Tag Archives: Mortgage Electronic Registration Systems Inc.

UPDATE: PRO-BANK 5TH U.S. CIRCUIT APPELATES TAKE DOWN ANOTHER HOMEOWNER … MAYBE?

(BREAKING NEWS — OP-ED) —  The author of this post is a paralegal and consultant to attorneys in foreclosure matters and issues involving “the system of things”.  None of what you’re reading in this post should be construed as legal advice nor posited to guarantee a legal outcome.  

UPDATE: Now that the legal community has had somewhat of a chance to review the previously discussed Fifth U.S. Circuit ruling (in THIS case), let’s see what one law firm has to say:  5th Circuit Holds Bankruptcy Stay Tolls Statute of Limitations | Weiner Brodsky Kider PC – JDSupra

This will certainly give you an idea of how the other side thinks.

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As promised, I bring you the latest relevant case from the Fifth U.S. Circuit Court of Appeals in the Big Easy.  But wait … it wasn’t a “big easy” for the borrower, whose case I worked on long ago (in doing a chain of title assessment for) and whose assignments of deed of trust I use in my chain of title workshops to show “document manufacturing gone wrong”.  Wilshire Credit Corporation, used by Countrywide as one of its servicers,  is to blame for that screw-up.

None of what you’re about to read in this ruling appears proper because no one ever attacked the assignments head on, even when it was suggested to do so. Remember, I can’t give legal advice and it’s sad when I have to read rulings like this, knowing what I know that should have been done, but wasn’t.

So … let’s read the ruling first, then we’ll analyze how the homeowner shot himself in the foot because he put his money where it shouldn’t have been put and didn’t put his money where it should have been put:

HSBC Bank USA NA v Crum, 5th App Cir No 17-11206 (Oct 17, 2018)

We’ll do a little analysis on the chain of title and show you what suspect document manufacturing looks like and my perspective on HOW it should have been challenged.  Is it because of attorney ignorance or just plain and simple frustration?

Let’s see how sharp you are in detecting WHAT went wrong here:

ASSIGNMENT NUMBER ONE                                                                                              

NOTE: Click on the assignment to see it in larger print and click the BACK tab on your computer screen to get back to the article.

I put this assignment FIRST for a reason … look at the time (in the upper, right-hand corner) as to WHEN the assignment was recorded … 11:04:32 a.m. on July 14, 2009.   I surmise that this document was manufactured by employees of the servicer, Wilshire Credit Corporation, to create standing for HSBC Bank USA NA as Trustee for MLMI (that’s Merrill Lynch Mortgage Investors) Trust Series 2005-WMC1.  It should be clear to you that “WMC” in the REMIC series was a REMIC set up by WMC Mortgage Corporation, which was the alleged original lender.

The 5th Circuit has already ruled that it doesn’t matter if the original lender went bust BEFORE the documents were created.  How could they do that?   Corruption?  Maybe?   Maybe it was given the wrong information in the pleading.  Maybe?   The appellate court can only rule on the information it was provided and I don’t believe that any of this stuff I’m showing you here was properly vetted in discovery, was it?

Notice something else?   The signer executing this document (a known robosigner), claims to be an “Attorney-in-Fact” for MLMI Lending, Inc., however; as I will show you, she’s not acting as an attorney in fact for WMC Mortgage Corporation, is she?   There’s no written evidence of where the Limited Power of Attorney is recorded on this document, is there?

Also notice that Wilshire Credit Corporation (the mortgage loan servicer) prepared this document and after it was recorded, got it back through the U.S. Mail. This will be important to note for future discussion.

This recording was a 3-page document.  Page 2 contained the legal description.  Now … wait until you see Page 3!

What’s wrong with this picture?  These F**KTARDS can’t even do their job right, can they?   The executor of this document prepared this Allonge to show that the Depositor conveyed it into the REMIC on July 6, 2009.  If you look at the Trust’s 424(b)(5) Prospectus (shown below), the Cut-Off Date for assigning the note and mortgage to the REMIC was January 1, 2005, because (according to the IRS’s Start-up Date for the REMIC) the Closing Date of the REMIC was January 27, 2005.  This Allonge was done over 4-1/2 years later … in violation of the REMIC’s own regulations!  Besides, what do $10/hour employees of Wilshire Credit Corporation know anyway, right?   Who investigated this?  I did!  I told the Borrower long ago what happened to his chain of title.  His attorney apparently didn’t care enough to depose anyone.

Here’s what wrong with this picture:

First, you attach an “Allonge” to the promissory note, NOT an assignment!

Second, the executor of the document, a robosigner-employee of the servicer, claiming to be an attorney-in-fact for MLMI Lending, Inc., not WMC Mortgage Corporation, executed this Allonge less than a WEEK PRIOR TO the actual recording of this assignment!   How convenient is that, considering she is NOT the Lender.

Third, WMC Mortgage Corporation, owned by GE, was closed in 2007 due to the subprime mortgage collapse.  So here we have a servicer’s employee, two years later, claiming she has “attorney-in-fact” status, when most powers of attorney expire when the company GRANTING the LPOA ceases to do business!  It doesn’t take a rocket scientist to figure this out!  AND …

Fourth, the signer of this document and Allonge is claiming she has power of attorney for MLMI Lending, Inc., right?  Would you please look at the above list of Principal Parties and tell me you see MLMI Lending Inc. anywhere in that document as a listed party to the equation?   So where is Treva Moreland’s authority as a $10/hour mortgage loan servicer’s employee attorney-in-fact status for a lender that closed up shop years earlier?  Oh, wait, the Pro-Bank 5th Circuit doesn’t give a shit, do they?   Or was it the Borrower or the Borrower’s attorney’s fault for not checking into this further?

But wait … it gets better!  (That’s an Al West sarcastic remark!) 

ASSIGNMENT NUMBER TWO

I put this assignment SECOND for a reason … look at the time (in the upper, right-hand corner) as to WHEN the assignment was recorded … 11:13:08 a.m. on July 14, 2009. This document was recorded SEVEN MINUTES AFTER THE FIRST ASSIGNMENT!  Again, I surmise that this document was manufactured by F**KTARD employees of the servicer, Wilshire Credit Corporation, to create standing for HSBC Bank USA NA as Trustee for MLMI (that’s Merrill Lynch Mortgage Investors) Trust Series 2005-WMC1.  Notice the same Oregon notary (Justin M. Burns) appears on this assignment as well, claiming that on July 6, 2009, the same day as Treva Moreland, the signer of the first-recorded assignment claims to have attorney-in-fact status …

Here comes Melissa Tomlin (another $10/hour Wilshire Credit Corporation F**KTARD employee), claiming she’s an Assistant Secretary for “MERS” as Mortgage Electronic Registration Systems, Inc. for then-defunct WMC Mortgage Corporation … AND … she’s assigning BOTH the Note and Mortgage to Merrill Lynch Mortgage Lending, Inc. from WMC Mortgage Corporation who (now-defunct) is a “valid Assistant Secretary” for MERS … WOW!  MERS’s resolutions must really be legally sound to be able to have servicer’s employees creating shit documents out of thin air using MERS as a nominee for a closed company … Hmmm … I wonder what agency relationship existed between MERS and WMC after GE closed WMC over two years earlier?

This assignment was also 3 pages in length and was prepared and mailed back to Wilshire Credit Corporation after it was recorded.  Page 2, like before, contains the legal description of the subject property.   And now … for the GRAND FINALE … let’s see what’s on Page 3, shall we? (I am chuckling at this juncture, see if you can figure out why):


Notice what’s on the last page?   AN INDORSEMENT STAMP to Merrill Lynch Mortgage Lending, Inc. by WMC Mortgage Corporation!   Again, I surmise the following:

First, endorsements belong on either the promissory note or the allonge to note (if the promissory note is full of endorsements and cannot accommodate any more of them) … NOT ON A RECORDED ASSIGNMENT!

Second, the executor of the document, a robosigner-employee of the servicer, claiming to be an Assistant Secretary for MERS as nominee for then-defunct WMC Mortgage Corporation, HAD KNOWLEDGE OF what she signed when she affixed her signature to the document (that the indorsement stamp was affixed to page 3 therein), or should have had knowledge of it, right?

Third, you’d think she’d have every opportunity, being an Officer of Mortgage Electronic Registration Systems, Inc. (Assistant Secretary), by alleged resolution ONLY and not attorney-in-fact, that she’d have some smarts about stuff like this. Nope! Doesn’t appear that way, does it?  In fact, I’m not even sure that Melissa Tomlin (after doing several signature comparisons on assignments from around the country) actually was the party executing this document!

Fourth, remember, WMC Mortgage Corporation, owned by GE, was closed in 2007 due to the subprime mortgage collapse.  So here we have a servicer’s employee, two years later, claiming she has an agency relationship with MERS as an Assistant Secretary, when in fact she’s a Wilshire Credit Corporation employee (clearly, a misrepresentation of fact), when the company GRANTING the nominee status to MERS to create an alleged (unproven) agency relationship in the first place, is no longer business!

Fifth, it doesn’t take a rocket scientist to figure out that when a company goes bust, agency relationships can be challenged!  I don’t ever see that happening in this case, do you?  (If you do, please correct me in the comments section of this post so everyone can see how uninformed I am!)

But wait … it gets better!  (That’s another Al West sarcastic remark!) 

No one knows how this happened … BUT … either the documents were improperly submitted wrong by Wilshire Credit Corporation when they mailed the packet to the Dallas County Clerk’s Office for recording in his Official Real Property Records … OR … the Clerk’s office juxtaposed the documents … SO … here’s what happened (you may have already figured this out … this is a fun example of a brain teaser for you researchers out there) to screw up the borrower’s chain of title with suspect documents (fact check these if you will):

(1) At the time BOTH assignments were executed, WMC Mortgage Corporation was no longer in business (not that the 5th U.S. Circuit really cares).

(2) MERS was used to cover up the chain of title, even though the agency relationship more than likely ended when WMC closed up shop (there was never a repudiation agreement against the MERSCORP executory contract ever filed in WMC’s bankruptcy, if it fact, it filed for such).

(3) In order for the facts to present themselves in proper order, the second assignment SHOULD HAVE BEEN recorded FIRST to reflect the transfer of the Note and Mortgage to MLMI Lending, Inc. from WMC, so MLMI Lending, Inc. could properly convey it into the REMIC Trust.

(4) But wait!  MLMI Lending, Inc. is nowhere to be found in the Prospectus for the REMIC under “Principal Parties”.  The originating lender was subprime mortgage lender WMC Mortgage Corporation.  True sale #1 would have been from WMC to the Seller, Merrill Lynch Mortgage Capital, Inc., an entirely separate corporation from Merrill Lynch Mortgage Investors Lending, Inc., right?  So True Sale #1 was F**KED UP!

(5) True Sale #2 should have been from Merrill Lynch Mortgage Capital Inc. to Merrill Lynch Mortgage Investors, Inc., the Depositor for the trust, who, under the Pooling and Servicing Agreement found in the Prospectus, signed under penalty of perjury under the Sarbanes-Oxley Act, would have and should have completed True Sale #3 by transferring it into the REMIC itself, as the Issuer of the Certificates!

(6) All true sales had to be completed before the Cut-Off Date … so in fact we have a violation of the trust agreement and a misrepresentation in the Prospectus, if we are to believe what just happened here was factual.

(7) The misrepresentations contained within the Assignments themselves purport to have transferred everything (in order) from WMC to MLMI Lending, Inc. and from MLMI Lending, Inc. to the REMIC Trust; however, with them being recorded in reverse, it would have been impossible to represent this the other way around, so the entire chain of custody of the note is convoluted and so is the chain of title, creating suspect issues for discovery.

(8) Because MERS (Mortgage Electronic Registration Systems, Inc.) cannot convey Notes because it doesn’t have an interest in the Notes (it only allows lenders to record them in the MERS® System database), then the entire claimed transfer by the servicer’s employee (and NOT the lender itself, who was by then defunct) was also misrepresentative in fact.

(9) Further, all of these misrepresentations appear to constitute violations of the Texas Penal Code and the fact the U.S. Mails were used could constitute felony mail fraud (two counts), which is a 95% slam dunk for the prosecution.  Thus, had “the system of things” played itself out the way it should have been played out, Treva Moreland, Melissa Tomlin and Justin Burns would all be doing time instead of going about their feeble lives doing whatever.

(10) Under “the system of things”, the attorneys for the bank relied on these assignments to steal Mr. Crum’s property and should be disbarred.  The judge in the state court could obviously NOT be held accountable for the fraud on his court, because he wasn’t made aware of it at the time the suit was filed and answered (the Texas Constitution requires all HELOC’s to be judicial challenges under Rule 736 of the Texas Rules of Civil Procedure).  If the judge was made aware, he could have lost his bond and have been removed from the bench and the headlines would have grabbed national attention!

(11) And now … for the piece d’resistance … the lawsuit filed by the alleged REMIC, for which it got a judgment against Mr. Crum, conveniently alleged that Mr. Crum was in default, when in fact, the REMIC’s own Prospectus required Wilshire Credit Corporation to make Mr. Crum’s payments on the home if he couldn’t make them … see here, see here:

Notice where is says (in Paragraph 2 of the foregoing paragraphs) that the Servicer (Wilshire) is obligated to make such advances with respect to delinquent payments of principal and interest on each Mortgage loan … how then, could Mr. Crum be in default?   If MLMI 2005-WMC1 was never aware of the default, which we know probably didn’t happen since the servicer was making all of the advance payments, then WHO actually was foreclosing on Mr. Crum?

(12) Wilshire Credit Corporation … using what I claim are false and misrepresentative documents!  But I’m not the expert witness here (but I have an attorney who is though).  I still see a mess in the constructive notice to the world of when the documents were juxtaposed.  Improperly recorded documents put the cart before the horse, didn’t they?  Can you see it spelled out now?

Any decent, well-informed, non-agenda’d judge should have been aware of all of this … but then again, they only review what’s put in front of them and what’s challenged and why.   You be the judge as to WHO failed WHO here and why.

I had all the facts in 2011.  Now they’ve come home to roost over seven years later … in a bad way!  I can definitely say discovery was sorely lacking here!

Join Dave Krieger and R. J. Malloy for another exciting segment of City Spotlight – Special Edition on WKDW-FM, 97.5 in North Port, Florida, this Friday night at 6:00 p.m. (Eastern) … the subject matter this week … blockchain, jurisdictional issues, societal breakdown and the latest from the ABA blogs!  To listen to the show, CLICK HERE!

 

 

 

 

 

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UPDATE: BRUCE JACOBS IS FIGHTING BANK OF AMERICA!

UPDATE FROM MIAMI —

Miami-Dade Judge Bronwyn Miller has rejected attorney Bruce Jacobs’ demands that Bank of America be sanctioned for withholding and destroying records … 1.8-billion of them!  There was no specific reason given for the Judge’s decision.  Bank of America (of course) argues that Jacobs’ claims were baseless.

Jacobs had accused the bank of purging the records while under a court-ordered subpoena (in another foreclosure case) to hide evidence of alleged fraud because the original records may have been altered.  Bank of America responded by stating that the records were copied by an outside firm and returned to the bank and that it was the “outside firm’s copies that were purged”.  Bank of America’s attorney stated that Jacobs’ claims were not relevant to this matter because they were based on claims from another case raised in bankruptcy court.  (See the article below for clarification!)

 

See the following link:

https://www.cnbc.com/2018/10/11/bank-of-america-fights-court-battle-over-purge-of-nearly-2-billion-bank-records.html

NOTE:  Bruce has asked me to repost this!

OP-ED — It is not surprising that the individual documents involved in the particular case are not a part of the scrutiny involved here.  Anyone reading any “manufactured” Bank of America document could understand that in (for a time) in Simi Valley, California, tens of thousands of so-called fraudulent assignments of both mortgages and deeds of trust were created under the direction of Bank of America in order to create standing so it could foreclose on affected homeowners.  Many of these documents contained “CoreLogic” on them.  We know from a certain interview with a former contract worker at Simi Valley (in the document manufacturing plant there) that he was signing documents as a Vice President of Mortgage Electronic Registration Systems, Inc. and he didn’t even know who MERS was.  Documents were always referenced back to CoreLogic in Chapin, South Carolina.  Remember the LPS debacle?

Title companies and document processing plants that go out of their way to create documents (or be involved in the creation of them) are NOT your friend!

Many of these documents claim that Bank of America, NA ended up with (as an assignee, or transferred to another party as an assignor) an assignment of mortgage or deed of trust as the result of a merger involving “BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing LP”, which we have researched thoroughly and found to be false, as Countrywide Home Loans, Inc. was not directly subsumed into Bank of America, N.A.   Oops!  We forgot Red Oak Capital and another merger entity.  The point being … if the other side is going to claim that it acquired something by merger … don’t you think it’s necessary to make them prove it?   We take too much of this for granted and don’t recognize when something is that obvious that we “forget” to challenge it. Every state in the U.S. has a civil component for attacking fraudulent documents.  Why is no one using them to their fullest extent?

Of the documents we now find worthy of discovery: (a.) all assignments in the chain of title; (b.) limited powers of attorney recorded for the benefit of the assignee (Grantee); and (c.) agency and/or merger agreements.  The Grantee (or Assignee) of an agency relationship cannot prove that relationship.  It must be legally proven by the Grantor (or Assignor) of the relationship!  For example … how can a Borrower “agree” that an agency relationship between Mortgage Electronic Registration Systems, Inc. exists on a mortgage or deed of trust when the Borrower has no proof or personal knowledge of such?

This is why homeowners should regard anything involving “MERS” as suspect and (as we suggest) … walk away from the closing table!  It’s bad enough that over 80-million homes have issues involving their chains of title because of MERS and yet people keep going to the closing table and signing these documents without reading them because they just want the damned keys to the house, whether it financially and psychologically affects them in the future!

This is why we see increased bankruptcy filings, suicides and murder-suicides related to foreclosure cases all over America!  There are portfolio lenders (like fsnb.com) out there … why aren’t we using them instead?   And now another round of subprime mortgages has hit the national marketplace and people who got into trouble in Round One are the first ones standing in line for Round Two.  When will we learn that those who are ignorant of history are condemned to repeat it?

In my next post, I’m going to present a 5th U.S. Circuit case where a REMIC won because of a homeowner’s failure to properly attack his case!  This case involves not one but TWO Assignments of Deed of Trust that were not only servicer “manufactured” but recorded in “reverse”, which would appear to have negated the effectiveness of BOTH of them!  You be the judge!

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5TH U.S. CIRCUIT MAKES IT CLEAR … NO FREE HOUSE! MERS RULES!

(BREAKING NEWS – OP-ED) — 

The author of this post is not an attorney and therefore cannot render legal advice.  However, he believes that everyone reading this post can clearly understand the intentions of the 5th U.S. Circuit Court of Appeals.  It doesn’t take an Einstein to figure out the blatant meaning behind the Circuit Court’s thinking here.  As an Op-Ed piece, I would think the Burke’s counsel needed to approach the assignment of deed of trust to Deutsche Bank (who I refer to hereinafter … and not lovingly … as Douche Bank) National Trust Company, as Trustee for a REMIC that was empty in the first place!  The courts still do not “get” this yet; thus, we have a ruling that is holding the lower court’s feet to the fire (the lower court may have gotten it right).  Here’s the case for your review:  DBNTC v Burke, 5th App Cir No 18-20026 (Sep 5, 2018)

NO ONE CHALLENGED FULLY CHALLENGED THE DOCUMENT! 

For a number of posts since the McGinnis case was brought up, I’ve been talking about the assignments. I am not totally sure that the Burke’s lawyer was up to speed on any of what I’ve been talking about, but if we were to look up the assignment in question, which the lower judge took issue with, we could pick it apart, piece by piece … and figure out how and why Douche Bank went to federal court to get the result it did, when home equity lines of credit in Texas start out as Rule 736 motions (the cheapest way for the lender’s servicer to steal the property in any Texas state court).  Once you’re done consuming the contents of the 6-page ruling, you can decide where the “manifest injustice” really is!

You see, the Burke’s probably had the funds to fight this the right way.  How and why they didn’t plead or properly attack the assignment is beyond me.  Why they didn’t attack MERS’s “beneficial” interest is beyond me too, because Restatement of Mortgages (Third) § 5.4 clearly does NOT fit Mortgage Electronic Registration Systems, Inc.

However, if you look at the bad case law set by the suit against MERSCORP in the Southern District of Texas, the Burke’s arguments fall short of a “win” (which is not what was desired here).  Instead, from all appearances, the lower court (Judge William Smith, U.S. District Court, Houston) justice got into a pissing contest with the 5th Circuit over the validity of the assignment.  In order to fully comprehend what’s happening there, you’d have to pull the law of the case on the subject (which I did) … see it below:

DBNTC v Burke, U.S. S.D. Tex No 4-11-CV-01658 (Sep 16, 2014)

If you notice the numbers on the case, it’s been going on since 2011.  I would suspect it’s been going on since the “suspect” assignment was recorded in Harris County, Texas and Douche Bank and Ocwen (who was the servicer in that case) “manufactured” the document with the intent to steal the property.  The problem is, the Burke’s put an Affidant forward to the Court from a “Chief Fraud Examiner” (Charles K. Lamm) … hmmm … who died and made him chief?   Mr. Lamm’s affidavit was excluded because he was NOT allowed to be an “expert witness” at trial.  Another presumptive mistake by the Burkes and their counsel.  Again, as I spoke of earlier in the articles GUTTING THE UNDERBELLY OF THE BEAST, the first mistake was allowing this case to proceed in federal court, where the homeowner and his attorney have minimal control over the foreclosure, especially where any form of “MERS” is brought up.  You also have to look at “the times” (the period in our history of litigating against any MERS entity) … that things have come about in a different way, which has resulted in virtual conflict among the States of the Union as to whether any MERS entity has any right to claim itself as anything, when Restatement of Agency (Third) was clearly brought into the equation.  I bring you the screen shot from the case to discuss the importance of understanding WHY I’m talking about what constitutes an “Expert Witness” and proper discovery to bring about the desired results within “the system of things”, even if it comes to an unfolding scenario in federal court (an obvious ongoing fight for what appears to be over 4 years):

NO EVIDENCE … NO RULING IN YOUR FAVOR! 

If you’ll notice in the foregoing screen shot WHAT the Court said is that there is NO SUPPORT FOR THE EVIDENCE SUBMITTED!  Further, the Court pointed out that NONE of Mr. Lamm’s documents were authenticated.  That, my friends, is sloppy lawyering.  This was typical for what was going on in the courts around this country (and probably still does occur) at the time because people still haven’t gotten past the emotional state of running into court and screaming “FRAUD!”, expecting to get results in their favor, with no discovery, no depositions and no live testimony from a proper expert witness.  What “personal knowledge” could be gleaned from Mr. Lamm, as all he did was examine documents he had nothing to do with creating.  Where were the depositions here?  I don’t see any mention of them anywhere within the 4-page Order of the lower court in 2014, do you?   What the hell were these litigants thinking?   The same thing many homeowners think when they see what they believe is a “suspect” document.  They hire some self-proclaimed “chieftain” to analyze their document and tell them what they want to hear, with no evidentiary support to back it up … and definitely … no personal knowledge of anything.  This pattern has followed many a homeowner through unsuccessful foreclosure processes all over the U.S.   I guess people have not awakened to the principles of the Rules of Evidence yet.

IN SOME STATES, GOING AFTER ANY FORM OF MERS IS A BIG WASTE OF TIME AND MONEY! 

Unless money grows on trees and you have such a tree growing in your yard, or you live in Tennessee (where the Ditto decision gutted MERS like a chicken), whatever State you happen to be in (in this case, Houston, Texas), the courts are split on what MERS is … and what MERS isn’t.  It isn’t just in the federal circuits … it’s in the state courts too.  A lot depends on what legislation was promulgated (and by whom) to get “nominees” into the mix within the county land records, which in turn decimated the county’s earnings directly because of HOW the MERS® System works.

The only way I see this coming to a finite end is to “gut the underbelly of the beast”, where the beast least expects it.  This case serves as an underlying reason why “the system of things” has to work the way it was designed to work, NOT the way you think it should.

This is done by going after the attorneys for the banks and their servicers and holding them liable for felony perjury on the court (which BTW can be exerted in either state or federal; however, there is no “money flow” from the federal side, only from the counties that are heavily insured or self-insured) by directly attacking the document(s) involved, which means you have to focus on those creating (manufacturing) them.  If you want to win, there is no getting around this.  If you want to take down MERS, you have to take them down in principle by going after the “users” of the MERS® System and NOT MERS DIRECTLY!  You see, the “users” are all trained liars!

For the rest of the story, see the upcoming post … GUTTING THE UNDERBELLY OF THE BEAST – PART 7.  In that segment, you can learn and differentiate when judges “do the right thing” versus when they don’t.  When they don’t do the right thing … is when the system of things kicks in!

 

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 6

(OP-ED, first posted: September 11, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

In my last episode (Part 5) of this series of posts, I talked about risk aversion and the creation of a paper trail.  In this episode, I cover the “why” this becomes necessary.

DOCUMENTATION IN SUPPORT OF A CLAIM

The very first thing I look at (as a title consultant) is the chain of title, especially the warranty or grant deed (proof of ownership), the mortgage (or deed of trust) and any subsequent assignments coming against the chain of title.  All of these documents (in certified form) become the initial evidence in support of any claim I may have against a law firm, a judge or any other party that put that false and misrepresentative information into the public record and then relied on it to steal my property.  After all, in judicial states, where I see most of the atrocities committed, the foreclosure mill attorneys are the ones attaching these documents in their pleadings, as exhibits, or in the alternative, making reference to said exhibits, to be used as evidence to support their complaints to justify the foreclosure.

The pleadings themselves (in original or amended form) also become part of the evidence package in support of my claim, because they contain the language that relies on the false and misrepresentative statements where an assignment was posited or referenced therein as evidence in support of their claim.  This package should include every single document placed within the court docket, including the index sheet … certified copies (and 1 plain copy for review). 

You’re probably asking yourself where the promissory note comes into play here, because judicial states mandate you have to have the original note in order to foreclose. In non-judicial states, possession of the note is not required to foreclose; thus, all foreclosures are assumed to be legal unless otherwise challenged.  This means that if you’re in one of the non-judicial states, you have to institute suit based on the chain of title you have, in order to start the paper trail.  Thus, non-judicial state property owners are at a distinct disadvantage because they must spend the money filing a lawsuit to stop the foreclosure and obtain a temporary restraining order (TRO) and they are limited at best as to what is provable and what isn’t because the other side has not responded to the suit.  You can’t make boisterous claims either, as you will be denied the TRO and that is what you’re seeking to shut down the foreclosure sale.   You see, until the other side responds, they’ve created no paper trail you can assert contains false and misrepresentative statements, which is why I like using a C & E (an acronym for Cancellation & Expungement Complaint) “right out of the gate” if I realize I might not be able to make my mortgage loan payments any more.  Waiting until the 11th hour to file one of these Complaints (in of itself) has been definitely proven to be a waste of time and financial resources.  Filing a wrongful foreclosure action (before the fact) is also a waste of time and financial resources because the foreclosure has not occurred yet (and this is supported by case law).  I mention all of this because your research becomes fundamental as part of creating the paper trail.

Any oral statements made in court have to be supported by some sort of record.  This is why we have court reporters.  Most pro se litigants and uneducated homeowners conveniently forget to retain a court reporter to document everything said in open court to their disadvantage. This means that with no court record, there’s nothing to take up on appeal or challenge because you’ve “stiffed” yourself out of a paper trail.  Besides, having a court reporter has been shown to keep the judge honest.  Don’t think that just because the county can afford to have its own court reporter there means you can simply rely on getting a copy of the transcript from the county’s court reporter.  They are backlogged with work and will take their time getting anything to you, at a time when having a transcript of the proceedings might be timely necessary.  This always works to the homeowner’s disadvantage.  That is deliberate!  Why?  Because the county is using its own court reporter to “cover its own ass” and you can bet stuff will be left out of the record.  Then it’s your word against the county’s.  So, tis better to get your own court reporter!  You need to create your own “timely paper trail” for future use and reference.  This is not a traffic ticket we’re talking about here!

Discovery is vital whether or not you are doing a C & E (which allows you to do discovery of the party executing the assignment and the notary who acknowledged the assignment) or a full-blown complaint to stop the foreclosure.  Discovery responses becomes part of your evidence package … and the “paper trail”!  If you don’t propound discovery on the other side or at least the relevant parties (the ones who created the assignment), you’re on a sinking ship.  All of the discovery (and the responses you get) become part of the paper trail.

Depositions are a must!  These are taken using a court reporter who writes down every single word that is spoken and many of them use video cameras (which is allowed) to take taped statements, which is even more intimidating.  I find that going after the creator of the document, the executor of the document and the notary who acknowledged the document are vital to creating a proper paper trail (not so much the creator of the document, unless you’re trying to solidify that the law firm or servicer was involved in a civil conspiracy with the agents who executed the assignment).  You’re only talking a minimum of TWO DEPOSITIONS here … the executor of the assignment and the notary who acknowledged it.  What authority did they have to execute the document?  Where is the notary’s bond?  Is there even a bond?  Can we attack the notary’s commission even though there is no bonding requirement?  YOU BET!  Attacking a notary’s bond (if there is one to go after) can be a source of cash flow to support your court fight. You can bet the other side will object to everything you ask for because they don’t want anything said on the record that can be used against them in court.

In all matters related to your case, PHONE CALLS DO NOT WORK!  You cannot take phone calls into court!  DO NOT CALL THE NOTARY!  Do not contact the notary by mail!  If you’re sending them a subpoena to appear at a deposition … their deposition … you do it through a process server … which is also a legitimate part of your paper trail!   I have people who have contacted me who do exactly what I just suggested NOT TO DO.  They scare the notary into hiding.  When it does come time to serve them with a subpoena, they can’t be found.  Duh!  And these people actually think they’re doing the right thing?  Seriously?  What part of desperation is incorporated into stupidity?  This is where you have to put your emotions aside and start thinking “common sense”.

THE EXPERT WITNESS AFFIDAVIT AND LIVE COURT TESTIMONY

I’m talking “expert witness attorney” here, not your average forensic loan or securitization auditor (who thinks they’re an expert witness).  Why an attorney for an expert witness?  Allow me to re-arrange your brain’s priorities through the following three reasons:

REASON #1: Litigation Consultant … your expert witness attorney can also serve as a litigation consultant to help you frame some damning discovery centered around statutory violations!  This is important because using the stuff I mentioned previously in The Quiet Title War Manual has nothing to do whether or not you can challenge assignments because you’re not a third-party beneficiary.  That is a bullshit banking argument that has nothing to do with the statute in question!  The statutes speak directly to the recording of documents known to contain false and misrepresentative information!  Separate the two distinctions in your mind because the borrower’s name is in the assignment; the borrower is a party to securitization (if that’s an issue) and because the document involves misrepresentations that may include “MERS” (in whatever form), which claim that Mortgage Electronic Registration Systems, Inc. had something to do with negotiating the instrument (the note), which runs contrary to what’s in the assignment, generally.

REASON #2: Personal Knowledge of the Facts … this happens when the expert witness attorney reviews all of your documents.  He can testify as to their factual basis AND render a legal opinion … BOTH under oath and under penalty of perjury as a lawyer!  This is way different than having a so-called “expert” that’s NOT an attorney testify as to anything factual … they can’t give legal opinions; otherwise, in doing so, their testimony could be impeached or effectively diluted under cross examination. Not only that … because the attorney who serves as your expert witness is sitting in the court (prior to giving his testimony), he actually gleans personal knowledge listening to the other side’s attorney further the false and misrepresentative information to the court … for which the damage is immediate (see In re Wilson, U.S. Bkpt Ct E.D. La No 07-11862, Memorandum of Law in Support of the United States Trustee’s Motion for Sanctions against Lender Processing Services, Inc. and the Boles Law Firm), which says:

“Untruthful statements made in bankruptcy proceedings undermine the integrity of the bankruptcy process. The bankruptcy system relies on the candor and accuracy of information presented by all parties, creditors and debtors alike. To ensure candor before this Court and to protect the integrity of the bankruptcy system, this Court should impose on Fidelity and Boles monetary sanctions and other non-monetary relief as this Court deems appropriate pursuant to its inherent authority to sanction abusive litigants coming before the Court, and pursuant to 11 U.S.C. § 105(a).”  And from the following footnote, No. 16):

“Rule 9011 provides a 20 day “safe harbor” in which a party may withdraw the challenged written representations, unless they are contained in the bankruptcy petition. If the challenged paper is withdrawn, it would not be considered by the court in its decision making process. However, there can be no safe harbor for untruthful statements made in open court, because the harm that results is likely to be immediate.”

(I just told you the Expert Witness Attorney would be there to hear all of the “immediate” misrepresentations.)  This is an actual case where Wells Fargo Bank got hit with a $1.3-million sanction!

This is an attorney, namely, the Bankruptcy Trustee, reporting misconduct! He is telling the other side (through his memorandum, they’ve been given fair warning to recant what they’ve placed into the court record).   If you didn’t catch that so far … let me make sure to clarify this in the following “reason”:

REASON #3: Rule 8.3 – Reporting Professional Misconduct … this is a mandated state bar rule (how many foreclosure defense attorneys actually follow it?)

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

The foregoing mandates (which is what “shall” means, not “may”) are put there to hold attorneys accountable to report misconduct. What forensic loan auditor or securitization auditor is mandated by the Bar’s own rules to to this?  Come on, think?  Where’s the mandate?

(long pause, heavy sigh)  Come up with one yet? Didn’t think so.

This means that when the expert witness comes into personal knowledge of the facts that the other side’s lawyer has committed felony perjury by making false and misrepresentative statements in open court, he has a mandated duty (for which the State Bar must listen) to report the other lawyer’s misconduct!

This also means that if the judge hearing your case doesn’t give a shit and let’s this scumbag attorney for the bank say whatever he wants and get away with it and hands your property over to the bank AFTER your expert witness attorney advises (through a legal opinion) that the other side’s lawyer, in both pleadings and exhibits and oral statements made, has committed misconduct, not only is the judge exposed and now at risk, but the county he is employed by may also be “on the hook”.

At least bankruptcy judges have the decency to “do the right thing”.  I recently noted the results of the Sundquist ruling in California.  Sundquist-Memo-Opinion

A lot of this depends on how “stacked” your paper trail is and what evidence of misconduct you were able to actually PROVE (not just assert).

EXPOSED RISK FACTORS 

BTW, for those of you “Patriots” out there … a majority of the judges’ oaths of office I’ve seen were actually recorded in the public record in the county they serve in!  This is important to recognize the WHY you’d want a certified copy of their oath of office.   THE PAPER TRAIL!   It’s proof he/she (as a judge) is serving IN THAT COUNTY!

Most counties are self-insured.  The county has either a County Executive or Risk Manager who handles their claims because of something an employee did wrong.  Who would think to tag a judge?   After all, aren’t the judges bonded?   What happens if the bond is attacked, challenged and successfully revoked?   The judge can’t sit on the bench, right?  He will probably be placed on administrative leave while the county investigates what happened.  But that’s not all the county has to worry about.

As a result of the trial or hearing (whether it be evidentiary or just one of those 5-minute “rocket docket” style pieces of crap), there are two other complaints that must be reported … a complaint on the lawyer to the State Bar that can discipline him … and a complaint on the judge to the appropriate judicial authority.  More paper trail to show the County … to give them fair warning that they need to step up or face the consequences!

ALL OF THIS HAS TO BE DONE BY THE EXPERT WITNESS ATTORNEY … WHO IS MANDATED TO “PULL THE TRIGGER”!   PRO SE LITIGANTS (who think they know more than the expert witness attorney) WILL ONLY F**K THIS UP IF THEY TRY TO DO IT THEMSELVES (calling into the county or the bar or the judicial review board and whining about their silly little issues, or filing crap judicial misconduct complaints, which is how the major insurance players in this game will view their cheap efforts to avoid having to pay for an expert witness attorney).  I put this part in the back end of this post as a caveat, because it’s the expert witness attorney who has the “big stick of dynamite with the short fuse” … NOT YOU! 

It gets better … stay tuned for another round of insight into the insurance game in the next segment! The title companies are also in this up to their ears (among other places)!

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THE JOURNEY BEGINS WHEN THE PITY PARTY ENDS … STEP TWO!

Op-Ed — (continued from the previous post) STEP TWO … 

The Internet can be a dangerous thing, especially when doing research, trying to find answers to questions surrounding a potential financial issue that could become a crisis, like a foreclosure.

One of the reasons why I post blogs is because people share them.  Others who are in despair happen to run across these posts and some of them walk away with reason.  The “reason” I speak of is the need to recognize when there is a problem and the HOW TO’s to do something about it. Being in denial solves nothing.  It simply prolongs the problem.  Sometimes, it makes the problem worse.

The bigger part of the problem is the second issue I spoke of in the previous article: Confusion.  Understanding what is happening in its most blatant aspects is that there is the potential of losing one’s home.  The WHY of it all stems from the alleged lender’s assertion that payments were missed and that the loan is in default.

In mortgage states, or states that are commonly referred to as judicial states, you not only get your “day in court”, but the bank has to actually PROVE that you are in default AND that they hold your promissory note AND have the right to enforce the terms of the mortgage (and note).   In all cases, the mortgage FOLLOWS the note.  The mortgage is a recorded security instrument, which is found in the public record in the county in which the mortgaged property is located.  It contains terms and conditions which must be adhered to in order to keep the note holder from foreclosing and taking their “security for the loan” back.

In deed of trust states, or states that are commonly referred to as non-judicial states, you don’t get your day in court unless you file a lawsuit and demand that the court issue a temporary restraining order (TRO), which prevents the lender (or its alleged servicing representative) from advertising and conducting a sale of your property on the courthouse steps at a prescribed point in time.  The deed of trust is also a recorded security instrument, which operates similarly to a mortgage, and if properly recorded, is also found in the public record in the county in which the mortgaged property is located.

You should know that if lenders had their way, EVERY STATE would be a deed of trust state.  That way, the lenders and their henchmen would have nothing to prove when it came to advertising and selling homes on the courthouse steps.  Until they actually bribe every state’s legislature to change over to non-judicial from judicial, homeowners still have their day in court. This is the only way the banks can win.  Knowing of this potential makes me wonder why people are taking out loans to buy property when, if they know there is a possibility of their financial future turning dismal, they don’t just buy a small plot of raw land and “build as they go”.  This would seemingly make more sense and involve the banks less.

Another reason the lenders prefer a deed of trust to a mortgage is that when examining the 2007-08 financial crisis, homeowners were affected to the point where most in financial straits could not afford an attorney let alone keeping food on the table.  Knowing the homeowner won’t fight back increases a successful outcome by the lender of taking the property back without much hassle.  Now that the Dodd-Frank Act has been molested and degraded to the point of history repeating itself, how many potential homeowners will be sucked into taking out mortgages from the mega-banks, which the gutting of Dodd-Frank was clearly designed to benefit.  You can bet the major lenders had a lot to do with those major changes to the most recent passage of the “Economic Growth, Regulatory Relief and Consumer Protection Act”.  Because these bills are so voluminous and partisan, they create more “confusion” for the average person on the street who didn’t go to law school.

Your “property” has a chain of title … 

Researching your property’s chain of title is like peeling away the layers of an onion.  The more research you do, the more layers you peel away, leaving the real truth on the table, which, after peeling an onion, leaves most people in tears.  This is why I used the “onion” analogy because peeling onions makes my nose run and my eyes water.  Finding out what really happened to you as the result of your being duped by an unscrupulous mortgage loan officer would make anyone cry, especially when they discover that they made a mistake getting that particular mortgage loan in the first place.  And now, you’ve opened “Pandora’s Box” and found the onion.

Accepting the “truth” for what it is … 

During the times prior to the 2007-08 financial crisis, banks and mortgage companies were loaning money to anyone who could “fog up a mirror”, altering mortgage loan applications, baiting loan applicants with teaser rates tied to adjustable rate, interest-only and negative amortization loans and mortgages that looked normal, only to end up finding one got stuck with a balloon note or interest rates that put their monthly payments out of reach of their paychecks.  This was deliberate and calculated.  The banks played both sides of the coin when they lured the investors into the schemes of securitization and lured the homeowners into loans they neither could afford nor deserved.  The first “truth” you need to recognize is whether you’ve bitten off more than you can chew.  Once you realize what the truth is, it makes it easier to come to grips with and deal with HOW the mistake was made that got you into the dilemma you’re in now.  I went through this “dilemma”.  I got stuck with an “80/20 loan”.  That’s two separate mortgages, wherein the second mortgage (the “20”) had a much higher interest rate and was generally tied to another Wall Street security altogether. I used the foregoing phraseology to describe “securitization”.

It does not take an Einstein to figure out that when there’s more month at the end of the money, you’re not making it.  When you’re even one day late on your mortgage payments, the servicer handling your mortgage “red flags” your account and starts a file on you. The servicer is generally looking for excuses to take your home away from you.  No servicer in today’s times is “nice”; in fact, they’re all common liars from time to time, especially those $9/hour cubicle employees who tell you that you have to be 90 days late before you can apply for a loan mod.  THAT IS THE BIG LIE!  The servicer knows that on Day 91, the REMIC’s credit default swaps, default insurance and any other PMI or LPMI that’s been tied to the loan will be negotiated and the alleged “Lender” will reap over 200% profit off of your mortgage loan … and that’s without even applying for the title insurance payout (the principal amount of the loan less 27% administrative costs) because the chain of title is jacked up (due to the Lender’s own ineptness).

The next major ploy of disbelief is the then-servicer (on or before DAY 90) has its employees dummy up an assignment of mortgage or deed of trust and cause it to be recorded into the land records in the county where your home is located so they can “structure” or “manufacture” standing to foreclose.  The term “standing” in of itself intimates that the lender (or its servicer) has the right to do what it’s doing to you. Most attorneys I know assert “lack of standing” in almost every foreclosure defense, because the simple statements of the servicer (who claims to represent the real party in interest) are not sufficient enough to prosecute a foreclosure.

If your loan is in the MERS® System, it is likely to have been securitized, which means that the chain of title is really messed up an there is likely a REMIC (Real Estate Mortgage Investment Conduit), a tax-exempt entity that soaked investors for loan money, who has no idea you’re in default (the servicer knows!) and the servicer comes in disguised as the Lender, retains an attorney, obtains a foreclosure, sells the house post-judgment and runs away with your earnings.  This is why mortgage loan servicers are in business.  You make gobs of money when 95% of the homeowners run away and leave their homes to the servicer and their law firms, who split the booty, post-sale. MERSCORP (in whatever form) and its wholly-owned subsidiary, Mortgage Electronic Registration Systems, Inc. were created to bolster lighting fast transfers of loans electronically, that have allegedly been securitized (paid for with investor money instead of the bank’s own money) and sold and re-sold multiple times on Wall Street.  This can only happen if the loan is securitized.  MERS IS NOT (AND SHOULD NOT BE) USED IN PORTFOLIO LOANS!

If you just understood what I just said … the REMIC does NOT know when you are in default because the servicer is required to make your payments to the investors, even when you don’t.  When people realize this, they get really pissed off because all along they thought it was all their fault.  The “noose” was tightened around your neck when you signed the mortgage loan in the first place!  Speaking of fault … did you come to realize the word “fault” and “default” are similar?  How do you know you’re actually in “default” if the servicer has been making your mortgage payments all along?   This is the “power over” debt collection game they play with you when you’re late on your mortgage payments.  All this time, the servicer has been making the payment for you and you never knew it.

These are only a fraction of the “truths” I teach at my workshops!

Homeowners who think they’ve been defrauded want to sue everyone tied to the mortgage loan.  THAT is the first big mistake that homeowners make.  That’s because their confusion has caused them to become angered (the third phase of foreclosure) for all the wrong reasons, to the point where they lose all rational consciousness in making proper decisions about litigation. Listening to people putting forth information and then acting on that information (without first vetting it just because it supports some sort of rational argument they have in order to make a living steering people down rabbit holes) accomplishes nothing either.  This is why many people become confused. Once they enter the cesspool of foreclosure cases looking for answers, they get so overwhelmed they don’t know where to turn or who to trust.

My research shows me that if the banks and mortgage companies were conniving and calculated enough to pull one over on you at closing, then the obvious objective is to give them their just desserts in return.  “Wise as serpents, harmless as doves.”  Going out and filing big lawsuits against lenders without a reason or any “litigation logic” using that same rationale is futile and fatal.  Why waste your money and your time?  The fact you are being foreclosed on brings an undue psychological burden on the mindset, which in turn induces stress, which in turn affects both your mental and physical health.  This is why 95% of homeowners “run away” and don’t fight.  This is why America can easily be “taken over” by the “party elite”, because most do not know HOW TO fight, let alone WHY.  If you knew HOW TO fight, wouldn’t the WHY develop into something more logical?   This is like taking karate or some other form of martial arts training.  There’s no “false hope” here because you are confident you stand a chance of winning.  You either choose to fight or you don’t.  You can still walk away from a fight and save your mental and physical anguish by formulating an alternate plan (otherwise known as PLAN B).

Everything from taking out the mortgage loan to fighting the alleged “lender” in court has a certain amount of risk.  Some of this risk is calculable.  Some of it is not.   You chose the path you are on for a variety of reasons and now you must choose the right reasons to either run and hide from your creditors or to get educated, stand up and fight them.   Filing bankruptcy only aggravates your struggle and to that end, I will explain that in the next step.

The journey begins with the chain of title … 

There is only one place that you’re going to be able to locate the foregoing and that is in the office of the clerk or recorder of your county records.  These folks get paid to help you search out the necessary documents.  If you live in a rural area with an underdeveloped county recording system, it’s highly likely that you will have to search all of this by hand through the index, which is organized by last name, then first name until you locate the recorded copy of your warranty deed.  This is your proof that title has been vested in you and no one else.

As a title consultant for many years, I can safely say that in most instances, this is your starting point.  You do not need certified copies of everything, just regular printed copies you can scan and mail to others who may have more research knowledge than you.  Getting together with other homeowners to discuss your findings after a visit to the land records may expose you to more research truths, which you need to begin your quest to justice.

You MUST collect the entire chain of title for your property in order to be able to fully analyze it (or have someone else that is more formally trained analyze it).  Skimping to only obtain the first couple of pages of a mortgage or deed of trust is just plain penny wise and pound foolish.  You need to see the whole document to see HOW you got screwed.  The devil is in the details!

Mortgage = Payments until Death  (Duh … “mort” … in several languages, means “Death”)

STAY TUNED FOR STEP THREE!  (I will discuss HOW the chain of title is used to formulate your case for trial!)

For more information on the Foreclosure Defense Workshop, click on the link!

I’m only doing this once this year!

For more information on Dave Krieger’s information library, CLICK HERE!

NOTE: Foreclosure defense attorneys are attending this Workshop!

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Filed under OP-ED, Securitization Issues, workshop