The foreclosure defense advocates have been having a field day discussing the outcome and applicability of issues from the recent Massachusetts Supreme Court decision.     Today’s guest post is from George W. Gore the founder and lead attorney for The Gore Law Firm.

In this post he gives a quick overview of the case and the impact that it might have here in Texas.    George points out the ways in which Massachusetts law differs from Texas law and thus how a case like this is or is not applicable to Texas homeowners.

In my opinion, it isn’t a silver bullet for Texas homeowners BUT it shows the banks get careless and don’t believe they need to follow the rules (or laws) as everyone else is expected to.

But what George doesn’t mention (because he is too humble) is that his firm has filed 100+ lawsuits versus mortgage banks just in the local Houston area and they are consistently beating the banks and winning EXCELLENT resolutions for homeowners.

- The Bank Slayer

FROM: George Gore

All,

Sadly, it does not help us in Texas nearly as much as the folks in Massachusetts.  However, it does indicate a willingness to actually ding the lenders for ignoring the formalities.

Main holding:

Quote:  The judge did not err in concluding that the securitization documents submitted by the plaintiffs failed to demonstrate that they were the holders of the Ibanez and LaRace mortgages, respectively, at the time of the publication of the notices and the sales.

GORE:  In other words, they submitted paperwork showing that someone else owned it at the time of the foreclosure so the notices were all incorrect and therefore it is improper (with any quality control, they will catch this and re-foreclose next time before filing the paperwork).

Secondary Points:

1)      Quote: We have long held that a conveyance of real property, such as a mortgage, that does not name the assignee conveys nothing and is void; we do not regard an assignment of land in blank as giving legal title in land to the bearer of the assignment.

GORE: Not applicable to Texas.  Texas uses notes and deeds of trust.  Notes can be in blank and not recorded.  Deeds of trust do not have to be recorded (except to save priority and establish constructive notice of the lien).

2)        Quote: Second, the plaintiffs contend that, because they held the mortgage note, they had a sufficient financial interest in the mortgage to allow them to foreclose. In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage.  Barnes v. Boardman, 149 Mass. 106, 114 (1889). Rather, the holder of the mortgage holds the mortgage in trust for the purchaser of the note, who has an equitable right to obtain an assignment of the mortgage, which may be accomplished by filing an action in court and obtaining an equitable order of assignment.  Id.  (“In some jurisdictions it is held that the mere transfer of the debt, without any assignment or even mention of the mortgage, carries the mortgage with it, so as to enable the assignee to assert his title in an action at law…. This doctrine has not prevailed in Massachusetts, and the tendency of the decisions here has been, that in such cases the mortgagee would hold the legal title in trust for the purchaser of the debt, and that the latter might obtain a conveyance by a bill in equity“). See  Young v. Miller, Gray 152, 154 (1856).

In the absence of a valid written assignment of a mortgage or a court order of assignment, the mortgage holder remains unchanged. This common-law principle was later incorporated in the statute enacted in 1912 establishing the statutory power of sale, which grants such a power to “the mortgagee or his executors, administrators, successors or assigns,” but not to a party that is the equitable beneficiary of a mortgage held by another. G.L. c. 183, § 21, inserted bySt.1912, c. 502, § 6.

GORE: THIS WOULD HAVE BEEN A KEY POINT:  But, sadly, as wording indicated,  Massachusetts is on its own here.   Texas does not have the same “does not follow” rule.  In Texas, it is well established that the deed of trust (or lien) follows the Note.

3)      Quote:  A valid assignment of a mortgage gives the holder of that mortgage the statutory power to sell after a default regardless whether the assignment has been recorded. See G.L.c. 183, § 21;Mac Farlane v. Thompson, 241 Mass. 486, 489(1922). Where the earlier assignment is not in recordable form or bears some defect, a written assignment executed after foreclosure that confirms the earlier assignment may be properly recorded. See Bon v. Graves, 216 Mass. 440, 444-445 (1914).

A confirmatory assignment, however, cannot confirm an assignment that was not validly made earlier or backdate an assignment being made for the first time. See Scaplen v.Blanchard,187 Mass. 73, 76 (1904) (confirmatory deed “creates no title” but “takes the place of the original deed, and is evidence of the making of the former conveyance as of the time when it was made”). Where there is no prior valid assignment, a subsequent assignment by the mortgage holder to the note holder is not a confirmatory assignment because there is no earlier written assignment to confirm. In this case, based on the record before the judge, the plaintiffs failed to prove that they obtained valid written assignments of the Ibanez and LaRace mortgages before their foreclosures, so the post foreclosure assignments were not confirmatory of earlier valid assignments.

GORE: This is one point that we look for here in Texas.  The party doing the foreclosure has to be able be the party of record (or servicer for that party).  Typically, the foreclosure mills have done a good job on this issue of making sure the deed of trust is transferred to the foreclosing party before bringing the foreclosure action (seems to be triggered by the borrower’s default).

The one possible exception that has been noted is when they have brought the foreclosures in the name of MERS (the nominee on many deed of trusts).  Typically, they simply transfer the deed of trust to the foreclosing party by signing as a MERS officer on behalf of previous lender to avoid MERS being the actual foreclosing party.  Whether or not this gets them in the clear is a debatable matter but at this point, these transfers have been accepted as proper by Texas courts and the fact that few homeowners are willing or able to fight this allows the banks to continue to use this strategy.

GORE: So, the main holding is nice and we might get a chance to use it if the foreclosure mill or bank really messes up (although it is hard to mess this up because their accounting seems to be triggered by the supposed note holder) or we come up with a new theory (we try every day).  Point one is inapplicable in Texas and point two, the biggest issue, is not one we can use either.

- George W. Gore

This is really an unbelievable story but sadly, if you work in foreclosure defense, it’s all too often these types of railroading of people’s lives occurs.

The folks at 4closureFraud.org did an OUTSTANDING job at digging into the screw job a disabled veteran got when a house he was renting was foreclosed.

Of course the story has all the typical players:  large national bank, MERS and a foreclosure mill.

Here’s a photo of the guy who got TWO days notice before being tossed out.

“Harris had lived in the house for several years and tried repeatedly to buy it, first from the previous owner through a short sale and later from the bank that bought the foreclosed property, he and his real estate agent said.

Harris said he received a notice on Tuesday that he would be evicted on Thursday. He scrambled to line up a federal loan and cash to help him buy the house, but the bank’s lawyer told him it was too late, Harris said.”

You can read this excellent article in full and see the goods 4closureFraud dug up here

- The Bank Slayer

We recently posted the fact that Freddie Mac has some CRAZY assignments of mortgages for September 9, 9999.  It just keeps better

Thanks to 4closureFraud for the heads up.

If you suspect something strange is going on with your mortgage or are facing a foreclosure situation contact our office today.

– The Bank Slayer

Folks, gather ’round ’cause you’re ’bout to hear a tale o’ turned tails.

In early February, a small cohort of colleagues discovered 12 BOGUS mortgage assignments across the state of Florida.

Within days, this group found another 20+ BOGUS mortgage assignmentsacross our once-great, once-honorable USA.

These “Black Deeds”, collectively, are proof that the notaries, witnesses, and signatories on each and every like assignment of mortgage is suspect at best; created as purely fabricated malarkey at worst. Professionals are starting to surmise that all of these mortgage assignments magically produced, presto-chango, to ram another foreclosure through “the system” are not credible evidence upon which the transfer of property, dispensation of justice, and the roof over a family’s head should rest.

Oh, Oh! Oh, where is my mind? One of that fraud excavating group unearthedmortgage assignments transferring property effective 09/09/9999. Now that’s some neat trick, wouldn’cha say?

And, then, here ya’ go: another colleague found a mortgage assignment back-dated four years in order to assign property two years hence. Being no math whiz, would someone please clarify if that is a net back-dating of two years? Perhaps it’s a cumulative formula, adding the 4 years to 2 years, makes the “off dating” 6 years? I dunno! How’s that really work? Sounds like an episode of Beat The Clock!

This is no mere document failure! Please. Call it what it is: foreclosures upon millions of families, evicted from their homes by financial entities with no more rights to take those homes than have you or I. When faced with this fact, the financial entities are creating, fabricating (aka MAKING UP) the “evidence” to prove that they have the right to take a family’s home and throw them with all their worldly possessions into the street! Where are the investors who really put up the money for these home loans? They must be singing the blues to see some interloper foreclose a million times over and keep the proceeds from the post-foreclosure sale. Welcome to America! Waive to the Statue of Liberty on your way in. Breathe in that democratic process air we’ve prided ourselves on for lo these 233 years.

There are millions upon millions of families being evicted onto the streets, many with no alternative housing options. It’s not so easy to find a job in the best of circumstances today. Ever tried to find and/or hold down a job without a fixed address? How ’bout the children, in the middle of their school year? What about the beloved pets of foreclosure, fully members of the newly homeless family? Ever tried to find emergency shelter or housing with a deeply loved animal or two? What of the elderly who do not have the remaining lifespan to recover from the terrible financial and personal blow and may face their remaining “golden years” begging for scarce, dwindling social-net resources. What of the disabled, those of us living in America who, withoutdramatic rescue, are too ill and infirm to ever hope to again live independently under cover.

I may or may not return here to add more…………I’m too distraught to continue writing of my country’s egregious willful complicity in these relentless evictions and property confiscation. My heart and soul start to rupture past the point of repair when I think of how America is treating it’s citizenry, including the weakest of us all; based on a million-fold fraudulent transactions from mortgage origination well past post-foreclosure sale.

Let’s move on in a more wickedly delicious track, shall we?

Two unrelated, remorseful individuals have come forward, whispering to us colleagues with tales of the inner workings and “business practices” of document creation “mills” which may or may not be operating under the direction of foreclosure mill law firm. Permission from the parties has been extracted to publish this post.

Apparently, that same fear, hopelessness, and rage which descend upon one who is evicted from the only home they know to face a bleak and uncertain future……….. Yes, THAT fear, hopelessness and rage! Well, that same emotional response seems to have hit hard on a few past and/or current employees of certain companies which may have been involved in dubious, questionable “business practices”.

A crisis of conscience? Fear of criminal charges? Facing foreclosure themselves? Relative evicted? Family member tenet unexpectedly “trashed out”? Seeing the futility of working out a loan mod? One of the signatories (or employers thereof) who frantically googles the same names over and over and over in a mad search for what is known, what is published?

Perhaps they are somehow, someway involved in the stories and references featured here, here, here, here, here, here, here, here, here, here, here, here,here, here, here, here, here, here, here, or here? Maybe they signed something that was reviewed by a justice-minded judge?

Could it be one or more of these signatories, while working for a “document solutions” company, have been “transferring property and assets” valued in the multi-billions and ostensibly owned by the top financial institutions in the world? Ron Mehig? Bethany Hood? Linda Green? From New House Title? Cheryl Hodge? Korrell Harp? From Law Offices of David Stern? Scott Anderson? Lori Brown? Barbara Hindman? Lori Brown? Whitney K. Cook? Melissa Flanagan? Lillana Morcan? Liquenda Allotey? Christina Trowbridge? Raquel Smith? Branden Kiel? Beth Cottrell? Twanna Thomas? From DocX? Shelly Sheffey? Winona Church? Nancy Reyes? William W. Huffman? Jill Arnold? Shameca Harrison? Kari Marx? Renee Hertzler? Mark Biscof? From LPS? Lorraine Brown?

Who knows? I’m not one to force another to reveal their personal motivations. I enjoy the privacy afforded me by the hard bones of my skull. I often keep my thoughts to myself and extend to others the same respect.

Foreclosure Hamlet
www.Foreclosurehamlet.org

If anyone else has “insider” information to share, just shoot me an email at foreclosurefraud@gmail.com

Who knows, maybe they will go easy on you if you do…

4closureFraud: Florida Foreclosure Defense : Law Offices of Carol C. Asbury