10 Circuit Court weighs in on "Produce the Note" standing issues in foreclosure

[HHM]

http://www.ca10.uscourts.gov/opinions/this_week/pdf/11-1232.pdf

Miller v. Deutsche Bank, 10th Cir., 2/2012

The 10th Circuit Court of Appeals weighed in on what is required to have proper standing to file a Motion for Relief from Stay in chapter 13 bankruptcy with regard to residential mortgages.

The decision is favorable to the borrower. The crux of the decision is that the moving party must present proof that they have "possession" of the note. Now, if you read the opinion, it doesn't say that the servicer literally must produce the original signed note. In this case, the foreclosing law firm didn't produce anything. The facts in the case indicate how homeowners are being taken advantage of by a foreclosure system that has no checks and balances.

The decision is a favorable one, but will create further litigation as the issue of "what constitutes proof of the original note" gets litigated.

An interesting side note, the Millers appeared pro se throughout the proceeding (although they appear to have had an attorney for the chapter 13 filing, itself).

[neck2navel]

Interesting. But I'm underwhelmed. Pro se ? Yeah - they gotta - very, very hard to find an attorney who verses himself in contract law and will litigate - I guess not enough money - and the battle can be long and expensive. I have read some rulings coming out of Colorado - the judges are dismissing the "produce the note" defense as they consider it nothing more than a stall tactic. As I read more and more, I am discovering that a better approach might be to approach your "pretender lender" from the offensive - and this means you need to be current on your mortgage. I have compiled a list 3 pages long of "violations" - some federal, some state/local. None of them, really, have any "teeth", at least how I see it. Judges view it all as nothing more than a "stall tactic" or "free house" tactic.

If you have a loan originated between 2000 and 2008 - your loan has been securitized - there is no longer a note. Judges seem to be accepting a "copy" of the original note - hell - anybody can procure a "copy" - doesn't mean they are the holder in due course. What constitutes a holder in due course ?

If I can do enough research, I may end up suing my "pretender lender". But the timing is very important. They can refuse payments from me at any time - shut down my online account - etc. - report negatively to the credit bureau - and push me into default status - I anticipate this will happen and must be prepared for it.

Pro se here I come.

My loan was transfered yet again - back in July - to an industry leg breaker. They are complete idiots. I can't get one single question answered on the phone - hours spent on hold. Simple questions.

I see a 696.00 fee you say I owe in the "other" column on my statement...what is it for ? Answer: You will have to send a letter requesting that information.

How come you did not pay my fall installment property taxes ? Answer: We have you set up as a non escrow account.

Really ? If that's the case, how come you paid my August homeowner's insurance ? Answer: Gee...you're right...I see that...but can't explain it...as far as we can see, you haven't paid your property taxes since 2009.

Oh ? I'm looking at my history through my county's recorder's office and all property tax installments have been paid except for the fall installment...which you are responsible for paying. Answer: Do you mind sending us a copy of that ?

With all due respect, sir, you are in violation of federal mandated servicing guidelines that require you to have in your posession my transaction history from the prior servicer. You do know that this is your responsibility...right ? Answer: Oh yeah.

I'm very angry and very frustrated.

I'm getting ready to file a QWR - again - timing is critical - and I will probably come up empty (another violation which I can add to the list above) and then sue them.