrowers’ attorney is defending a foreclosure action. For example, if a defendant in a foreclosure action raises defenses and counterclaims against MERS as the plaintiff, it is unclear how to allege those defenses and counterclaims since MERS is only the agent in some respects for the true note-holder. Since the real party in interest – the true note-holder – should be a party to the foreclosure, borrowers’ attorneys are faced with the challenge of first discovering the true note-holder’s identity, and second, bringing the true note-holder into the case as a third-party.
    MERS has created similar obstacles in foreclosure proceedings around the country. For example, in Florida, MERS does not meet the standing test to bring a foreclosure action. Standing depends on whether a party has a sufficient stake in a justiciable controversy, i.e., whether a legally cognizable interest would be affected by the outcome of the litigation. See Nedeau v. Gallagher, 851 So. 2d 214 (Fla. Dist. Ct. App. 1st Dist. 2003); see also Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182-83 (Fla. Dist. Ct. App. 3d Dist. 1985) (to have standing, the plaintiff must be a “real party in interest.”). Moreover, in a mortgage foreclosure action, the plaintiff must actually hold the note to prosecute the case. A plaintiff that does not hold the original note has no standing and such action must be dismissed with prejudice. In re Shelter Dev. Group, Inc., 50 B.R. 588, 590-91 (Bankr. S.D. Fla. 1985); Downing v. First Nat’l Bank, 81 So. 2d 486, 488 (Fla. 1955); Tamiami Abstract & Title Co. v. Berman, 324 So. 2d 137, 139 (Fla. Dist. Ct. App. 3d Dist. 1975); Laing v. Gainey Builders, Inc., 184 So. 2d 897, 900 (Fla. Dist Ct. App. 1st Dist. 1966). See also Davanzo v. Resolute Ins. Co., 346 So. 2d 1227, 1228-29 (Fla. Dist. Ct. App. 3d Dist. 1977) (one who holds legal title to a mortgaged property is an indispensable party in suit to foreclose a mortgage). In addition, an agent does not have a cause of action against a party allegedly breaching a contract with its principal; the principal must authorize the agent to bring suit. Media Placement v. Combined Broad., Inc., 638 So. 2d 105, 106 (Fla. Dist. Ct. App. 3d Dist. 1994). As a result of amicus JALA’s advocacy in defending foreclosures brought in MERS’ name in Florida, one court rendered a decision that prohibits MERS from foreclosing in its name. MERS v. Griffin, No.16-2004-CA-002155, slip op. at 1 (Fla. Cir. Ct. May 27, 2004) (granting defendants motion to dismiss on the standing issue and giving plaintiff 30 days to file an amended complaint).
    In other states, courts have cast substantial doubt on MERS’ standing to foreclose. See MERS v. Rees, No. CV03081773, 2003 Conn. Super. LEXIS 2437 (Conn. Super. Ct. Sept. 4, 2003) (denying summary judgment to MERS because a genuine issue of fact existed regarding the current ownership of the note; a discrepancy existed between the affidavit submitted by MERS claiming that it owned the note and the information on the note); Taylor, Bean & Whitaker, Mortg. Corp. v. Brown, 583 S.E.2d 844 (Ga. 2003) (reserving for the trial court a determination of whether “MERS as nominee for the original lender and its successors, has the power to foreclose . . .”). In addition, the Illinois Mortgage Foreclosure Law casts MERS’ ability to foreclose in its own name in serious doubt. 735 ILL. COMP. STAT. ANN. 5/15-1504(N) (the note-holder is the proper party with standing to bring a foreclosure action under Illinois law).
    III. MERS’ Subversion of the Public Policy Behind Public Recordings Costs County and City Clerks Over a Billion Dollars.
    In addition to contravening the public policy, MERS also costs county and city clerks, throughout the country, significant revenue; in contrast, MERS profits from supplanting of the clerks’ functions. Approximately a year ago, MERS announced that 20 million mortgages were registered with MERS. MERS Registers the 20 Millionth Loan (Dec. 17, 2003), available at http://www. mersinc.com/newsroom/press.aspx. Moreover, MERS admits that a loan is transferred many times during its life. MERS Br. at 51. MERS also estimates that assignments on average cost $22 each to record with the county clerk. See http://www.mersinc.com/why_mers/index.aspx (last visited Dec. 13, 2004). Accordingly, for 20 million loans on the MERS system, assuming that they are all assigned three times each during the life of the loan, at a cost of $22 per each assignment, the county and city clerks nationwide have lost, as of December 2003, public revenue of $1.32 billion since the inception of the MERS system. This figure continues to increase as new mortgages are registered on the MERS system. In contrast, MERS charges $3.95 per loan, R. at 48, and has registered 20 million loans; accordingly, MERS has grossed $79,000,000 as a result of supplanting the county clerks’ functions.
    CONCLUSION
    For the foregoing reasons, because MERS has no beneficial interest in the mortgage, and because recording MERS instruments subverts public policy and confuses homeowners, this Court should find in favor of Respondents-Respondents-Appellants and against Petitioners-Appellants-Respondents.

    Dated: December 23, 2004
    Brooklyn, NY

    Respectfully submitted,
    ________________________
    Brigitte Amiri Daniel P. Lindsey*
    Foreclosure Prevention Project Home Ownership Preservation Project
    South Brooklyn Legal Services Legal Assistance Foundation of
    105 Court Street Metropolitan Chicago
    Brooklyn, New York 11201 111 W. Jackson, 3rd Floor
    (718) 237-5500 Chicago, IL 60604
    (312) 347-8365

    April Carrie Charney*
    Jacksonville Area Legal Aid, Inc.
    126 W. Adams Street
    Jacksonville, FL 32202
    (904) 356-8371

    *Pro Hac Vice Motion to be Filed

    CERTIFICATE OF COMPLIANCE

    I hereby certify that the above brief was prepared on a computer using Microsoft Word, and using Point 14 Times New Roman typeface, in double space. The total word count, exclusive of the cover, table of contents, table of citations, proof of service, and certificate of compliance, is 4,452.

    __________________________
    Brigitte Amiri

    2.2 Motions to Dismiss Foreclosure (FL)

    2.2.1 Motion to Dismiss Foreclosure, Case #1

    IN THE CIRCUIT COURT OF THE FOURTH
    JUDICIAL CIRCUIT, IN AND FOR DUVAL
    COUNTY, FLORIDA
    CASE NO.:
    DIVISION:

    MORTGAGE ELECTRONIC
    REGISTRATION SYSTEMS, INC., et al
    Plaintiff,
    v.
    [DEFENDANT],
    A/K/A/ [DEFENDANT], et al.,
    Defendants.
    ______________________________________/

    SEPARATE DEFENDANT [SEPARATE DEFENDANT]’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT; ALTERNATIVELY TO MAKE MORE DEFINITE AND CERTAIN

    Separate Defendant, [Separate Defendant] moves to dismiss Plaintiff’s Amended Complaint, or in the alternative, for more definite statement, pursuant to Rules 1.210(a), 1.130(a) and 1.140(b)(7) of the Florida Rules of Civil Procedure, and states, in support thereof:
    1. The right to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al 462 So. 2d 1178, 1985 Fla.App. LEXIS 11940.41U.C.C. Rep. Serv. (Callaghan) 69; 10 Fla. L. Weekly 189 (3rd District1985).
    2. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Fl. 4th DCA 1977)
    3. The plaintiff must allege that it is the owner and holder of the note in question in order to be entitled to maintain this action for a residential foreclosure of a promissory note and mortgage. The plaintiff in this case cannot and does not allege that it owns the promissory note attached to its amended complaint. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)
    4. This defendant previously filed a motion to dismiss the plaintiff’s original complaint which was granted because the plaintiff was not “identified as an assignee or successor to the original lender.” See paragraph 5 of the April 8, 2005 Order Granting Defendant [Separate Defendant]’s Motion For Relief From Order and Corrected Order Granting Motion To Dismiss
    5. Plaintiff now files its amended complaint in a failed and confused effort to establish its ownership of the promissory note involved in this foreclosure as an assignee or successor to the original lender, Fortress Mortgage, Inc.
    6. In paragraph 5 of its amended complaint, plaintiff alleges that “…the Note was endorsed to Countrywide Home Loans, Inc.; Countrywide Home Loans, Inc. is the assignee and/or successor to the Lender.”
    7. The plaintiff’s amended complaint fails to allege that it owns the note; fails to allege that that it is an assignee of the promissory note and fails to allege that plaintiff owned or held the subject note at the commencement of this action. Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990)
    8. This action should be dismissed pursuant to Rule 1.210(a) and 1.140(7), because it appears on the face of the amended complaint that a person other than the Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985), citing Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)], See also 37 Fla. Jur. Mortgages and Deeds of Trust §240 (One who does not have the ownership of the obligation secured by a mortgage, may not foreclose the mortgage) The Plaintiff cannot amend its complaint to assert facts that did not exist when the action was filed.
    9. The plaintiff alleges in its amended complaint that the note was “endorsed” to Countrywide Home Loans, Inc. The only way the plaintiff can establish that it is “the assignee or successor to the original lender” is through an assignment of the note that predates the commencement of this foreclosure action. The Uniform Commercial Code and “endorsement” is not applicable to transfer ownership of the promissory note which is the subject of this foreclosure action because, among other things, the promissory note is not a negotiable instrument under Florida law as that term is defined in F. S. 671.101, et. seq. because the promissory note at issue is not an unconditional promise to pay which is required by F. S. 673.1041(1) because:
    a. paragraph 7(A) of the note attached to the plaintiff’s amended complaint assesses and requires the payment of late charges in the amount of 4% of the overdue amount of each payment “(i)f Lender has not received the full monthly payment… by the end of fifteen calendar days after the payment is due…”
    b. paragraph 7(C) of the note gives the Lender the right to require Borrower to pay costs and expenses including …attorneys’ fees…Such fees and costs shall bear interest from the date of disbursement at the same rate as the principal of this Note.”
    c. paragraph 8 of the note requires Borrower to “waive the rights of presentment and notice of dishonor” and defines “Presentment” as “the right to require the Lender to demand payments of amounts due.”;
    d. the promissory note incorporates another writing (the security agreement) for the purpose of knowing the rights between the parties contra to the limitations of F.S. 673/1061(1)(b) and (c); and
    e. the promissory note at issue in this case is not just a promise to pay as it has and requires additional undertakings besides the promise to pay that defeat negotiability and therefore eliminates the possibility of a holder in due course.

    WHEREFORE, this Defendant requests the court grant his motion to dismiss the plaintiff’s amended complaint/alternatively to make more definite and certain and award this Defendant attorney’s fees and all other relief to which this Defendant proves himself entitled.
    CERTIFICATE OF SERVICE

    The undersigned certifies that a true copy of this document has been mailed to [Attorney for Plaintiff] by U.S. Mail this ______________________________.

    JACKSONVILLE AREA LEGAL AID, INC.,

    ________________________________________
    [Attorneys for Separate Defendant]
    Attorneys for Separate Defendant

    2.2.2 Motion to Dismiss Foreclosure, Case #2

    IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR
    CLAY COUNTY, FLORIDA
    GENERAL JURISDICTIONAL DIVISION
    CASE NO.:
    MORTGAGE ELECTRONIC
    REGISTRATION SYSTEMS, INC.,
    Plaintiff,
    vs.
    [Defendant], et al.,
    Defendants.
    ________________________________/

    SEPARATE DEFENDANT [SEPARATE DEFENDANT]’S AMENDED MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

    1. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part:

    “Every action may be prosecuted in the name of
    the real party in interest, but a personal representative,
    administrator, guardian, trustee of an express trust, a party
    with whom or in whose name a contract has been made for
    the benefit of another, or a party expressly authorized by
    statute may sue in that person’s own name without joining
    the party for whose benefit the action is brought…”

    The plaintiff in this action meets none of these criteria.

    2. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a “real party in interest” entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp. v Nopal Lines, Ltd, et al 462 So. 2d 1178, 1985 Fla.App. LEXIS 11940.41U.C.C. Rep. Serv. (Callaghan) 69; 10 Fla. L. Weekly 189 (3rd District1985).
    3. No Florida case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1.210(a) of the Florida Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody, 347 So. 2d 689 (Fl. 4th DCA 1977)
    4. The plaintiff must allege that it is the owner and holder of the note in question in order to be entitled to maintain this action for a residential foreclosure of a promissory note and mortgage. The plaintiff in this case cannot and does not allege that it owns the promissory note attached to its amended complaint. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)
    5. This action should be dismissed pursuant to Rule 1.210(a) and 1.140(7), because it appears on the face of the amended complaint that a person other than the Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985), citing Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)], See also 37 Fla. Jur. Mortgages and Deeds of Trust §240 (One who does not have the ownership of the obligation secured by a mortgage, may not foreclose the mortgage)
    6. Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all “bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought” to its complaint. Attached to Plaintiff’s amended complaint, is a promissory note payable to “North American Mortgage Company” as “Lender.” The Plaintiff in the above-styled case is “Mortgage Electronic Registration Systems, Inc.”(“MERS”).
    7. Fla.R.Civ.P. Rule 1.310(b) provides that all exhibits attached to a pleading shall be considered a part of the pleading for all purposes. The promissory note attached to MERS’ Amended Complaint establishes that the plaintiff is not the proper party to bring this action and the owner of the note in this case, “North American Mortgage Company” or whoever presently owns the subject promissory note, is an indispensable party to this foreclosure action and is missing.
    8. MERS is a for-profit electronic registration and tracking system of residential promissory notes. A loan registered with MERS is provided an 18 digit number which follows the note when the note is transferred from owner to owner. MERS is just a library and is never the true owner of the note.
    9. In an amicus brief filed by Fannie Mae and Freddie Mac in MERSCORP, INC. and MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC. V. EDWARD P. ROMAINE, Clerk of the County of Suffolk, State of New York, et al., now pending before the New York Supreme Court, Appellate Division, Docket No.: 04-4735, Fannie Mae and Freddie Mac explain that:
    The MERS system does not change the relationship among servicers,
    investors, and borrowers. Servicers still provide loan collection and
    other adminstrative servicers, investors retain an interest in the loans,
    and and borrowers are notified of any changes in servicing as required
    by federal law. The MERS System simply removes the need for servicers
    to record successive assignments by permitting MERS to serve as
    mortgagee of record, in a nominee capacity, for both the original and
    new servicer.

    Thus, rather than changing the mortgage system, MERS simply increases
    the efficiency and accuracy of this system so that the mortgage industry
    can better and more economically serve a greater number of people.

    10. In this case, MERS’ allegations of material facts claiming it is the owner of the subject note are inconsistent with the documents attached to the Amended Complaint. MERS has not pled or attached an assignment of the note to the Complaint. MERS also has not plead or attached any documentation memorializing the transfer of the subject note to itself. When exhibits are inconsistent with the plaintiff’s allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
    11. In addition, the Plaintiff’s amended complaint fails to state a cause of action for foreclosure because the record establishes that at the time this action was filed the alleged assignment of the mortgage attached to the plaintiff’s amended complaint did not exist at the commencement of this action. The Plaintiff cannot amend its complaint to assert facts that did not exist when the action was filed.
    12. The plaintiff does not own the note and fails to establish in its amended complaint that it owned or held the mortgage at the commencement of this action.
    13. This separate defendant incorporates by reference herein her answer and affirmative defenses to the plaintiff’s amended complaint previously filed with this court.
    WHEREFORE, this separate defendant requests the Court dismiss the Plaintiff’s complaint with prejudice; and award this defendant attorney’s fees and all other relief to which she proves herself entitled.
    CERTIFICATE OF SERVICE

    I HEREBY CERTIFY that a copy of the foregoing has been furnished to [Attorney for Plaintiff] by U.S. Postal Service on ___________________________.

    JACKSONVILLE AREA LEGAL AID, INC.

    [Attorney for Separate Denfendant]
    Attorney for Separate Defendant

    2.2.3 Motion to Dismiss Foreclosure, Case #3

    IN THE CIRCUIT COURT, FOURTH
    JUDICIAL CIRCUIT, IN AND FOR
    DUVAL COUNTY, FLORIDA
    CASE NO.:
    DIVISION:

    MORTGAGE ELECTRONIC
    REGISTRATION SYSTEMS, INC.
    AS NOMINEE FOR PRINCIPAL
    RESIDENTIAL MORTGAGE, INC.

    Plaintiff,
    v.
    [DEFENDANT], et al,
    Defendants.
    /

    DEFENDANT’S MOTION TO DISMISS
    PLAINTIFF’S COMPLAINT

    COMES NOW Separate Defendant, [Defendant], and for her motion to dismiss the Plaintiff’s complaint, states:
    1. Defendant requests the court dismiss this action pursuant to Rule 1.210(a) of the Florida Rules of Civil Procedure because it appears on the face of the complaint that a person other than the Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this foreclosure action.
    2. In Florida, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note.
    3. In this case, the complaint and attached exhibits identify an inconsistency between the Plaintiff’s allegations of material fact as to who the real party in interest is and therefore such allegations cancel each other out. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983); see also: Taylor, Bean & Whitaker Mortgage Corp. v. Brown, 583 S.E. 2d 844 (Ga. 2003)
    4. The Plaintiff in this case is identified in the complaint as the “nominee” for Principal Residential Mortgage, Inc.. In the mortgage and note attached the Lender is identified as Bankers Home Mortgage, Inc. 5. A “nominee” is defined in Black’s Law Dictionary (7th Edition, 1999) as:
    “…A person designated to act in place of another, usually in a very limited way…
    A party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.”

    6. “A nominee is one designated to act for another as his/her representative in a rather limited sense…In its commonly accepted meaning, the word ‘nominee’ connotes the delegation of authority to the nominee in a representative capacity only, and does not connote the transfer or assignment to the nominee of any property in or ownership of the rights of the person nominating him/her.”, Mortgage Electronic Registration Systems, Inc., v. Rees, 2003 Conn. Super. LEXIS 2437, f/n 2 (Conn. Superior Ct 2003)
    7. “In the absence of contrary evidence, ‘nominee’ should be given its commonly accepted meaning. It connotes the delegation of authority in a representative or nominal capacity only, and does not connote the transfer or assignment to the nominee of any property in or ownership of the rights of the person nominating him.” Winters National Bank and Trust Company v. Saker, 419 N.E. 2d 890 (Ohio App. 1979)
    8. Plaintiff Mortgage Electronic Registration Systems, Inc. (“MERS”) does not have standing to pursue this action. Standing depends on whether a party has a sufficient stake in a justiciable controversy, whether a legally cognizable interest would be affected by the outcome of the litigation. Nedeau v Gallagher 851 So.2d 214, 2003 Fla. App. LEXIS 9762, 28 Fla. L. Weekly D 1537 (1st District, 2003).
    9. Standing encompasses not only the “sufficient stake” definition, but at the at least equally important requirement that the claim be brought by or on behalf of one who is recognized by the law and a “real party in interest”, that is “the person in whom rests, by substantive law, the claim sought to be enforced. Kumar Corp. v Nopal Lines, Ltd, et al 462 So. 2d 1178, 1985 Fla.App. LEXIS 11940.41U.C.C. Rep. Serv. (Callaghan) 69; 10 Fla. L. Weekly 189 (3rd District1985).
    10. It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless the Plaintiff actually holds the original note. A Plaintiff that does not hold the original notes sued has no standing and such action must be dismissed with prejudice Shelter Development Group v. MMA of Georgia, Inc 50 B.R. 588 (USBC, S.D. Florida 1985) Downing v. First National Bank of Lake City, , 81 So. 2d 486, (Fla., 1955) Tamiami Abstract and Title Company v. Berman, 324 So. 2d 137 (Fla 3rd DCA> 1975) Laing v. Gainey Builders, Inc. 184 So. 2d 897 (Fla. 1st DCA 1966). See also Davanzo v. Resolute Insurance Company, et al. 346 So.2d 1227, 1977 Fla.App. LEXIS 16014 (One who holds legal title to a mortgaged property is an indispensable party in suit to foreclose a mortgage).
    11. An agent does not have a cause of action against a party allegedly breaching a contract with it’s principal. The principal must authorize the agent to bring suit. Media Placement v. Combined Broadcasting, Inc. , 638 So. 2d 104, 1994 Fla. App. 4946, 19 Fla. L. Weekly D 1156.

    WHEREFORE, this defendant requests the court dismiss the Plaintiff’s complaint with prejudice; alternatively order the Plaintiff to add the owner and holder of the subject mortgage as an indispensable party to this foreclosure action, and award this defendant attorney’s fees and all other relief to which this defendant proves herself entitled.

    CERTIFICATE OF SERVICE

    The undersigned certifies that a true copy of this document has been mailed to [Attorney for Plaintiff] by U.S. Mail and faxed to them at [Fax number] this ___ day of November, 2004.

    JACKSONVILLE AREA LEGAL AID, INC.,

    _______________________________________
    [Attorneys for Separate Defendant]
    Attorneys for Separate Defendant

    2.3 Memoranda in Support of Motions to Dismiss Foreclosure

    2.3.1 Memorandum in Support of Motion to Dismiss, Case #4

    IN THE CIRCUIT COURT, FOURTH
    JUDICIAL CIRCUIT, IN AND FOR
    DUVAL COUNTY, FLORIDA.
    CASE NO.:
    DIVISION:

    MORTGAGE ELECTRONIC REGISTRATION
    SYSTEMS, INC.,
    Plaintiff,
    vs.
    [DEFENDANT], DECEASED, ET AL
    Defendants.

    SEPARATE DEFENDANT, [SEPARATE DEFENDANT]’S MOTION TO CANCEL SUMMARY JUDGMENT HEARING, DISMISS PLAINTIFF’S COMPLAINT, OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT

    The Separate Defendant, [Separate Defendant],by and though her undersigned attorney, files this motion to cancel the summary judgment hearing, and dismiss the Plaintiff’s Complaint for failure to join an indispensable party, or in the alternative, for more definite statement, pursuant to Rules 1.460, 1.210(a), 1.130(a) and 1.140(b)(7) of the Florida Rules of Civil Procedure and states:
    1. This defendant was not able to access legal representation prior to her contact with Attorney [Attorney for Defendant] of Jacksonville Area Legal Aid, Inc., on February 23,
    2. This separate defendant was served with a summons and complaint in this foreclosure action on January 1, 2005 and she was noticed for the February 24, 2005 summary judgment hearing on January 24, 2005.
    3. Counsel for Defendant has made known to Plaintiff’s attorney this request for continuance of the scheduled hearing so that this defendant is able to have the benefit of legal representation to defend and protect her interests in this residential foreclosure. However, counsel for plaintiff advises that he does not have authority without further contact with the plaintiff to consent to such continuance.
    5. No prejudice will result to Plaintiff because of this Motion for Continuance.

    WHEREFORE, for the above stated reasons, Defendants request that the Court grant a continuance of the hearing on the Plaintiff’s Motion for Summary Final Judgment.

    MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT

    1. This separate defendant is the owner of the property which is the subject of this mortgage foreclosure Complaint. She requests the Court dismiss this action pursuant to Rule 1.210(a) and 1.140(7), because it appears on the face of the Complaint that a person other than the Plaintiff is the true owner of the claim sued upon and that the Plaintiff is not the real party in interest and is not shown to be authorized to bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985) [It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless the Plaintiff actually holds the original note, citing Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)], See also 37 Fla. Jur. Mortgages and Deeds of Trust §240 (One who does not have the ownership, possession, or the right to possession of the mortgage and the obligation secured by it, may not foreclose the mortgage)
    2. Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all “bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought” to its complaint. The plaintiff has failed to attach a copy of the Promissory Note upon which its claim is based and the assignment attached to plaintiff’s complaint is only an assignment of the mortgage and not the note. The assignment attached to the plaintiff’s complaint conflicts with the allegation in paragraph 3 of the plaintiff’s complaint which alleges that the assignment is of the mortgage and the promissory note.
    . 3. Fla.R.Civ.P. Rule 1.310(b) provides that all exhibits attached to a pleading shall be considered a part of the pleading for all purposes. It appears on the face of MERS’ Complaint that it is not the proper party to bring this action based upon recitation in the mortgage that the lender and the
    4. Further, although the plaintiff names itself in the complaint as “Mortgage Electronic Registration Systems, Inc., as Nominee For Homecomings Financial Network, Inc.” the documents attached to the plaintiff’s complaint conflict and therefore cancel out said allegations.
    5. In this case, MERS’ allegations of material facts claiming it is the owner of the subject note are inconsistent with the documents attached to the Complaint. Further, MERS has alleged it does not have the original promissory note. When exhibits are inconsistent with the plaintiff’s allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
    6. Rule 1.210(a) of the Florida Rules of Civil Procedure provides, in pertinent part: “Every action may be prosecuted in the name of
    the real party in interest, but a personal representative,
    administrator, guardian, trustee of an express trust, a party
    with whom or in whose name a contract has been made for
    the benefit of another, or a party expressly authorized by
    statute may sue in that person’s own name without joining
    the party for whose benefit the action is brought…”

    The plaintiff in this action meets none of these criteria.
    7. The plaintiff must allege that it is the owner and holder of the note and mortgage in question in order to be entitled to maintain an action on the note and mortgage which the plaintiff has not properly alleged in this case. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)
    8. Plaintiff Mortgage Electronic Registration Systems, Inc. (“MERS”) does not have standing to pursue this action. Standing depends on whether a party has a sufficient stake in a justiciable controversy, whether a legally cognizable interest would be affected by the outcome of the litigation. Nedeau v Gallagher 851 So.2d 214, 2003 Fla. App. LEXIS 9762, 28 Fla. L. Weekly D 1537 (1st District, 2003).
    9. Standing encompasses not only the “sufficient stake” definition, but at the at least equally important requirement that the claim be brought by or on behalf of one who is recognized by the law and a “real party in interest”, that is “the person in whom rests, by substantive law, the claim sought to be enforced. Kumar Corp. v Nopal Lines, Ltd, et al 462 So. 2d 1178, 1985 Fla.App. LEXIS 11940.41U.C.C. Rep. Serv. (Callaghan) 69; 10 Fla. L. Weekly 189 (3rd District1985).
    10. It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless the Plaintiff actually holds the original note. A Plaintiff that does not hold the original notes sued has no standing and such action must be dismissed with prejudice Shelter Development Group v. MMA of Georgia, Inc 50 B.R. 588 (USBC, S.D. Florida 1985) Downing v. First National Bank of Lake City, , 81 So. 2d 486, (Fla., 1955) Tamiami Abstract and Title Company v. Berman, 324 So. 2d 137 (Fla 3rd DCA> 1975) Laing v. Gainey Builders, Inc. 184 So. 2d 897 (Fla. 1st DCA 1966). See also Davanzo v. Resolute Insurance Company, et al. 346 So.2d 1227, 1977 Fla.App. LEXIS 16014 (One who holds legal title to a mortgaged property is an indispensable party in suit to foreclose a mortgage).

    WHEREFORE, this separate defendant requests the Court to dismiss the Plaintiff’s complaint with prejudice; or alternatively to order the Plaintiff to add the owner and holder of the subject note and mortgage as an indispensable party to this foreclosure action, and award this defendant attorney’s fees and all other relief to which she proves herself entitled.

    CERTIFICATE OF SERVICE
    The undersigned certifies that a true copy of this document has been faxed and mailed by U.S. Mail to [Attorney for Plaintiff] this _______________________________.

    JACKSONVILLE AREA LEGAL AID, INC.,

    ______________________________________
    [Attorney for Separate Defendant]
    Attorneys for Separate Defendant

    2.3.2 Reply Memorandum in Support of Motion to Dismiss, Case #5

    IN THE CIRCUIT COURT, FOURTH
    JUDICIAL CIRCUIT, IN AND FOR
    DUVAL COUNTY, FLORIDA.

    CASE NO.:
    DIVISION:

    MORTGAGE ELECTRONIC REGISTRATION
    SYSTEMS, INC.,
    Plaintiff,
    vs.

    [DEFENDANT], et al.
    Defendants.

    DEFENDANT’S RESPONSE TO PLAINTIFF’S REPLY TO
    DEFENDANT’S SUPPLEMENT TO AMENDED MOTION TO DISMISS

    Defendant, [Defendant], through his undersigned attorney, files this response to Plaintiff’s reply to his supplement to amended motion to dismiss to address matters not previously addressed prior memoranda and says:
    1. Florida Rule 1.210(a) of the Florida Rules of Civil Procedure governs who can maintain a suit on a note and mortgage and

  155. The basic QWRs that are used are insufficient, especially in a foreclosure. I have had to update mine several times since June. I now request certified copies of any assignments and transfers. As well as, proof the party initiating the foreclosure is the legal holder of the mortgage and note.

  156. This site is incredible! It is often difficult to find a lawyer who will really help fight back as so many just want your retainer, will fight 50% of the way , then won’t take it further so they don’t ‘ruin’ their relationship with the Judges in their area and opposing attorney!

    Have an interesting QUESTION on MERS: A friend of mine filed PRO SE, got a hearing and the Florida Judge said this about MERS:

    “Ok, well sir, MERS is named as the mortgagee even though they were not the original lender, I would agree with you, that wouldn’t be the proper way to do it, however the appellate courts have said that MERS does have the authority to make these transfers, so I am bound by their decisions there.”

    So my question – what appellate courts? Hasn’t their been case law showing the opposite about MERS, they never had possession of the original note and mortgage, how can one assign it?

  157. It is refreshing to know that someone feels compelled to help those of us that have been taken advantage of. If I hear one more ill intentioned lawyer tell me “well, you signed the papers, didn’t you?” I am going to scream. I am a very intelligent woman and to be able to read and understand the stack of papers they give you at closing would take a week! I have purchased 8 homes over the last 20 years and I have never read over every document word for word. Besides, aren’t these one sided non-negotiable documents that we could not change even if we wanted to? For too long the banks have had the upper hand to force us to do whatever is profitable for them without ethics or morals. Thank you for helping us fight back!

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