...I'm also wondering about the various states that require both, assignment of mortgage AND the note... where other states that have ONLY the note is needed.
This revision allowed banks to proceed on improper assignments (illegality waived) by only being required to prove possession of the note. However, what is the arrogance of "I don't need possession before I file?"
I still think there can be claims made on use of robosigners.
Well, in my case, they skipped out on their obligation as lawyers to always exercise candor before the court, and counted on us not being lawyers. They were required to provide "best evidence". In the complaint, they simply stated that they were providing a copy of a note. They did not inform the court for nearly 5 years of their claim that the note had been lost. All the while, during that nearly 5 years, their "servicer" kept claiming to me that the note had never been lost, that they could bring it to court if need be.
Fast forward to their first MSJ attempt, summer of 2017. All of a sudden, they tell the court that the note had been lost....over 5 years ago at that point. They declared it lost in June 2012. They filed in January 2013. They told the court in August 2017. And again, they kept telling me it was not lost, even though they sent me notice in 2014 that it had been lost.
Of course, the lawyer I'm fighting in this actually wrote in a motion to the court that the note was in her client's possession...she NOW flipped on that and said that the note was lost before they ever filed the suit.
But what about the assignment? Well, that's a problem for them too. See, in my state, there's a separate legal requirement for ALL issues where a power of attorney is required. The authority of the power of attorney can be challenged. For some actions, there MUST be "express authority" granted to do that specific task. To make the endorsements on the assignment of mortgage "as attorney in fact for......", that signing party MUST, in my state, demonstrate that it had express authority granted. Some court cases here even state that, while POA can be in any form, such grant of the required express authority MUST be in writing and proveable. Check your state's laws, you might find similar.
In my case, they cannot demonstrate that express authority. US Bank Trust has not, by its own written admission, participated in this suit. So, the servicer acting as their agent MUST demonstrate this express authority granted to do these things. They have not provided any power of attorney. They have claimed they don't need to. So once again, the court would have to ignore our civil procedure to give them a win. The signature on the assignment itself can be presumed valid for purpose of the assignment itself....but the civil procedure code which requires express authority cannot be simply blown off or ignored.
This is somewhat similar to what happened with Belmont in the Florida case, where the defendant's counsel objected to the POA based on the fact that the pretender plaintiffs bring in an employee of the servicer to lay the foundation for, and authenticate, the POA, and that simply is insufficient. Why? Simple. Suppose you give me a POA as your agent, to act on your behalf. But you limit my authority to act in your representation. What's to stop me from writing up my own POA "granting" me more authority than you did, and then "authenticating" it in court? The POA MUST be authenticated by the party giving it, not the agent it was given to. In the Florida case, the defendant won because they could not authenticate the POA. In some ways, the same applies here, and likely in your state too. It isnt enough to present a document. That document must be authentic and proper foundation established. If/when they cannot, we must object to it and request it be stricken from the record.
Also, be wary of who they send to authenticate anything. The foreclosure mill I'm up against already knowingly used an affidavit that was a complete fraud, in that the "employee" who signed and swore to its contents is not even an employee of the servicer. I sent email to make them aware and had a phone conversation with the paralegal....and they did nothing. Turns out, now that affiant's identity and their actual employer are now known. And it's not what they claimed in their affidavit. If you find yourself dealing with a similar issue, check your state's rules of professional conduct. The American Bar Association's model rules, which are quite similar to the ones in my state, state the following:
RULE 3.3--CANDOR TOWARD THE TRIBUNAL
"
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3)
offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false."
When the witnesses lie, and their attorney is made aware of that lie, that attorney has a DUTY to address the matter. In my case, they were made aware, said nothing to the court, and relied solely upon the faulty affidavit anyway. Now, they didn't win, but their duty does not change based on whether their MSJ that relied upon that affidavit was granted or not. They willingly relied upon an affidavit they had at least reason to double check prior to using it. And I know they didnt double check it because if they had, they would have learned what their affiant was caught admitting herself--that she works for a completely separate company and is acting like a subservicer would.
At the end of the day, go back to the basics. What are the required elements they must prove to win? How are they attempting to prove them? Is it legitimate? Is it even legal? Look at each one. Examine the road they must take to prove it. Look at how they are trying to do so. The holes ARE there in more cases than we can count.
