stopped paying, planning defense

[jimbo367]

Wife received 400K mortgage in Nov 5, '04 thru Mortgage Warehouse who sold/transferred it to Option One shortly thereafter, later serviced by AHMSI.

At the time we didn't know how soon after the the closing it was transferred??

Now that we stopped paying as of July I went to the county records to see if there was anything filed.

Surprise! Assignment of Mortgage was recorded Jan 3, '05, but it was signed Nov 5th '04

How can a document be signed and notarized over two months before the assignment was recorded.

It is obviously a forged document!

I'm planning on answering any summons/complaint when they get around to filing and filing a counter claim to try and void the mortgage.

Anyone go thu a similar ordeal?

[justbroke]

You say it was signed in 2004, but recorded in 2005? This is typical. An assignment doesn't "technically" need to be filed unless and until there is some sort of litigation to determine who has the right to enforce the mortgage (and note). As they say in Florida, an assignment is ineffectual against creditors if unrecorded. That has nothing to do with the owner and the fact that it's unrecorded typically is only a procedural problem. The person who shows up with an endorsed (to them or in blank) original Promissory Note... is the holder of the note.

Many of the banks saved millions by not filing these assignments, even though they were actually signed months even years earlier. They only seem to file them, at least in Florida, when they are about to foreclose. (Filing costs about $10 or more for them to have it recorded.) Yes, some assignments were fabricated after the fact due to the securitization process where the banks got sloppy. However, an assignment that is back-dated is actually still valid if it's done properly (correct signatures, notarized properly, power of attorney, etc.).

If you are going to try foreclosure defense, I'd let an attorney do it. Too many pitfalls for an owner! Judges in Florida, in pro se cases, would simply ask the owner... well, did you pay? Of course, the answer is no, so the Judge grants summary judgment real quickly. You have to know exactly how to maneuver. Filing an answer is only 20% of the correct way to challenge a foreclosure action.

If you are going to try the "Produce the Note" so-called "strategy", I'd say just don't even try it. If you want to try that strategy, leave it to a foreclosure defense attorney. In Florida, the note is (now) required to be presented with the foreclosure lawsuit (or at least at summary judgment).

I applaud you for your efforts. I have assignment issues too. However, wise attorneys say to never give away your strategy by answering with "the assignment is wrong". This will only have them motion to amend the complaint, or to just drop the complaint and refile! The end-game is always just to delay the inevitable -- foreclosure. However, dragging it out requires skill and not showing your Ace card in the answer. This is why the professionals would merely claim that the plaintiff (bank) failed to show standing. They don't enumerate in the answer that the assignment is faulty. They wait for the hearing, which they'll have continued for months before there is actually an evidentiary hearing on the matter.

Just some random thoughts.

[jimbo367]

You say it was signed in 2004, but recorded in 2005? This is typical. An assignment doesn't "technically" need to be filed unless and until there is some sort of litigation to determine who has the right to enforce the mortgage (and note). .

When it was signed it was sworn to and event that occurred two months later.

That's the fraud

[justbroke]

When it was signed it was sworn to and event that occurred two months later.

Backdating is okay! So long as they don't backdate their signatures. For example, they can sign an assignment on Feb 1, 2006 with an "effective" date of January 1, 2005.

[jimbo367]

I guess I'm not making myself clear, I swear today that in two months xyz happened. I could not have knowledge of a future event.

[LadyInTheRed]

jimbo367, if I understand it correctly, your wife obtained a mortgage from Mortgage Warehouse on 11/5/04. Mortgage Warehouse executed an assigment of the mortgage to Option One that was dated the same day, 11/5/04. That assignment was recorded on 1/3/05. So, the signed assignment sat around for 2 months before it was recorded. How is that fraud? Who swore to what future event?

[jimbo367]

The assignment was recorded in March '08.

On the assignment document dated signed & notarized 11/5/04 has a clause relating to the original mortgage being recorded 1/3/05,

There is no way on 11/5/04 the signatory could have known when the original mortgage would have been recorded on date in the future ie: 1/3/05

I hope that clarifies the fraud.

[justbroke]

The assignment was recorded in March '08.

On the assignment document dated signed & notarized 11/5/04 has a clause relating to the original mortgage being recorded 1/3/05,

There is no way on 11/5/04 the signatory could have known when the original mortgage would have been recorded on date in the future ie: 1/3/05

I didn't see where the Assignment mentioned a future recording date. If the notary signed it and dated it 11/5/04, then that is an issue. If it's just a back-dated assignment... that's not an issue.

Just remember, a bad assignment may be fatal to a singular foreclosure action, but in the end, an assignment is not the be all. It's the Note that is most important.

[df04527]

Just a comment that if your having issues getting us to understand is indicative of the trouble you will have in the real world as these folks your conversing with here are very experienced.

[jimbo367]

Just remember, a bad assignment may be fatal to a singular foreclosure action, but in the end, an assignment is not the be all. It's the Note that is most important.

Let's assume for argument sake the assignment is invalid.

Option One would then not have standing to bring on a foreclosure action, do you agree?

The note is the name of Mortgage Warehouse who sold the mortgage/note, why would or could they sue, in fact they would have no standing.

In NY courts have voided mortgages/notes on similar grounds, which is what I hope to do.

I'll talk with a couple of lawyers in the next week or two and see what their opinion is.

----
One more interesting thing I found according to AHMSI is
Wells Fargo Bank is the trustee for Option One Mortgage Loan trust 2005-1, Asset backed Certificate.

Anyone know what's that's all about?

J

[justbroke]

Let's assume for argument sake the assignment is invalid.

Option One would then not have standing to bring on a foreclosure action, do you agree?

It depends on where you live. In general, a bad assignment means that the creditors right to foreclose could be impacted by another creditor who claims rights to the same Note.

The note is the name of Mortgage Warehouse who sold the mortgage/note, why would or could they sue, in fact they would have no standing.

I don't understand what you mean by this. You're saying that Mortgage Warehouse is suing? They actually could sue IF they actually had the original un-indorsed Note. Anyone else would need to have the assignment and the indorsed Note to have standing.

In NY courts have voided mortgages/notes on similar grounds, which is what I hope to do.

Name all the ones that the courts voided. I believe there was ever only ONE that was actually a voided mortgage and it was fact specific. What happens is, you will usually get the "current" foreclosure lawsuit dismissed. The lender only needs to get the paperwork right and then refile. Remember, the judge usually voids the foreclosure sale (or the foreclosure lawsuit), not the mortgage/note.

I'll talk with a couple of lawyers in the next week or two and see what their opinion is.

I highly recommend this. They can look at what you have and let you know what you can expect. In 99.9999% of cases, the only thing you can do is delay or hinder the foreclosure. You won't get a free house. The real key is the Promissory Note... not the assignment.

One more interesting thing I found according to AHMSI is
Wells Fargo Bank is the trustee for Option One Mortgage Loan trust 2005-1, Asset backed Certificate.

This just means it was securitize and sold to investors in a bundle (the 2005-1 certificate).

[HHM]

First, read this article, it will give you the lay of the land, and help you understand who the players are behind the scenes.

http://www.**********.com/blog/2011/...rson-for-help/

Second, voiding the mortgage is not going to happen. It is not happening, judges are simply not willing to push that "red" button and upset the system. Also, they ALWAYS fall back to Equitable Mortgage. The FACTS still are that (1) borrower took out a loan, (2) bought a house with it, or refi (3) borrower made payments, (4), borrower stopped making payments. You ACTED as if a mortgage existed, you cannot now come in and say the mortgage is void over a "technical" point of improper assignment. What the improper assignment issue gets you is possible delay, because it may force the real party in interest to come to the table to foreclose, but it does not (rarely, if ever) result in a voided mortgage and free house.

This issue is a lot harder than it looks, it is not about "produce the note", if you can't, then a free house. They are ALLOWED to assign the note, there is no law against it, the issue is whether it was proper and therefore whether the person trying to foreclose is, in fact, the right person attempting the foreclosure. Unless you are well versed in UCC Articles 3 and 9 (Uniform Commercial Code), you are going to have a tough run of it. Also, most lawyers don't even know what to ask for to even prove the case. As JustBroke points out, there is maybe ONE case where the mortgage was actually voided, and that is usually based on a TILA violation. Also, let's assume you even get to trial, the will come in with forged documents that make everything look good and you will have one heck of time proving otherwise.

[jimbo367]

Ok, it's been a while, one year in fact since last payment.

They tried to serve a week ago wasn't home, they left then received a copy in regular mail.

Gave me jump while waiting to served, (monitoring the clerks office for affidavit it they try sewer service)

They hired a big FC lawyer mill firm from upstate NY.

In reading the complaint they just filed an assignment from Sand Canyon Corp a/k/a Option one, dated June 18, 12

I have a sworn affidavit from a LA BK case where the president stated Option one went out of biz in 2008, and they are a CA Corp.

This was signed in FL by a known Robo signer as assistant Secretary (from a defunct corp)

Even assuming for a moment that was legit, the trust closed 7 years ago, according the Pooling & Serving Agreement PSA it had to be transferred to the trust by Jan 13, 2005.

Also the trust is not permitted to accept a mortgage in default.

This will form the basis of my position to dismiss Wells Fargo at trustee as having capacity or standing to bring on the FC.

your comments suggestion are welcome.

.

[justbroke]

I don't think it works as a defense. Unless you have a judge willing to hear the underlying intricacies of securitized trusts, all you will get are the questions "did you pay" and "did you not mortgage the property in question".

As for the trust accepting mortgages, that has nothing to do with the assignment. The mortgages are usually preassigned to a particular pool before they are even written. in other words, the pool establishes some dates, like 1/1/2007 to 2/28/2007, and all mortgages from that particular lender, let's say First Franklin Mortgage Backed Securities Series 2007-FFT1, would go to that pool as they are issued within those dates. It is so complex how those work that some Judges don't understand the underlying process. Many judges will just say that YOU owe SOMEONE for that PROPERTY. The Judge only needs to see the Promissory Note -- properly indorsed -- in order to allow a foreclosure. Pretty simple.

As for how New York judges deal with these issues, that's really a NY matter. The Northeast (Appellate Circuit 1) seems to be more liberal in their decisions and more pro-debtor.

[HHM]

You will run into the issue that, YOU have no standing vis-a-vis the pooling and service agreement. Basically, you are arguing that a potential breach of contract between the trust and the assignor somehow accrues to you even though you are NOT a party to the contract. Not a winning argument in the slightest.