Tag Archives: Foreclosure

Stunning South Carolina Ruling Supports Foreclosed Homeowners

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South Carolina Court Upholds Ruling That Foreclosure Law of U.S. Supreme Court Trumps Everything: Foreclosing Party Must Own Both The Note and The Mortgage to Foreclose.

“The Court determined that “Plaintiff failed to show that it owned the Mortgage at the time the Complaint was filed”, and also noted that the Mortgage shows MERS to be the mortgagee but that “MERS is never mentioned in the Note.”

 

In a stunning ruling from the Ninth Judicial Circuit Court of Common Pleas of Charleston, South Carolina, a Judge has issued a detailed, 4-page written opinion dismissing a foreclosure action filed by Deutsche Bank National Trust Company as the claimed trustee of an IndyMac securitization, holding that DB failed to show that it was the owner and holder of the original Note and Mortgage at the time the Complaint was filed. FDN South Carolina network counsel Bill Sloan, Esq. represents the homeowner and prepared and argued the homeowner’s Motion to Dismiss.

Counsel for DB made the familiar argument that it had possession of the original Note endorsed in blank, that the Note was a negotiable instrument under the UCC, that the Mortgage follows the Note, and that thus DB had established its right to foreclose. The Court disagreed, citing precedent from the United States Supreme Court’s decision in Carpenter v. Longan, 83 U.S. 271, 16 Wall. 271, 21 L.Ed. 313 (1872) which the Court found “clearly supports the notion that the Plaintiff must own the Note and the Mortgage to foreclose on the property (emphasis in the opinion).” The Court determined that “Plaintiff failed to show that it owned the Mortgage at the time the Complaint was filed”, and also noted that the Mortgage shows MERS to be the mortgagee but that “MERS is never mentioned in the Note.”

The Court stated: “It is clear that to have standing in this foreclosure case, Plaintiff must not only be the holder and owner of the original Note, but also the Mortgage as well. Plaintiff’s Complaint in this case fails to meet this criteria. Plaintiff lacks standing to initiate and prosecute the foreclosure, and dismissal pursuant to Rule 17(a) and Rule 12(b)(6) SCRCP is appropriate.”

This ruling is based on foreclosure law from the United States Supreme Court, which trumps any contrary state law which does not require the foreclosing Plaintiff to own both the Note and the Mortgage at the time that the foreclosure Complaint is filed. This ruling demonstrates the essential fallacy in the “UCC, I have the Note, mortgage follows the Note” theory espoused by every attorney for the banks and servicers. What remains to be seen is whether the judiciary handling foreclosure cases will follow the law of the U.S. Supreme Court or not.

A copy of the Order is available upon e-mail request.

http://www.ForeclosureDefenseNationwide.com

Published by Jeff Barnes, Esq., September 20, 2013

http://i-uv.com/portfolio/stunning-south-carolina-ruling-supports-foreclosed-homeowners/

 

 

 

 

BOMBSHELL- The Secret Lawsuit Has Finally Been Revealed- Your Mortgage Documents Are Fake (And Your Foreclosure Is a Fraud!)

http://mattweidnerlaw.com/blog/2013/08/bombshell-the-secret-lawsuit-has-finally-been-revealed-your-mortgage-documents-are-fake-and-your-foreclosure-is-a-fraud

The enormity of the crimes that have been committed against defendants in foreclosure cases is easy for much of society to ignore.  Those who are defendants in foreclosure cases are, after all, those who deserve to suffer the consequences of failed generations of economic policy.  Those who are defendants in foreclosure cases are, after all, the people that deserve scorn and disgust and contempt because they chose to live in a country that gave away their jobs, their industry, their future.

But far worse than the crimes and the consequences for the millions of Americans that are victims of the largest organized crime spree in the history of mankind is the fact that in order to accomplish this crime spree the criminals and their counterparts destroyed our nation’s civil legal system.

Make no mistake, the “foreclosure crisis” as it has played out, and as it continues to play out all across this country is a complex and interconnected series of state sponsored crimes.  The crimes began when the loans were made, continued when the loans were sold to investors, continued when mortgage payments were loaded onto the international PONZI scheme that is mortgage securitization, then really ramped up when the criminals continued their crime sprees in state and federal courts all across this country.

The crime spree called foreclosure that continues to play out in homes and neighborhoods all across this country could not have occurred if our courts did not agree to become partners in the crime spree.

Our nation’s court system is in fact desecrated, destroyed, a crumbled heap of what it once was.  We were a nation of laws.  America was a nation that was governed, ultimately, by judges and a legal system that served a larger societal and historical purpose.  At one point in time, judges and our nation’s court system recognized that the function of the court system was to protect The People and The Nation from the out of control evil and corporate interests that brought us all robo signing and foreclosure fraud and LIBOR rigging and HSBC money laundering and everything that is our national banking system.

To this day, banks foreclose on borrowers using fraudulent mortgage assignments, a legacy of failing to prosecute this conduct and instead letting banks pay a fine to settle it. This disappoints Szymoniak, who told Salon the owner of these loans is now essentially “whoever lies the most convincingly and whoever gets the benefit of doubt from the judge.

Allegations from today’s lawsuit:

The defendants concealed that the notes and the assignments were never delivered to the MBS trusts and disseminated false and misleading statements to the investors, including the U.S. government and the States of California, Delaware, Florida, Hawaii, Illinois, Indiana, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Virginia, District of Columbia, the City of Chicago and the City of New York.

Relator conducted her own investigations in furtherance of a False Claims Act qui tam action and found that the Defendants pursued and continue to pursue foreclosure actions using false and fabricated documents, particularly mortgage assignments. The Defendants used robo-signers who signed thousands of documents each week with no review nor any knowledge of their contents and created forged mortgage assignments using fraudulent titles in order to proceed with foreclosures. The Defendants used these fraudulent mortgage assignments to conceal that over 1400 MBS trusts, each with mortgages valued at over $1 billion, are missing critical documents, namely, the mortgage assignments that were required to have been delivered to the trusts at the inception of the trust. Without lawfully executed mortgage assignments, the value of the mortgages and notes held by the trusts is impaired because effective assignments are necessary for the trust to foreclose on its assets in the event of mortgage defaults and because the trusts do not hold good title to the loans and mortgages that investors have been told secure the notes.

The fraud carried out by the Defendants in this case includes, inter alia: Mortgage assignments with forged signatures of the individuals signing on behalf of the grantors, and forged signatures of the witnesses and the notaries;

  • Mortgage assignments with signatures of individuals signing as corporate officers for banks and mortgage companies that never employed them;
  • Mortgage assignments prepared and signed by individuals as corporate officers of mortgage companies that had been dissolved by bankruptcy years prior to the assignment;
  • Mortgage assignments prepared with purported effective dates unrelated to the date of any actual or attempted transfer (and in the case of trusts, years after the closing date of the trusts);
  • Mortgage assignments prepared on behalf of grantors who had never themselves acquired ownership of the mortgages and notes by a valid transfer, including numerous such assignments where the grantor was identified as “Bogus Assignee for Intervening Assignments;” and
  • Mortgage assignments notarized by notaries who never witnessed the signatures that they notarized.

The MBS Trusts and their trustees, depositors and servicing companies further misrepresented to the public the assets of the Trusts and issued false statements in their prospectuses and certifications of compliance.