Bagels at a Bar Mitzvah

kraftykrab

LoanSafe Member
Jan 27, 2014
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This is only because they held the Note. (according to the ruling) If a party holds the Note, the mortgage assignment isn't necessary (per the ruling). The court here chose to disregard the fraud and make it irrelevant. It's a legal workaround to avoid addressing illegal activity and fraud docs. (we don't need to address it, so we won't) Another one is saying you don't have standing to challenge the fraudulent transfer because you are not a party or the parties accepting it agree to ratify the, cough, error. This is not necessarily 100% correct either, because it deprives one of property and that IS what gives you standing.

Yes, that's what they said. But also remember that this was a commercial mortgage. Can anyone here say with any degree of truth that the entity you're fighting actually holds your original note in their hands?

I think not.

At least for most of us, that's not even possible, which is why you don't see them trying to claim it most of the time. Now, in my case, they actually told the court that they were the holder in physical possession.......of the note.......which they said in the same document that the note was lost years before they (the current plaintiff) had ever even heard of this "mortgage". So, they admit to it being lost before they ever could have possessed it....and they claim at the same time to be physically in possession of it.

If anyone can explain that one, I'd love to hear it....lol

This ruling will not help them against homeowners for the simple fact that the entire requirement of being the holder is not possible when the note has been sliced, diced, and either lost or intentionally destroyed. Also, take note of the part where they mention that the plaintiff never brought up the issue of the note being an instrument--which means it must be handled a certain way according to the UCC. Always remember that the note's status as an instrument affects "holder in due course" claims. To be a holder in due course means specific things that being a "holder" does not live up to. For one thing, a HIDC is one who possesses the note in question, but also has no knowledge of any defects or claims against payment. That means if your opposing party knows of a defect--and you can show that they are aware--they cannot claim HIDC status. It also means if they are aware of any legal challenge made against their claim for payment of the note, they likewise cannot claim HIDC.
 

wanda robo

LoanSafe Member
Sep 29, 2012
3,675
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NJ
:)
Isisis
Been following this guy for awhile on his blog and LinkedIn. Here’s a post from July 3rd RE a California Supreme Court ruling. Wanted to share in case it helps someone and see what you think ... or rather, read what you think !


Hope the link works. Noted he’d some issues with the website.. hmmm .. wonder why!?!
BTW How’re the kitties? Imagine all kids are playing together or cohabitating nicely ?!
Take care

LMAO, are you following Mr Boggs or is he following you:)

 
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just_me

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Sep 14, 2015
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It's funny how Lenders will use anything as a precedent, even when it is not related to the instant case. We all remember the dialogue and debate on mortgage vs note. I have seen one case cited as precedential by both sides in my state. Good news is... the allonge can be challenged when it has no relationship or identification relating it to the note. Hence, a copy of the allonge does not show "it is firmly affixed."

The old "work-around" of Lost Note affidavit was quickly abandoned by Lenders. If you do have one of this, you definitely have arguments on your side.
 

TXWilly

LoanSafe Member
Mar 21, 2013
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Just Me.

My note has no allonge. But the fraudulent allonge (copy or fabricated page) shows redacted loan no and there is no such page in my copy) and it is signed by a robo signer who is not a vice president but a clerk (my PI confirmed with his HR check system). And still these kind of fraud is ignored intentionally by the courts.
 

kraftykrab

LoanSafe Member
Jan 27, 2014
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It's funny how Lenders will use anything as a precedent, even when it is not related to the instant case. We all remember the dialogue and debate on mortgage vs note. I have seen one case cited as precedential by both sides in my state. Good news is... the allonge can be challenged when it has no relationship or identification relating it to the note. Hence, a copy of the allonge does not show "it is firmly affixed."

The old "work-around" of Lost Note affidavit was quickly abandoned by Lenders. If you do have one of this, you definitely have arguments on your side.
I don't have arguments on my side there because my state specifically allows---even requires---the lost note affidavit. In fact, in my state, the law specifically says that if a lost note is the subject of a claim, the plaintiff must provide not only the affidavit of lost note, but also must either publish the loss of the note "within a reasonable time", and must take reasonable measures to legitimately attempt to recover the lost note.

If you have arguments I could use I would love to hear them. My state laws even state clearly that the plaintiff seeking to enforce a lost note must assert under penalty of perjury that the note was in their possession when it became lost....and yet, even though I argued that in my case, the court completely ignored the argument and allowed them to proceed anyways. According to the current plaintiff, the note was lost several years before they came into contact with this situation. But, even though they admit they never had it in their possession at any time, the court threw the written word of law out the window.
 

OneHugeMess

LoanSafe Member
May 30, 2016
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Argent/AMC Mortgage used a lost note affidavit against me, and foreclosed in the name of "AMC Mortgage Services" instead of Deutsche Bank as Trustee. After the auction sale, AMC quit claimed the deed to Deutsche Bank. At the time, I didn't even bother to respond to the complaint - so they won easily with default judgement.

Here is my point. If you go and look through almost any FL County court records for 2008/2009, I'd say -- at-least 1/4 of the cases filed by Trustees and Servicers involved a Affidavit. Some of the cases in 2007 involved one, but nowhere as many as the cases filed the following year. By 2010/2011, most servicers were using the original notes, or finding copies for the complaint.

I always found those 2008/2009 cases to be quite odd, honestly. It seems very likely that the note wasn't lost, and was either in the collateral vault of the Servicer, or placed with the third-party-trustee. So, why didn't they use it in court? I almost wonder if it became easier to just print lost note affidavits and fill them out, versus pulling the physical loan file. Maybe it was cheaper in the long run? Maybe they were overwhelmed and *did* actually misplace the notes? Maybe they were sitting in the offices of Countrywide and Ameriquest?

Just one of the many questions I'll always wonder...
 

just_me

LoanSafe Member
Sep 14, 2015
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That's what I was referring to per OHM. There are so many in FL. I wouldn't be surprised if this is related to WF foreclosure manual (and subsequent updates). They lost so many cases and got admonished when they suddenly "found" the note (which disagrees with former assertions).

Don't know what to say Krafty, sometimes even the best arguments end up quashed or in need of appeal. I always thought these got dismissed if they didn't present additional arguments/docs proving the assertion. (Historically they were looking for default judgments anyway, so this "claim" wasn't supposed to be challenged.) Hence, when the Note "resurfaced," they were found to be in error because the affidavits didn't match up to the endorsements. I'm suspecting this is what changed the "FC process" to the creation of blank endorsements (attached to copies no doubt!). Banks always looking for shortcuts. Truth be damned.
 

isisis

LoanSafe Member
Jun 22, 2010
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North bay
This is only because they held the Note. (according to the ruling) If a party holds the Note, the mortgage assignment isn't necessary (per the ruling). The court here chose to disregard the fraud and make it irrelevant. It's a legal workaround to avoid addressing illegal activity and fraud docs. (we don't need to address it, so we won't) Another one is saying you don't have standing to challenge the fraudulent transfer because you are not a party or the parties accepting it agree to ratify the, cough, error. This is not necessarily 100% correct either, because it deprives one of property and that IS what gives you standing.
What a sucky holding in SGK Properties, LLC v. US Bank. It beggars logic and fails to provide substantive reasoning for the decision. Just crazy.

They conclude that US Bank was the holder of the note and therefore PETE.

"This logic and conclusion treats as legally insignificant whether Aurora existed at the time of the transfers and therefore had legal capacity to either endorse the Note or assign the Deed to U.S. Bank."

They base this conclusion on the old mortgage follows the note - almost as a form of distraction - overlooking entirely the essential nature of the note's negotiation. A holder is defined as someone to whom the note was transferred and is in possession of the indorsed note.

Given the legal non existence of Aurora at the time how could they effect a transfer? They were not the holder. US Bank may have come into physical possession of the note but not by means of transfer from its previous holder.

If Donald Duck indorses a check pay to the order of in blank and gives me the check and I sign it then I've become the holder of a worthless piece of paper because Donald Duck is a fictional character without legal existence. Because Donald Duck or Aurora lacked the legal capacity to become the note holder they were unable to legally transfer the note. US Bank has possession but not by negotiation.
 

kraftykrab

LoanSafe Member
Jan 27, 2014
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What a sucky holding in SGK Properties, LLC v. US Bank. It beggars logic and fails to provide substantive reasoning for the decision. Just crazy.

They conclude that US Bank was the holder of the note and therefore PETE.

"This logic and conclusion treats as legally insignificant whether Aurora existed at the time of the transfers and therefore had legal capacity to either endorse the Note or assign the Deed to U.S. Bank."

They base this conclusion on the old mortgage follows the note - almost as a form of distraction - overlooking entirely the essential nature of the note's negotiation. A holder is defined as someone to whom the note was transferred and is in possession of the indorsed note.

Given the legal non existence of Aurora at the time how could they effect a transfer? They were not the holder. US Bank may have come into physical possession of the note but not by means of transfer from its previous holder.

If Donald Duck indorses a check pay to the order of in blank and gives me the check and I sign it then I've become the holder of a worthless piece of paper because Donald Duck is a fictional character without legal existence. Because Donald Duck or Aurora lacked the legal capacity to become the note holder they were unable to legally transfer the note. US Bank has possession but not by negotiation.

I agree, but here's the thing---we're not going to see very many residential foreclosure cases that are affected by this one. The reason why? Simple---millions of notes were simply destroyed so they could effect their paper shuffle dance. A "lost note" does not need to be produced, so they use this to get around the fact that the parties claiming to be PETE are normally not PETE anything.

Also, in many cases, mine included, they have already presented their claim to the court. That claim includes their supposed chain of title--a chain that they had to invent and concoct to fit their desired outcome. If they are forced to change that in the middle of the case, it looks bad for them. That's because the attorneys are required to sign those pleadings, attesting to the "true and correct to the best of my knowledge" standard. If they are forced mid-trial to depart from that original claim, we need to hammer on the fact that they should have known better than to file a lawsuit without doing their due diligence.
 

just_me

LoanSafe Member
Sep 14, 2015
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Speak of the devil... I just got the response to my opposition to MSJ. They are saying I have no right to dispute the fraudulent signatures because I'm not a party to the transfer. I beg to differ, especially since this fraudulent act affects the title to *my* property! Yes, it looks like I'm going there.
 

just_me

LoanSafe Member
Sep 14, 2015
435
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Speak of the devil... I just got the response to my opposition to MSJ. They are saying I have no right to dispute the fraudulent signatures because I'm not a party to the transfer. I beg to differ, especially since this fraudulent act affects the title to *my* property! Yes, it looks like I'm going there.
 

CAbooboo

LoanSafe Member
Jan 22, 2017
57
6
8
The kittens, my little road warriors, prosper. The largest now tipping the scales at a whopping 15 ounces. Pictured here with Piper, kitten magnet and successor in interest to the late lamented Peng.
View attachment 75View attachment 75
Oh how precious! Piper’s such a patient pup. Looks like someone's nibbling her ear and how many are there ? 5 ? Looks like she’s laying on a couple. LOL

Oh the myriad of captions "REALLY mom? Is THIS what you had in mind when you said you had treats for me ?!" and the only kitty who caught you w/ the camera “Wait, I think that angle will make me look fat. I’m really not that fluffy. Will you take another please?”

Kudos for taking good care of your warriors!
THESE are the moments that make life special and worth it .. IMHO
 
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isisis

LoanSafe Member
Jun 22, 2010
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Just me,

This is an issue addressed by the California Supreme Court in Yvanova. You might find some handy arguments there and some persuasive if not controlling authority.

"On this question, the court first concluded the plaintiff had a sufficient personal stake in the outcome, having shown a concrete and personalized injury resulting from the challenged assignment: "The action challenged here relates to Aurora's right to foreclose by virtue of the assignment from MERS. The identified harm — the foreclosure — can be traced directly to Aurora's exercise of the authority purportedly delegated by the assignment." Culhane v. Aurora Loan Services of Nebraska (1st Cir. 2013) 708 F.3d 282.

“It is no mere ‘procedural nicety,’ from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so."

 
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CAbooboo

LoanSafe Member
Jan 22, 2017
57
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:)


LMAO, are you following Mr Boggs or is he following you:)

Hee Hee Mz Robo
Taken me awhile to get his attention. Oh no am I losing my skillz ! ROTFL

Thankful he may have (finally) followed me here. Let me tell ya .. I about fell off my bed when I saw the Bagels n Boo Boo headliner. I almost...ok I confess, I did ... cry!

This crap can be so emotional. Better start workin on my poker face. We share all the same players. Can’t wait till part two!
 

just_me

LoanSafe Member
Sep 14, 2015
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Thanks Isisis. This foreclosure mill has taken to input additional objections in their response which appear frivolous. (in 5 pages or less they have listed several.) This is especially odd in that in addition to this argument, they are also now claiming that the indorsement is NOT an allonge. They did not provide the Note and have not proven possession. The signature is fraudulent, but I was not incorporating all evidence of signature fraud due to they have to prove standing FIRST.

My first challenge is to request the court allow a response. I have case law on this and it is on my side if I choose to proceed with that route. This may involve an endless loop where I have to repetitiously provide additional evidence. The MSJ was made with a statemtn declaring discovery hade been had and completed. This is one of many odd things in that there was never an order of discovery or a deadline attached to it. They just "declared" that as a fact. I was in process of preparing for trial and this caused me to basically stop the process of my investigation, in order to respond to multiple legal requests... AFTER my legal aid attorney quit. It appears they are seeking technical win on my errors.

A lot of what they have presented is a misinterpretation of (their own) facts or misinterpretation of legal argument. I do know that legal aid was ignoring certain unfounded claims. All of this (request for disco and MSJ), mind you, was initiated after the SOL and after I no longer had legal representation. I also no longer had electronic storage of bank files as these expired after 5 years. So they stated I could not prove payements. Evidence of this is obvious (prejudice) but not declared point by point in my objection to MSJ, on reasoning that, they do not have Note or proven holder status and PETE... and... their records do not show default. (of course no payments have been made since acceleration and no payments are due as Plaintiff seeks property and not payments now - but they argued no payments without admitting they were rejecting them in order to foreclose)

I did not object to the last amended complaint because I did not have notice. Otherwise, I could have stopped this progression, shown laches and prejudice with the delay (amending after 7 yrs post SOL). The judge allowed it as part of "free to amend" rule and this may give me rights to pursue a challenge on appeal (no opp to be heard and object). I did point out, in this case and my answer, that Plaintiff contradicted itself and its new claim negates their original claim of default. IE, This activity is basically a judicial admission that I was NOT in default when Plaintiff filed this complaint. I wasn't even in default on the "alleged default date" they amended, but they are still asserting it and saying I owe payments where they chose to accellerate and refused payments. They are trying like Hell to hold on to the original filing date to evade the SOL (statute of limitations is 6 years). So my argument against "amending" was basically incorporated into my opposition to MSJ. I incorporated parts of the record that show this. They had incorporated all prior complaints, making them admissions, when they amended. This allows me to point out their contradictions.

It is notable that Plaintiff did not object to my judicial notices. These provide evidence of investigation and a pattern and practice of erroneous accounting. In a nutshell, Ocwen REFUSED to correct the account and held that I was in a continous and ongoing default state. This culminated with a forced placed insurance charge that "justified" further claims of non-payment (due to charging fees and incorporating into monthly payment due inbetween billing cycles). After 5 or 6 years, they removed the charge. It is illegal to do so. In my State, a party is not entitled to charge a consumer for insurance not received. I don't want to be foreclosed from taking these issues to trial because of technicalities and assertions of false legal arguments quashing my rights in an MSJ.

I suppose my question, if there is one, is how far do I go in providing evidence where the Plaintiff has not even established their holder status or possession of the Note. After 8 years, they are still arguing their case on a "copy" of the note and a robosigned transfer which could technically be void (not voidable at their option). I have so much evidence of signature fraud and use of copies, these 2 items are a part of that.
 

just_me

LoanSafe Member
Sep 14, 2015
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More on MSJ and response to opposition...

I'm wondering, would it be prudent to bolster my laches claim (unavailabilty of evidence, their pursuit of claim where status of defendent is now one of "unrepresented" by legal counsel), since plaintiff sought to quash further rights to pursue these defenses in their MSJ. They stated that it did not apply, I had not proven all elements and was not prejudiced (they did not point to anything specific, just outlined the meaning of the term). I addressed this (delays) in attacking Plaintiff's legal deficites, but made no specific prejudicial assertion because it was redundant where they were contradicting themselves years after the fact. Again, I have stronger arguments. I did not state the assignment was void or voidable. I stated HOW it was void and not proof of standing. (judicial state here, mortgage may be irrelavant if they actually possess note)

My concern is losing the general legal arguments (not specified or elaborated due to legal ambush during investigation) which I intend to use when I amend my case according to additional evidence. It's like me saying they "breached the contract" but in fact did so 3 times, where I only identified one time. Some of my initial complaint defense incorporates legal claims for items to be added after discovery where I have fuller supporting evidence. I intended to compile this versus a piecemeal application.

I instead attacked the Plaintiff affiant (Ocwen employee) who does not utilize supporting documentation for additional requested amounts exceeding 10K. They do not have proof of the amount of debt they say is due. I basically questioned "with knowlege" part and showed the use of robo-signing the assignment. (the Plaintiff's "response" was they were free to add any fees they wanted to!)

The laches applies to their amending without proofs justifiying their "discovery" of something new. They can not prove their accounting and reasons to amend, so they evaded my objections and did so ex parte and without notice to me. In KY, the system has been bifurcated with a Master Commisioner versus Civil Ct and this was utilized to evade the original judge and ordinary notice. They have switched their notice type knowing one system would be delayed beyond the hearing. I do not have access to the e-filing. It is not allowed to be used by pro se. I have to wait for the court to process it, which did not happen until after the hearing. (this may be a potential appeal independent of MSJ)

I am also wondering if I should request oral arguments on the matter. (I may still have this option.)This may cure Plaintiff's ability to present bad or irrelevant law arguments and misinterpretation of evidence without objections. I would think that ruling for or agreeing with something un-proven or incorrect might be grounds for appeal though. Their statements are in general "conclusory" ones.

Thanks for reading everyone. I'm trying to work this out and simplify. One thing I have read is to address MSJ as MSJ. Create doubt. This would be different if it were, for example, a motion to dismiss. There are many warnings that pro se make arguments that don't apply to the particular given motion. I want to avoid this. I'm open to suggestions or avoidance of legal traps if anyone has them.
 

OneHugeMess

LoanSafe Member
May 30, 2016
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^^^ Linda Green is just the gift that keeps on giving. I had the absolute trifecta for one of my loans. First, was a Mortgage from Wachovia Bank which I refinanced into a new loan with Indymac. When the Wachovia loan was paid off at closing, the bank hired DOCX/LPS to prepare and execute the lien release, which Linda Green signed and authorized.

Later on, when I defaulted on the Indymac loan, DOCX was hired once again to prepare the assignment of mortgage. This time the ""Linda Green"" signed once again, but with a completely different signature. And it was notarized. You couldn't ask for a better piece of evidence in a foreclosure case, honestly.

In the end.... I was offered a fantastic Modification while the case was limping along in the backlog, and I haven't pursued anything with it. What is fascinating though - is despite the facts being out there, Linda Greens ASM's and Other Documents continue to be used to this day in foreclosure cases.

What a world we live in. That is all I can say.