A secured debt puzzlement.

[justbroke]

I don't know what you're trying to ask. Who filed the claim then, if the FDIC is not interested and you say that AIB and AIF are defunct? Who has standing? Who actually holds the Security Instrument (agreement)?

Hey, I found a SERIOUS defect in the assignment! The Notary signed it on 9/18/2003 yet the person executing the assignment did so on 9/1/2003. How did he sign it in front of the Notary??? The defect appears on the assignment, the limited power of attorney and the last document. All have defects in the notarization of the papers.

[tigergem]

I don't know what you're trying to ask. Who filed the claim then, if the FDIC is not interested and you say that AIB and AIF are defunct? Who has standing? Who actually holds the Security Instrument (agreement)?

Hey, I found a SERIOUS defect in the assignment! The Notary signed it on 9/18/2003 yet the person executing the assignment did so on 9/1/2003. How did he sign it in front of the Notary??? The defect appears on the assignment, the limited power of attorney and the last document. All have defects in the notarization of the papers.

Good catch! I thought there was something funky with the dates, but couldn't put my finger on it.

SST (the purported assignee) is the one that filed the proof of claim and provided these copies of the "service agreement" as the basis of their proof of claim.

The contract that I co-signed was owned by "American Investment". Go figure. It doesn't specify American Investment Bank, NA or American Investment Financial. Just "American Investment". All of the loan history payment papers came to me from American Investment Bank, N.A. in 2002 and 2003. On my credit reports this American Investment Bank, N.A. loan shows paid in full, satisfactory, loan "transferred or sold". The credit report doesn't specify to whom.

What I wanted to know was if this "service agreement" is even still valid, since both of AIB and AIF no longer exist. Who would SST be collecting this FOR? Themselves?

Aside from the defective notary - - Would this "service agreement" constitute a total transfer of ownership interest in my asset to SST?

[justbroke]

[LadyInTheRed]

I've been planning to come out of lurking to ask some questions about my on BK plans, but this thread inspired me to try to provide some info.

First, the notary acknowledgment appears valid. If the acknowledgement was dated before the document was signed, then there would be problem. The notary states that the person appeared before her and acknowledged signing the document. That doesn't mean the document was signed in front of the notary. I am a notary in California and, while the state laws may differ, the CA acknowlegement language is very similar to this one. A notary does not have to witness the signing of the document in order to acknowledge it. The signer only needs to appear before her and acknowledge that he signed it. You could bring me a document that you signed 10 years ago and ask me to acknowledge it and I would, assuming you have valid ID and provide a thumbprint if the document is a power of attorney or deed. In California, the acknowledgement would state that you appeared before me today to acknoweldge it. My log book would show that the date of the document was 10 years earlier in case there was ever a dispute about when you signed the document. This is distinguished from a Jurat that contains the words "subscribed and sworn before me." For a notary to execute a Jurat, she must witness the document being signed and take the oath of the signer that the statements contained in the document are true.

I'm not an attorney or an expert on bankruptcy, but I do have some professional experience with powers of attorney. Since the power of attorney you posted gives SST the power to collect the debt on behalf of AIB (who, as loan servicer, appears to have been collecting on behalf of AIF) and AIB no longer exists, I don't think SST has any power to collect the loan based solely on the power of attorney. When an individual who signed a power of attorney dies, that power of attorney is no longer valid. I think the same would go for a corporation, especially if there is no legal successor to the corporation. If this is SST's only evidence of their alleged right to collect a debt or lien against the property, they are going to have a hard fight.

[tigergem]

Thank you, justbroke! I have been working on drafting something to that effect, but your help and input is more appreciated than I can say.

I don't know if I am glad it is Friday or not lol. I am anxious to get it done and mailed. But I guess maybe the weekend will force me to cool my heels and keep me level headed.

You, as always, are awesome. You make me glad to be here.

[tigergem]

Thank you also, LadyInTheRed. This is a helpful post.

[tigergem]

Texas law seems to state the same as LadyInTheRed states.

http://www.sos.state.tx.us/statdoc/edinfo.shtml

7. WHAT IF THERE IS A DIFFERENCE BETWEEN THE DATE THE INSTRUMENT IS SIGNED AND THE DATE THE ACKNOWLEDGMENT IS ACTUALLY TAKEN?

To answer this question, an example is given. If an instrument ends with the wording: "Signed and executed at Tyler, Smith County, Texas, this 25th day of October, 2001," and the party whose name appears on such instrument appears before the Notary Public on October 27th, 2001, the Notary Public would fill in the acknowledgment with the true and correct date when the signer personally appeared before the Notary Public.

A Notary Public may not:

5) notarize a document without the signer being in the notary’s presence;

But the document apparently does NOT have to be actually signed in the notary's presence.

[justbroke]

Yes, LadyInTheRed, thanks. I did read the language, and it's different from what I've read in Florida, but you're right that the way that language reads, it's only an affirmation of the Notary that the person affirms that they are the one who signed it. The Jurat that contains the words "subscribed and sworn before me", is the one I'm used to.

In any event, good catch LadyInTheRed! (Bad on my part... just looked weird from the "subscribed and sworn" ones I use personally.)

tigergem, maybe attack why the actual assignment, POA, and other document was signed by the grantor on 9/1/2003, but the Notary notarized them on different dates (9/18/2003 and 9/4/2003)... and why are there 3 very similar power of attorney documents? They appeared, on their face, to grant the same thing??? But all signed on the same day (9/1/2003)? Odd.... but I'm no document forensic person.

[tigergem]

Yeah, I have proof from AIB itself that the original payments on the loan were made to American Investment Bank, N.A. They had faxed a full statement of accounting, which I still have! It very clearly says all over it... "American Investment Bank, N.A".

It was never my understanding that American Investment Financial was the lien holder. Although on the copy of the original title (which I have never been able to get but which SST provided with its proof of claim), AIF is named as the lien holder on the title document itself.

AIB claims (in one of those Sept 1 docs) to have gotten a servicing agreement from AIF on August 28, 2003, but my ex-husband was making payments on this thing to American Investment Bank NA from May of 2002 until August of 2003.

Why would AIB have been taking the payments for AIF prior to their servicing agreement with AIF?

After August, 2003, if he made the payments to SST instead of AIB, I was completely unaware of the change. The only thing I really have to go by from August, 2003 is what is on my credit reports.

SST reports the account closed and charged off as bad debt in April, 2006. That seems about right. Our divorce was final in March, 2006, although we were separated in September, 2005. I inherited the thing and the debt in the divorce.

I know that I did not become aware of SST until our separation in 2005, although at this moment, I cannot remember how SST came to my attention. Maybe a bank statement or something. It was in September, 2005, right after we separated, that I tried to make one payment to SST, and they refused it. I don't think the account was even late yet at that point. But SST refused to talk to me or respond to mail at all from that time on, and I did not attempt to make any further payments to them.

The time line seems simple enough, but the documents are SO convoluted.

[tigergem]

Can I buy a Statute?

Geez... I have been googling til I am blue and I can find about a zillion references for every state in the union that says unless it is a "durable power of attorney" which requires special language, a power of attorney revokes upon the death of the principle. BUT I have not YET found any statute. Federal or State (going to search Utah statutes more in depth this afternoon) that specifically states whether a limited power of attorney survives the dissolution of a business. If the guy who signed it is still alive... maybe not? I can't say for sure, because I can't find a statute!

Currently searching http://www.le.utah.gov/UtahCode/title.jsp

But right now I have got to go run a couple of urgent errands, so will have to do it better when I get back.

[tigergem]

one question leads to another...

Utah Code
Title 16 Corporations
Chapter 10a Utah Revised Business Corporation Act
Section 1405 Effect of dissolution.


16-10a-1405. Effect of dissolution.
(1) A dissolved corporation continues its corporate existence (Yeah, I think I knew that... corporations actually exist in perpetuity....But does a BANK, which is not actually a Corporation?) but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including:
(a) collecting its assets;
(b) disposing of its properties that will not be distributed in kind to its shareholders;
(c) discharging or making provision for discharging its liabilities;
(d) distributing its remaining property among its shareholders according to their interests; and
(e) doing every other act necessary to wind up and liquidate its business and affairs.


(2) Dissolution of a corporation does not:
(a) transfer title to the corporation's property;
(b) prevent transfer of its shares or securities, although the authorization to dissolve may provide for closing the corporation's share transfer records;
(c) subject its directors or officers to standards of conduct different from those prescribed in Part 8;
(d) change:
(i) quorum or voting requirements for its board of directors or shareholders;
(ii) provisions for selection, resignation, or removal of its directors or officers or both; or
(iii) provisions for amending its bylaws or its articles of incorporation;
(e) prevent commencement of a proceeding by or against the corporation in its corporate name;
(f) abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution; or
(g) terminate the authority of the registered agent of the corporation.

I seriously need to go run my errands.

[HHM]

You may be over thinking this. The assets (the account receivable that is your mortgage) CAN BE assigned; there is no question about that. So, I think you are focusing on the wrong issue. Your defense is...
First: was the assignment proper, can the new servicer actually prove they have the right to collect the note. Your defense here is more to the point of proof of the assignment, not whether there is a legal right to assign (Which there is).
Second: can the new servicer prove you actually owe the debt. (this is the produce the note defense).
Third, negligence and fraud. This is your affirmative defense that but for the inaction, negligence, and fraud of the servicer, you would not be in default and should not be responsible for the additional fees, penalties, and charges.

In short, the questions you raise are.
1. Prove I owe the debt.
2. Prove you have the right to collect the debt
3. If yes to 1 and 2, you guys messed up and I should not be held responsible for the additional fees.

[justbroke]

Attack their standing. I think you have enough to object. Remember, it's like tennis. The burden of proof bounces back and forth as the preponderance of evidence shifts. I think you have enough to cause doubt in their standing now for an objection to their claim.

[tigergem]

Yeah I was over thinking it... and in the wrong direction. This should not be that difficult. Let me draft something see what y'all think ... it'll be a couple of hours anyway... I'll let you know what I come up with.

[tigergem]

from AIF to AIB, but not one from AIB to AIF at all. So this does not explain why payments from the onset of the contract were made to AIB prior to the date of the servicing agreement from AIF to AIB. If AIF was the lienholder from the onset, then no servicing agreement exists to explain AIB receivership of all those payments prior to August, 2003.***

Let me know what you think of my argument so far and if anybody can help me sort out that last bit, I surely would appreciate it. I'm going to take a little bit of a break to try to stop my head from spinning.