Invalid Assignment defense

[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 But then you read the unpublished order/opinion and find it very fact specific...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]

Which sites are you following?

[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

[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.