If you’re mortgage company claims that Deutsche has your loan courtesy of a MERS assignment saddle-up!

MERS is again denied the ability to magically assign the deed of trust and/or note.  This time it involves Deutsche Bank.    Below is the info that was released today by Neil Garfield.

Affidavits out of nowhere, personal knowledge by a notary in the foreclosure mill, assignments purportedly signed years ago but somehow failed to be recorded until ownership issues arise and one of my favorites the assignment of the deed of trust and/or note from a company bankrupt and out of business for years but somehow they found someone who still has the ability to sign a current assignment from an extinct business.

Do you take third-party out-of-state checks?  Just tell them “trust me” I’m a bank!

Trust me this cash is real!

Here is the link and file… http://livinglies.files.wordpress.com/2010/09/9-09-10-ny-mers-no-authoriy-dismissed.pdf

- The Bank Slayer

MERS-Deutsch Slammed on Quiet Title

MERS tried to Quiet Title. In so doing they paved the way for millions of homeowners to sue MERS to quiet title. The net result is that the encumbrance is invalid. That means the debt, the obligation, MIGHT exist, but it is NOT secured by the home. I’d say I told you so, but that would be immature.

All of that is important but Judge Jeffrey Arlen Spinner went a lot further and made his mark on the issue of bogus affidavits that say nothing but which are used by foreclosure mill attorneys who spout off about what the affidavit says or what it proves. Judge Spinner flatly says the affidavit would be insufficient even if MERS had an interest, which it does not. He clearly states the law which is valid not only in New York, but EVERY state and federal jurisidiction, but which has been ignored by a majority of judges until now:

To establish a claim of lien by a lost mortgage there must be certain evidence (e.s.) demonstrating that the mortgage was properly executed with all the formalities required by law and proof of the contents (e.s.) of such instrument. … Here Burnett’s affidavit simply states that the original mortgage is not in Deutsch Bank’s files, and that he is advised (e.s.) that the title company is out of business. Burnett gives no specifics as to what efforts were made to locate the lost mortgage…. More importantly, there is no affidavit from MLN by an individual with personal knowledge of the facts that the complete file concerning this mortgage was transferred to Deutsch Bank and that the copy of the mortgage submitted to the court is an authentic copy of Torr’s Mortgage.” (e.s.)

EDITOR’S NOTE: The importance of this decision and its citations cannot be over-stated. Now we are getting down to the nub of it. It isn’t enough for the  foreclosure lawyer to make empty allegations contained nowhere in pleadings, affidavit or proof. The foreclosure lawyer is seeking affirmative relief — enforcement of the note and sale of the property. If he can’t plead the case in good faith then he doesn’t belong in court. And if he does plead the case he must prove it within the boundaries of ordinary rules of evidence. A competent witness must exist who is wiling to testify under oath and who actually appears to do so. They musts possess PERSONAL knowledge (not what someone told them) of the facts about which they are going to testify. Business records exceptions are very restrictive as they prevent the other side from cross examining a live witness (a basic constitutional right of due process).

• “Trust me” is not a substitute for real evidence.
  
• If they want to prove the obligation, they need evidence.
  
• If they want to prove a default, they need evidence,
  
• if they want to prove the note is evidence of the obligation, they must prove that assertion with evidence that the note is the whole deal (which is NEVER the case in a securitized loan).
  
• If they want to prove a lost note they need evidence that the note was in existence, when it was in existence, how it came into existence, and what happened to it — not just say we had it, but now we don’t.
  
• And watch out for those “original notes.” Many of them are fabricated using simple software and a color printer. If there are no impressions on the back of the page, even the note they present is probably NOT the original and is probably a fabrication printed off a laser or dot matrix printer. Close examination will show even a novice the truth of this statement.

Come spend a day in our office or even 30 minutes and you’ll see how banks such as Wells Fargo, Chase and Bank of America have no qualms about lying.  They will tell you one thing then something totally different in back to back calls.  Then they will send you a third “story” in a letter.  Want proof?

Wells Fargo & Company said on Wednesday that it had agreed to buy back $1.4 billion in securities it sold to investors according to an article by Cyrus Sanati.

The suit, brought by the California attorney general, Jerry Brown, contends that Wells Fargo had routinely misrepresented, marketed and sold auction-rate securities as safe, liquid and cash-like investments, omitting material facts.

“Wells Fargo convinced thousands of investors to purchase auction-rate securities with promises of robust returns and liquidity, but when the market collapsed, investors were left out in the cold,” Mr. Brown said in a statement. “Based on misleading advice, investors bought these risky securities.”

If Wells Fargo will lie to its own investors imagine how easy it is to lie to a home owner.   If you or a homeowner you’re  assisting in a short sale is dealing with Wells Fargo then tread carefully.  We routinely see Wells agreeing to short sales but then slipping in several clawback clauses.  Make sure an attorney reviews the final short sale agreement to keep you and your seller out of trouble.

-          The Bank Slayer

The biggest mistake most people make is not knowing basic rules of evidence.

Testimony from a “copy” is inadmissible. Testimony is inadmissible unless it comes from a witness accepted by the court — not some lawyer lathering up his mouth and using finesse to escape the rules of evidence.   Every witness must be sworn, must have personal knowledge of the contents, must remember it ALL and be able to communicate it with specificity such that a court could rule without the court creating a document that had never been in existence before the evidentiary hearing.

Ever hear the old “buyers are liars”?  Some of attorneys are right there with ‘em. As soon as the Lawyer starts talking you should probably be objecting since he is not sworn, not a witness and never will be.

So what this means is that an affidavit that is sworn must be the “testimony” of a witness accepted by the court who has personal knowledge and is not reporting what was told to them by someone else and not be reporting what they read in another document.

Hats off to our friend Neil Garfield at Livinglies for a great piece on evidence.      Show me the proof!!!