NY Monroe Case: Default entered against homeowner — CASE DISMISSED on Standing — US Bank Never refiled.

multiple choice robo-pleading

NO PLEADING: HOMEOWNER WON ANYWAY

I have held off on discussing this case until some time passed. As far as I now know US Bank, like several cases I won, has not refiled for foreclosure. There is a good reason for that. US Bank is not the Plaintiff. The Plaintiff is named as a REMIC Trust, for which the attorneys claim that US Bank is the Trustee.

As such the Plaintiff does not own nor have any interest in the loan either as owner or servicer. Hence the named trustee (U.S. Bank) is named but it has nothing to do since the trust is nonexistent and in all events no attempt has ever been made to entrust the subject mortgage into the fiduciary hands of U.S Bank.

And THAT is because the only party with an equitable interest in the debt is a group of investors whose money was used to fund the origination or acquisition of the loan. The investors meanwhile think that their money was placed in trust and then used to purchase, not originate, loans.

Every once in a while a wily judge catches on from the face of the documentation. This judge ruled against US Bank as Trustee for a named REMIC Trust because he didn’t believe US Bank or the Trust was actually related to the subject loan. He gave them a chance to correct their pleading, but apparently out of fear of perjury, the lawyers for the nonexistent trust backed off, apparently permanently.

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Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see Memorandum and Order – USBank Trust NA as Trustee for LSF9 MPT v Monroe

Quoting from the complaint field by lawyers for their supposed client, a nonexistent trust with a completely denuded trustee, the court includes their own allegation in its ruling:

2 (“Plaintiff is the owner and holder of the subject Note and Mortgage or has been delegated authority to institute this Mortgage foreclosure action by the owner and holder of the subject Note and Mortgage.”);

What does that even mean? This is a perfect example of multiple choice robo-pleading. Either the Plaintiff is the owner and holder of the subject note or mortgage or they are not. If they own the debt,  they don’t say as much and certainly didn’t offer any proof at their uncontested hearing on damages. It’s pretty hard to lose an uncontested hearing but US Bank has done it multiple times, as reported in this case.

If they have been delegated authority by the owner and holder of the subject note and mortgage, they fail to say who delegated that authority and how the delegation occurred. Since the express purpose of the trust was to own the debt, note and mortgage and make payments to investors based upon the trust’s ownership of the debt, note and mortgage, Demoting the trust to the status of a conduit or agent would be completely adverse to the express wording and authority granted in the trust.

Actually that kind of wording is exactly what enables the players to claim interest in notes and mortgages adverse to the interests of the parties whose money was directly used to fund the origination and acquisition of loans.

 

Here are some revealing quotes from the District Judge:

The Complaint does not contain any details concerning U.S. Bank’s role as trustee or the powers it has over the trust property (including the mortgage here). (e.s.)

The party asserting subject matter jurisdiction carries the burden of proving its existence by a preponderance of the evidence. E.g., Makarova, 201 F.3d at 113; Augienello v. FDIC, 310 F. Supp. 2d 582, 587–88 (S.D.N.Y. 2004). This is true even on a motion for default judgment, since the principle that a default deems the well-pleaded allegations of the complaint to be admitted is inapplicable when a court doubts the existence of subject matter jurisdiction. Transatlantic Marine, 109 F.3d at 108.

2 While some of these issues were discussed elsewhere by U.S. Bank’s counsel, e.g., Dkt. No. 7, they were not included in the affidavit filed in support of default judgment.

“When a default is entered, the defendant is deemed to have admitted all of the well- pleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); accord, e.g., Bravado Int’l, 655 F. Supp. 2d at 190. “[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a basis for the damages that are sought.” United States v. Hill, No. 12-CV-1413, 2013 WL 474535, at *1 (N.D.N.Y. Feb. 7, 2013)

In the past year, U.S. Bank’s attorneys—Gross Polowy—have repeatedly failed to secure default judgments in similar foreclosure cases before this Court. E.g., U.S. Bank Tr., N.A. v. Dupre, No. 15-CV-558, 2016 WL 5107123 (N.D.N.Y. Sept. 20, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Moody, No. 16-CV-279, 2016 WL 4203514 (N.D.N.Y. Aug. 9, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Pignataro, No. 15-CV-1041, 2016 WL 3647876 (N.D.N.Y. July 1, 2016) (Kahn, J.); cf. Ditech Fin. LLC v. Sterly, No. 15-CV-1455, 2016 WL 7429439, at *4 (N.D.N.Y. Dec. 23, 2016) (denying a motion for default judgment due to a defective notice of pendency); OneWest Bank, N.A. v. Conklin, No. 14-CV-1249, 2015 WL 3646231, at *4 (N.D.N.Y. June 10, 2015) (same). In each case, Gross Polowy’s motion was denied for one of two reasons: either the complaint failed to sufficiently allege subject matter jurisdiction, e.g., Dupre, 2016 WL 5107123, at *2–5, or the motion for default judgment failed to meet the requirements of the Court’s Local Rules, e.g., Moody, 2016 WL 4203514, at *2. Here, both of these failures are present.

The Complaint also includes no allegations concerning U.S. Bank’s ability to proceed under its own citizenship, despite bringing this case on behalf of the “LSF9 Master Participation Trust.” Compl.

While U.S. Bank is the nominal plaintiff in this case, it is longstanding federal law that “court[s] must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980). “Where an agent acts on behalf of a principal, the principal, rather than the agent, has been held to be the real and substantial party to the controversy. As a result, it is the citizenship of the principal—not that of the agent—that controls for diversity purposes.” Hilton Hotels Corp. v. Damornay Antiques, Inc., No. 99-CV-4883, 1999 WL 959371, at *2 (S.D.N.Y. Oct. 20, 1999) (citing Airlines Reporting Corp. v. S&N Travel, Inc., 58 F.3d 857, 862 (2d Cir. 1995)). At issue here is the application of this rule in lawsuits brought by a trustee on behalf of a trust. —3 Gross Polowy should be aware of this rule because they were “foreclosure counsel” for the plaintiff-appellee in Melina, 827 F.3d at 216–17, though in fairness it seems they were replaced by Hogan Lovells for both the subject matter jurisdiction issue and the subsequent appeal, id. at 216; OneWest Bank, N.A. v. Melina, No. 14-CV-5290, 2015 WL 5098635 (E.D.N.Y. Aug. 31, 2015), aff’d, 827 F.3d 214.

In Navarro, the Court held that trustees can be the real parties in controversy—regardless of the type of trust—provided that they “are active trustees whose control over the assets held in their names is real and substantial.” 446 U.S. at 465; see also Carden v. Arkoma Assocs., 494 U.S. 185, 191 (1990) (noting that, if the trustees are “active trustees whose control over the assets held in their names is real and substantial,” they are brought “under the rule, ‘more than 150 years’ old, which permits such trustees ‘to sue in their own right, without regard to the citizenship of the trust beneficiaries’” (quoting Navarro, 446 U.S. at 465–66)). The continued validity of this rule was endorsed by the Court in Americold. 136 S. Ct. at 1016.

If U.S. Bank wishes to proceed in federal court, it must, within thirty (30) days, move to amend its Complaint to address the deficiencies identified in this order. This motion to amend must be prepared in accordance with Local Rule 7.1(a)(4), which establishes the form for such a motion and lists the required papers. With that motion, to resolve the Court’s doubts concerning subject matter jurisdiction, U.S. Bank must also provide its articles of association (along with any other documentation required to establish the location of its main office), the trust instrument for the LSF9 Master Participation Trust,4 and any other documentation required to show that U.S. Bank’s control over the trust assets is real and substantial. Failure to comply with this Memorandum-Decision and Order when moving to amend the Complaint may result in the denial of the motion or sanctions. L.R. 1.1(d).

 

4 In the Dupre case discussed above, U.S. Bank also was instructed to file the trust instrument for the LSF8 Master Participation Trust (presumably another securitization vehicle for mortgage debt) in order to establish subject matter jurisdiction. 2016 WL 5107123, at *2. When it did file the trust instrument, “the text . . . was almost entirely redacted,” and the only visible portion seemed to oppose the notion that U.S. Bank was an active trustee with real and substantial control over the trust assets. Id. at *2, *4. This failure should not be repeated here, and filing documents under seal or with redactions requires advance permission of the Court. L.R. 83.13; see also Lugosh v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006) (describing the standard for restricting public access to judicial documents).

 

New Jersey Court Invokes Golden Chicken of Law

Not only did this court get it wrong, it apparently knew it was getting it wrong and so ordered that the case could not be used as precedent.

Steve Mnuchin, now Secretary of our Treasury, was hand picked by the major banks to lead a brand new Federal Savings Bank, called OneWest, which was literally organized over a single weekend to pick up the pieces of IndyMac. By the time of its announced failure in the fall of 2008 IndyMac was a thinly capitalized shell  conduit converted from regular commercial banking to a conduit to support the illusion of securitization.

The important part is that in terms of loans IndyMac literally owned as close to nothing as you could get. OneWest consisted of a group of people who don’t ordinarily invest in banks. But this was irresistible. Over the shrieking objections of FDIC chairwoman who lost her job, OneWest was allowed to claim (a) that it owned the loans that IndyMac and “originated” and (b) to claim 80% of claimed losses which the FDIC paid.

see OneWest “Wins” Again

Thus OneWest claimed losses vastly exceeding the “investment” by certain members of the 1% whom I won’t name here. This enabled them to do 2 things. Claim 80% of the fictitious losses from loans that were not owned by Indymac and the foreclose to collect the entire amount.

Mnuchin was put in charge of “operations.” He ran nothing and basically did as he was told. He knew that the IndyMac residential loan portfolio was at practically zero, he knew that the 80% claim was fictitious, and he knew that neither IndyMac nor OneWest, its supposed successor owned the loans. Nonetheless the “foreclosure king” was entirely happy with foreclosing on homeowners who were caught in a world of spin.

The investors in the OneWest deal split the spoils of war. To be fair they didn’t actually know the truth of the situation. Mnuchin painted a very rosy profit picture that would happen over the short-term and he was right.

As with WAMU, Countrywide et al, the business of IndyMac was largely run through remote vehicles posing as mortgage brokers, originators or just sellers. These entities did exactly what IndyMac told them to do and in so doing IndyMac was doing exactly what it was told to do by the likes of Merrill Lynch, and indirectly Bank of America, Chase, Goldman Sachs, and Citi.

As the descriptive literature on securitization says, all vehicles are remote and special purpose so as to protect everyone else against allegations of wrongdoing. But there was nothing remote about these companies. Yet here in this decision in New Jersey the court predicated its ruling on the proposition that none of the players were liable for any of the unlawful activities of their predecessors.

It’s decisions like this that leave us with the knowledge that we have a long way to go before the courts get curious enough to apply the law as it is — not as the courts and others say it is.

Fill the Swamp: Former Goldman Sachs executive and “foreclosure expert”, confirmed as US Treasury Secretary

Editor’s Note:  The story below may induce your gag reflex.  Read at your own risk.

http://en.mercopress.com/2017/02/14/former-goldman-sachs-executive-and-foreclosure-expert-confirmed-as-us-treasury-secretary

A bitterly divided Senate on Monday confirmed Steven Mnuchin as United States treasury secretary despite strong objections by Democrats that the former banker ran a “foreclosure machine” when he headed OneWest Bank. Republicans said Mnuchin’s long tenure in finance makes him qualified to run the department, which will play a major role in developing economic policy under President Donald Trump.

“He has experience managing large and complicated private-sector enterprises and in negotiating difficult compromises and making tough decisions — and being accountable for those decisions,” said Sen. Orrin Hatch, R-Utah, chairman of the Finance Committee.

After Mnuchin’s swearing-in ceremony in the Oval Office Monday night, Trump said Americans should know that “our nation’s financial system is truly in great hands.”

Votes on President Donald Trump’s Cabinet picks have exposed deep partisan divisions in the Republican-controlled Senate, with many of the nominees approved by mostly party-line votes. The vote on Mnuchin followed the same pattern. He was confirmed by a mostly party-line vote of 53-47. Democratic Sen. Joe Manchin of West Virginia joined the Republicans.

Like others in Trump’s Cabinet, Mnuchin is a wealthy businessman. He is a former top executive at Goldman Sachs and served as finance chairman for Trump’s presidential campaign.

As Treasury secretary, Mnuchin is expected to play a key role in Republican efforts to overhaul the nation’s tax code for the first time in three decades. Trump has promised to unveil a proposal in the coming weeks. Mnuchin will also be in charge of imposing economic sanctions on foreign governments and individuals, including Russia.

Senate Majority Leader Mitch McConnell, R-Ky., said Mnuchin “is smart, he’s capable, and he’s got impressive private-sector experience.”

Democrats complained that Mnuchin made much of his fortune by foreclosing on families during the financial crisis. In 2009, Mnuchin assembled a group of investors to buy the failed IndyMac bank, whose collapse the year before was the second biggest bank failure of the financial crisis. He renamed it OneWest and turned it around, selling it for a handsome profit in 2014.

“Mr. Mnuchin has made his career profiting from the misfortunes of working people,” said Sen. Debbie Stabenow, D-Mich. “OneWest was notorious for taking an especially aggressive role in foreclosing on struggling homeowners.”

SIGN THE PETITION: Oppose “foreclosure king” Steve Mnuchin

Tell the Senate: Oppose “foreclosure king” Steve Mnuchin
SIGN THE PETITION HERE: https://act.credoaction.com/sign/mnuchin?sp_ref=263375576.4.177849.t.564574.2&referring_akid=.2449446.q1RqKx&source=tw_sp

A bombshell news report has revealed that California prosecutors believed Steven Mnuchin, Trump’s pick for treasury secretary, and his company may have been responsible for “widespread misconduct” and violations of foreclosure law.1

The latest report comes on top of long-standing reports that Mnuchin, the former Goldman Sachs partner known as the “foreclosure king,” profited handsomely off the financial crisis by foreclosing on thousands of elderly homeowners.2

Mnuchin was already one of the worst of the slimy “swamp monsters” Trump has handpicked for major roles in his administration. We need to seize on the momentum from this report to make Mnuchin’s nomination a major black eye for this corrupt administration.

Tell the Senate: Block “foreclosure king” Steve Mnuchin.

Mnuchin’s company once changed the locks on one Minneapolis homeowner in the middle of a blizzard. It even took a 90-year-old woman’s home because she owed 27 cents.3 Mnuchin made a huge profit by buying up IndyMac, a mortgage lender, changing the name to OneWest and then targeting homeowners for foreclosures. Mnuchin later sold OneWest for nearly twice what he paid for it, profiting from economic pain.4

Under Mnuchin, OneWest ran a foreclosure mill responsible for nearly 40 percent of the reverse-mortgage foreclosures in the country even though it had just 19 percent of the market. Shady lenders made grand promises to sell elderly homeowners on risky reverse mortgages, and Mnuchin then swooped in to take their homes when Wall Street’s fraud was exposed and the economy collapsed. OneWest reportedly engaged in illegal “robo-signing” – falsifying documents – to kick people out of their homes.5

According to the latest report based on a leaked memo from the California attorney general’s office, OneWest faked paperwork to avoid delays that would give homeowners time to save their homes, included backdating paperwork to before the company even existed.6

Steve Mnuchin says he is “proud of his record at OneWest.”7We need to let Republicans know voters disagree – and give Democrats the backbone to fight his nomination tooth and nail.

Tell the Senate: Block “foreclosure king” Steve Mnuchin.

As happened so many times at the federal level, the California attorney general’s office did not end up pursuing charges against Mnuchin and has not offered an explanation.8 Regardless of the California accusations, Mnuchin’s overall record of mass foreclosures on struggling Americans is beyond doubt.

A former Goldman Sachs banker and hedge fund manager termed the “foreclosure king” is the last thing we need at a time when Wall Street already has too much power. The more resistance we can mount to Mnuchin, the clearer it will become to endangered Republicans and even former Trump voters that talk of “draining the swamp” was just a cover for a radical agenda that benefits the super-rich.

Tell the Senate: Block “foreclosure king” Steve Mnuchin.

Thank you for speaking out.

  1. David Dayen, “Treasury Nominee Steve Mnuchin’s Bank Accused of “Widespread Misconduct” in Leaked Memo,” The Intercept, Jan. 3, 2017.
  2. Yian Q. Mui, “Democrats are already building a case against Trump’s pick to lead Treasury Department,” The Washington Post, Dec. 30, 2016.
  3. U.S. Senate Democrats, “Submit complaints about Steve Mnuchin, Trump’s nominee for the secretary of the treasury.”
  4. Dayen, “Treasury Nominee Steve Mnuchin’s Bank Accused of “Widespread Misconduct” in Leaked Memo.”
  5. Ibid.
  6. Ibid.
  7. Mui, “Democrats are already building a case against Trump’s pick to lead Treasury Department.”
  8. Dayen, “Treasury Nominee Steve Mnuchin’s Bank Accused of “Widespread Misconduct” in Leaked Memo.”

LA Times: Report says Treasury nominee Steve Mnuchin misled senators about foreclosures by OneWest Bank

http://www.latimes.com/business/la-fi-mnuchin-treasury-onewest-20170130-story.html

An Ohio newspaper reported that Steve Mnuchin, President Trump’s nominee to be Treasury secretary, misled senators about foreclosures by OneWest Bank while he was chief executive, providing more fuel to opponents ahead of a contentious committee confirmation vote scheduled for Monday.

The Columbus Dispatch reported Sunday that Mnuchin denied in written responses to questions from the Senate Finance Committee that OneWest engaged in so-called robo-signing of mortgage documents.

The paper said its analysis of nearly four dozen foreclosure cases in Ohio’s Franklin County in 2010 showed the bank “frequently used robo-signers.”

The practice, prevalent throughout the mortgage industry in the aftermath of the financial crisis, involved employees at financial firms signing foreclosure documents en masse without properly reviewing them.

Democrats sharply criticized Mnuchin during his confirmation hearing on Jan. 19 concerning OneWest’s foreclosures while he ran the Pasadena bank from 2009 to 2015. They called the institution, which formerly had been troubled subprime lender IndyMac Bank, “a foreclosure machine.”

“Mnuchin ran a bank that was notorious for aggressively foreclosing on homeowners, and now he’s lying about his bank’s dismal track record in his official responses to the Finance Committee,” Sen. Elizabeth Warren (D-Mass.) said Monday. “Working families simply cannot trust him to be the country’s top economic official.”

At the hearing, Mnuchin blamed the large amount of foreclosures on bad IndyMac loans he inherited. Mnuchin and other investors put up nearly $1.6 billion to buy IndyMac and renamed it OneWest. They sold the bank to CIT Group in 2015 for $3.4 billion.

The new report is expected to be raised by Democrats when the committee meets at 3 p.m. PST on Monday to vote on his nomination. Many if not all the Democrats on the committee are expected to oppose his nomination.

Sen. Sherrod Brown (D-Ohio), who sits on the committee, has said he would vote against Mnuchin.

“Mnuchin profited off of kicking people out of their homes and then gave false testimony about his bank’s abusive practices,” Brown said Sunday. “He cannot be trusted to make decisions about policies as personal to working Ohioans as their taxes and retirement.”

The Columbus Dispatch cited a foreclosure involving a mortgage signed by Erica Johnson-Seck, a OneWest vice president who said in a deposition in a 2009 Florida case that she signed an average of 750 documents a week.

Barney Keller, a spokesman for Mnuchin, said Monday that several courts had dismissed cases involving allegations of robo-signing by Johnson-Seck.

“The media is picking on a hardworking bank employee whose reputation has been maligned but whose work has been upheld by numerous courts all around the country in the face of scurrilous and false allegations,” Keller said.

In written questions to Mnuchin, Sen. Robert Casey (D-Pa.) asked if OneWest engaged in robo-signing.

“OneWest Bank did not ‘robo-sign’ documents,” Mnuchin said. He added that the bank was the only one to “successfully complete” an independent foreclosure review process by federal banking regulators looking into robo-signing allegations.

In 2011-12, several mortgage servicers agreed to pay a total of $3.9 billion to borrowers for foreclosure errors as part of a settlement with regulators.

OneWest was not part of the settlement because an independent consultant hired by the bank completed its own review and “remediation checks have been issued to those borrowers where financial injury was identified,” according to the Office of the Comptroller of the Currency.

Casey said Mnuchin “continues to deny his bank robo-signed documents, while evidence from court cases, bank regulators, and news reports continues to show the opposite.

Freedom of Information Act Requests Show OneWest Bank Misrepresentation

Submitted by BMcDonald

Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.

I’ve been fighting OneWest Bank since August of last year here in Colorado. In Colorado they have nonjudicial foreclosures and the laws as so totally banker-biased it’s insane. All the bank has to do is go to the public trustee with a note from an attorney who “certifies” that the bank is the owner of the loan. What they don’t tell you is the bank has to go before a judge and get an order for sale in a 120 hearing. Most only find out about it at the last minute and don’t even show up because the only issue discussed is whether a default has occurred or not.

I discovered however that if you raise the question of whether the foreclosing party is a true party in interest or not, the court has to hear that as well. I raised that issue and demanded the bank produce the original documents and endorsements or assignements. The judge only ordered them to produce originals, which they did.

Long story short, I managed to hold them off for seven months after hiring an attorney. I found a bankruptcy case from CA in 2008 in which IndyMac produced original documents and ended up having to admit they didn’t own them. I had a letter from OneWest that only stated they purchased servicing rights. I had admissions from the bank’s attorney that there were no endorsements. And at the last minute I discovered the FDIC issued a press release in response to a YouTube video that went viral over the sweetheart deal OneWest did with the FDIC. The FDIC stated in their press release that OneWest only owned 7% of the loans they service. I presented all this to the judge but he ended up ignoring it all and gave OneWest an order to sell my home, which they did on the 4th.

About a week before the sale I went directly to the FDIC and filed a FOIA request for any and all records indicating ownership rights and servicing rights related to my loans and gave them my loan numbers. I managed to get the info in about 6 days. I got PROOF from the FDIC that OneWest did not own my loan. Fredie Mac did. And the info came directly from OneWest systems. And just last Friday I got a letter from IndyMac Mortgage services, obviously in compliance with the FOIA request that Freddie Mac owned the loan. So I now have a confession from OneWest themselves that they have been lying all along! I have a motion in to have the sale set aside and once that’s done I’m going to sue the hell out of them and their attorneys in Federal court.

So I found a wonderful little back door to the proof most of us need. If the FDIC is involved, you can do a FOIA request for the info. I don’t know if it applies to all banks since they are all involved in the FDIC. You all should try it to see.

Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.

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