The consumer believes the reality pretty much in the foreclosure issues. It is that anyone can fabricate a fraudulent instrument, use this "copy" and so long as you are the borrower in foreclosure, anyone is entitled to your house but the defendant(s). 18 USC 1344 "Bank Fraud"
As follows are details of the Bogus Assignment of Mortgage file by Buttler & Hosch and Countrywide/Bac Home loans. The plaintiff submitted a false affidavit. The Affidavit of Indebtness by Kathy ** affirmatively states that she is "familiar with the books of account and have examined all books, records, and documents kept by Country Wide concerning the transactions alleged in the complaint." Furthermore, ** averred that the "Appellee or its assigns, is owed $299,531.28." Nevertheless, ** has failed to attach any of the books, records or documents referred to in the affidavit. In addition, ** does not meet the definition of "custodian," which is "a person or institution that has charge or custody (of papers)."
By **'s own admission "[t]he books, records, and documents which [**] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely." Now, if these affidavits signed by these "Certifying Officers" are void, the entire foreclosure case should be a void because they never had the evidence to swear that they are familiar with the amounts due, or are custodian of the note if "the physical documents were deliberately eliminated."; and if they are faxing, scanning and e-mailing these, such fabricated documents doesn't this make this "Wire Fraud".
In 1993, the MERS system was created by several large participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system. The appellant's own conclusions "Mortgage Electronic Registration Systems ("MERS"), which act as the purported mortgagee of record which we all know is not true; as MERS did not loan any money and the borrower(s) do not owe any money to MERS. MERS usually acts in the capacity of the nominee to the mortgage note owner/holder; however, according to the procedural manual produced by MERS' member to the best of the appellant's knowledge, none of these securitized named Trust Entities are MERS Members, thus bifurcating the Mortgage and note, destroying the security and rendering the Mortgage a nullity".
This has become a "Conspiracy against rights" (18 USC 241) for banks to steal private property under the color of law. "Foreclosure" is nothing more than intimidation, threats and coercion of a person to forfeit their private property. This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same). It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.
In other words, MERS - Lost Note, No Assignment = No Foreclosure. With the missing notes/fraudulent assignments of mortgage and the inability to foreclose, as described above, lenders and all parties involved in the mortgage finance orgy rushed to close and sells loans so quickly that they failed to get even the most basic sales/transfer/ownership documentation prepared. This problem with the missing trust assets/promissory notes manifests itself each time MERS and/or the trustees for the bondholders brings a legal action to collect on a debt through foreclosure.
The appellant declares that Buttler & Hosch committed "fraud" when they prepared a "Bogus Assignment of Mortgage". In the case at bar, the Official Records of Dade County, Florida reflect that an Assignment of Mortgage, purporting to transfer the instant Mortgage from MERS to Plaintiff, was recorded on March 5th 2009 ("the assignment"), as the legitimacy of the assignment is very much in question. Quite frankly, it seems clear the assignment was not executed by MERS in the ordinary course of business, as required, but was fraudulently executed by the appellee and Hosch in a fraudulent attempt to "push through" this mortgage foreclosure case.
** realized that is a serious allegation. As such, she invites this court to take a look at Exhibit "A" hereto. Even an initial, cursory review of the assignment calls into question its legitimacy. First, it was not executed until 03/05/2009 (four (4) days before Hosch filed this lawsuit). Second, the assignment was "prepared by" and to be "returned to" Buttler & Hosch. Third, the notary block indicates that the assignment was executed in Dallas County, State of Texas, which is where (as the assignment reflects), Hosch's office is located, not where the assignor conducts business. If an agent of MERS signed this assignment, as required and as purported, it strains logic to understand why its agent would sign in Dallas County, Texas, where the assignee's attorney conducts business, rather than in Virginia, where MERS conducts business.
Finally, but perhaps most troubling, the assignment reflects that it was executed by Jackie **, purportedly as attorney in-fact of MERS. These facts, viewed in conjunction with one another, raise serious questions. For example, if the assignment was a legitimate business transaction, and the plaintiff actually obtained an assignment of the instant note and mortgage from MERS, then why did Hosch, the plaintiff's counsel in this case, prepare the assignment, and sign it as the assignor, four days (4) days before this suit was filed? If this was a legitimate assignment, why was it signed by the plaintiff's own employee rather than an agent of MERS?
The appellant fully believes that it seems that appellee retained Hosch to file this foreclosure case and that, upon being retained, Hosch realized that no Assignment of Mortgage had ever been executed or recorded. As such, Hosch drafted the Assignment and caused Jackie **, one of Hosch's own employees, to sign it (purportedly as Attorney in-fact of MERS), in an attempt to "push through" this mortgage foreclosure case. In other words, it seems that the appellee and Hosch have created, executed, and recorded a fraudulent assignment and are relying on that assignment as the basis for standing to sue RES in this case.
The appellee and Hosch may not agree with these facts. At this point though, the issue is not whether RES can unequivocally prove that the assignment is fraudulent. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless the lawyer reasonably believes that the representation will not adversely affect the lawyer's responsibilities and, relationship with the other client; and each client consults after consultation as provided in Rule 4-1.7(b), R.Reg.Fla.Bar. Hosch may dispute its representation of MERS, but there is no other explanation for why Hosch's own employees prepared the assignment and executed it on behalf of MERS. In other words, if Hosch was not representing MERS in this case, then why did it prepare the Assignment and sign it for MERS?
The problems do not end there. After Hosch represented MERS vis-a-vis the assignment and filed suit against MERS in this case (on behalf of appellee, its other client), Hosch's conflict is not only a textbook violation of Rule 4-1.7. It calls into serious question the fair administration of justice. To illustrate, RES fear that MERS may institute legal proceedings against her in the future. After all, what is to stop MERS from taking the position, at some point in the future, that it is the owner and holder of the note and mortgage? Where would that leave RES? Or the then-owner of the subject property? Or the title insurance company that writes title insurance based on the title that is derived from a foreclosure on the subject property (if a foreclosure is allowed)? To the extent that Hosch disagrees with the facts set forth herein, this Court cannot simply accept Hosch's version of events as true. Rather, in that event, an evidentiary hearing is required.
After all, only in recent years have banks and their lawyers begun drafting assignments in mass quantities in an attempt to "push through" foreclosure suits. Other jurisdictions, however, have begun catching on to these unseemly tactics. One New York court, for example, after discussing problems with an assignment of mortgage similar to those set forth above, ruled that even if [appellee] is able to cure the assignment defect, the appellee's counsel then has to address the conflict of interest that exists with his representation of both the assignor of the instant mortgage, MERS as nominee for HSBC Mortgage, and the assignee of the instant mortgage, HSBC. The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from [the person who signed the assignment] describing his employment history for the past three years.
As if Hosch's conflict of interest is not bad enough, the problems do not end there. The propriety of the assignment is a huge issue in this case. It will be a feature at trial and pre-trial discovery. The obvious problem is that testimony and discovery concerning this assignment is not possible without involving Hosch. After all, Hosch prepared the assignment, executed the assignment, and is a necessary witness regarding its propriety. And this is just part of the fraud.
The appellee is not the "holder in due course" of the note and only an agent or nominee for the true beneficial owners and holders in due course. Without proper evidence transferring beneficial interest to the plaintiff, the plaintiff is not the real party in interest and is not authorized to bring this foreclosure action. The appellee ("lender" was paid in full plus a commission), then the Nominal Lender puts its name on the mortgage note that within 24 hours from closing, the Nominal Lender was required to physically convey the mortgage note to the true lender/investor. The appellant (borrower) makes the monthly payment to the servicer she/he believes is the lender. The appellant (borrower) was tricked into thinking she was a borrower of a loan, when in fact was a seller of mortgage note into an investment trust (SPV).
This investment trust has no right to a Mortgage which is used to facilitate the purchase of a note, fraudulently procured under the guise of a "loan". The "conveyance" of the mortgage note, documents mandate the delivery of the original mortgage note, endorsed in blank, without recourse, with all prior and intervening endorsements showing a complete chain of endorsement for the Originator (Countrywide Home Loans Servicing, L.P, Inc,"Bac Home Loan Servicing L.P. F/K/A/" Country Wide Home Loans) to the person so endorsing to the trustee. In every investigation, their appellant finds there are four parties to the initial transaction, if we exclude the borrower -- the "originator/lender" who sells its right, title and interest to the "purchaser/depositor," who sells to the "trustee" in trust for the benefit of the "certificate-holders.".
Although the named Trust Entity Documentation mandates this chain of endorsements, the appellant is not witnessing these endorsements on any mortgage note. Rather she received an "Assignment of the Mortgage" that purports to convey the note directly to the named plaintiff. The appellant's understanding is a note cannot be assigned; it is endorsed from the present holder/owner of said note and conveyed to the new holder/owner. Instead, the servicer who was once the lender), claiming to the be the plaintiff with all rights title and interest as owner/holder of mortgage note as a third-party, at an arm's length transaction, viewed as true sale.
In the event that the plaintiff does possess and produces the original note bearing once wet-ink signatures of the borrower(s), the note must contain the endorsements of all aforementioned parties, otherwise it is a clear break on the chain of title. The Chain of Title in every securitized document requires an endorsement from the originator/lender to the seller, from seller to the purchaser and from the purchaser to the trustee in trust for the benefit of the certificate holder(s); this is in accord with each one of the documents filed in the Securities and Exchange Commission. Every named Trust Entity filed a Form 15-D with the Securities and Exchange Commission, notifying all parties of its Termination of Registration and suspension of its Duty to File Reports under the Securities and Exchange Act of 1934 (15 U.S.C.A. 77a et seq. 78a et seq.) The trustee foreclosing on a homeowner after filing a Forms 15-D is doing so on behalf of a named Trust-Entity contrary to the Invest Company Act of 1940.
There may be fraud upon the court in that the named appellee may not have "any" interest to the note and that the supposedly lost note is not lost, but may have been intentionally destroyed due to missing assignments on the note which may have made it void and a legal nullity, thus, exploiting key and vital evidence. There is no proof, without the note, that a proper chain of assignments took place and that the line positions were properly perfected. Other unnamed and disclosed real parties in interest may have a claim to the note and be the rightful beneficial owners to the note and must be identified and brought before the court. There is no proof on the authenticity of the document and signatures provided.
It is inconceivable, that in an electronic age were it is a simple matter to place someone's signature or image on a document, that such a valuable instrument would be lost or missing without a nefarious motive. Federal circuit courts have ruled that the only way to prove the perfection of any security (including promissory note) is by actual possession of the security. The appellee is not the true holder of the Trust. They have sold out notes with our social securities and signatures to investors and made millions and billions of dollars. And on top of that, they are putting homeowners on the streets.
