ALABAMA Appelate Court Deals Death Blow to Thousands

of Foreclosures
Posted on January 24, 2012 by Neil Garfield
http://livinglies.wordpress.com/2012/01/24/alabama-appelate-courtdeals-death-blow-to-thousands-of-foreclosures/

EDITORS NOTE: Because GMAC Mortgage lacked standing to bring

the ejectment action, the trial court never acquired subject-matter
jurisdiction over the ejectment action. Accordingly, the judgment of the
trial court is void and is hereby vacated. Moreover, because a void
judgment will not support an appeal, we dismiss this appeal. Id.
GMAC Mortgage, like BAC in Sturdivant, had not been assigned the
mortgage before it initiated foreclosure proceedings. Consequently,
under our holding in Sturdivant, GMAC Mortgage lacked authority to
foreclose the mortgage when it initiated the foreclosure proceedings,
With those words tens of thousands of foreclosures, if not millions, are
cast into doubt and, in Alabama arguably the most conservative
state in the nation, thousands of foreclosures can be overturned after
eviction, after the sale at auction because if the creditor did not have
proof of the sale of the loan (including payment, to complete the
transaction, then they couldnt very well initiate any Notice of Default,
Notice of Sale, or submit a credit bid at auction, simply because they
were not the creditor.
This is why homeowners, investors and banks looking to refinance
property that was ever subject to claims of securitization and
foreclosure must have the information contained in our COMBO title
and Securitization report (see above). That house you think you lost or
are in the process of losing or are in the process of buying or are in the
process of refinancing needs to have these questions cleared up before
anyone can proceed.
PATTERSON v. GMAC MORTGAGE, LLC
Alabama Court of Civil Appeals.
Decided January 20, 2012.
On appeal, the Pattersons assert, among other things, that the trial
court erred in determining that the foreclosure was valid. While the
Pattersons appeal was pending, this court delivered its decision in
Sturdivant v. BAC Home Loans, LP, [Ms. 2100245, Dec. 16, 2011] ___
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So. 3d ___ (Ala. Civ. App. 2011). In Sturdivant, BAC Home Loans, LP
(BAC), initiated foreclosure proceedings on the mortgage
encumbering Bessie T. Sturdivants house before the mortgage had
been assigned to BAC. BAC then held a foreclosure sale at which it
purchased Sturdivants house, and the auctioneer executed a
foreclosure deed purporting to convey title to Sturdivants house to
BAC. BAC was assigned the mortgage the same day as the foreclosure
sale. Thereafter, BAC brought an ejectment action against Sturdivant,
claiming that it owned title to her house by virtue of the foreclosure
deed. After the trial court entered a summary judgment in favor of
BAC, Sturdivant appealed to the supreme court, which transferred her
appeal to this court. We held that BAC lacked authority to foreclose the
mortgage because it had not been assigned the mortgage before it
initiated foreclosure proceedings and that, therefore, the foreclosure
and the foreclosure deed were invalid. We further held that, because
the foreclosure and the foreclosure deed were invalid, BAC did not
acquire legal title to Sturdivants house through the foreclosure deed
and thus BAC did not own an interest in the house when it commenced
its ejectment action. We further held that, because BAC did not own
any interest in Sturdivants house when it commenced its ejectment
action, BAC did not have standing to bring that action and,
consequently, the trial court never acquired subject-matter jurisdiction
over the ejectment action. Because BAC did not have standing to bring
its ejectment action and the trial court never acquired jurisdiction over
the ejectment action, we held that the judgment of the trial court was
void, and we vacated that judgment. Moreover, because a void
judgment will not support an appeal, we dismissed the appeal.
In the case now before us, GMAC Mortgage, like BAC in Sturdivant, had
not been assigned the mortgage before it initiated foreclosure
proceedings. Consequently, under our holding in Sturdivant, GMAC
Mortgage lacked authority to foreclose the mortgage when it initiated
the foreclosure proceedings, and, therefore, the foreclosure and the
foreclosure deed upon which GMAC based it ejectment claim are
invalid. Moreover, under our holding in Sturdivant, because GMAC
Mortgage did not own any interest in the house, it lacked standing to
bring its ejectment action against the Pattersons. Because GMAC
Mortgage lacked standing to bring the ejectment action, the trial court
never acquired subject-matter jurisdiction over the ejectment action.
Accordingly, the judgment of the trial court is void and is hereby
vacated. Moreover, because a void judgment will not support an
appeal, we dismiss this appeal. Id.
JUDGMENT VACATED; APPEAL DISMISSED.
Pittman, Thomas, and Moore, JJ., concur.
Thompson, P.J., concurs in the result, with writing.
Bryan, J., dissents, with writing.
THOMPSON, Presiding Judge, concurring in the result.
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40 Responses
1.
johngault, on January 25, 2012 at 11:36 pm said:
A law suit currently underway has alleged that a failure to record
an assignment, being identified as a material matter, violates
205.095.
This should be interesting.
This one I really like:
NRS 205.372 Mortgage lending fraud; penalties; civil action.
1. A person who is a participant in a mortgage lending
transaction and who:
. (e) Files or causes to be filed with a county recorder any
document that the person knows to include a misstatement,
misrepresentation or omission concerning a material fact,*
commits the offense of mortgage lending fraud which is a
category C felony and, upon conviction, shall be punished by
imprisonment in the state prison for a minimum term of not less
than 1 year and a maximum term of not more than 10 years, or
by a fine of not more than $10,000, or by both fine and
imprisonment.
The only question as to this ones application is are these
banksters
participants in a mortgage lending transaction. Mr. G
certainly thinks they are.
*self-assignment is bogus in the first place, plus they allege to
assign the note in all those assignments.
zurenarhh, you might want to look up statement against
interest to see if itll be of any value to you.
2.
johngault, on January 25, 2012 at 11:23 pm said:
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color me a dummy, but I didnt get it that putting ones

autograph on a false instrument ( no right to sign what ones
signing, stating a falsehood in the doc) constitutes forgery in
addtion to what else we can find. I know its a crime to record a
false instrument. Its also a crime to keep false records in private
books (!) That last ones probably relevant to money laundering
and rico.
3.
johngault, on January 25, 2012 at 11:18 pm said:
hey, zurenarrh, how about this (in your state):
NRS 205.090 Forgery of conveyances, negotiable instruments,
stock certificates, wills and other instruments; utterance of
forged instrument.
A person who falsely makes, alters, forges or counterfeits any
record, or other authentic matter of a public nature, or.note..
with the intent to damage or defraud any person, body politic or
corporate, whether the person, body politic or corporate, resides
in or belongs to this State or not, or utters, publishes, passes or
attempts to pass, as true and genuine, any of the above-named
false, altered, forged or counterfeited matters, as above
specified and described, knowing it to be false, altered, forged or
counterfeited with the intent to prejudice, damage or defraud
any person, body politic or corporate, whether the person, body
politic or corporate, resides in this State or not, is guilty of
forgery, and shall be punished for a category D felony as
provided in NRS 193.130. In addition to any other penalty, the
court shall order the person to pay restitution.
or
NRS 205.095 Other acts constituting forgery. Every person who,
with intent to injure or defraud, shall:
1. Make any false entry in any public record or account;
2. Fail to make a true entry of any material matter in any public
record or account; or
3. Forge any letter or written communication or copy or
purported copy thereof,

this parts for carie:

OR send or deliver, or connive at the sending or delivery of any
false or fictitious telegraph message (?) or copy or purported
copy thereof, whereby or wherein the sentiments, opinions,
conduct, character, purpose, property, interests or rights of any
person shall be misrepresented or may be injuriously affected, or
knowing any such LETTER, communication or message or any
copy or purported copy thereof to be false, shall utter or publish
the same or any copy or purported copy thereof as true,
shall be guilty of forgery and be punished as provided in NRS
205.090.
I listed another one under a diff post from today fyi. These guys
are guilty of all kinds of stuff. We just need to put it in the judges
face imo.
4.
carie, on January 25, 2012 at 9:00 am said:
@tony
Unfortunately, that doesnt work in California
5.
johngault, on January 25, 2012 at 12:55 am said:
dang, zurenarhh if the attorney represented he was reping
MERS to the court, but isnt, that strikes me as pretty serious. Its
certainly an ethics violation. I dont even know what youd try
looking that up under. But I do think its no small deal, even if
your court is acting like it is. (Sometimes courts make us make
every argument or allegation ourselves, but dont I recall that
judges have a duty to report unethical conduct themselves to the
bar? Pretty sure I do.) Something like that is probably actionable
itself. Id sure look into it. Besides ethics, the word canons comes
to mind. Oh, I know: used to be called canons of ethics. Now
called code of professional responsibility. Liked the old name
better. But that is prob only for ethics breach and not whatever
else such a gross misrepresentation is. *&^%!@#,! These guys

just do anything, anything at all they want. Its just about

unbelieveable.
6.
tony, on January 25, 2012 at 12:40 am said:
Its funny how the court dismissed this case for lack of subject
matter jurisdiction. Like I said before this is the way to get a case
dismissed. Always fight the court over jurisdiction.
7.
johngault, on January 25, 2012 at 12:36 am said:
IF (when) the S hits the fan and lenders may no longer hide
behind MERS, what do we suppose the owners of MERS will do?
MERS probably doesnt have one stinking asset. It is owned by
Merscorp. Inc, which probably has minimal assets. I think
MERScorps interest extends to the database in its own right, not
just by way of owning MERS. Hmmm I just think MERS knows
this is coming, so am trying to anticipate what thats going to
look like. Wont be able to sue them prob nothing to get and
those good folks prob dont even have any kind of insurance.
Pierce corp veil? Even if we could, the real officers have almost
assuredly made themselves bullet-proof by now. R.K. Arnold
probably got off his yacht in the Bahamas long enough to make a
final deposit a year or so ago. I sure hate to say this, but other
than by criminal charges, MERS may never pay. But get your
suits lined up anyway because the officers will become hard to
find in a hurry (no depos, no nada).
Okay, so moving right along. What else? If and when the S hits
that fan, what will become of MERS and its infamous database?
Will the banksters make a rush for possession? Is a plan to sell it
outright to the banksters already underway, or worse, a done
deal?
That database needs to be commandeered yesterday. Or does it?
Take MERS out of the picture instead and start thinking about
whos going to execute assignments previously done under its
cover? With MERS gone, what all changes? Nothing should
change if laws had been followed, both in practice and
adjudications , but they werent, so what changes? I go for the
commandeer the database yesterday. Thats what happens to
criminal enterprises, right? If all of us filed suit against MERS and
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forced the attorneys to prove they represent MERS and each of

us got one other person to do the same, I bet we could hasten
their adieu. Someone make a template! We get asked to make
phone calls or write or whatever here about this and that, right?
so Ill throw this in: If you do so, please add that you want
MERS database commandeered.
8.
zurenarrh, on January 24, 2012 at 10:20 pm said:
Alsojohngault, you said: And by the way, 1000 to 1, MERS
doesnt even know your bankster is taking action in a court in its
name
They admitted that too.
9.
zurenarrh, on January 24, 2012 at 10:18 pm said:
Thanks for the information, johngault. Thats good stuff!
10.
johngault, on January 24, 2012 at 8:50 pm said:
zurenarhh you may have a pretty big stick over MERS and thus
your bankster. The bankster does not want you going after MERS,
trust me. How big depends on what you come up with on false
documents, pretending to have an interest, etc. that you can find
in your state laws. There are statutes which provide for pretty big
awards, some treble damages if you successfully tie the act done
to the statute. Start threatening to nail MERS (no, not pretender
hiding behind Mers, MERS Roanoke, VA try Sharon
Horstcamp.) for all there is to nail them for and this might be a
new ball game. In the scheme of this big stick issue, a minor
irritation to banksters is if MERS feels like enforcing its
agreement (yeah, right, usually), it can fine the bankster up to
10k per infraction, think it is.
And by the way, 1000 to 1, MERS doesnt even know your
bankster
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is taking action in a court in its name, unless mers has changed

this, too, since its consent order, so the first time they will know
about this admission is when YOU tell them right after some time
spent looking at your state statutes. MERS by any wholecloth
argument in the world has no interest in the note nothing they
purport to do as to the note is based in any contract with you,
which means a law like this might apply imo:
NRS 42.005 Exemplary and punitive damages: In general;
limitations on amount of award; determination in subsequent
proceeding.
1. Except as otherwise provided in NRS 42.007, in an action for
the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud or malice, express or implied,
the plaintiff, in addition to the compensatory damages, may
recover damages for the sake of example and by way of
punishing the defendant. Except as otherwise provided in this
section or by specific statute, an award of exemplary or punitive
damages made pursuant to this section may not exceed:
(a) Three times the amount of compensatory damages awarded
to the plaintiff if the amount of compensatory damages is
$100,000 or more; or
(b) Three hundred thousand dollars if the amount of
compensatory damages awarded to the plaintiff is less than
$100,000..
But what obligation, you say, did MERS have to you that they
breached? Haave to look at, scour your state laws. Youll come up
withh some. Even if this path the recited statute above strikes
out, there are others found in other state laws just have to look
for them. I rattled that off because I had it handy.
11.
johngault, on January 24, 2012 at 7:30 pm said:
Hey, in case anyone was reading my comment on confessing
judgment to an unsecured creditor, it might be that the action
has to be taken in a court by suit and a consent judgment would
not work. I dont know. Be worth it to people with tons of
unsecured debt and no recorded assignment to find out, though,

keeping in mind that there may be other statutes in play which

either do or dont support the need for a suit-to-judgment.
12.
joann, on January 24, 2012 at 7:11 pm said:
johngault
And this bit in the Article 9 regarding the sworn affidavit by the
secured party stating that default has occurred. So who has
recorded the NOD to who and what does it say? Who are you
supposed to call to find out how much you owe? Not the
secured party. Where is the sworn affidavit that a default
occurred to the secured party by the secured party? How
much is owed him today?
13.
carie, on January 24, 2012 at 6:41 pm said:
@jg
I will weigh in later on thatin bit of a fog from medication for
ear infection/strep throat medication
butwanted to shareI just got the original re-recorded Grant
Deed (I recorded it AFTER their Trustees Deed Upon Sale was
recorded), in the mail from the recorders office today.
All I did was change our names to ALL CAPS (lawful). How can
they get title insurance with that in the chain?
14.
iwantmynpv, on January 24, 2012 at 6:35 pm said:
@john gault they cant go after folks for the deficiency or debt
forgiveness because there is none. The seller bank is cashing in
on the swaps and synthetic swap bets. They are not claiming it
as income on their balance sheet at corporate rate. they claim it
as investment income so they do not have to forward to the pool
investors.

They make it as if they are doing the homeowners a favor when

it is to their benefit. My favorite is still; We will limit the pay of
the officers of the TARP loans, until the Fed can ramp up the
legacy program and they can use cheaper facilities to pay back
TARP and start taking homes. Have to find the name of the
banker back in the 30s that said; Get it back get the house
back as quickly as possible.
15.
joann, on January 24, 2012 at 6:34 pm said:
@johngault:
The security agreement (transferring an interest in the note) ? I
dont know what that would be. what?
Two things are required when In some states, a party without a
recorded interest in a mortgage may not enforce the mortgage
non-judicially:
(i)a copy of the security agreement transferring an interest in
the note to the secured party and
(ii)the secured partys sworn affidavit in recordable form stating
that default has occurred and that the secured party is entitled to
enforce the mortgage non judicially
When I first read that I thought it meant the copy of the wet ink
note with all endorsements should be recorded but Ron Ryans
letter to AZ AG posted by Neil (see quotes from this below) says
Neither the Note nor the DOT qualifies as this writing So I
wonder is it the Mortgage Loan Purchase Agreement signed by
Depositor and the Mortgage Loan Purchase Schedule signed by
Depositor???? Or the PSA???? Arent these the The security
agreement? (also intentionally omitted from the SEC files?)
Have no idea.
But the second requirement for the sworn affidavit is important
(without perjury supreme fabrication).
In the letter to the AZ AG posted on livinglies UCC Article 9
Explained Ron Ryan said:

10

It specifically states that there is no security interest unless the

party purchased the Loan from the party that previously owned
it, and that this sale was made pursuant to a special writing that
stated that the purchase of the Note included the security
interest in real estate represented by the deed of trust. THERE IS
A SPECIFIC PROVISION PERTAINING TO THE RECORDING OF
DOCUMENTS NECESSARY TO FORECLOSE IN NONJUDICIAL
FORECLOSURE STATES. The Claimant cannot record the
necessary documents, including the required affidavit, without
perjury, unless it purchased the loan and security interest from
the party that owned it. By the application of legal reasoning, the
Claimant seeking to foreclose must have evidence and a good
faith belief that it has knowledge fo the entire chain of ownership
of the loan all the way back to the loan Originator (Lender in
the DOT). They must be able to provide the information and their
evidence to support their belief if challenged in a Court
proceeding.
It cannot record the security agreement, without supreme
fabrication of documents, unless there was a real purchase
contract with a separate entity from whom it paid value for the
purpose of purchasing the Loan and security interest in the DOT.
And that other party had to be the party that owned the Loan
and security interest at the time of purchase.
Of particular importance to the foreclose non-judicially is the
security agreement referred to in 47-9607(b), governing the
ability to hold a non-judicial foreclosure. By following the
definitions in the above cited provisions, the security
agreement is a writing between the seller and buyer that details
that there was in fact a sale of the Loan that included the DOT
rights. Neither the Note nor the DOT qualifies as this writing.
There must be a separate and special writing. Furthermore, in
there must be an affidavit by the party seeking to foreclosure
non-judicially. In order to execute the Affidavit in 47-9607(b)(2),
Claimant must purchased the Loan for value from the party that
owned it previously, pursuant to 47-9203(b). Both the Security
Agreement and the Affidavit had to have been recorded prior to
posting the Notice of Trustee Sale. The required 47-9607(b)
writings were not recorded. Therefore, Claimant has no right to
foreclosure non-judicially. See U.S. Natl. Bank Assn., Trustee, v.
Ibanez, For ABFC 2005-0PT 1 Trust, ABFC Structured Asset
Securities Pass-Through Certificates, Series 2005-0PT 1, No. SJC
10694, (Mass.S.Ct. 2011)(decided together with another
consolidated case, LaRace)(sometimes referred to herein as
Ibanez).
11

16.
johngault, on January 24, 2012 at 6:21 pm said:
@joann re: your comment at 3:08, see my post re protection of
one class at the expense of another at sourceoftitle. Thats sure
as hey how I see it. No one wants to deal with those tax
consequences to the investors. They may think its not entirely
unfair because on info & belief, the IRS isnt sticking it to the
homeowner for debt relief, either.
But what such a lousy, for lack of better word, view of fairness
ignores is that, for one, homes are being taken in a manner
which is most accurately described as theft. Id rather pay the
tax on debt forgiveness if it ever came to that (which it probably
wouldnt).
17.
johngault, on January 24, 2012 at 6:06 pm said:
@joann re: trusts not mentioned in refis. Youre just full of good
insights. People with title commitments / policies from those days
could tell us. Whos listed as needing to be paid off? See
requirement page of title commitment. And significantly, WHO
issued the reconveyance (which some people refer to as a
release) of the old deed of trust, I do so wonder.
Anonymous, carie, where you hiding? What do your title
documents say? At least one of you never saw a reconveyance
after pay off, as I recall, when you refid.
But, dang, original loan probably showed MERS on dot. But still , I
wonder who executed the reconveyance. MERS (read servicer)?
Those titles are really messed up. You sure cant reconvey the
collateral if you have no interest in the debt it secures. Strikes
me as just plain criminal.
18.
iwantmynpv, on January 24, 2012 at 5:43 pm said:
@ joann, unfortunately AGs are also elected and at the mercy of
the party. Look no further than Newt Gingrich to see who has
been siphoning money off this scheme to defraud for years.

12

They are all one and the same. The judges are smarter than you
think. Most turned a blind eye because they are invested in some
of the companies being investigated. Second, many of the bank
(if you will) attorneys have practiced before these guys for
years. They all swap spit while burning an owl out in CA.
Actually, the Judge does not want to pit a pro se / per se
homeowner against one of their friends, so I found it is best to
get an attorney who bills by the hour to go in and you do the
research.
Dont ever let them withdraw their case without suing the law
firm, servicer, investor, fdic, fannie and freddie, if applicable and
most important file suit against the attorney that was standing
across the table so these guys start to get it too.
19.
E. Tolle, on January 24, 2012 at 5:43 pm said:
@johngault, I spoke (in person) to my AGs deputy about a
recordation filing that is fraudulent, and he simply shrugged his
shoulders. Its against another attorney in town at the mill. I
guess theyre a brotherhood.
20.
Enraged, on January 24, 2012 at 5:26 pm said:
@Johngault,
Your 726 makes a lot of sense and, when you think about it, its
like a reverse HELOC. Inother words, we are using exactly what
the banks did to get money out of us. Except that now, the bank
has to pay back.
I think its brilliant! And it would banks well for having sold
reverse mortgages to unsuspecting elderly who didnt have a
clue what they were in for.
21.
joann, on January 24, 2012 at 5:10 pm said:
13

iwantmynpv
Thanks excellent explanation its just that when you put a
single individual case together to defend your individual home
trying to get the judge to go from a to z you have to start from
what is in front of him and work backward (all the way to who
funded it at origination) and compel the documents (no
assignments or endorsements because no conveyance) and the
accounting money trail from who to who when it is especially
difficult in some states. Not a reason to give up even there
though especially not now. Even in non judicial judges are
starting to get it on appeal it seems.
There are always two conversations going on at the same time.
What is the reality and what part of it do you need to get across
to the judge and when in order to acheive an individual objective.
The Notes never left the Seller Bank, and they never intended
for them to leave the seller bank. They hold the assets on their
books and leverage them to the hilt, through the swaps. they
make the real money on the synthetic swaps. Exactly. Now how
to get that accross to AGs? Mainstream? 99%? Govt? Judges?
Different strokes. I cotinue to think we should try any way we
can. Already have too much salt in the wounds
22.
zurenarrh, on January 24, 2012 at 4:49 pm said:
johngault
I totally feel you. My case is now in its 3rd year and it has been
almost a year since the MSJ was filedstill undecided. The trial
has been postponed once already and is soon going to be
postponed again. All over one of these fraudulent assignments,
which, as I said, MERS has now admitted in no uncertain terms
that it couldnt do what it said it did.
Yet here we arewe shall go on to the end. Resistance is victory.
And I enjoyed your jealousy day post yesterday. I know exactly
what you mean!
23.

14

johngault, on January 24, 2012 at 4:48 pm said:

joann what such buyer or secured creditor?
24.
johngault, on January 24, 2012 at 4:47 pm said:
from joann:
enforce a mortgage non-judicially, the secured party may
record in the office in which the mortgage is recorded
(i)a copy of the security agreement transferring an interest in the
note to the secured party ..
jg: The security agreement (transferring an interest in the
note) ? I dont know what that would be. what?
25.
johngault, on January 24, 2012 at 4:38 pm said:
zurenarhh: if that is true, then surely you of all people would be
interested in your state laws against recordation of a false
instrument and other laws, remedies, and consequences thereto?
I cant just record a doc against your home granting an interest
to myself especially when I tried to have it relied on in any
manner- and then say oops! or psche! it didnt really grant me
any interest. What would you do to me if I recorded such a false
instrument in my favor and you found out I was trying to get a
loan on my alleged interest? Or what if I had gotten a loan on my
alleged interest? What would you do? Let me say oops or
psyche? What if you had to pay an attorney to defend against
that false instrument or even if you had to miss work doing it
yourself or missed a 50th anniversary party and three birthday
parties and a trip to tahiti? What if you hocked your car to
miss work to stay home and deal with it? If one has no interest,
one has no interest and the fact that their name is mentioned
somewhere in the lending world, unlike mine, say, changes
nothing.
26.

15

iwantmynpv, on January 24, 2012 at 4:37 pm said:

You guys miss it entirely. The Notes never left the Seller Bank,
and they never intended for them to leave the seller bank. They
hold the assets on their books and leverage them to the hilt,
through the swaps. they make the real money on the synthetic
swaps.
Forget the PSA, Prospectus and Supplemental Prospectus for one
moment. Yes, they all do clearly indicate that the donor/seller
bank is the only entity that can convey the pooled loans to the
Trust. This what everyone looks past, Delaware and NY Trust law
is explicit about the time in which any assets must be conveyed
to any trust. So, whether is is grandma sschmeigel leaving it for
the rotten greedy grand-kids or he BAC SPV, the law is the same
90 days. That is why the cut off date and closing date for every
pool is 90 days. These guys dont care about a couple loans, that
are frightened that the public demand they pay the taxes at the
alleged trust level since they are no longer REMIC qualified.
Moreover, we talk about originators as if New Century and Option
One originated the loans, these smaller sub-prime banks
operated as agents for the Originators of the trust and did
nothing more than market and underwrite files (however poorly)
for the actual originators. They were paid handsomely but made
nothing in comparison to the next couple banks up the chain.
Remember, the Notes never get conveyed, not even to Freddie or
Fannie. Now, more important,are we going to give Newt Gingrich
a pass on this crap about being a consultant to the former GSE.
This is the proverbial salt in the wound.
27.
johngault, on January 24, 2012 at 4:18 pm said:
I sure dont want to convey bad info. It certainly appears to me
that the
plain language of the statute would include interests received by
way of assignment, not just flowing from the original deed of
trust. I feel pretty good that it does. The reason I do is because
this law and ones like it are the reason lack of notice debtors
in possession and C-11 and C-7 trustees may avoid the lien of a
claimant where its interest is dependant on an assignment and
the assignment has not been recorded (no notice).
16

28.
johngault, on January 24, 2012 at 4:09 pm said:
@joann thats interesting, that 726 in CA. It is saying if you
have an interest in my house but you have not recorded it, and
Joe Brown gets a judgment against me, it is against your interest,
also. Joe did not have to name you in the suit against me or even
tell you about it to get that. The reason is because by your failure
to record your interest, Joe had no Notice of it, and therefore was
not bound to it. By my reading of this statute, Joe doesnt even
have to record his judgment to be ahead of you (and thats
pretty huge itself). Not sure;
people should record. Its all about Notice and this sure as heck
proves it.
No recorded assignment on your home and your other bills killing
you? Cut a deal with your unsecured creditors. Confess a
judgment (or several) with a reduced payoff on the debt and or
easier terms and get that sucker recorded or at least something
which leads to a duty of inquiry by the bankster et al.
Ill take you, credit card holder, from an unsecured creditor on
this 25k I owe you to a secured creditor on 10k at 5% by way of a
judgment, otherwise Im advised bk is my best bet, and by the
way, I need our agreement to include that you will report my
credit as paid as agreed and nothing but when I make these
payments as now agreed (and this should be okay because that
WILL be the new agreement) and it needs to be binding on your
successors and or assigns). They may make you agree to
reconfirm the 10k if you do end up filing bk. Dont know that
thats enforceable, tho. Probably not.
The bankster will have to pay off the 10k to get to his interest in
your home, and that is only after proper recordation of his
interest (the assignment). They wont like that at all because
someone is going to have to actually part witih some money, and
thats not in their m.o. They already have to do this with the IRS
generally, but the IRS has to do certain things when foreclosure
is involved. You can eliminate those certain things by confessing
judgement (with favorable terms)and you might want to hire
someone to do an offer in compromise first. If its enough money,
the bankster may not mess with it at all.
Dont do this without an attorney, but good luck getting one to
get it.
If more attorneys got it, it would be happening a lot just now. You
17

win pay off some debt you actually owe, creditors you would have
bkd but now because of the badly needed reduction in monthly
outlay get some of their money, if bankster forecloses anyway,
they have to pay that now secured debt which is ahead of their
undisclosed interest.
This is great. Check you state. Croak if its not the same because
its all about Notice.
Filing bk will not protect people from the IRS but you can see to it
that when your home is snarfed, your IRS and other debt goes
with it when there is no assignment of the deed of trust because
the bankster will have to pay it. Thats my take on the
consequences of that statute.
Im not an attorney and this is not legal advice. But, dang Jim,
wish wed known this before so many of our homes were snarfed.
29.
joann, on January 24, 2012 at 4:08 pm said:
johngault
Here is a question I wanted to ask you or anyone else that might
have the answer.
Why is it that when a securitized mortgage as almost all were
for the last 10 years or so was refinanced into another
securitized mortgage for the sake of the question assume 2003
or 4 or 5 was refied in 2006 or 7 or 8 the securitized trust is not
mentioned anywhere in the refi theres no assignment no refi
from trust to new lender. The substitution of trustee happens
as always done (Neil gives good reasons for this) in every new
mortgage transaction for the last 10 years or so and in
foreclosures but the trust only gets named in any recorded
documents when there is a foreclosure never in a refi?
30.
joann, on January 24, 2012 at 3:38 pm said:
@johngault:

18

And get your resume ready for a recorders office,also

You read my mind. Massive nationwide job training program for
the unemployed paid for by banks banksters or the 1% as
the case may be. Emergency assistance job corps. Real property
land registers in the heart land were attacked by alien invaders.
31.
johngault, on January 24, 2012 at 3:18 pm said:
And get your resume ready for a recorders office,also.
32.
johngault, on January 24, 2012 at 3:16 pm said:
joann raised a very, in fact hugely significant and dispositive
fact: the assignment to the secn trust of the deed of trust must
come from the Depositor, who is likely not a mers member.
Assignment to not-mers-member triggers mers rule for
assignment of deed of trust to that non-member (Depositor) and
must 86 loan from MERs database = MERS is toast and may not
do anything at all, like authorize a mers-member to assign the
dot in its name to the pretender or even to anyone who actually
is a bona fide noteholder. (If anyone in the act were not a MERS
member, that was the end of MERS).
Assignments under cover of MERS imo are soon to be a thing of
the past. People need to get ready and courts should be taking
resumes for qualified personnel.
The foreseeable upcoming loss of MERS to provide cover is why
the banksters want the dot to follow the note, which it doesnt as
seen in this decision and will soon be found to be the rule of law.
Its already the rule of law; it just hasnt been universally found
yet. (Although if a dot did follow a note, and the note were
owned by the Depositor or another non-member along the way,
MERS even by its own rules, is toast.)
If courts are making decisions against us, is there any possibility
its because we might be skipping some crucial issues, such as
this one?
33.
19

joann, on January 24, 2012 at 3:08 pm said:

@Phred:
Then the judges came along with an inane decision that loans
with deeds of trust dont even HAVE to be recorded.
Ok anyone just trying this out as usual:
First bankster attorneys like to quote these but there is a flip
side
CA Civil Code section 2934 states: Any assignment of a
mortgage and any assignment of the beneficial interest under a
Deed of Trust may be recorded . May being the keyword.
Government Code section 27280 states: (a) Any instrument or
judgment affecting the title to or possession of real property may
be recorded pursuant to this chapter. Again may
However
CA Civil Procedure section 726(c) states:
(c) No person holding a conveyance from or under the mortgagor
of real property , or having a lien thereon, which conveyance or
lien does not appear of record in the proper office at the time of
the commencement of the action need be made a party to the
action, and the judgment therein rendered, are as conclusive
against the person holding the unrecorded conveyance or lien as
if the person had been a party to the action.
If the sale/assignment from the originator/sponsor/seller to the
depositor to the trust was never recorded, the lien that it
represents is no longer in a priority position. The new assignment
now takes priority and voids the prior lien that was never
recorded.
The new lien says nothing about memorializing backdating
the prior sale and assignment from abcd. On its face it is a new
sale: For Value Received and assignment is only now being
made from the originator/purported successor originator directly
to the trust (impossible by the rules of the trust agreements, sec
and irs anyway).
It wipes out the history of the trust owning the mortgage prior to
this new sale purchase for value. It also wipes out any tax
20

benefits they received and the destination of the homeowner

payments from day one is now also in question.
The PSA states (just one sample):
Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all
appropriate public offices for real property records in all the
counties or the comparable jurisdictions in which any Mortgaged
Property is situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by
the Company and at its expense on direction by the Trustee, but
only upon direction accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
The servicer debt collector has just nullified the interest of the
certificateholders by making this bogus assignment and the
Counsel did not uphold the interests of the certificateholders
and instead allowed their interest to be forfeited.
Wondering why there is no fuss from investors about this
thinking there is no more interest anyway that can be forfeited.
Its already been paid off or written off or released or satisfied
ect. and the servicer debt collector is collecting on the full
amount plus penalties, fees, foreclosure mill add ons ect and just
hi jacking the name of the trust so he can get away with it.
34.
johngault, on January 24, 2012 at 3:00 pm said:
@phred could you point me to something in CA which says
assignments may be back-dated, even a case. Maybe they can,
but I wouldnt know why. I would really like to see some more
reference. Its very important for us to understand why the law /
a court says back-dating is okay.
Got anything?
35.
johngault, on January 24, 2012 at 2:44 pm said:

21

@phred assignments of deeds of trust dont have to be

recorded in probably most if not all states. Its found in state
statutes* That is really not news. But its also not news that the
assignments must be recorded to enforce. That is the distinction
rampantly being ignored. What makes it so confusing is that
these rules are not listed together in state statutes (and
pretenders are quick to cite the first one, while the homeowner
isnt even aware of the second). It comes down to Notice of that
interest by way of the assignment.
No notice = no right to enforce.
Further, no notice = interest not protected from other borrower
creditors. Thats a fact and this is found in state statutes, also.
The only ones generally taking advantage of this one are chapter
11 debtors-in-possession and the C-11 trustee under bona fide
purchaser without NOTICE rules ( C-7 trustees may exercise this
right, also). An unrecorded interest may be avoided by other
creditors of the borrower. Thats a fact.
*This stands in conflict with certain actions being undertaken just
now
by some recorders offices. Those recorders want the monies they
feel is due on assignments which were not recorded. Honestly, I
dont know if money is due on the assignment itself or just upon
its recordation. (though to establish a legitimate chain of title,
they must all ultimately be recorded (notice, notice, notice) for
enforcement and they must then pay the recorder for all of
them)
In order for the recorders to prevail if the answer is the money is
due on the assignment, recorded or not, they will have to first
establish that the assignments had to be done, even if not
recorded concurrently, which is where I have always stood. They
must all have been executed. MERS didnt just purport to be the
public-record placeholder to avoid recordation fees, the truth is,
MERS stands for the proposition assignments didnt need to be
done at all, except since its Consent Order, to the end user.
Imo this proposition when taken literally comes from a horrific
misunderstanding of real property laws on the part of MERS and
theoretically its attorneys. Either that, or it was by design to
accomplish that which theyve accomplished. Foreclosure Under
Cover of. Those are really the only two choices.
I suppose it could be found or is just simply true that the deed of
trust itself doesnt have to be recorded, but this is at the very
significant peril of the party who chooses to not record. There is
no Notice of that interest (other than to the guy who granted it)

22

so no protection against other subsequent secured creditors or

unsecured creditors who get and attach judgment liens.
36.
joann, on January 24, 2012 at 12:20 pm said:
@Phred:
Yet in California the laws were changed to allow back-dating of
the effective date of an assignment
Backdated or not the only party who can assign or sell a
mortgage to a trust is the Depositor clearly identified as such
in the PSA (and trust is now identified in the assignment made by
the servicer pretender successor originator and this is not hard to
find on SEC site using the name of the trust). Originator cant
assign anything he sold it and assigned it to the Depositor
(purportedly) years ago and servicer pretender successor
originators cant sell or assign anything either. Depositor would
not sell or assign to a trust years later and would not backdate or
face serious consequences. Even in CA the secured party
(pruportedly now the trust represented by the trustee bank that
has now received an assignment of beneficial interest from the
servicer pretender successor originator) has to record evidence
of their secured interest. It isnt being done. It must be
challenged by the Plaintiff.
From the Draft Report of the PEB on the UCC Rules Applicable to
the Assignment of Mortgage Notes and to the Ownership and
Enforcement of Those Notes and the Mortgages Securing Them:
Article 9 of the UCC provides such a buyer or secured creditor a
mechanism by which it can record its interest in the realty
records in order to conduct a non-judicial foreclosure. UCC
Section 9-607(b) provides that if necessary to enable a secured
party [including the buyer of a mortgage note] to exercisethe
right of [its transferor] to enforce a mortgage non-judicially, the
secured party may record in the office in which the mortgage is
recorded (i)a copy of the security agreement transferring an
interest in the note to the secured party and (ii)the secured
partys sworn affidavit in recordable form stating that default has
occurred and that the secured party is entitled to enforce the
mortgage non judicially

23

37.
chris, on January 24, 2012 at 11:53 am said:
CA. is a state that has little regard for the Constitution or the
Democratic principles we struggle to hold onto. Most of our
elected officials do not hear the people and as PUBLIC SERVANTS
have no regard for what that position actually means to all our
legal citizens. People committing fraud, theft, tax evasion,
forgery, etcin any civilized/decent society would be punished
accordingly.
CA. is rampant with legislative process run amok, while banksters
and illegal squatters, get the benefit of taxpayers hard-earned
money and produce little to nothing in the way of benefits to the
CA. economy. It is a drain on every taxpayer/citizen in this
country and the reality of the situation is, we need to demand
this change, not just request it!
38.
zurenarrh, on January 24, 2012 at 11:25 am said:
Most of us, if not ALL of us, have assignments that were recorded
but DID NOT actually assign anything. I know I doMERS openly
admitted that fact in my case
39.
zurenarrh, on January 24, 2012 at 11:19 am said:
This is the GOOD kind of conservatismthe kind in which the laws
are upheld!
40.
Phred, on January 24, 2012 at 10:30 am said:
Yet in California the laws were changed to allow back-dating of
the effective date of an assignment. Then the judges came
along with an inane decision that loans with deeds of trust dont

24

even HAVE to be recorded. In many ways California has slipped

past Alabama in becoming a third world state.

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