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Assignment of Mortgage in Default complicates foreclosure?

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  • Assignment of Mortgage in Default complicates foreclosure?

    Ok here is a situation. I am seeking Feedback on.

    1. Mortgage was in default.

    2. Mortgage Company assigned the mortgage to another bank while it had been in default.

    3. Because the Mortgage was in Default and Letters from the Mortgage Company state it was/is in default, the subsiquent assignment made the new bank a collection Agency per FDCPA, am I right in this assumption?

    4. If that is the case would that make the servicer of the mortgage a subcontractor of the collection agency?

    5. If I sue or start an adversary proceeding, it would be against the new bank who is the holder of the note by assignment. Am I Right so far?

    6. If the servicer was to answer the complaint on behalf of the new bank, that would make that answer improper as only the legal holder of the collection account has standing, am I correct on this too?

    7. Being a servicer is moot as the note is still in default and it was purchaesed/assigned while in default and the servicer would not have any standing to pursue or fight an adversary proceeding unless or until the mortgage became current again. Am I right on this matter.

    With the servicer being only at most a subcontractor for a collection agency, there would be no authority for any court activity as only the legal holder of a collection account may be a party in interest?

    The reason I am asking is I am in the begining of an AP against US BANK who received the defaulted note from WF. I have a motion in right now to strike WF reply do to lack of standing and seeking a default against US BANK based in part on these grounds. I have been waiting for a ruling since December 09 and just want to get a feel for what others think.

  • #2
    What do you mean by assigned? The servicer acts as agent for the owner. If the owner can't be verified, then they have a problem (e.g. produce the note). But normally I believe the servicer is responsible for legal actions not necessarily the owner of the note. In any case the servicer is likely bound by the FDCPA as a collection agency. But not the owner of the note, and not the servicer if it is the owner of the note.
    All this is just my speculation, take with a big grain of salt.
    filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

    Comment


    • #3
      Originally posted by catleg View Post
      What do you mean by assigned?

      the original bank sold the note to another bank as part of a mortgage pool, to doccument the change in Legal Holder of the Note an Assignment for Value was filed in the public records to show the original bank was no longer the owner and show who is.


      The servicer acts as agent for the owner.

      Right, except in order to have an agreement to service the new bank would have had to own the note first to authorize a servicer to collect and act and most important there must be a mortgage that is servicable before a new service agreement takes effect. The mortgage was in default the date the new bank bought it. Which makes them in my oppinion a collection agency for a defaulted mortgage first and even though the service company thought it had authority as servicer, the debt would have to come current before the service agreement to take effect. It is allot different when you default with a servicer, they can handle almost everything with almost no questions asked with the proper proof. I think the FDCPA backs me up on this, but I could only find information pretaining to every other account but a mortgage.

      The pooling and service agreement seems to only state "current" and "performing" mortgages, the other thing the SEC filings of the fund I was sold too states they only accept "current" and "Performing" assignments, clearly mine was not either one of those. So the question of the validity of the assignment may exist, but thats another issue for another day.



      If the owner can't be verified, then they have a problem (e.g. produce the note). Thats not the issue yet...

      But normally I believe the servicer is responsible for legal actions not necessarily the owner of the note. In any case the servicer is likely bound by the FDCPA as a collection agency.

      Once they have a valid service agreement to act off that is correct, if the agreement is not valid because the note was defaulted BEFORE entering into the agreement there could be no legal authority. Only the purchaser, the debt collector can make or take any legal actions anyone else is nothing but a subcontractor for a debt collector until the note comes current.


      All this is just my speculation, take with a big grain of salt.
      I appreciate the thoughts and it gives me chance to try my arguments and hope that some great legal mind will say yeah it sounds plausable.

      Comment


      • #4
        OK so to recap, you're saying that WF sold a non conforming (defaulted) note to a pool in violation of the pool's covenants? Therefore the assignment should not be legal and US Bank doesn't have standing? Did WF retain the servicing rights? How is the suit titled?

        Very interesting stuff.

        [Edit: I just read it again. What is the basis for your AP?]
        filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

        Comment


        • #5
          Originally posted by catleg View Post
          ok so to recap, you're saying that wf sold a non conforming (defaulted) note to a pool in violation of the pool's covenants?

          Correct

          therefore the assignment should not be legal and us bank doesn't have standing?

          No: Us bank bought the note and chose where to place the note, they can chose to place in there regular holdings if they chose, the assignment is legal. Its more like the company thinking they are a servicer has no standing.

          Did wf retain the servicing rights?

          Well all that is clear is that they were the original lender and assignor to us bank. The assignment as filed with the county clerk states assignment of all interest. If all interest was assigned then all interest was assigned. So once again we are back to what authority the alleged servicer would have to do anything in this matter before the account became current post assignment.

          How is the suit titled?

          Strickly against us bank as trustee....


          Very interesting stuff.

          The basis is complicated, violations of stay, tila and respa and provisions of my confirmed plan which may provide protections such as uncontested curing of lien language and there is no mention of the lien surviving discharge. My plan calls for the full release of all liens upon discharge. Also there is another matter of post petition/pre confirmation mortgage mod which was not perfected timely (277 days after exicution it was filed) and since i completed my plan before it was filed, i think i am entitled to leave bankruptcy per the law with only those valid liens that existed before confirmation. Also there were zero respa or tila doccuments for the mod and its worse than that, they actually overmodified by 20k so its actually a cash out refinance and i am due a lien release for that basis alone. So its real complicated and my primary motive is to get my house either because of acts of law and/or as damages for really messing things up. I aim to show them that you can not play with the poorest of the debtors only real thing of value, that is there home. All they had to do was give me a written accounting of where the hell the rest of the money went and we would all be happily on our way and because of the collective gamesminship of the mortgage company and its cohorts not acting in good faith, i had no choice but to spend every waking moment on how to defeat them. And the first thing i learned is being a plaintiff is much easier than a defendant. And there is nothing cut and dry in the legal system and man it really does depend upon what the meaning of the word is is.

          I had no idea that such a simply worded plan could have such great meaning, using words regular folks take to mean one thing like curing a default has different meaning and really depends what was actually in default as to what extent something is cured.

          This thing i swear has legs of its own and i can get off in 100 different directions, being pro se really sux at times, i submitted what amounts to 150 page complaint with every exhibit i could think of attached. The judge said he is confident he could narrow it down to 10 pages of issues. I think that is what he is doing now, before he rules on my default motion, narrowing the issues, so he can determine if there is a case warranting the relief before he gives me the moon and stars as demanded in the complaint. He asked if i was awarded the lien would i give up the rest of the case i said yes of course. So that gave me some hope as to where he was going. Being pro se also has its advantages of getting information before the court and liberties not afforded lawyers like time and patience. He was going to make a decission from the bench early january this year and its now early august, been on pins and needles.

          [edit: I just read it again. What is the basis for your ap?]
          1
          Last edited by AlbanyMan; 08-02-2010, 09:00 PM. Reason: corrected an entry

          Comment


          • #6
            Yes, this is one of the newer strategies to challenge standing. Eventually though, someone with proper standing will come forth or they'll get all the paperwork straightened out. Most of the Notes were endorsed in blank, so whoever holds the note (and the mortgage) physically can foreclose. It is definitely a strategy to forestall a foreclosure.

            I have a similar issue. My note is part of a securitized mortgage trust. However my assignment was made 1 year after the securitized trust CLOSED. This is in violation of the REMIC rules. Technically, the Trust can't foreclose because my note does not legally belong to the Trust.

            You can use this as leverage against the Trust, but eventually, they can just sell it to another party and then they can cleanly foreclose upon the mortgage.

            Should you start an AP? It depends. Some Judges won't want to even hear the case, and most lenders will move to have the case dismissed. It's just that it really belongs in the non-bankruptcy State court. However, some Bankruptcy Judges will hear these cases. If you go into an AP/Complaint... that will delay you for at least 120 days since the first scheduling hearing is not until 120 days after filing. The first set of motions are ruled on then, and it is likely that at the scheduling hearing, the lender will move to have the stay lifted so they can proceed in State court.

            Also, your plan, confirmed or not, can't modify the rights of lienholders who hold one on your primary residence (11 USC 1322). If it got confirmed and you have language in their that states that all liens are "voided" (language is important) upon discharge of the Plan... it could be fortuitous.

            I wish you the best of luck. I was researching this for months!
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog


            I am not an attorney. Any advice provided is not legal advice.

            Comment


            • #7
              Originally posted by justbroke View Post
              Yes, this is one of the newer strategies to challenge standing. Eventually though, someone with proper standing will come forth or they'll get all the paperwork straightened out. Most of the Notes were endorsed in blank, so whoever holds the note (and the mortgage) physically can foreclose. It is definitely a strategy to forestall a foreclosure.

              I think I acted to fast for them, Well US Bank has come forward, but it was too late, the time they waisted having WF answer the complaint killed the clock, They were served, not WF, they assigned an attorney who was not admitted yet in my district, because the time was extensive traveling down the pike, the lawyer did not have time to file an answer. We agreed to a time extension and tried to pull the rug out from under the agreement by having WF file the answer at 3:15 on the last day to answer. I immediately objected to the answer as I knew it came from WF, there was an interim order that allowed US BANK to file an answer and the judge said I was open to renew the motion at any time, after failed discussions and tired of being strung along, I walked into court and renewed the motion, this time including the collection agency status of US BANK. WF admits they directed the response and not US BANK. The Judge ordered that US BANK provide figures for what they say I owe, they never provided it and the next time we went up to the Judge I asked to renew my motion he set a scheduling order and it was fully submitted in early December 09.

              I have a similar issue. My note is part of a securitized mortgage trust. However my assignment was made 1 year after the securitized trust CLOSED. This is in violation of the REMIC rules. Technically, the Trust can't foreclose because my note does not legally belong to the Trust.

              Really my trust closed December 2005 and I was just put into that trust while in default status March 2009. Very Interesting. I raised that as a question in my AP as it sounded fishy, but not as an accusation more of a what kind of asset backed securities trust that closed in December 2005 would buy a mortgage in default otherwise non-conforming, does not sound good to the investors of the fund.

              You can use this as leverage against the Trust, but eventually, they can just sell it to another party and then they can cleanly foreclose upon the mortgage.

              Ive made it my mission to assure this does not happen, I am disabled now and every waking moment I am online reading as many decissions as I can, in varying districts, to the point of utter confusion sometimes.

              I have a conditional order that me and WF had pre confirmation which limited there actions in the event of default, the conditional order said upon 1st default 10 days to cure, 2nd default 5 days to cure and 3rd default lift of stay if modification of plan was not feasable. NO where in that Conditional Order does it give permission upon default to assign to a new lender who would become a collection agency as a means of recourse against me and when WF started issuing so called mortgage statements following the assigning to US BANK as a collection agency, that each one violated the automatic stay, espically when the so called mortgage statements have past due amounts for pre and post petition debt. Also the filing of the lien after completion of the plan also violated the automatic for reason already stated and because assigning to a collection agency was not authorized as a means of collection pre or post confirmation default and that violates the stay and therefore the lien is void, that is just one of the many ways I think I already avoided the lien. I hope.....

              Should you start an AP? It depends. Some Judges won't want to even hear the case, and most lenders will move to have the case dismissed. It's just that it really belongs in the non-bankruptcy State court. However, some Bankruptcy Judges will hear these cases. If you go into an AP/Complaint... that will delay you for at least 120 days since the first scheduling hearing is not until 120 days after filing. The first set of motions are ruled on then, and it is likely that at the scheduling hearing, the lender will move to have the stay lifted so they can proceed in State court.

              I already filed a year ago already and we are still dealing with the Default Motion, the judge did say he would rather hear this case on the merits but it was not a final order and I really do beleive he likes the case.

              Also, your plan, confirmed or not, can't modify the rights of lienholders who hold one on your primary residence (11 USC 1322).

              There is a recent decission from a Judge in the DC District. You commented on the case in a prior post. Regarding certain claus in a mortgage which may act as a temporal limit to the creditors protections under 1322. I have that mortgage. I am also in the 2nd Circuit. if that judge has any monical of soundness to that statement he made my argument as to why modification, although not intentional is allowable due to waiver. If I indeed modified any rights.

              Now It is generally true that one may not modify the rights of 1322 lienholders, in the event that I am unsuccessful in my argument and affirmative defense of Waiver is thrown out I am still saved because the curing lanuage reflects to value of the lien. If the lien was cured than there is no basis for a lien as the value has been reduced to zero because the approved claim for the full amount of my mortgage "Cured". No adversary proceeding is needed for setting value to claims, it becomes a contested matter should there be an objection, there were none. All creditors also received the full plan and all secured creditors received the full plan via certified mail with affidavits of service on file.


              If it got confirmed and you have language in their that states that all liens are "voided" (language is important) upon discharge of the Plan... it could be fortuitous.

              Here is what it sayes for secured creditors. " A first Mortgage lien held by WF, taken in 2/05 for debtors primary residence. Debtor cured default and all claims have been withdrawn and will not survive this bankruptcy, the debtor will continue to make payments outside the plan."

              Notice what is missing, continuation of payments post discharge, which should have made them stand up and take notice, but did not. There is no lien survival mentioned, just the opposite is mentioned. Considering on the date of BK they had long declared me full Default of my mortgage to have the statement cured is a declaration of value.

              Under Discharge. "upon confirmation and receipt of the full base amount, the debtor will be entitled to a successful discharge and debtor and all entities will be bound by the terms of the confirmed plan and discharge. Unless otherwise provided by court order, no obligation to any creditor will remain and this plan along with the confirmation order and order of discharge will constitute a complete and full satisfaction and releases all liens".

              How so, what are your thoughts, I am just trying to shore up some of the legal bases for the things in my plan. I ligitimaly had no idea, I meant one thing and things have a different meaning in the courts, WF was active in the case, but it seems they litterly stuck there head in the sand and played dumb. (if they try to ding me on the claim being withdrawn bit in my plan, they in for a big shock cause they only withdrew the claim after an amended plan was filed and confirmed, they owed a noticed motion to ask permission once confirmation occured on an amended plan not related to a previos plan objection. The procedure is not waivable and my plan can not impune the court from its day in court) Plus there is evidence of an unoffical amendment to the claim which should be admitted with no effort.

              I wish you the best of luck. I was researching this for months!
              Let me know if I can help. I love this stuff

              Comment


              • #8
                Just curious, is MERS involved in this at all?
                filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

                Comment


                • #9
                  Originally posted by catleg View Post
                  Just curious, is MERS involved in this at all?
                  No not that I am aware of.

                  Comment


                  • #10
                    Is that a good thing?

                    Originally posted by catleg View Post
                    Just curious, is MERS involved in this at all?
                    If MERS is involved, would that be "good"?

                    Comment


                    • #11
                      Originally posted by curiouscat View Post
                      If MERS is involved, would that be "good"?
                      It would only come in to play if they were filing a foreclosure or some other action against you as many courts now question there standing to pursue legal matters as they are not the real party in interest or most important the Note Holder. Thats my understanding.

                      Comment


                      • #12
                        Originally posted by AlbanyMan View Post
                        It would only come in to play if they were filing a foreclosure or some other action against you as many courts now question there standing to pursue legal matters as they are not the real party in interest or most important the Note Holder. Thats my understanding.
                        Ok, thanks. I know that part, but I was wondering more along the lines of assignments not recorded (went from A to D w/o recording). Note separated from deed. Also wondering what would be said if a note was produced and stamped "without recourse".

                        Comment


                        • #13
                          Originally posted by curiouscat View Post
                          Ok, thanks. I know that part, but I was wondering more along the lines of assignments not recorded (went from A to D w/o recording). Note separated from deed. Also wondering what would be said if a note was produced and stamped "without recourse".
                          Pretty good caselaw, which really deals with the UCC, that assignments need not be recorded. However, they must have been actually done. In my Bankruptcy case, the relief from stay motion did not have an assignment. I objected, and they produced an assignment that was allegedly signed and dated 1 year after my mortgage was funded. This was not the so-called "back dated" assignment. This was just an unrecorded assignment.

                          In any event, my mortgage is in a REMIC (asset backed security), and the Security closed 11 months before the assignment was ever made. Should I decide to question the assignment, and whether the security exists anymore, I would do so that the moving party, the Trustee for the security, doesn't have standing because it's being pursued through an illegal assignment after the security closed. At least that's my theory and I'm sticking to it.

                          MERS does have some workarounds for pursuing foreclosure under MERS' name. That is that the holder of the Note physically transfer the Note to MERS and/or endorse it to MERS so that MERS is the holder of the Note.
                          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                          Status: (Auto) Discharged and Closed! 5/10
                          Visit My BKForum Blog: justbroke's Blog


                          I am not an attorney. Any advice provided is not legal advice.

                          Comment


                          • #14
                            Originally posted by curiouscat View Post
                            Ok, thanks. I know that part, but I was wondering more along the lines of assignments not recorded (went from A to D w/o recording). Note separated from deed. Also wondering what would be said if a note was produced and stamped "without recourse".
                            Blacks Law Dictionary 8th Edition sayes:

                            (in an indorcement) without liability to subsiquent holders. With this stipulation, one who indorces an instrument indicates that he or she has no further liability to any subsiquent holder for payment.

                            it essentially means that who ever sold the note wants nothing more to do with it and buyer beware cause if there is a flaw and your paper is worthless, there is nothing you can do but say sometimes your the bug and sometimes your the windshield.

                            Also, if the behavior of the creditor is contrary to endorcement, there may be an issue of an invalid endorsement as intent shows behaviors contrary to the endorcement. That is just my added and uneducated thought, everything seems to have an interplay to contract law and the intent of the folks who drew up the contract, etc.
                            Last edited by AlbanyMan; 08-03-2010, 09:41 PM. Reason: Extra Info

                            Comment


                            • #15
                              Originally posted by justbroke View Post
                              Pretty good caselaw, which really deals with the UCC, that assignments need not be recorded. However, they must have been actually done. In my Bankruptcy case, the relief from stay motion did not have an assignment. I objected, and they produced an assignment that was allegedly signed and dated 1 year after my mortgage was funded. This was not the so-called "back dated" assignment. This was just an unrecorded assignment.

                              Did you challenge the chain of assignment back to origination date, to make sure each and every one of the people who assigned had authority to make the assignement(s)? My understanding there are usual steps taken along the way, like who put the money up to fund the mortgage and how was that secured to the funder and where they appropriately released by a person with authority, etc. etc.

                              In any event, my mortgage is in a REMIC (asset backed security), and the Security closed 11 months before the assignment was ever made. Should I decide to question the assignment, and whether the security exists anymore, I would do so that the moving party, the Trustee for the security, doesn't have standing because it's being pursued through an illegal assignment after the security closed. At least that's my theory and I'm sticking to it.

                              Do you have any case law on that therory or some other basis for creating new law cause I have the same problem, just didn't realize it was until your post. I cant find anything on your theory.

                              MERS does have some workarounds for pursuing foreclosure under MERS' name. That is that the holder of the Note physically transfer the Note to MERS and/or endorse it to MERS so that MERS is the holder of the Note.
                              The key is who holds the note on date of filing anything foreclosure, lift stay motions etc. The case must be brought in there name and be able to attach proof of everything.

                              Comment

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