New ME Scam out of Texas????

[AndyK]

In a sale to a new owner before the note is paid in full would take place in a title company in most states, and the title company will not close (or should not close) without possession of the orginal note for cancellation and a release of the old mortgage to be filed so that the new one can be recorded as the first lien.

Following this one through to the logical conclusion...

I've got a buyer. The've got their mortgage approval. The title company schedules the closing.

Then MY mortgage servicer, which is a tertiary successor to the original mortgage company, tells the title company, "Whoops... we don't have the note... and we don't know who does..."

(In these days when nearly everything else is reduced to an electronic document, I'd think mortgage transfer records could be handled the same way.)

So am I basically screwed? No note, no closing, pissed off buyer backs out and demands his deposit be returned... And now, instead of closing on the new house I planned to buy in Florida, I'm stuck with the vacant old house back in Port Foozle and trying to find a lawyer to sue the mortgage servicer?

Lovely... Just lovely...

Assuming YOU still have a copy of the note:

Make a copy of it and give it to the servicer. Tell them to go back up the chain and have everyone involved properly annotate it as to the transfers. Once completed, re-sign the note.

Alternatively, take legal action to remove the lien and clear your title. No more payments and you can sell the house.

[webhick]

Case number?

This is all public information.
D-1-GN-11-001991

I'm no expert at PACER or anything, but I keep getting an "invalid case number format" error. Tried dropping the "D-" off it and it still won't work.

[Prof]

You should be required to take the UCC courses -- Sales (art. 2), Negotiable Instruments and Bank Transactions (Art. 3 & 4), and Secured Transactions (Art. 9). If you are not required to take them, and Sales is often part of the first year contracts curriculum, MAKE YOURSELF TAKE THEM.

Sales and Property are separate required courses, but not first year. I don't know exactly what's covered. So far, in Contracts I, we've discussed UCC 2, but only 2-204 through 2-207 in detail.

Sales = Art. 2 (Contracts = common law, some Art. 2, some other statutory schemes).

Property will ordinarily not cover Art's 3 & 4, but you should take those. Art. 9, Secured Transactions, is usually required but is also absolutely necessary.

[Prof]

Oldnikki wrote:

Assuming YOU still have a copy of the note:

Make a copy of it and give it to the servicer. Tell them to go back up the chain and have everyone involved properly annotate it as to the transfers. Once completed, re-sign the note.

Alternatively, take legal action to remove the lien and clear your title. No more payments and you can sell the house.

YOUR copy of the note will only show the original payee: Pay to the Order of JOE"S Mortgage Co..

In modern securitization transactions, the note will ordinarily have been transferred (hopefully by endorsement) several times. Finding Joe, who may be out of business, or the intermediate transferees, Moe and Curly Joe, may be impossible.

The servicer could cure the problem by filing a lost or stolen note affidavit and posting a bond.

Depending upon the amounts involved, if the original note cannot be located, don't you get a free house and all of your money back that you paid upon false or fraudulent assertions of ownership (or in the case of a loan servicer, authority to collect for the true owner)?

And, what if the original note shows up on the hands of a third person, and limitations has not run? Endorsements on a copy from original payee to Moe and Curly Joe will not work -- because the copy is not the original note. However, the payor, the person executing the new note, has just executed a new note payable to Joe -- and what if Curly Joe and or Moe were not the intermediate owners and had no interest.

ALL I CAN SAY ABOUT THIS ADVICE IS "DON'T TRY THIS AT HOME, CHILDREN!

As to the original note, if you have been paying the wrong person, if you've paid for 4-6 years to a person not in possession of the note, the note is barred by limitations so no holder can collect, not having received payment for that period, and the person who collected had no right to do so, and can be sued for payments received before limitations ran.

Finally, there is no such thing as an electronic copy of a note; the law does not recognize or provide for such a thing. (Open accounts are different.)

What many of you do not appreciate is that only a person in possession of the original note pursuant to a series of endorsements making that person a holder can collect on or release the debt obligation. Of course, that person's agent can collect and release if that person meets the definition of transferee. (Subject always to the provisions concerning lost, stolen, destroyed notes.)

Art. 3 uses an odd combination of title and possessory concepts. Keep that in mind.

While Art. 3 may not meet the needs of modern commerce, no one has changed the law, which is uniform in all 50 and the District.

[Prof]

Case number?

This is all public information.
D-1-GN-11-001991

I'm no expert at PACER or anything, but I keep getting an "invalid case number format" error. Tried dropping the "D-" off it and it still won't work.

If not on PACER, I would assume that this is a State Court case. If it was filed in Travis County, Texas, where these guys operate, you can look up the case on line, if you want to pay the fees: http://idocket.com/homepage2.htm

I don't care enough to pay the fees.

[Judge Roy Bean]

...
Assuming YOU still have a copy of the note:

Make a copy of it and give it to the servicer. Tell them to go back up the chain and have everyone involved properly annotate it as to the transfers. Once completed, re-sign the note.

In many cases, the servicer is simply acting as the agent for a trustee. That entity is supposed to have access to the note via their record custodian. In foreclosure and bankruptcy cases, what they routinely do is submit an "affidavit of lost note" and/or produce any other documents "memorializing" the alleged transfers/transactions.

This process has come under attack of late, and depending on the source of these documents, some title insurers have balked at issuing policies.

...
Alternatively, take legal action to remove the lien and clear your title. No more payments and you can sell the house.

Ah ... not so fast. Depending on the servicer/trustee and their law firm(s) there will be a fight to the death over clearing the title, including the magical appearance of heretofore "missing" documents with suspect signatures and dates.

[Prof]

What JRB said.

See, e.g., http://www.bankruptcylawnetwork.com/650 ... ptcy-case/ Note, however, the following:

There are indications elsewhere that Ameriquest's record has been less than exemplary (see note 1, above) but the sanction did not purport to rest on any overall pattern, but merely on the claims of ownership of Nosek's mortgage, admittedly repeated but still the same error. Ameriquest's delay in acknowledging that Norwest was the mortgage owner could in certain scenarios have caused prejudice to Nosek in attempting to recover damages for the alleged mishandling of payments; but in fact the award was itself vacated. In any event, the justification for a sanction here rested on deterrence.


If a modest sanction had been imposed to vindicate Rule 9011 and “pour encourager les autres,” no appellate court would fuss, but $250,000 is not reasonable under the present facts. The bankruptcy judge who imposed the sanction and was familiar with the matter is no longer on the bench, precluding a remand to allow the judge who actually presided to re-calibrate the sanction. We modify the sanction award against Ameriquest to $5,000, taking account of legal fees now incurred on two appeals, and otherwise affirm.


It is so ordered.

C.A.1 (Mass.),2010.
In re Nosek

[Prof]

Property will ordinarily not cover Art's 3 & 4, but you should take those. Art. 9, Secured Transactions, is usually required but is also absolutely necessary.

I took Commercial Paper as an elective, which covered articles 3 and 4. Never had a class on article 9, except a 3 hour Bar-Bri lecture on the basics. And they asked a question on the bar exam that was all about articles 3, 4 and 9. I know I did poorly on that question, but I nailed the multi-state and the other essay questions, thankfully.

When I say Art. 9 is essential, along with 3 & 4, I am being parochial. I have been a commercial lawyer since I was licensed -- primarily a bankruptcy lawyer. The UCC, including Art 2 and 2A, has been a large part of my professional life. Certainly, a tax lawyer, or wills and estates lawyer, or criminal lawyer, would be much less "certain" about curriculum choices.

[ArthurWankspittle]

This is all public information.
D-1-GN-11-001991

I'm no expert at PACER or anything, but I keep getting an "invalid case number format" error. Tried dropping the "D-" off it and it still won't work.

If not on PACER, I would assume that this is a State Court case. If it was filed in Travis County, Texas, where these guys operate, you can look up the case on line, if you want to pay the fees: http://idocket.com/homepage2.htm

I don't care enough to pay the fees.

Me neither. Maybe some business that is busy referring its clients to this success could help out? Otherwise we'll have to wait for some friendly Texas lawyer passing by.

[wserra]

OK, I need some help from Texas lawyers. Prof, JRB, Famspear, ashlynne . . . .

I now know the contents of the Travis County District Court file referred to in this thread: D-1-GN-11-001991. It consists of these documents plus 550 pages of affidavits, deeds, assignments, maps and other things. The application is ex parte, and there are no opposition papers. In fact, it appears that the parties that asserted the liens of record were not even notified.

The first two pages are the order that we have previously seen. It refers to "the authority vested in the court under Subchapter J, Chapter 51, Government Code". That Chapter of the Texas Government Code is here. It appears to have two purposes (1) to enable clerks to weed out obviously fraudulent filings on their own authority, and (2) to permit expedited judicial review of liens and judgments which the property owner claims are fraudulent. The definition of "fraudulent" is in 51.901(c), and would not appear to include such things as invalid assignments or (in the words of one of the affidavits in the doc I link to above) "multiple violations of consumer protection laws". The whole point of the statute is clearly to weed out and, if necessary, quickly void Freeman-type liens, not to make complex determinations of parties' rights. As the statute requires, the affidavit contains the mandatory language that "Movant does not request the court to make a finding as to any underlying claim of the parties involved".

Prof noted earlier that, in a non-judicial foreclosure state like Texas, he could see an ex parte application to (for example) stay a foreclosure sale. That makes sense. However, in the context of someone not arguing that the docs are forged, but rather that they present "multiple violations of consumer protection laws", how can this be done ex parte? What effect does this order have, if any? How can a judge go through over 550 pages and make an ex parte determination? Don't the lienholders have due process rights to notice and a hearing?

Thanks.

[Prof]

The alleged order is non-sensical, in that it purports to create findings in a uncontested matter.

I am surprised that a court would enter or even entertain such an order. This is very strange.

[wserra]

I certainly agree, Prof, but that's what's in the court file.

[JamesVincent]

To me it almost looks like they are asking the court to order... nothing? Their asking for the court to order that the lien to not be a lien? but not to disallow a lien? And its done ex parte so the other party is not involved at all so how can there be any actual legal ruling since theres no 2 parties involved? Im kinda confused.

[Judge Roy Bean]

I'm definitely with prof on this one.

In the context of "fixing" a faulty lien it seems there is a process for review without a hearing if one of the parties no longer exists, but it would also seem there is room to scam the court into issuing such an order.

[notorial dissent]

OK, the first thing I see is that this whole thing is apparently based on affidvits by this Gayle Thomas Bigger, which while cute and all basically mean diddly. Unless she happens to be a lawyer or a certified title examiner, her so called affidavit doesn't mean any more than one done by my cat to the same effect. So, other than taking up filing space I don't see what purpose they fulfill, unless the laws are markedly different in TX than they are everywhere else. The fact that she is NOT able to establish a clear chain of title or a real party in interest here means nada. This is all beginning to sound very much like some of the nonsense the Dorean bunch tried at one point. Nice legal sounding documents that have no validity at all.

[Prof]

What bothers Wes and me is that a judge (apparently) actually signed this nonsense. I am at a loss to explain if the order was actually executed; I am curious about the pleadings that initiated the process and how the file number/case number was assigned. Wes, did the "movant" actually file a pleading requesting relief? Against?

[wserra]

Prof, these are the pleadings, such as they are. The remainder of the 565 pages in the file are the "forensic audit report" that these guys filed (about 40 pages - I don't have a copy) and exhibits consisting of hundreds of pages of deeds, indentures, notes, maps and so forth. The relief requested (again, such as it is) is "a judicial determination of the status of the documentation" which the movant claims is "fraudulent" and "should not be accorded lien status". The quotes come from a document in the pdf I linked to, entitled "Motion for Judicial Review . . ."

I simply don't see how this "order" can have any binding effect when procured ex parte. 'Course, that doesn't stop "Endless Fraud Detection Services" from crowing about it as though it does. And charging thousands of dollars for it.

[JamesVincent]

Prof, these are the pleadings, such as they are. The remainder of the 565 pages in the file are the "forensic audit report" that these guys filed (about 40 pages - I don't have a copy) and exhibits consisting of hundreds of pages of deeds, indentures, notes, maps and so forth. The relief requested (again, such as it is) is "a judicial determination of the status of the documentation" which the movant claims is "fraudulent" and "should not be accorded lien status". The quotes come from a document in the pdf I linked to, entitled "Motion for Judicial Review . . ."

I simply don't see how this "order" can have any binding effect when procured ex parte. 'Course, that doesn't stop "Endless Fraud Detection Services" from crowing about it as though it does. And charging thousands of dollars for it.

Wouldnt that kinda be, well, illegal to rule against a party without giving them a chance at defense? Due process and all that nonsense?

[notorial dissent]

I have to agree with Wes and the Prof, the so called motion doesn't really make any sense, and if the rest of the documents are like the affidavits, they are equally worthless as far as having anything to do with the validity of the liens. It looks like one of those check off the options legal forms and I wonder if it wasn't submitted for signature and got signed in place of something else. I can't imagine a judge reading that would go along with it. Just makes no sense.

[wserra]

Wouldnt that kinda be, well, illegal to rule against a party without giving them a chance at defense? Due process and all that nonsense?

The most basic concept of due process requires notice and an opportunity to be heard. That said, the sections of the Texas Government Code to which I linked above provide for limited expedited ex parte review of "fraudulent" liens. The Texas legislature clearly had bogus Freeman-style liens in mind, and the definition of "fraudulent" doesn't fit this situation.

I think a harried judge may have seen a 565-page motion and not looked too hard. I would be far more interested in seeing the results when "Endless Fraud Detection Services" or "Gayle Thomas Bigger" attempts to enforce this order.