Tag Archives: Lost Note Affidavit

Judge Amy Coney Barrett Should be Nominated to the U.S. Supreme Court … Op-Ed!

(OP-ED) — As the tide of foreclosures starts to swell across America, I felt it my solemn, patriotic duty to inject some interesting perspective as the Senate takes up hearings to confirm President Trump’s nomination to the U.S. Supreme Court.

Articles depicting the kind of judge Amy Coney Barrett would be goes against the grain of the Democrats’ choice. I’ve read numerous opinions and diatribes about her rulings and one jumped off the page at me. I had to research it and bring it to the forefront because it involves lying in an affidavit. Those of you facing foreclosure are going to want to listen up!

Those of you who have been taken to task in foreclosure may understand exactly where I’m going with this. This involves more than just Black Lives Matter because more than just the black folk have been foreclosed on.

You want civil rights? Then you need to read these two cases. They came out in separate venues nearly six months apart. One case was written by Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals in January of 2019 and the other was opined by the U.S. Supreme Court in June of 2019.

Both opinions have to do with manufacturing false evidence to get a conviction. When I brought this up on my radio show (kdwradio.com), my co-host looked at the Supreme Court case and said, “This is a game changer” … and concluded that the scenario in that case could be applied to foreclosures! Neither of us had seen the Rainsberger case at that time.

Judge Barrett wrote the opinion in the 7th Circuit case. It finds for Rainsberger, who claimed he was deprived of his civil rights based on the phony information either stated or omitted from Detective Benner’s affidavit, which was submitted to the prosecutors to get a conviction.

Ironically, in BOTH cases, a second “bite at the apple” was attempted in an attempt to fabricate evidence to try for a second indictment. Barrett, in writing for the Court, stated that Detective Benner lost his qualified immunity when he lied on the affidavit. Sounds like the Supreme Court, who didn’t even cite the Benner case in their ruling in McDonough, got it right. 42 USC 1983 is a powerful tool. 42 USC 1985 is even more powerful.

Let’s apply these cases to foreclosures and why I’m so keen on filing criminal complaints, whether they’re taken and prosecuted or not.

Mortgage loan servicers hire cheaply-paid employees who are instructed to create, sign and execute assignments, lost note or lost assignment affidavits and corrective assignments. Most of the time where I have seen these come into the recorded realm, I have found numerous instances where the statements made within these documents were false and misrepresentative. The statements contained within these documents are then relied upon to get a “conviction” in foreclosure courts, because like criminal cases, foreclosure cases are “prosecuted” in much the same way, it’s just they’re prosecuted in the civil realm, but the objective appears the same … lie your way through the proceeding by relying on false testimony from others and steal the house by any means possible.

The sad thing about all of this … the mortgage loan servicers who represent the alleged “lenders” in court are getting away with it because judges are allowing the false testimony into evidence. The majority of the time, the aggrieved homeowners do NOT know how to proceed against these documents and false statements, despite the numerous amount of workshops I’ve done and books I’ve authored. Because of COVID, the sensitivity of these issues is heightened because of the perceived exposure to a virus that could be fatal once one is kicked out of their home and forced to live within society, where the potential to contract the “disease”, which is really not a disease but a catalyst to exacerbate pre-existing medical conditions, could afflict them. It’s one thing to be kicked out of your home. It’s quite another to die because you were infected because you were kicked out of your home.

This is why I am conducting an online Foreclosure Defense 101 Workshop. People will not have to leave their homes and fly somewhere and stay in a hotel and inherently put themselves at risk. They can take this 4-hour class in front of their computer and ask questions of the lecturers about the research they are sharing. It’s an inexpensive way to increase your learning curve!

CLICK HERE FOR MORE INFORMATION

I have asked one retired attorney (R. J. Malloy), who for nine years clerked for a U. S. District Court Judge (the late John Underwood) and Al West (my co-author of two different works, The Quiet Title War Manual and The C & E on Steroids!) to join me in giving you the necessary tools to stay in your home while you get your “end game” together. Also joining us in studio will be Ron Gillis, a Florida homeowner who has fought off the bank’s attorneys for over 12 years, just by knowing the “in’s and out’s” of the courts. Gillis may have taken a few hits in defending his home, but he’s also dished out plenty at the bank’s lawyers!

Bottom line: If you don’t know your rights … you don’t have any.

Judge Amy Coney Barrett at least recognizes what the consequences should be if you lie or misrepresent the truth in depriving someone of their life, liberty or property. This is one of the reasons you should be calling your Senators and “yelling” at them to nominate her. Having her on the Court may not sit well with every decision she’s made as a judge. But when it comes to deciding whether those who are truly at fault should be granted a free pass if they lie to further the prosecution of their cases, then We the People need to put someone in the driver’s seat that will take action against the current pandemic of false documents (recorded in our land records) and protect our civil rights in the process.

The one thing foreclosed homeowners didn’t realize … but I bet they do now … is that the criminal complaint against those drafting the paper … if enough people start doing it … can make a difference in the way law enforcement treats our concerns. If those responsible for recording false documents were sent to jail (like Lorraine M. Brown of DOCX fame was), this behavior would stop. However, most law enforcement agencies treat these matters as if they’re civil cases and thus, find easy excuses to bail on the homeowners (i.e. “take it up with the judge”) and not even bother to investigate these cases. To me, this appears to be a travesty of justice right from the start. When the Sheriff doesn’t act, the crime committed in the county land records is allowed to stand. We must demand more from our law enforcement when it comes to perjury and subornation of perjury (from attorneys involved in either creating or assisting in the creation of in these false and misrepresentative documents and from the parties executing these documents and causing them to be publicly recorded).

It’s not your fault the banks and their servicers omitted paperwork and messed everything up when they went to securitize your mortgage loan.

Unfortunately, the documents that were created as depicted in the foregoing video are still being forged and falsified to this very day, even though in March of 2012, the mortgage loan servicers collectively stated they would no longer allow business to be conducted that way. That too, was also a lie. As was exemplified in the documents found in the land records in the Osceola County Forensic Examination by my team and I, there was and still is an ongoing pattern of illicit behavior, which at the time, the County Sheriff, the State’s Attorney, the Department of Justice and the FBI, refused to investigate.

A lie is a lie. A false statement is a false statement. The two cases in this post are no different in their conclusions that one cannot prosecute a case based on false evidence. That’s my take. What’s yours?

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Letting the banks “get away with it” …

(BREAKING NEWS, OP-ED) — Part of what we’ll be discussing in the upcoming Foreclosure Defense 101 Workshop on Saturday, October 24th between 10:00 a.m. and 2:00 p.m. (EDT) is affidavits … in general … and specifically regarding lost notes and assignments.

To further this discussion, I did some heavy research after seeing a Law.com post about a Pennsylvania “lost note affidavit” case and upon review, found what I was looking for … and the results were shocking!

On Page 2 of this 12-page opinion, the borrower (Rao) mortgaged the property and gave MERS nominee status on behalf of SunTrust Mortgage, Inc. That was in early 2006. Notice the following sentence … “On or around April 22, 2013, SunTrust discovered the note was missing from their vault and David Aken, Vice President, executed a Lost Note Affidavit.” Two years later MERS, assigned the mortgage to MB Financial.

Without looking at the assignment, I’ll bet you the servicer’s employees drafted and executed that assignment and it all followed Rao’s alleged “default” on his mortgage (March 1, 2011). That means it took SunTrust two years (April 22, 2013) to discover it didn’t have a “note” in its vault. Could it be that the note was shredded after it was uploaded into the MERS® System? At the bottom of page 2, MB Financial claimed it was in possession, either “directly or through an agent” of a “Lost Note Affidavit”, maintaining it had the right to foreclose on the mortgage.

Now we go to court … MB Financial’s attorney brought in a witness from SunTrust’s “default” department, attesting to the fact that a “Lost Note Affidavit” existed with a “copy” of the note, which contained no endorsement page. Gee, the author wonders how they got a “copy” of the Note if it was lost … Hmmm. Did anyone bother to ask why that was so? How can you negotiate a “note” if only a “copy” exists?

The bank also submitted a certified copy of the Assignment of Mortgage, assumedly drafted and executed by SunTrust to MB Financial. The trial court sustained Mr. Rao’s objection to the Lost Note Affidavit based on hearsay and refused to allow it into evidence, in addition to the admission of the Limited Power of Attorney.

The confusion begins where Mr. Rao (assumedly through his attorney) first made an oral motion for a Nonsuit and discussing with the judge the difference between a Nonsuit and a Directed Verdict, which the Court then entered on behalf of the homeowner. The Directed Verdict was later changed to a Nonsuit in favor of the homeowner after the bank filed a Post-Trial Motion. The next paragraphs … read them carefully because they contain the “nuggets”, in which the objections were sustained in favor of the homeowner.

Understand that was this entire matter was over was the differences between a nonsuit and a directed verdict and what the evidence could otherwise prove or show. Because the Trial Court precluded the Lost Note Affidavit from evidence, MB Financial couldn’t prove “possession” of the Note. But could it “prove” its case anyway if it only had a “copy”?

This is where it helps to know local court rules (or at best, state rules).

What you’re seeing in this case is the roundabout, typical argument that banks always use in getting their lost notes “re-established” to make them “stick” as evidence at trial. Why then, did it take SunTrust so long to discover it had no note? Was it because it wasn’t until after 2011 that Rao didn’t pay his mortgage loan and someone went looking for the documentation? Why did it take so long to discover the original note wasn’t part of the collateral loan file? The Superior Court ruled that as long as the witness can “provide sufficient information relating to the preparation and maintenance of the records” to justify their trustworthiness, they should be allowed into evidence as business records.

However, there is no mention of proof of the default. Since MERS was involved, the note had to have been securitized into a REMIC trust, which was commonplace during that time. The author sees no evidence of any default argument here, but rather, a business records exception argument.

Also notice that the Court declined to analyze whether the contents of the Lost Note Affidavit complied with the statutory “sufficiency requirements” and reversed and remanded the case for a new trial. That means MB Financial “gets another bite at the apple”.

And this is why we’re going to cover the affidavits per se in our upcoming workshop. The basis for creating an affidavit is personal knowledge and how and when “things” got lost, stolen, misplaced … or even created in the first place!

You can sign up for the workshop on the Clouded Titles website!

The author of this post is not an attorney and offers this constructive analysis for educational purposes only.

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