“A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”
Below is an order from a Florida court that speaks to a major issue we have been screaming about for well over a year now. Just because you hold the note, does not necessarily make you the owner of the note with the right to enforce.
If the courts would let us get to the documents in discovery, it would show that in the majority of the cases, even if they produce the original note, they do not have the right to enforce.
For example…
BofA Mortgage Morass Deepens on Promissory Notes Issues
Investor Impact
The Kemp case is also being examined by lawyers for investors in mortgage-backed securities. Owners of the bonds have been cooperating in an effort to force sellers to take back loans, saying they were misled about their quality. The Wizmur ruling may give investors an additional opportunity to push for mortgage buybacks on grounds that the bonds weren’t created in keeping with securitization contracts.
“It may mean investors who think they bought mortgage- backed securities bought securities that aren’t backed by anything,” said Kurt Eggert, a professor at Chapman University School of Law in Orange, California.
Countrywide Deals
The securitization contracts related to the Kemp loan, and at least two other Countrywide mortgage-bond transactions, didn’t assign the company the additional role of document custodian for the trust. Countrywide, as the servicer, can take back the notes from the trustee when needed to manage foreclosure actions and mortgage payoffs, according to the contracts.
One risk to investors when notes remain with sellers acting as custodian is that an acquirer or creditor of those companies could walk in and take the notes, the banks that disclosed the practice in mortgage-bond prospectuses warned.
Let’s repeat. “An acquirer or creditor of those companies could walk in and take the notes.”
Now in how many instances can this have happened in the last 4 years in where an institution that held onto the notes has been acquired or taken over by a “creditor”?
I ran out of fingers to count on…
One example that comes to mind with somewhat of a twist is the JPMorgan FDIC WAMU deal…
Did you all know as of August 31st 2010 that deal was not finalized and it still may be pending?
Washington Mutual JPMorgan Chase FDIC Deal NOT Finalized? So how can JPMorgan Foreclose on WAMU Loans?
Posted by Foreclosure Fraud on August 17, 2010 ·
This is very intriguing… Check out the the excerpts from the report below…
Game Changer?
WaMu sale hasn’t closed, document suggests
Next month will mark two years since federal regulators seized Washington Mutual and sold it to JPMorgan Chase for $1.9 billion. Now a document that appears to be from the Federal Deposit Insurance Corporation suggests the deal still hasn’t closed.
“Everyone is saying the sale is finalized,” said the shareholder, Farokh Lam, of Woburn, Mass. “It is not.”
Lam noticed that on pages 7 and 9, the original WaMu purchase and sale agreement allows the FDIC to extend the settlement date. He says he asked about it, and the FDIC confirmed in phone calls and emails that the settlement date was set for Aug. 30, 2010, and could be extended further.
“Settlement Date” means the first Business Day immediately prior to the day which is one hundred eighty (180) days after Ban Closing, or such other date prior thereto as may be agreed upon by the Receiver and the Assuming Bank. The Receiver, in its discretion, may extend the Settlement Date.
It says: “The purpose of this amendment is to extend the time period for Final Settlement to August. 30, 2010.”
WaMu’s final days were chronicled in depth by Puget Sound Business Journal Staff Writer Kirsten Grind in an award-winning series.
Does this mean that all the WAMU foreclosures being pushed through the courts by JPMorgan Chase using the FDIC Purchase and Sale Agreement are invalid?
Does it mean if they haven’t closed the deal THEY DO NOT OWN THE LOANS OR THEIR SERVICING RIGHTS?
Where are the windfall profits going after the foreclosure sale?
What if the agreement changes before it is finalized?
So many questions…
The JPMorgan Wamu FDIC Settlement Date Extension Document Can be Viewed Here…
Regardless of the closing of the deal above, the question still remains if a holder of a note endorsed in blank actually has the authority to enforce it without other “evidence” other than the fact that the posses the note.
For example, if the not had to be transferred by courier to be delivered to another location for whatever reason, and the courier decided to keep the note, should he be able to enforce it?
I would think not. (Unless it was in a Florida rocket Docket)
It is no different than the foreclosing entity showing up with it without the proper chain of title and endorsements…
And that is why this order from the Honorable Judge Tepper was handed down in the case below.
An order, in my opinion, that can not be cured by BAC and their attorneys, but only time will tell…
BAC, Countrywide v Stenz Motion to Dismiss Granted – “A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”
BAC HOME LOANS SERVICING, LP F/K/A
COUNTRYWIDE HOME LOANS SERVICING, L.P.
Plaintiff,
vs.
BILL R. STENTZ AKA WILLIAM R. STENTZ, et al.
CASE NO 51-2009-CA-7656-ES
From the Order…
The copy of the note filed by plaintiff shows upon it that it has been endorsed in blank. Thus, though Plaintiff may be a “holder” it is not by virtue of such an open indorsement, an owner of it. See F.S. 673.2031, Comment 1: “a thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”
ACCORDINGLY, IT IS HEREBY ADJUDGED:
A: Defendant’s motion to dismiss is GRANTED.
B: Plaintiff shall be granted 30 days to amend its complaint and in doing so MUST:
- Allege ultimate facts, not conclusions of law, that specifically set forth the and identify the present owner of the note and mortgage and the present holder of the note and mortgage and in so doing deraign the chain of ownership/holdership since the loan’s inception.
- Allege ultimate facts why the note is indorsed in blank and specifically deny, if that be the case, that it or an interest has been pledged to another…
- Plaintiff must specifically plead and identify both the owner and the holder of the note and mortgage. it is not enough for Plaintiff to only plead that it holds the note and mortgage… Plaintiff must ultimately prove ownership as well…
- If Plaintiff is not the owner it must specifically plead ultimate facts identifying the owner and Plaintiff’s authority whether to act as a representative for the same attaching such proof of said representation authority whether it be by power of attorney or other written agency agreement.
- Allege and identify all documents, by attachment, upon which plaintiff relies to establish the ownership of the note and mortgage.
- Plaintiff shall have 30 days to amended and file a new complaint. That said complaint must be verified and that any allegation in the verification containing “best knowledge and belief” language is insufficient.
DONE AND ORDERED
Lynn Tepper
CIRCUIT JUDGE
Good luck on all that BAC!
Remember…
“A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”
Full order below…
~
4closureFraud.org
Join us for our “Homeless for the Holidays” Rally
Thursday December 9th 2010 in West Palm Beach FL
My note claims AWL as the lender. What should my next step be?? It was a loan that originated in 2005 then went to Countrywide. When it was transferred to B of A I stopped making payments it’s been over 2 years now.
I have already asked B.O.A to produce my original note, their attorneys send me back a packet of copies of my loan docs then stated that “we do not have all the documents you are requesting”. Recontrust started putting notices on my door then sending me the same notices saying the house is going to auction in 4 wks.
Great news but many unanswered questions. How about the money? If I go to court to collect on an unpaid debt, I must not only prove ownership of the promise to repay (contract), signatures of both parties but proof I had the money to lend and proof the funds were received / accepted. Modern money mechanics is a publication of the federal reserve in which the loaning process is conducted. Google Walker Todd Affidavit and see how a former official of the Federal Reserve testified as an expert witness about the mortgage process and tell me why are so many people loosing their homes to foreclosure. Has anyone uncovered the specific benifits derived by each judge to the mortgage baced security component of their retirement account?
Hooray! These judge’s are starting to lay the smack down! Maybe they finally got the clue that they are liable seven ways to Sunday if they act in absence of jurisdiction.
Yeah, If the paperwork or evidence looks like it came from” DILBERT” (you know, the comicstrip) then it MAY be unacceptable, with 30 days to file more garbage!! HOW PATHETIC OUR COURTS ARE!!
Articles like this make you believe in our Justice system once more. This Judge is awesome! Why should the banks be held above the reach of the law? It’s gotton to where that is their attitude, like because they have deep pockets they will prevail even if they are wrong!
I can only presume that the note presented was origianally in the name of CountryWide. In many other cases the named “LENDER” is “America’s Wholesale Lender”.
For anyone with such a loan, 1) look very CLOSELY at the Deed of Trust and 2) check out your “LENDER”.
What if it does have them so named?
Exactly what does that mean?
What would you do if you had such a situation?
If I have such a loan, I’d find a sharp attorney real fast. Neil Garfield has an entire post on his LivingLies website on these ‘wild’ mortgages. These particular loans have numerous serious errors in them.
First, look your original paperwork over. The LENDER is named as this “America’s Wholesale Lender – A Corporation”. Quite simply the assertion that ‘AWL’ is a corporation is a LIE. The only corporation in that name is that of an UN-RELATED corporation that a different company formed in New York.
The loan docs may state that “America’s Wholesale Lender” is a New York corporation. The only filings that I have found in NY state are 2004 D/B/A filings made by CountryWide. If CountryWide had a CORPORATION in the proper name, no D/B/A would have been filed at all.
D/B/A filings need to be present in all the other states, and in some states would need to be filed at the COUNTY level. Do you really think they did that effort to get all the D/B/As if they did not bother to create the NY corporation they claimed AWL to be?
There is a Conneticut case with the name Pagano in it that cites the fact that “America’s Wholesale Lender” is no more than a TRADE-NAME for CountryWIde. They found out that they could not foreclose in a trade name in that case. There has been a more recent NY case that also brought up the problems with the trade-name. A TX case also delved into the AWL loan paperwork and came up with the same conclusion that AWL was simply a trade-name regardless of the false assertion in the actual loan documents of a corporation existing.
OK. So now wie have ‘AWL’ as a ‘non-corporation’ yet NO OTHER corporate relationship is identified on the loan documents. I do not know about ALL states, but at least many require that corporations that are going to transact business as LENDERS are registered with the STATE before they write loans in that state.
Either you or your attorney needs to determine if AWL had registered in your state as a lender prior to writing your loan. They failed to do this in at least part of the states where they did a lot of business.
Now, in another case, the head of MERS was questioned on the record about the ‘AWL’ loans that are registered with MERS. He incorrectly identified “America’s Wholesale Lender” as a ‘DBA’ of CountryWide. He stated that ‘AWL’ had used the CountryWide membership in MERS to enter the loans into MERS.
Did a valid D/B/A relationship with CountryWIde exist in your country or state when your loan was written? D/B/As need to be filed in each locality according to the method for that state or county, for the name to be a valid DBA usage. The acknowledgement by Hultman that “America’s Wholesale Lender” utilized the CountryWIde membership in MERS could be problematic.
What is in eveidence in the loan documents that would allow an undisclosed corporation to register these mortgages in MERS? The borrowers were signing documents allowing AWL, not COUNTRYWIDE, to put the mortgage into MERS. We did not know that CountryWide was the pretender-lender.
The mortgage documents concealed the CountryWide realtionship. What evidence existed of any right for these loans to be listed in MERS using the CountryWIde membership?
I also know that issue has been taken with the “America’s Wholesale Lender” loans (I have problems calling them mortgages) on other significant points related to MERS.
READ your Deed of Trust. REALLY read it. Take note of whether you are in a section on what the LENDER is proclaiming or if you are in a section about what the BORROWER is acknowledging. The acknowledgements by the borrower are NOT sufficient to state that MERS has the necessary empowerment by the LENDER.
Did you notice that the LENDER dubbed MERS to be it’s nominee? Well did you find anything in that Deed of Trust that states WHAT MERS is supposed to do, acting for AMERICA’S WHOLESALE LENDER??????????????? Judges have found that, just as noted in “BLACK’s”, the term ‘NOMINEE” is vague. The document needs to SPECIFY the roles and actions MERS is to perform for the LENDER. It must be stated as what the LENDER acknowledges, not what the BORROWER is allowing.
That means that all those ‘after the fact’ documents that attempt to sign as “Mortgage Electronic Registration System, as nominee for America’s Wholesale Lender – A Corporation” should be CHALLENGED.
Go find the complete POST on the AWL mortgages that Neil Garfield wrote on LivingLies. If you have one of these ‘wild’ loans, you need to read up.
This order only addresses deficiencies in the complaint and allows Plaintiff to file an amended complaint in the action. It is not a dismissal, only an order giving them a very strong helping hand in drafting a legal and complete complaint. Something that they should have done from the outset.
It is, for the Plaintiff, a teachers guide – this is how you must do it and why you must do it.
It allows Plaintiff to come back to court within 30 days with a better written complaint and then allows defendant only 20 days from the service to file an answer and reply.
The 30 days to refile an amended complaint is generous, the 20 days to reply is standard. The result is not the dismissal that Defendant’s may have hoped for but a do over for the Plaintiff.
Defendant’s fees and costs for answering the first complaint, bringing and arguing the motion(s) that resulted in the order, or future costs of answering the amended complaint were not addressed, but neither do they seem to have been argued.
A well written opinion, maybe drafted by counsel for defense. If so, it may not have been a very good tactical move to give so much guidance to Plaintiff. If drafted by the judge, well done Judge. Hit the nail on the head.
Judge Lynn Tepper has shown impatience before with fraudulently produced documents being presented in her court. More power to her and may the judiciary be blessed with more like her.
http://pibillwarner.wordpress.com/2010/04/30/judge-lynn-tepper-bashes-bank-in-foreclosure-case-fraudulently-mishandled-by-the-david-j-stern-law-firm-in-plantation-fl-part-of-a-ongoing-federal-criminal-probe-in-florida/
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