Foreclosure Defense Florida

Foreclosure Fraud- Crisis in Our Courts…From a Consumer’s Perspective

More in more in this debate and discussion of the fundamental unfairness and outright fraud and deceit that has become the foreclosure courtroom, non-lawyers “get it” and say it best.   Increasingly real people are “getting it”, the press is starting to “get it” and a handful of judges across this country are starting to “get it”. (The citizens of Pinellas County, Florida and those located within the Second District Court of Appeals of Florida are very, very fortunate that many of these judges in these courts “get it”)   With all that being said, I want to publish below, a fantastic analysis and essay that was submitted to me by a very astute commentator who has gone far beyond merely, “getting it”.   The key for him and others like him is to get this word and message out….that’s what this blog is all about….I’ve posted his comments elsewhere, and encourage the author of these comments to provide more information as a supplement to this post…..

The word mortgage itself translates to death pledge. (The word “mortgage” comes from the French “mort-gage”, literally death-pledge.)

What I see here is a total disregard to any of the Rules of Civ. P. and the evidence rules.   What is the point of having any of these rules if the court is just going to ignore or legislate their own rules at their whim?

The reality that is going on is that none or very few at best of these foreclosure cases ever give the court subject matter jurisdiction yet the court takes it upon themselves to grant it even when challenged.   You keep making the judges look like they are honest nice guys but in reality they are the core of the problem in all these cases.

They do not hold the banks to the standards that they would any other plaintiff.   Its apparent at just a motion to dismiss hearing, the rules are clear regarding attachments and the requirements that would evoke the courts jurisdiction yet they get denied all the time.   Why?   99% of the complaints verified or not never show capacity or standing enough to evoke the courts jurisdiction!

The importance of having a court reporter is to later show the judges where they litigated and legislated from the bench then you have them rescue themselves. I actually heard a judge say to a pro se, your a deadbeat just pay your mortgage. He was gone the next day but it shows the mentality of some of these judges.

Its the terrible truth but most pro se defendants are up against the judges and the plaintiffs attorney mean while the plaintiff never makes an appearance, whats wrong with this whole picture?

Judges and attorney either do not understand or adhere to   the basic rules of law, such as the Rule of Stare Decisis, the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere “” “to stand by and adhere to decisions and not disturb what is settled.” the Pro Se Rule, the Do No Harm Rule, the fact that the Constitution is the Supreme Law of the Land, the fact that Supreme Court law trumps appellate and district court law, the fact that the United States is governed by the rule of law (or at least the founders thought so), the Best Evidence rule, the rule against an attorney acting as a fact witness, the rule related to circular arguments, the rule related to conclusory arguments, and the hearsay rule. This is all thrown out the window!!!!

The facts are easy to understand by even by ” Pro Se” or ” Pro Per” litigants.   The Courts are over burdened by all of these ” Un-Verified Complaints” and that’s why the Florida Supreme Court has made the changes to insure that all foreclosure complaints are now to be verified so the banks and foreclosure mills quit wasting public resources, but did it stop the mills from dishonoring the Supreme Court….NO!

Very few Judges understand banking, securitization and the actual rules of evidence enough to understand what is happening but the few who are, are making the right decisions and dismissing most of these frivolous complaints.(very few)

For the most part, they are just running ” rocket dockets” making assumptions and presumptions that are not there due to the case loads they are facing. So in fact the judges are just impersonating elected or public officials they are not doing their jobs and homeowners are the ones paying the price and being thrown out on the street.

The guidelines are simple to follow why aren’t they doing so?

On a motion to dismiss, our gaze is constrained to the four corners of the complaint. William H. Scovell v. Delco Oil Co., Inc., 798 So.2d 844, 846 (Fla. 5th DCA 2001). Where allegations are not plainly untrue, we are forced to accept them.

That is what the Plaintiffs are trying to do, force the Court and Defendants to accept untrue allegations where every document submitted cancels out the very allegations the Plaintiffs are making.   What we cannot do is make up facts that are not there but the courts allow them too.

The Court should   follow the Rules of Stare Decisis and the Fla. Rules of Civ. P., at the initial Motions to Dismiss.   The Fla.R.Civ.P. 1.130(a) requires that all documents on which an action may be brought be attached to the pleadings. Without these documents Plaintiff s   fail to state a cause of action because the essence of the action is omitted…..period! Easy enough though not adhered too!   When is the last time you seen any complaint with all the proper title pages, assignments, mortgage and notes attached? Never!

Florida Rule of Civil Procedure 1.210(a) provides in pertinent part: ” Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.”

The Plaintiff in 99% of the   actions meets none of those criteria. Because the exhibit attached to Plaintiff’s complaints are inconsistent with Plaintiff’s allegations as to ownership of the subject promissory note and mortgage, Plaintiff   fail to establish themselves as the real party in interest and fail to state a cause of action, yet the court proceeds.   Again….why?

The facts are simple, the Plaintiff claims lost note, then all of a sudden it magically appears, how convenient!   Without amending the complaints no less.

Under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action. Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So.2d 286, 287 (Fla. 4th DCA 1974); Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970); Scott v. Permacrete, Inc., 124 So.2d 887, 889 (Fla. 1st DCA 1960). See also Smith, Kline & French Laboratories v. A.H. Robins Co., 61 F.R.D. 24 (E.D.Pa.1973) Etablissements Neyrpic v. Elmer C. Gardner, Inc., 175 F. Supp. 355 (S.D.Tex. 1959); Neiman-Marcus Co. v. Lait, 14 F.R.D. 159 (S.D.N.Y. 1953); Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir. 1953); Trawick, Florida Practice and Procedure § 21-2 (1975).

The proper method of deleting less than all counts from a pleading is amendment of the pleading pursuant to Fla.R. Civ.P. 1.190. Plaintiffs attempted to do the impossible and this courts allowed it, once again…the judges!

As a matter of procedures, before the Plaintiffs offer to file the alleged Note, they must amend their complaint to reflect the changes or otherwise the Court is limited to the four corners of the complaint, which is to say the alleged note is not evidence to be considered by the court.

A Plaintiff cannot bring an action and then hope to obtain a cause of action.   McGrath Community Chiropractic at 1285.   A lack of standing when the action is brought is not curable….period!   Try to get a circuit judge and even the appellate court to follow this, the video today shows they don’t.

Furthermore, the Plaintiffs never or rarely show how they came into possession of the alleged Note and the exact time of when it occurred and the correct assignments or chain of title to the instrument as to determine if truly and in fact the Plaintiffs have   standing at all.

Plaintiff might be the holder but has yet to prove that they have the right to enforce or how they come to get the alleged Note therefore they might as well not have the note and now they are producing “fake notes” to fool the courts!   The only ones who can allow this is the judges…period!

Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that ” the party bringing the claim be recognized in the law as being the real party in interest” entitled to bring the claim.   This entitlement to prosecute a claim in Florida Courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp v. Nopal Lines Ltd., et al, 462 So.2d 1178 (Fla. 3rd. DCA 1985).   Yet the courts help the plaintiffs dodge these requirements when asked to show agency status or proof of ownership the note.

All Plaintiff’s complaint fail to state a cause of action as there is no documentary link(s) or other sufficient showing of standing within its four corners,   connecting the named Plaintiff to the interest it claims under the attached note and mortgage which are in the name of and run to the benefit of other entities. See BAC Funding” Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla. 2nd DCA, Feb 2010) and Hunt Ridge at Tall Pines v. Hall, 766 So. 2d 399 (Fla. 2nd DCA, 2000).

” Possession of the note, following an exchange of consideration, will give that necessary standing”. WM Specialty Mortgage, LLC, v. Alan F. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004); J.J. Johns v. Sam Gillian, 184 So. 140, 143 ( 1938). Exchange of consideration is the root of the cause of action, hence there is the injury and try to get the plaintiffs to show the court the consideration….its impossible!   And again, the judges just allow this granting protective orders, letting the plaintiffs run all over the defendants…again the judges!

Jurisdiction

This should give some understanding on why ” subject matter jurisdiction” should always be challenged in any foreclosure case.   A quick review of the case history below will give clarity to the subject.

Just because a Court listens to foreclosure cases everyday does not mean they have subject matter jurisdiction,   the Plaintiff council and attorneys seem to be confused between ” venue” and ” subject matter jurisdiction”, but if gone unchallenged it’s assumed. The Defendant should make no assumptions! And, when the jurisdiction of the Court is challenge it falls on the plaintiff   and the court to establish the jurisdiction, not the other way around.

” A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of the action.”   Lebanon Correctional Institution v. Court of Common Pleas 35 Ohio St.2d 176 (1973).

Once again, the Plaintiff fails to bring forth the injured party, and the Plaintiffs themselves have no real interest in the subject matter of the action in most cases.

” A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of an action.” Wells Fargo Bank, v.Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (2008). It went on to hold,” If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law”

Where are these rulings in Florida?

When is the last time anyone got to depose the injured party or seen the owner of the note who suffered the injury in a court with you?   Never!

Indymac Bank v. Boyd, 880 N.Y.S.2d 224 (2009). To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note.   It is the law’s policy to allow only an aggrieved person to bring a lawsuit . . . A want of “standing to sue,” in other words, is just another way of saying that this particular plaintiff is not involved, and that the case in 99% of foreclosure cases.

Defendants should recognize the district court, in our unified court system, is a court of general jurisdiction and is constitutionally endowed with “unlimited original jurisdiction of all justiciable matters, except as otherwise provided in the Articles of the Florida Constitution. However, this “unlimited original jurisdiction of all justiciable matters” can only be exercised by the district court through the filing of pleadings which are sufficient to invoke the power of the court to act.

The requirement for verified information to confer subject matter jurisdiction on the court and empower the court to act has been applied to both courts of record and not of record.   So the question is, when was the last time anyone has seen verified information in the thousands of unverified complaints?

Apparently the Florida Supreme Court determine that the mandatory language of form 1.944 was nothing more than merely a “guaranty of good faith” of the prosecution. It, in fact, is required to vest the district court with subject matter jurisdiction, which in turn empowers the court to act. Only by the filing of an   information which complies with this mandatory statutory requirement can the district court obtain subject matter jurisdiction in the first instance which then empowers the court to adjudicate the matters presented to it.

Once again, almost every foreclosure case is lacking in all areas yet not one attorney argues subject matter till the end.

Summary judgment should never be granted and are void on their face in almost every foreclosure case and are subject to collateral attack.

In Nard, Inc. v. De Vito Contracting & Supply, Inc., 769 So. 2d 1138 (Fla. 2d DCA 2000), the court clearly sets out the basis in the Second District for the criteria of granting summary judgment. ” We have consistently followed Hall v. Talcott in applying Rule 1.510(c).   Thus, if the record reflects the existence of any genuine issues of material fact or the possibility of any issue, or the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.”

The Nard court continued: ” We likewise must emphasize that contrary to assertions of the trial, each and every Florida court of appeals has concurred with out holding that the merest possibility of the existence of a genuine issue of material fact preludes the entry of final summary judgment.”

The Courts without any showing by Defendant – has statutory authority pursuant to set aside a decree of foreclosure and to dismiss the foreclosure proceedings. Fla. St. § 702.07 provides:

The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a
mortgage of property at any time before the sale thereof   has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment
of all court costs.

This statute was enacted in1927and has remained unchanged since that time. Laws of Fla. ch. 11881, § 1 (1927).

The facts must be ” crystallized” so as to eliminate any residual doubt. Gardner at 1112; Henderson at 773.   Even in the video of the appellate court the facts were not crystallized yet they affirmed…why?   The judges once again!

It is the burden of the moving party to show conclusively (not the other way around) that a genuine issue of a material fact does not exist before a summary judgment should be entered, and it should be further shown that the moving party is entitled to judgment as a matter of law. A. B. G. Invest, Inc. v. Selden, 336 So. 2d 444, 446 (1976); Holl v. Talcott, 191 So.2d 40 (1966)

The law, what law? The judges don’t honor the law anymore.   They are mere rubber stamps for the banks.

Most of all the answers are on the face of the mortgages and notes themselves and establish evidence that present no argument before the court.   On the face of the mortgage it was given to MERS in most cases, the note remained with the lender, we have to assume.   Its bifurcated from the start and there is no proof to the contrary…period!

Then, the alleged Plaintiffs are in violation of the the mortgage and note.   Read sect 20 of the mortgage, they must give you eventual notice of the sale of the note and mortgage, but they never do and they cant its bifurcated.   Notice of the change in loan servicer does not constitute notice of the note, don’t be fooled.

The notice clause of the note says you must give notice to the note holder, you cant you don’t know who that is because they failed to notice you and are in breach of contract.

The servicer plays intermediary creating an interference with your ability to notice the note holder.   How are you going to hold up your end of the deal when the servicer wont tell you who the note holder is and when asked to prove if they are the note holder with authority from the note holder to collect or compel payments they refuse to give it up or say your not entitled to it?   This just opens the door for the defendant to become the plaintiff and hammer the servicer if done correctly under the FDCPA, FCRA, TILA, and Title 18.

Failure to disclose ” ALL” terms and conditions is a violation of the Truth In Lending Act.   Fina Supply Inc. v. Abilene National Bank, 726 S.W.2d 537 (1987). It says, ” Party having superior knowledge who takes advantage of another’s ignorance of the law to deceive him by studied concealment or misrepresentation can be held responsible for that conduct.”

” If any part of the consideration for a promise be illegal, or if there are several considerations for an unseverable promise one of which is illegal, the promise, whether written or oral, is wholly void, as it is impossible to say what part or which one of the considerations induced the promise.” Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p. 572; 132 NW 1118 (1912).

And a more recent ruling, Deutsche Bank v. Peabody, 866 N.Y.S.2d 91 (2008). EquiFirst, when making the loan, violated Regulation Z of the Federal Truth in Lending Act 15 USC §1601 and the Fair Debt Collections Practices Act 15 USC §1692; “intentionally created fraud in the factum” and withheld from plaintiff”¦ “vital information concerning said debt and all of the matrix involved in making the loan”. (which is the case in 100% of all mortgages, emphasis added)

” It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201 (1969).

The mortgage, as evidenced by the mortgage instrument, is only a mere incident to the debt. Therefore, the mortgage instrument is of lesser significance. Because the assignment of the note is an imperative act as to the transferring of the mortgagee’s right, the assignment of the mortgage instrument without the note is an ineffective assignment. Vance v. Fields, 172 So. 2d 613 (Fla. 1 DCA 1965); Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA 1975); Amacher v. Keel, 358 So. 2d 889 (Fla. 2 DCA 1975)

Who has seen a valid assignment of the note?   Apparently no one!   An assignment of the mortgage assigns nothing of value the only value is the note.

I am going after quit title based on many fact but these are a few.   I am suing for FDCPA with success and now FCRA and Title 18, we shall see what happens.

The real fact is the core of the problem are the judges not the plaintiffs.   If the judges were to do their jobs then the plaintiffs would have to prove up their cases.   Not until these rouge judges are sued and made to actually do their jobs are things going to change. There someone said it!

Just like any other employee, you screw up and you first get reprimanded and eventually fired.

The defendants need to file complaints against these judges and the mills attorneys on a regular basis with the regulatory agencies and their insurance carriers and let the Supreme Court know Floridians mean business.   Once enough complaints are filed, it will put the pressure on them because them become harder to insure if not impossible.   Then and only then are things going to change.

If the tax payers paid the bill for the banks to keep their doors open why should we lose our homes to the very same banks we keep paying to keep in business?   Is this not dictatorship?

The American people need to wake up and get out of the “me” syndrome that their in.   Is it obvious that the entire system is against the people?   Is it not obvious to America that the system has pledged our great grandchildren ‘s future labor to pay the banks and help the banks throw Americans out on the streets now?   The system itself is a form of slavery whether you like it or not, its very obvious on its face.

Is it not obvious to Americans that the only reason that the banksters get away with this is the judges themselves?   They are nothing but debt collectors for the banks.

If the judges just threw the banksters out and turned the favoritism to the people and not against as is the case the banksters, they banksters could not get away with it….period!

If the judges would hold the banksters as accountable as the people then they would never get a foreclosure summary in their favor.

Ask yourselves the question, if I did not get the results I should have gotten, what other option do I have?   The appellate court, they are part of the same system.   The Supreme Court, they are part of the same system.   You have no choices, it always fall back on the same system.

The same system that the banks give millions to be on their side! So, if I don’t like the fruit at Public’s I go to Wynn Dixie, you have choice. With our system, you have no choice, the banksters fund and run the whole thing.

Just look at the Bar Association, judges and attorney must belong.   Well if I have a problem with a judge in circuit court I have to turn to another one of their brother to file a complaint.   Wow this makes sense, there is no preferential treatment or bias there is there?

Even our defense attorneys are officers of the courts and part of the same system.   Thank God for the few like Matt that actually fight back, but they are still limited in their behavior or they get booted from the bar.

Our system is flawed beyond repair and its just like a hamster in a wheel, run all you want but you still get no where.

We have no choices, it meant to be that way, slaves have no option but to obey the plantation owner….Period!

If you understand GAAP and actually read it, pay attention to 1231 and you will see banks cant lend credit.   “There is no doubt but what the law is that a national bank cannot lend its credit or become an accommodation endorser.” National Bank of Commerce v. Atkinson, 55 F. 465; (1893).

In Howard & Foster Co. vs. Citizens National Bank, 133 S.C. 202, 130 S.E. 758 (1926), it was stated, “It has been settled beyond controversy that a national bank, under Federal law, being limited in its power and capacity, cannot lend its credit by nor guarantee the debt of another.   All such contracts being entered into by its officers are ultra vires and not binding upon the corporation.”   It is unlawful for banks to loan their deposits.

So you must realize that they lent you nothing and if you just read Modern Day Mechanics and look up Walker Todd’s affidavits online, who worked for the FEDS as council you will see they lent you nothing and risked nothing.   Hard to absorb but true.

You and the uneducated investors are the only one who risks anything in any loan. But bring it into court and the judges refuse to hear the argument because its not in the public’s best interest to know we are the source of all monies.   It would collapse their monopoly and strong hold on us.

5 Comments

  • commit11 says:

    This is an excellent article and so true. The blame for this mess falls squarely on the Judges, their failure to follow the law, precedent, and the FRCP, as well as the ” blind eye” they turn to the legally insufficient pleadings and fraud on the Court that is being perpetuated by the plaintiffs and the fraudsters representing them. Hundreds of thousands of homeowners have lost their home and have been harmed by the travesty of justice that has occurred and continues to occur in courtrooms across this land every day.

    A massive effort must be undertaken, including a review of ALL closed files as well as active ones, culminating in a class action lawsuit against the perpetrators, be they a plaintiff, a mill fraudster, or a Judge. Who will step up to the plate?

    In hearings, I have actually had Judges try to deny me the opportunity to argue my position; I have had Judges arguing the plaintiff’s position for them. In hearings on my Motions to Dismiss, though the facts and evidence, the law, precedent rulings, and the FRCP all supported my argument in my Motion to Dismiss, and the Judge agreed, I have had Judges tell me that he was not about to dismiss the case. He stated that all of those deficiencies would ” come out and possibly be corrected” as the proceedings progressed. In one hearing I handed the Judge a DCA ruling in which the DCA reversed his prior ruling in a case, refusing to grant the defendant’ motion to dismiss for the very reasons I was arguing that very day. In other words, the case reversed him for his ruling in a prior case as he was ruling that very day on my motion. Can you believe that? He ignored the case and ruled against me anyway.

    In another hearing on one of my motions, this same Judge threw out all of my motions in one fell swoop without a hearing on the motions. I objected but that didn’t stop him.

    The ” elephant in the room” that few dare address is that in many cases, the Judgers are the problem. They are ignoring the law, precedent rulings, the evidence, the FRCP, etc., making a mockery of due process and the justice system, and in doing so, enabling the fraudsters to have their way. Much like one that buys alcohol for an alcoholic, they are enabling the injustice being perpetrated in our courtrooms every day. They are accountable to no one and the result is than in many courtrooms, lawlessness has become the new ” rule of law”.

    One small advantage of being pro se, and believe me they are not many, is that we can ” call it like it is” and lay the blame where it belongs. Defense attorneys often do not have this liberty for they must appear before these same Judges day in and day out. We don’t. We only have one shot at saving our homes and personally, I will not ignore the ” elephant in the room” that is allowing lawlessness to become the new ” rule of law” in many courtrooms today.

    There, I said it, now send me off to Siberia or the gulag and the process will be complete.

  • jesse says:

    Matt,

    Thanks again for posting my comments and I am happy that you are open and in fact a “real fighter” in the quest against the banksters. You along with your group are beyond a “shadow of a doubt” honorable attorneys!

    I will continue to post information that will not only help you in your quest but all of the pro se litigants as long as you allow me to. I would like to know how to send in cases in PDF format for you and your readers, it will be a pleasure.

    Here are some defenses on lost notes and not so lost notes that will baffle the mills but we must get beyond the judges, if not its a battle not worth pursuing.

    Always keeping in mind that the mills are not prepared to litigate and only hope that the foreclosure goes non contested, so when you make it hard on them they don’t know what to do. Its hilarious at best!

    If they claim lost note;

    The Existence of the Note in Question and lack of evidence;

    If the ” ORIGINAL” note you signed in ink that contains your signature is claimed to be lost, stolen, missing and/or destroyed, then your defense is as follows:

    1) the ” named” Plaintiff is not the “˜holder in due course” of the note and only an agent or nominee for the true beneficial owner/s and holders in due course;

    2) there may be fraud upon the court in that the named Plaintiff may not have ANY interest to the note and that the supposedly lost note is not lost, but may have been intentionally destroyed due to missing assignments on the note which may have made it void and a legal nullity, thus they have exploited key and vital evidence;

    3) there is no proof that the named Plaintiff ever held the note or took possession of the note and thus has no claim or right to bringing about the foreclosure;

    4) there is no proof, without the note, that a proper chain of assignments took place and that the lien positions were properly perfected;

    5) other unnamed and disclosed real parties in interest may have a claim to the note and be the rightful beneficial owners to the note and must be identified and brought before the court;

    6) there is no proof, that the party sued signed the note;

    7) the note in question is not the note you signed and executed in ink and only the one you signed in ink that presumably contains your signature can be relied upon by your handwriting analysis expert;

    8) in an electronic age, it is a simple matter to place someone’s signature or image upon a document and that it is very difficult to imagine such a valuable negotiable instrument being lost or missing without a nefarious motive. If the note was destroyed or lost intentionally (the industry maintains this practice) then they may be trying to hide the beneficial owners and shield them from any assignee liability arising from the actions of the servicer who they hire, supervise and most importantly authorize to foreclose upon you.

    Without the note, subsequent endorsements are not recorded to avoid payment of taxes (also see TEFRA) and to hide true and real beneficial interests. There is no possible way to determine who ever held a rightful interest in the note and who you may have claims or counter claims against and who should be presently before the court as a real party in interest;

    9) It is an illegal industry practice to not name the investor, or real party in interest in a foreclosure but to use as a front the original lender;

    10) The original lender may or may not even be in business any more or sold their interest in the note long ago, only to have a claim made upon them for repurchase;

    11) A Servicer of even ” special servicer” who is acting as an agent for the investors, or real party in interest, but has no beneficial ownership in the note since they are only being paid to collect and foreclosure by the real parties in interest;

    12) A ” nominee” such as MERS who has no legal authority to foreclose upon you and do business in your state and who according to their own written documents and verbal assurances never hold the note or own ” any” beneficial interest in the note!!!!!

    13) Notes are pledged, sold, bifurcated, and traded in various derivative transactions. Only possession of the actual original note can prove the actual owner and holder in due course of the note and who you can make an offer of payment to for purchase of the note by yourself, another family member or partner. You have a right to know the rightful owner of the note so an offer for payment of the note at a discount and at fair market value can be made. If the note has been pledged and encumbered, then that party must be made aware of the foreclosure and your right to negotiate with them a payment and release of the note by you, other lien holders or private parties;

    14) Notes are traded often and you need to inspect the physical note to see who the real prior parties were that held and endorsed your note since you may have counter and cross claims against them and need to bring them before the court for the action, since they may have improperly inflated your principal balance, amount owed or escrow account by not applying your payments correctly; adding fees not legally owed by you to the principal balance; miscalculating the interest and not properly amortizing your loan; fraudulent selling your loan or misreporting you on your credit report (FCRA);

    15) Federal Circuit Courts have ruled that the only way to prove the perfection of any security [including promissory note] is by actual possession of the security. Current or prior possession must be proved up.

    16) that a certain balance is due and owing on the note;

    17) You must have the master transaction histories and general ledgers for the account since a ” dump,” ” summary,” or redacted record cannot be relied upon to determine the rightful amounts owed by having a complete audit of your account. In order to conduct a proper audit, master records and all prior records must be compiled, reviewed, analyzed, and reconciled. In is not you responsibility to prove each payment was made. It is your responsibility to say a payment was made and provide evidence, including your word that it was made. It is the note holder’s duty and responsibility to validate the claims being made on the note and the amount owed. If they have the master records or claim that the records of prior servicers are missing, then there is no rightful way for anyone to prove up the balances and amounts they claim are owed!!!! Furthermore, you must claim;
    a) That the principal balance claimed owed, is not owed, and is the wrong amount;
    b) That the loan has not been properly credited and amortized;
    c) That the current servicer cannot be relied upon to testify and certify that prior amounts, transactions, credits, debits, charges and fees added by prior servicers were indeed proper and correct and that the account they were transferred was properly amortized and credited. As such, the person holding the ledgers at the prior servicer must come and testify as to the amounts owed on the note.
    d) dumps and summaries of amounts owed cannot be relied upon and only original ledgers and master records and the keeper of those records cant testify as to the amounts claimed owed and due;

    Also very interesting and a little tricky but if its a securitized mortgage on its face as the plaintiff claiming lost note you can make it work;

    By the METHOD of pooling and tranching, they converted from negotiable to non-negotiable instrument. (Article VIII UCC).

    That means that upon transfer the recipient of the payment is satisfied in full and a new obligation arises between the seller and buyer separate and apart from the borrower. Further, the method calls for the proceeds of payment from one note to be used as collateral (cross collateralization) for another. This breaches the terms of the note which states that payments by borrower will be applied to what the borrower owes.

    So the investor receives the ” benefit” of multiple obligors plus insurance and credit default swaps and an investment grade rating that was obtained under false pretenses. But what the investor is holding is not the original note. He/she/it is holding a stream of revenue with multiple conditions. A conditional promise to pay is not a negotiable instrument.

    The only party on record as mortgagee or beneficiary under a deed of trust has been paid in full as to principal, paid in full as to disclosed fees, and has received undisclosed fees as well because they were standing in for the real lender whose identity and existence was withheld from the borrower “” all TILA violations. (see The Helping Families Save Their Homes Act of 2009)

    The purpose of the disclosure requirements is to create enough transparency that both the funding source and the borrower can readily perceive the risks of the transaction. In this case the pattern of conduct was to make sure the investor and borrower could never get together to compare notes. This prevented the borrower from assessing whether better terms were available (instead of huge fees going to intermediaries) and it prevented the investor from assessing the risk and rate of return on investment (because only a portion of the invested dollars was going to fund mortgages “” the rest going to fees spread around like a whiskey bottle at a frat party (Mike Stuckey’s phrase, MCNBC.com).

    Also like to throw this in and see their reaction,

    General Rules and Regulations promulgated under the Securities Exchange Act of 1934
    Rule 17f-1 — Requirements for Reporting and Inquiry with Respect to Missing, Lost, Counterfeit or Stolen Securities

    1. Definitions. For purposes of this section:
    1. The term reporting institution shall include every national securities exchange, member thereof, registered securities association, broker, dealer, municipal securities dealer, government securities broker, government securities dealer, registered transfer agent, registered clearing agency, participant therein, member of the Federal Reserve System and bank whose deposits are insured by the Federal Deposit Insurance Corporation;

    2. The term uncertificated security shall mean a security not represented by an instrument and the transfer of which is registered upon books maintained for that purpose by or on behalf of the issuer;

    3. The term global certificate securities issue shall mean a securities issue for which a single master certificate representing the entire issue is registered in the nominee name of a registered clearing agency and for which beneficial owners cannot receive negotiable securities certificates;

    4. The term customer shall mean any person with whom the reporting institution has entered into at least one prior securities-related transaction; and

    5. The term Securities-related transaction shall mean a purpose, sale or pledge of investment securities, or a custodial arrangement for investment securities.

    6. The term securities certificate means any physical instrument that represents or purports to represent ownership in a security that was printed by or on behalf of the issuer thereof and shall include any such instrument that is or was:

    1. Printed but not issued; 2. Issued and outstanding, including treasury securities; 3. Cancelled, which for this purpose means either or both of the procedures set forth in Rule 17Ad-19(a)(1); or 4. Counterfeit or reasonably believed to be counterfeit.

    7. The term issuer shall include an issuer’s:

    1. Transfer agent(s), paying agent(s), tender agent(s), and person(s) providing similar services; and 2. Corporate predecessor(s) and successor(s).

    8. The term missing shall include any securities certificate that: 1. Cannot be located or accounted for, but is not believed to be lost or stolen; or 2. A transfer agent claims or believes was destroyed in any manner other than by the transfer agent’s own certificate destruction procedures as provided in Rule 17Ad-19.

    2. Every reporting institution shall register with the Commission or its designee in accordance with instructions issued by the Commission except: 1. A member of a national securities exchange who effects securities transactions through the trading facilities of the exchange and has not received or held customer securities within the last six months; 2. A reporting institution that, within the last six months, limited its securities activities exclusively to uncertificated securities, global securities issues or any securities issue for which neither record nor beneficial owners can obtain a negotiable securities certificate; or 3. A reporting institution whose business activities, within the last six months, did not involve the handling of securities certificates.

    3. Reporting Requirements—
    1. Stolen Securities.
    1. Every reporting institution shall report to the Commission or its designee, and to a registered transfer agent for the issue, the discovery of the theft or loss of any securities certificates where there is substantial basis for believing that criminal activity was involved. Such report shall be made within one business day of the discovery and, if the certificate numbers of the securities cannot be ascertained at that time, they shall be reported as soon thereafter as possible.

    2. Every reporting institution shall promptly report to the Federal Bureau of Investigation upon the discovery of the theft or loss of any securities certificate where there is substantial basis for believing that criminal activity was involved.

    2. Missing or Lost Securities. Every reporting institution shall report to the Commission or its designee, and to a registered transfer agent for the issue, the discovery of the loss of any securities certificate where criminal actions are not suspected when the securities certificate has been missing or lost for a period of two business days. Such report shall be made within one business day of the end of such period except that:

    1. Securities certificates lost, missing or stolen while in transit to customers, transfer agents, banks, brokers or dealers shall be reported by the delivering institution by the later of two business days after notice of non-receipt or as soon after such notice as the certificate numbers of the securities can be ascertained.

    2. Where a shipment of retired securities certificates is in transit between any transfer agents, banks, brokers, dealers, or other reporting institutions, with no affiliation existing between such entities, and the delivering institution fails to receive notice of receipt or non-receipt of the certificates, the delivering institution shall act to determine the facts. In the event of non-delivery where the certificates are not recovered by the delivering institution, the delivering institution shall report the certificates as lost, stolen, or missing to the Commission or its designee within a reasonable time under the circumstances but in any event within twenty business days from the date of shipment.

    3. Securities certificates considered lost or missing as a result of securities counts or verifications required by rule, regulation or otherwise (e.g., dividend record date verification made as a result of firm policy or internal audit function report) shall be reported by the later of ten business days after completion of such securities count or verification or as soon after such count or verification as the certificate numbers of the securities can be ascertained.

    4. Securities certificates not received during the completion of delivery, deposit or withdrawal shall be reported in the following manner:
    1. Where delivery of the securities certificates is through a clearing agency, the delivering institution shall supply to the receiving institution the certificate number of the security within two business days from the date of request from the receiving institution. The receiving institution shall report within one business day of notification of the certificate number;

    2. Where the delivery of securities certificates is in person and where the delivering institution has a receipt, the delivering institution shall supply the receiving institution the certificate numbers of the securities within two business days from the date of request from the receiving institution. The receiving institution shall report within one business day of notification of the certificate number;

    3. Where the delivery of securities certificates is in person and where the delivering institution has no receipt, the delivering institution shall report within two business days of notification of non-receipt by the receiving institution; or

    4. Where delivery of securities certificates is made by mail or via draft, if payment is not received within ten business days, the delivering institution shall confirm with the receiving institution the failure to receive such delivery; if confirmation shows non-receipt, the delivering institution shall report within two business days of such confirmation.

    3. Counterfeit Securities. Every reporting institution shall report the discovery of any counterfeit securities certificate to the Commission or its designee, to a registered transfer agent for the issue, and to the Federal Bureau of Investigation within one business day of such discovery.

    4. Transfer Agent Reporting Obligations. Every transfer agent shall make the reports required above only if it receives notification of the loss, theft or counterfeiting from a non-reporting institution or if it receives notification other than on a Form X-17F-1A or if the certificate was in its possession at the time of the loss.

    5. Recovery. Every reporting institution that originally reported a lost, missing or stolen securities certificate pursuant to this Section shall report recovery of that securities certificate to the Commission or its designee and to a registered transfer agent for the issue within one business day of such recovery or finding. Every reporting institution that originally made a report in which criminality was indicated also shall notify the Federal Bureau of Investigation that the securities certificate has been recovered.

    6. Information to be Reported. All reports made pursuant to this Section shall include, if applicable or available, the following information with respect to each securities certificate:
    1. Issuer; 2. Type of security and series; 3. Date of issue; 4. Maturity date; 5. Denomination; 6. Interest rate; 7. Certificate number, including alphabetical prefix or suffix; 8. Name in which registered; 9. Distinguishing characteristics, if counterfeit; 10. Date of discovery of loss or recovery; 11. CUSIP number; 12. Financial Industry Numbering System (“FINS”) Number; and 13. Type of loss.

    7. Forms. Reporting institutions shall make all reports to the Commission or its designee and to a registered transfer agent for the issue pursuant to this section on Form X-17F-1A. Reporting institutions shall make reports to the Federal Bureau of Investigation pursuant to this Section on Form X-17F-1A, unless the reporting institution is a member of the Federal Reserve System or a bank whose deposits are insured by the Federal Deposit Insurance Corporation, in which case reports may be made on the form required by the institution’s appropriate regulatory agency for reports to the Federal Bureau of Investigation.

    4. Required inquiries.
    1. Every reporting institution (except a reporting institution that, acting in its capacity as transfer agent, paying agent, exchange agent or tender agent for an equity issue, or registrar for a bond or other debt issue, compares all transactions against a shareholder or bondholder list and a current list of stop transfers) shall inquire of the Commission or its designee with respect to every securities certificate which comes into its possession or keeping, whether by pledge, transfer or otherwise, to ascertain whether such securities certificate has been reported as missing, lost, counterfeit or stolen, unless: 1. The securities certificate is received directly from the issuer or issuing agent at issuance; 2. The securities certificate is received from another reporting institution or from a Federal Reserve Bank or Branch; 3. The securities certificate is received from a customer of the reporting institution; and 1. Is registered in the name of such customer or its nominee; or 2. Was previously sold to such customer, as verified by the internal records of the reporting institution;

    4. The securities certificate is received as part of a transaction which has an aggregate face value of $10,000 or less in the case of bonds, or market value of $10,000 or less in the case of stocks; or

    5. The securities certificate is received directly from a drop which is affiliated with a reporting institution for the purposes of receiving or delivering certificates on behalf of the reporting institution.
    2. Form of Inquiry. Inquiries shall be made in such manner as prescribed by the Commission or its designee.
    3. A reporting institution shall make required inquiries by the end of the fifth business day after a securities certificate comes into its possession or keeping, provided that such inquiries shall be made before the certificate is sold, used as collateral, or sent to another reporting institution.
    5. Permissive Reports and Inquiries. Every reporting insitution may report to or inquire of the Commission or its designee with respect to any securities certificate not otherwise required by this section to be the subject of a report or inquiry. The Commission on written request or upon its own motion may permit reports to and inquiries of the system by any other person or entity upon such terms and conditions as it deems appropriate and necessary in the public interest and for the protection of investors.

    6. Exemptions. The following types of securities are not subject to paragraphs (c) and (d) of this section: 1. Security issues not assigned CUSIP numbers; 2. Bond coupons;
    3. Uncertificated securities; 4. Global securities issues; and 5. Any securities issue for which neither record nor beneficial owners can obtain a negotiable securities certificates.

    7. Recordkeeping. Every reporting institution shall maintain and preserve in an easily accessible place for three years copies of all Forms X-17F-1A filed pursuant to this section, all agreements between reporting institutions regarding registration or other aspects of this section, and all confirmations or other information received from the Commission or its designee as a result of inquiry.

    Regulatory History
    44 FR 31503, May 31, 1979; 45 FR 14022, Mar. 3, 1980, as amended at 53 FR 37289, Sept. 26, 1988; 53 FR 40721, Oct. 18, 1988, 68 FR 74390, Dec. 23, 3003.

    A little Title 18 since most mortgages are now backed by the good old US of A (tax payer).

    This is in direct conflict with most state statutes.

    Plaintiff is in violation of Title 18 U.S.C § 472 Uttering counterfeit obligations or securities Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.

    Title 18 USC § 473 Dealing in counterfeit obligations or securities Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined under this title or imprisoned not more than 20 years, or both.

    Whoever, with intent to defraud, makes, executes, acquires, scans, captures, records, receives, transmits, reproduces, sells, or has in such person’s control, custody, or possession, an analog, digital, or electronic image of any obligation or other security of the United States is guilty of a class B felony.

    Lots more to research if everyone wants to learn. I will of course with your permission be sharing why no judge has the authority to order a sale of your home and the Fla.Statutes don’t apply. Very interesting to say the least but it holds true.

    Have a great weekend and God Bless

  • As a WAMU Homeowner who was defrauded by WAMU and can prove it throught Court Ordered Discovery, I would like to thank Matt for his great work. We need another Rally in Tally, and other Rallys across the country. Here is why organizing is so important to win in every State.

  • mredhansen2 says:

    Actually, the French word “gage” means a
    gamble or a wager, (see Black’s Law Dictionary
    1968) so the word “mort-gage” actually means
    a “death gamble”. The borrower puts up the
    deed and the lender puts up the cash. Whoever
    dies first, loses. Most of the time, it is the borrower, but once in a while it is the lender.
    This is a fundamental part of the contract and
    explains why the French did away with “mort-gages” over two hundred years ago. Today, they
    use a “hypotheque” where the lender only gets
    what is owed when the borrower dies.
    Under a “mort-gage”, if the borrower dies.
    the lender can foreclose and take the “equity”
    of the dead borrower if the hiers don’t come up
    with the balance owed in 30 to 60 days. This is
    why the French called it a “death gamble”.
    My father understood this and always advised
    me never to take out a “mort-gage” longer than
    15 years and always cover it with “life insurance”
    so in case one dies early, the property stays in
    the family instead of being seized by the lender.
    He was a child of the “Great Depression” and got
    this information from his father and grand father.
    Unfortunately, we Americans have forgotten
    the lessons of our ancestors. The flip side of the
    “gage” ie “wager” is that if the lender “dies” ie gets dissolved without first lawfully assigning the
    Note and the mortgage, then the borrower wins
    the “death gamble” and owns the property “free
    and clear”.
    The “pretender lender” servicers are merely
    the “croupiers” in this banker owned gambling
    casino. Sometimes they try to steal the winnings
    of the gullible borrowers who won the “death gamble” but just don’t realize it.
    That is where we, the defenders come in, ie
    let’s keep the game honest so the “croupiers”
    don’t steal the winnings of the winners!

  • Lancelot says:

    The securitization company that’s has been trying to foreclose on my house now for a year (lost note)
    It appears they’re trying to establish chain of assignment by having officials at mers sign some affidavit stating thier was a transfer back in 2007.
    This affadavit is dated 2009. Not sure what to make of it.

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