Anyone w/ mortgage, foreclosure problems should read this diary from DKos

[Phoebe Loosinhouse]

This guy is smarter than the average bear, plus he has some great attornies, plus he has the guts, time and money to pursue his case.

This is a combination of the "produce the note" strategy combined with the recent court case that said MERS has no standing to file in foreclosure, combined with the fact that anyone filing in a foreclosure who is NOT the actual noteholder, is in violation of the United States Fair Debt Collection Practices Act. He could be onto something with gigantic ramifications.

http://www.dailykos.com/story/2009/9/23/93055/2130

How I am beating the crap out of Countrywide/MERS
by Hangin in the Highlands
How I am beating the crap out of Countrywide/MERS
Wed Sep 23, 2009 at 08:15:36 AM PDT

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Countrywide's lawsuit was filed in the name of Countrywide as loan servicer, and MERS as mortgagee. I thought it strange that some unknown entity (MERS) was in a fight with me. I started doing research. This is what I found (explained in layman's terms). Countrywide had sold the note to a trust that had been set up by the gurus on Wall St. There were 16,000 notes in the trust owned by god knows how many investors. They of course could do this because for the first time in the history of world finance, these "gurus" had separated the mortgage (collateral) from the note. MERS holds my mortgage which is recorded per law at my county court house. They don't and will never be my, or your, note holder. This separation of the note and mortgage gives Wall St. the ability to "transfer/sell" my note at a click of a mouse thus circumventing the age old process of recording the transfer in my county court house. This slight of the hand is the fraud that created the entire secondary mortgage market and eventually the trouble we are in today. Countrywide is my loan servicer...which means they are nothing but a bookkeeper and collection agency. The holder of my note was yet to be determined.

Doing business in the rough and tumble industry of real estate development necessitates having a crack team of attorneys. My guys don't mess around. After discovery we went into court and asked the judge to make them produce the note. Counsel for Countrywide stated in court that of course Countrywide was the holder of the note and they would be glad to produce the note...six months later we still had nothing. One day my attorney received a call from their counsel. In fact, as I am sure you all have guessed, Countrywide did not hold the note. We asked that the foreclosure lawsuit be dismissed. The judge allowed time for counsel to find the note and the note holder. Several months later, counsel turned up in court with the note and stated that the Bank of New York was the trustee for a trust in which the note was held. The judge allowed for the Bank of New York to be substituted for Countrywide. Countrywide was dismissed in their lawsuit against me however they continue as a defendant in my fraud lawsuit. Here is where it gets real interesting. Under the United States Fair Debt Collection Practices Act, every foreclosure in the United States is required to file a statement with the foreclosure that states that the entity filing the suit is the note holder. Bingo! Someone is in big trouble here. And in my case, they broke this law twice by filing two false foreclosures!

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The "produce the note" strategy is a good first line of defense. It is not the end all though. Eventually they will find most of the notes in the nation's foreclosure crisis. The real sword in this battle is that Countrywide has no standing to file the suit originally, is nothing but a debt collector, and is in violation of Federal Law. The millions of people whose credit has been ruined by these bogus lawsuits have, no doubt, damages stretching into billions of dollars. This is the real leverage here.

[Phoebe Loosinhouse]

1. kick! The comments are fascinating too. nt

[autorank]

2. We're on a roll. What's right with Kansas. k*r

http://foreclosuredefensenationwide.com/?p=159

"The Supreme Court of Kansas has issued a landmark decision which, although decided on a narrow legal issue involving a request by MERS and Sovereign Bank to set aside a default and intervene in a foreclosure action, essentially invalidates all MERS assignments based on the Court’s finding that MERS never had any legal interest to assign the note. The full text of the Court’s opinion and additional commentary may be found by contacting [e-mail].

In the case, which is styled Landmark National Bank v. Kesler, Supreme Court of Kansas No. 98,489 (Opinion released August 28, 2009), MERS and Sovereign Bank sought to overturn lower court rulings that a non-lender is not a “contingency necessary party” (also termed an “indispensable party” in other jurisdictions) in a mortgage foreclosure action, and that due process did not require that a non-lender be allowed to intervene in a mortgage foreclosure action. Although not appealed on the specific ground of MERS’ legal authority to assign mortgages and notes, the Supreme Court of Kansas went to painstaking detail to discuss this alleged authority in connection with MERS’ claim that it had the right to intervene in and be made a party to the foreclosure action, ultimately finding that MERS had no such authority and thus the lower courts properly denied MERS’ and Sovereign’s requests.

The full decision by the Kansas Supreme Court is a fun read:

http://tinyurl.com/lawmnj

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,489
LANDMARK NATIONAL BANK,
Plaintiff/Appellee,
v.
BOYD A. KESLER

[wroberts189]

3. Excellent Post. THX KNR nt

[flvegan]

4. Anyone reading that tripe and believing it is an idiot.

Here's the key phrase for this former investment powerhouse:

"I filed suit for 6 counts of fraud and stopped paying the mortgage (why pay if it was just going down a big black hole with no accounting?). Countrywide filed suit again to foreclose. The war was on..."

Stopped paying the mortgage, didya? Well, that's a breach and (uh oh) an acceleration of the note, regardless you prat.

Whatever, monetary guru. And regarding the recourse that he's sooooo sure to get from Countrywide. Yeah, way to kick ass. In the end, he's paying it all back. YEAH! Kick ass, dude!!!! Rock on!!! Oh, wait...

MERS does have standing to file a foreclosure, as does Countrywide IF they believe they hold the interest (who'd your last check go to, Skippy?). I could file the fucking thing. The client advises the lawyer, the lawyer makes it right. They just don't have standing to take title/judgment without proving up their claim if it's challenged. In those 120-365whatever days, they can get any assignment they need and substitute plaintiff. Assign the bid at sale. Stamp the Note. In the meantime, they've fucked up your title and your credit, and left you behind as roadkill.

The original filing of the lawsuit is to get the Lis Pendens of record. After that, claims are barred you idiot, at least in most judicial states I know. It's a race to the courthouse, but please, beat that chest some more.

And then there's good ole Count II of the Complaint (at least in Florida). The Motion to Re-establish a Lost or Destroyed Note complete with the lender's Lost Note Affidavit. Didn't mention that, did you. No, you didn't. Too busy counting those Countrywide bucks just streaming in. But then, why would they...they stopped paying the mortgage the moment they felt defrauded. Funny how law doesn't exactly support that. Then they sold the property before reality had to set in. Not that it's important when spreading shit around the internets.

You want to know "the real leverage here"? Hire an actual real property attorney. One that knows real property title and foreclosure law. Yes, the "produce the note" ideology is good, and should be leveraged, but should be by proper counsel, not some idiot blathering about shit they know nothing about.

[Phoebe Loosinhouse]

5. Did you read the post? Because you missed the entire point.

Number one, he does have attorneys - he refers to them as a "crack team". A lot of people don't fight this stuff because attorneys are not well versed enough or tell them it's hopeless to fight these large pocket entities.

You failed to note the success he has achieved - Countrywide was DROPPED from the foreclosure suit they instituted and the Bank of New York was substituted as the actual noteholder. The poster himself says that "produce the note" will ultimately turn out to be a delaying tactic most of the time as "most of the notes will be produced". In the replies to the story there is mention that some courts accept the "affidavit for lost note" and others do not. There is also mention that states differ in foreclosure law, which they do.

He's not really fighting the foreclosure. He says that he will have to pay an obscene amount in order to pass clear title to his buyers which will include fees, etc. I think that as many do when they get embroiled in these fights, he felt his money was going down a rathole with no accounting or accountability by the bank. Plus, what do you say to the thousands of people having trouble who are continually told by their banks that they can't be helped until they are actually in arrears?

But, you missed his MAJOR point. Countrywide brought the foreclosure and ruined his credit. His point is that they had NO standing to bring the suit in the first place - "Under the United States Fair Debt Collection Practices Act, every foreclosure in the United States is required to file a statement with the foreclosure that states that the entity filing the suit is the note holder." Countrywide was NOT the note holder, that was proved in the course of his lawsuit and they were dropped. He didn't think that a "servicer" has standing to bring the suit and the court appeared to back that up. That has also just recently been backed up by the Kansas court that ruled that MERS was also just a servicer and had no standing to bring the foreclosure suits.

You seem to disagree with the courts rulings so far when you just boldly assert that both Countrywide and MERS have the right to bring foreclosure. They have ASSERTED that right, but it seems when people fight that assertion, the courts have agreed with them.
I think this is a battleground that is just being opened up.

[Phoebe Loosinhouse]

6. Do you have any response to my reply to your post calling this tripe? Just curious. nt