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Wednesday, August 18, 2010

Assignment of Mortgage Into A Secured Trust

MERS, OCWEN, and other mortgage servicers are fabricating assignments of mortgage to Plaintiff banks and mortgage companies who are acting as trustees of the registered holders of the securities.

First, take a look at the date of the certificate securities such as Trust 2007-HE4 or 2006-HE4 etc.  Take a notice of the year. What does this mean? It means the mortgages in this Trust are held by a custodian for the Trust, against which the security was sold to an investor was created and closed in that year.

If the Trust has 2006 as the year date. It means the mortgage instruments are in the Trust and the Trust was closed by the end of the year 2006. There is however a real date when the Trust was closed. You will want that date.

Once the Trust is closed, it is now a question of legality how a mortgage can be transferred by assignment into this Trust.

For instance: in the case of Bear Stearns Asset Backed Securities 1 Trust 2007-HE4 Backed Certificates, Series 2007-HE4, April 30, 2007 was when the Trust was closed. All the mortgages securing the Certificates were in the Trust. Once in the Trust all payments of the mortgage to a servicer, eventually after fees are deducted, is transferred to the Trust. The Trust collects the payments and makes disbursements.

Now what if a mortgage and note are lost before they are actually in the Trust?
What happens if all the Trust and the custodian had were copies of the mortgage and the note because the original was never really assigned to the Trust?
What happens if the original note is not endorsed in blank by the original lender but by someone else?

What happens if there is no allonge from the lender to the blank endorsement by a person not named on the note?

What happens if there is a default of the mortgage by failure to make the payments and the plaintiff alleges lost note and makes request for reinstatement?

The law is specific in Florida that a plaintiff seeking to foreclose must have the original note on the date the foreclosure complaint is filed. And if they have lost it, it has been accidentally destroyed, etc. etc., the plaintiff MUST PROVE it had possession, custody, and control of the note when it was lost, destroyed, etc. etc.

Here is where MERS and other plaintiffs fabricate false affidavits from alleged custodians of the trust, who claim under oath they saw the original note and mortgage, knew it was in the trust, and certify the plaintiff's had possession at some time in the past. But these custodians NEVER say how the note and mortgage got lost? They cannot testify to this. And few defendant's depose these custodians and take testimony and bring them into court and place them under oath. So many judges in Hillsborough County accept these affidavits as proof the plaintiff has standing.

Now what happens if they cannot prove they had the note at the time they filed the foreclosure action?  What happens if they cannot prove they ever had the note?

If MERS is the nominee for the original lender, the Plaintiff will call MERS and ask for them to make an assignment of the mortgage together with the note and other rights, and place the date the Trust was closed as the first date on the assignment. MERS will then fabricate an assignment of mortgage to the Trust via its Trustee bank or mortgage company. The assignment is notarized, which in many thousands of cases is fraudulent. Then the assignment is filed in the public records.

Now the legal question is: can MERS assign a mortgage into a securitized Trust after it has been closed?

Can the plaintiff claim such assignment places the mortgage into the securitized Trust?

Can such assignment be used to show the Plaintiff now has standing?

What of the alleged default of the mortgage payments that plaintiff uses to accelerate the mortgage? If an assignment grants the mortgage into a Trust, and the Trustee now claims ownership of the mortgage and note by assignment: does this mean the mortgage cannot be in arrears to the assigned holder, because the date of the foreclosure action would not be that many days after the assignment?

Judges in Hillsborough County Florida do not care about the illegal scams being pulled against litigants. They are treating foreclosure victims like scum. They want them out of their court room and are rubber-stamping motions for summary judgment.

In a case I witnessed, a Pro Se defendant was called to the bench. The judge punched the telephone and said: "who do we have here." A woman answered and identified herself as attorney for the plaintiff. The judge then asked her about her motion to dismiss and the woman then went of a two minute spill of why the defendant's answer and affirmative defenses should be stricken. Three minutes remained in the hearing. The judge then asked the defendant to respond. The defendant objected to the motion to dismiss because the note had not been reestablished and the plaintiff had no standing. The judge raised his eye brows  and nodded his head side to side. 30 seconds were now gone. The judge asked the lawyer if she had other comments. She replied yes and went on for another two minutes. 4.5 minutes are now gone. When she finished the Pro Se defendant ask the judge: "your honor do I get to respond?" The judge replied: "no" I read this case last night and I have already made up my mind." He then ordered the answer, affirmative defenses stricken, and the defendant's quiet title counterclaim dismissed. He told the plaintiff's attorney to draw up the order and send it to the court. He then addressed the defendant: "you need to go hire an attorney." You have 30 days to refile your answer and affirmative defenses."

This is mortgage boiler-room court-room justice in Hillsborough County, Florida.

I guess for Pro Se defendant's the question is if a plaintiff has standing on any motions if the note has not been reinstated?

Second, does an assignment of mortgage into a trust give the plaintiff standing to foreclose and or make motions?

If an assignment of mortgage was made in your foreclosure case, you need to fight this any way you can. The plaintiffs and the courts in Hillsborough County, Florida will not give you a fair day in court.

Lit Gant

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