Invalid Assignment defense

[justbroke]

I hope you are right about this. I really would like to come to an agreement/settlement and go forward. By the way, Motion for summary judgement: Denied

It's only a "strategy". Absolutely nothing is guaranteed and negotiating a Modification (with principal reduction) in lieu of a foreclosure doesn't happen as often.

What is going on, however, is that several of the States (and DOJ) has negotiated a settlement with the major banks (Bank of America, Chase, etc) and they are actually doing Modifications with both principal reductions and reducing the interest rate. All foreclosure attorneys (for the bank) are going to move for Summary Judgment because, at least in Florida, they get very little dollars to do a foreclosure. (Here in my area, the "standard" no-look fee is $1,200 for a foreclosure! That's no money to litigate, so getting the MSJ denied "could" motivate the creditor to negotiate a short sale, a deed in lieu or foreclosure, or a modification with principal reduction.)

But if you're looking for a principal reduction and are eligible under the DOJ settlement, you could pursue that as well. As always, no guarantees at all.

Best of luck.

[newhope2011]

newhope, I'm concerned with your notion of "an agreement that works for both parties." I don't think that exists in these situations. The bank servicer makes more money off foreclosure than it ever will from a modification, and is calling the shot. The true owner of the debt (which is kind of murky but should be the trust and its investors) is not exercising its power and simply doesn't care to do so. They'd rather sue the bank for putbacks. If the bank doesn't get the MSJ, then I think you'll be able to negotiate a principal reduction with them pretty quickly.

When I was at my foreclosure conference a while back, the clerk was joking about Judge Schack going off the reservation and making a name for himself, so he definitely has been considered out there with his rulings. That being said, several other judges have taken an interest in various defenses including robosiging, conflict of interest by signers, late assignment, lack of good faith with modifications.

Judges Markey, Friedman, Ecker, Adams, Greenwood, Spinner, Aliotta are all making rulings in favor of these defenses.

Mind you, I'm only seeing published decisions that support the notion of foreclosure fraud and I'm not seeing the thousands that wind up with the order of reference and ultimately foreclose. I did get the sense that many of the NY judges look at the totality of your circumstance. That is, if you've made all the good faith efforts to do the right thing to keep the home, then I think being in NY gives you a fighting chance.

I don't have high expectations to keep my home at all but at the same time, I've been waiting for the MSJ for a year now and my understanding is it'll be 3 years from that till when I'm forced out. My bank's law firm is one that had a similar case dismissed with prejudice and it hasn't been overturned on appeal (yet). For now, they might be gun shy.

Davetedge,
I hope you are right about this. I really would like to come to an agreement/settlement and go forward. By the way, Motion for summary judgement: Denied

[jimbo367]

Which sites are you following?

[justbroke]

I disagree with that completely, there is case law in FL NY and else where.

I mean this respectfully, but where is the Florida caselaw on this specific PSA problem. I actually watch the foreclosure trends and major rulings from my sheer desire to be informed. Besides, I do think there are problems in some of this, but I haven't seen the droves of cases which are often talked about but never cited.

I actually read one of the foreclosure websites everytime something posts relative to Florida (and less so with other states). That's why I like to see the case and citation rather than just say... it happened in Florida. Since I can't cite these things, I won't repeat it.

When I talk about a winning argument from a pro se standpoint, as I did above, I am talking about dribble. I'm not saying that you have dribble, but those items are, when brought by a pro se, seen as nothing but dribble by the court. While I think I've read one case where a pro se got a dismissal (without prejudice) on a foreclosure suit, I can't cite the case so I don't rely on it. If it was a winning argument, we'd see more winners... not the one or two you see once in a while and everyone jumps on it as, perhaps, a change in the direction of the wind. But then you read the unpublished order/opinion and find it very fact specific... like a consolidation agreement was in play.

As a trustee that's not enough, they had to obtain it in accord with the PSA, and they can't.

I was really talking about the servicer, and I still don't see why the actual note is "not enough". It just doesn't make sense to me that a properly endorsed chattel under the UCC is somehow irrelevant when it comes to demanding payment... unless, I suppose, you could prove that they are not entitled to be in possession of it. I guess you then admit that you do owe someone something by doing this.

I'm just wondering, not trying to quash your good work. If the lenders actually destroyed the original Note -- with wet ink -- then I see trouble for them.

Maybe it's just me, but unless the "holder of the note" destroyed it and only has a "facsimile" or copy of it, then I don't see how producing a negotiable "bearer" instrument affects the rights of the person holding it.

By the way, I have read the PSA and actually found my mortgage in a specific MBS pool. In fact, they actually created an assignment that they presented in my bankruptcy case that was backdated. They then filed another one with the wrong "pool" on it. They have since filed a corrective assignment due to a scrivener's error. Of course, this was by one of the infamous law firms from southern Florida. Yes, I shake my head too. But, I'm not claiming a free home. If I were in a foreclosure lawsuit, I may use it to buy time since there is a color-able and documented (in the public record and the Bankruptcy court!) claim that there are "competing" assignments. I will say that in the bankruptcy court, an opposing attorney actually DID bring the ACTUAL Note with her. It was unnecessary since I had a modification to bring everything current, but I did get to look at it. (I was behind because I had arrears in the Chapter 13 because I was first going to let this particular property go but changed my mind. When I converted to Chapter 7, I had to deal with the arrears, so I did a modification.)

[jimbo367]

Agree that's why you need to read the PSA & prospectus, but they are several hundred pages, don't get put off by that there are only about a a dozen things in it you need to know and point out to the court.

In researching other cases by the same bank at the clerks office I hit the gran daddy 2700+ pages and 20 page Prospectus, but the firm answering the complaint went thru the PSA like surgeon, I copied that 50 page answer real quick, it was well worth the .25 per page.

The answer included all the discovery stuff as as well.

I have used it as my foundation included tons of case law I was soooo lucky to find this.

You just go to www.secinfo.com and find yours print it.

Mine was 310 pages, following the case mentioned above I yellow yellow highlighted all the needed reference.

I found my trust was started 1/2005, it closed for any additional mortgage to added 1/13/05, that how quick they wrap theses multi million dollar deals up, all pre arranged.

There was never an assignment of mine to the trust until 2012, and that was just a bit late as in 7 years.

[davetedge]

PSAs etc.

Investors aren't too happy about PSAs either. If the mortgage failed to enter the trust or never should have entered due to deficient criteria, the bank may be forced to buy it back and reimburse the investors (as you can imagine, the banks are fighting hard to not have to do the put backs at face value). So if the mortgage note fails to enter the trust, then it either belongs to the bank or the previous holder (originator, mortgage warehouser, or another intermediate). In theory that party could then sue to foreclose (if they still exist).

So if a foreclosure brought by Trust X fails, the note might be put back to Bank Y, who can foreclose after receiving the note, or it might revert back to Originator Z (who probably liquidated in 2009). In NY at least, timing is important. The judges check to make sure the moving party had standing to foreclose at the time they filed.

btw, most PSAs operate under NY Trust law, which has time limits on when assets can enter the trust. So if you can imagine, foreclosures operate in the nexus of the UCC, the property laws of the state, NY State Trust and Estate law (if the mortgage was securitized), and the discretion and preferences of each state's court systems. This is why FL gets a rocket docket, NY forces the lender to negotiate alternatives with homeowners.

I wonder what would happen if the lender just showed up with the properly endorsed note on a Motion for Summary Judgment? That makes me also wonder, where is the Note while all this is going on?

I've always wondered if there's a Raiders of the Lost Ark style warehouse where all notes go to disappear. There was a deposition over Countrywide where someone said most of the notes were first scanned and then the originals destroyed. This is not a bad idea for many states, but for the ones that require wet-ink signatures on original documents, Countrywide kinda screwed up in that situation.

In my situation, my original mortgage with WaMu would have had a slam dunk foreclosure. The original note existed, had been endorsed correctly, perfected (filed with the county register), and clearly they were in possession . But I refinanced with a company that then sold it on and it wound up with Deutsch Bank. They don't seem to have any idea where the note is, which might explain why its just one of thousands in NY's "Shadow Docket."

[jimbo367]

But therein lies the rub. In one part, you say that they were paid during the transfer, but you also say that the transfer is void ab initio under NY Trust Laws. So, it's one or the other. Besides, them being paid is not a payment by the mortgagor. I understand this line of reasoning... that the original lender is already paid... but it has never worked in any case. The theory being that the securitization of the loan caused the lender to be paid so the mortgage is paid. But, the mortgage is NOT paid.
Furthermore, there is such thing as a successor! A successor could be the FDIC or another bank through acquisition or failure (where the bank's assets are assigned by the FDIC). This doesn't mean that because La Salle bank doesn't exist anymore, doesn't mean that Bank of America, who is the successor and who acquired La Salle, doesn't have the right to enforce the terms of the security instrument.

So what, this plaintiff is knocked out, let someone else scramble to figure out who may sue you, my guess is with thousands of mortgages in this mess no one will surface.

Additionally, I suppose that you stopped paying the purported pooling agent or the lender itself at some period in time. For that reason, I don't know what your butt has to do with it, but I do understand! I was actually looking at defending a foreclosure action against one of my properties under similar reasoning, but it is just not the mainstream.

I think you need to understand if the trustee had no standing and is out, read tru a PSA and its prospectus, that person you think you owe doesn't exist was paid by the Gov or insurance or wrote it off.

saying PSA this, assignment that, is not a winning argument.

I disagree with that completely, there is case law in FL NY and else where.

See this site there is much to learn how it all works

I wonder what would happen if the lender just showed up with the properly endorsed note on a Motion for Summary Judgment? That makes me also wonder, where is the Note while all this is going on?

As a trustee that's not enough, they had to obtain it in accord with the PSA, and they can't.

The note-lost

[justbroke]

Not if the original lender were paid at the time of their BS transfer. Not if as in my case they are out of biz.

But therein lies the rub. In one part, you say that they were paid during the transfer, but you also say that the transfer is void ab initio under NY Trust Laws. So, it's one or the other. Besides, them being paid is not a payment by the mortgagor. I understand this line of reasoning... that the original lender is already paid... but it has never worked in any case. The theory being that the securitization of the loan caused the lender to be paid so the mortgage is paid. But, the mortgage is NOT paid.

Furthermore, there is such thing as a successor! A successor could be the FDIC or another bank through acquisition or failure (where the bank's assets are assigned by the FDIC). This doesn't mean that because La Salle bank doesn't exist anymore, doesn't mean that Bank of America, who is the successor and who acquired La Salle, doesn't have the right to enforce the terms of the security instrument.

Not sure about the fun part when it's my butt, however, yes I'll fight not only at this level but the next if need be, been there before on non foreclosure cases.

Yes, fun even when it is your butt. I suppose that you did, in fact, mortgage your home in consideration of a loan -- to either purchase or refinance the home. Additionally, I suppose that you stopped paying the purported pooling agent or the lender itself at some period in time. For that reason, I don't know what your butt has to do with it, but I do understand! I was actually looking at defending a foreclosure action against one of my properties under similar reasoning, but it is just not the mainstream.

I have found that the judges here are not assigned pro se cases if they don't wish to, and they have never been impatient or short if you are raising I legal arguments that make sense.

The judges are not short either, but when you come in and all you can say is... produce the note... or the assignment is wrong, without any cause as to why the judge should rule i your favor and against the plaintiff, then I don't call that being "short". I'm sure you'd agree that raising a legal argument is a far cry from just... well... crying foul.

I have sat through cases ahead of mine where the pro se litigant was way over his head and off point that they were given a little time but then cut short.

Exactly. They are entertained, because the Supreme court has ruled favorable that courts should construe the motions (oral or otherwise) presented by pro se individuals, liberally. However, the Supreme court, in the same breath, stated that it's not the court's (judge's) job to formulate a legal argument or to "find" cause with a pro se that doesn't know what they're doing.

I think what I just wrote goes to the heart of what HHM wrote previously. That is, that merely crying foul, saying PSA this, assignment that, is not a winning argument. Furthermore, HHM wrote, and I agree, that what you're hearing from those participating in this thread, should be seen as a prelude to what a judge and/or plaintiff bank will seek to discover.

At some point, the court is really weary of these claims as they just clog up and slow down a system that is already being crushed by the sheer volume. I think that is where you see the judges try to be patient with the pro se, but also tend to become leery of their collective positions.

As for you, I think that you are starting to formulate the right argument, but only time will tell.

I wonder what would happen if the lender just showed up with the properly endorsed note on a Motion for Summary Judgment? That makes me also wonder, where is the Note while all this is going on?

[jimbo367]

I will say this... and I think HHM went here too. If the mortgage was not entitled to be transferred into the Pool because the PSA was violated, then the assignment to the Pool should be invalid. I can see that. I can certainly see that where the mortgage was "allegedly" transferred into the pool after the pool's closing date.

But, does this invalidate the mortgage itself? That I don't believe. The original lender should still have recourse.

Perhaps not but it ends this plaintiff's case.

Not if the original lender were paid at the time of their BS transfer.

Not if as in my case they are out of biz.

If I can get this pretender lender knocked out of the box,
which will in this part will take years then I suppose I have to seek quit title but I'm getting way ahead of my self.

here's a bit from my answer
Moreover, being that this particular Trust was one constructed under the laws of the State of New York ; New York Trust law requires strict compliance with the Trust documents (i.e., the PSA) and any transaction by the Trust or participating parties that is in contravention of the Trust documents is void, meaning the transfer cannot actual take place or be recognized as a matter of law.

Specifically, N.Y. Est.Powers & Trusts Law S 7-2.4 states:

“If the trust is expressed in the instrument creating the estate of the
Trustee, every sale, conveyance or other act of the trustee in
Contravention of the trust, except as authorized by this article and
by any other provision of law, is void.”

At least it's a fun academic discussion of the underlying issues, but not everyone is willing to fight at this level and certainly not every superior court level judge is willing to entertain it beyond a certain point.

Not sure about the fun part when it's my butt, however, yes I'll fight not only at this level but the next if need be, been there before on non foreclosure cases.

I have found that the judges here are not assigned pro se cases if they don't wish to, and they have never been impatient or short if you are raising I legal arguments that make sense.

I have sat through cases ahead of mine where the pro se litigant was way over his head and off point that they were given a little time but then cut short.




.

[justbroke]

NY doesn't have a rocket docket, nor are you required to appear, not to say I wouldn't.

Florida created the Rocket Docket to deal with the onslaught of foreclosure cases. You are not required to appear in Florida either, but those that did appear were trying, pro se, to stop the foreclosure by appealing to the judge on a non-judicial level. Just doesn't work.

PSA breaches in the assignment are mandated under NY Trust Law to be voided, this isn't FL

I wasn't questioning differences in FL law versus NY law... as so much the UCC. But anyhow, they are mandated, but what is it like in actual practice? That's why I think HHM and I agree that it should probably be the case, but what is the ACTUAL real-world doing with it. I still haven't seen a cite on a NY case for comparison.

I will say this... and I think HHM went here too. If the mortgage was not entitled to be transferred into the Pool because the PSA was violated, then the assignment to the Pool should be invalid. I can see that. I can certainly see that where the mortgage was "allegedly" transferred into the pool after the pool's closing date.

But, does this invalidate the mortgage itself? That I don't believe. The original lender should still have recourse. I think this is a big mess but the court must also not come to an absurd judgment. Absurdity would be that all mortgages are invalid and bifurcated and thus are not security for the underlying note. Getting a judge to believe that is one thing. However, I still see these cases, and no cites for New York, where it is simply a paperwork issue and not a bifurcated note issue. Some entity has the right to foreclose. At worst, it's the entity that is declared in the mortgage and note OR the holder of the note.

I think the real problem is that the servicers keep choosing to close in the name of the Trust (MBS under the PSA) and therein lies the problem.

At least it's a fun academic discussion of the underlying issues, but not everyone is willing to fight at this level and certainly not every superior court level judge is willing to entertain it beyond a certain point.

[jimbo367]

Yes, but this is not in any motion or order. These are oral arguments and what is very common on the Rocket Docket. It is a central thesis of any claim, from the plaintiff, that in fact you DID NOT PAY. (see http://takeyourhomeback.com/?p=524, "Did you pay your mortgage?" -- which is typical on the Rocket Docket, not just in Broward) If you want to, just attend a foreclosure hearing on the Rocket Docket where a defendant appears in person without an attorney. The "did you pay" is one of two questions the judges typically ask. They are not there to hear about the woes of assignments! If you didn't pay, you'd have to frame it a different way in your answers, such as I didn't pay because I didn't know who to pay, BUT I did escrow all the payments.

That is a stretch and probably should be a factor for the Judge to hear. However, I have never read any ruling that failure to follow a PSA makes an assignment of the debt and security void. In fact, I'd love to read some cases where a Judge ruled that because the PSA was breached by the participants bound by the PSA, the assignment is void ab initio.

.

NY doesn't have a rocket docket, nor are you required to appear, not to say I wouldn't.

PSA breaches in the assignment are mandated under NY Trust Law to be voided, this isn't FL

[justbroke]

Judges don't ask did you pay, can you cite a case....they first need to define who to pay in most cases.

Yes, but this is not in any motion or order. These are oral arguments and what is very common on the Rocket Docket. It is a central thesis of any claim, from the plaintiff, that in fact you DID NOT PAY. (see http://takeyourhomeback.com/?p=524, "Did you pay your mortgage?" -- which is typical on the Rocket Docket, not just in Broward) If you want to, just attend a foreclosure hearing on the Rocket Docket where a defendant appears in person without an attorney. The "did you pay" is one of two questions the judges typically ask. They are not there to hear about the woes of assignments! If you didn't pay, you'd have to frame it a different way in your answers, such as I didn't pay because I didn't know who to pay, BUT I did escrow all the payments.

The foremost issue is standing if they didn't follow the PSA the assignment is void.

That is a stretch and probably should be a factor for the Judge to hear. However, I have never read any ruling that failure to follow a PSA makes an assignment of the debt and security void. In fact, I'd love to read some cases where a Judge ruled that because the PSA was breached by the participants bound by the PSA, the assignment is void ab initio.

The county records where I am has a ton of cases that show defendant pro se, it's those cases where the owner gives up or can't afford to fight that just flies thu the system with all kinds of invalid docs, stealing houses. scrolling down the list only few hire a lawyer to defend the action.

Stealing houses? You mean that these defendants actually paid their mortgage, had a release of security (lien), and then some bank came and foreclosed, thereby stealing their home?

I pulled about 75 cases this week and could see immediately the good lawyers that get it and file a real answer (copied a lot of good stuff) and the bums that reply with general denials in two pages, those folks are already screwed.

Which folks, the banks? These are delay tactics. The fact that the paperwork is wrong is a Rule 11 issue for the court to deal with, and I hope that Courts deal more punitively with the attorneys and banks that violate FRCP Rule 11 (which is usually the same rule in local courts as well).

THe mills that bang out hundreds of these for the banks never remain on the case if it responded to with a real answer, they only continue the walkovers.

It's a business model. The mills do the easy ones and charge less for foreclosure than the more litigious firms. However, most of what you call "mills", here in Florida, actually do the litigation on the difficult cases as well. I am yet to see a case transferred from one of the so-called "mills" to another non-mill firm. I have seen them go from one so-called "mill" to another so-called "mill".

You are right about one thing. The plaintiff banks fluffed up the paperwork to try to make sure that they had standing to effectuate foreclosure. This included the so-called "bogus" assignments and other egregious affidavits. I mean egregious where the affiant from the bank states that they are "holder of the note", but don't attach it to the complaint as evidence. I'm sure if the courts went back to requiring either the original endorsed note or a lost not affidavit with the complaint, there would be fewer problems.

[HHM]

Yeah, how about from more than one judge

[jimbo367]

Start with a search of decisions from ARTHUR M. SCHACK

[HHM]

more than enough current case law.

how many cases do you consider, "more than enough".

How about citing 5, or maybe 10