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KABOOM | NY Appellate Division | Bank of NY v Silverberg - MERS Does NOT Have The Right to Foreclose on a Mortgage in Default or Assign That Right to Anyone Else
- 4closureFraud's blog
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- Jun 13, 2011 1:04 PM
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no worries mista banksta send it the uk they will sharp reject this nonsense on appeal... UK parliament brought out a thorough piece of legislation called the "consumer credit act"... this on its own would have stopped the current crises... if it was't for the wigs that constantly ignored it in court calling it's author a silly lefty... Francis Bennion(author) was turning up in courts at 80 year old trying to get the wigs(judges) to obey the law... read the "john story" story... Bennion saw all these excesses coming and those in the judiciary,banking and government who were given a green light to ignore the CCA... can now treflect on their acievements.......
Thanks to Top, Big and Tide. In that one match the tangle of title yarn was made most clear to me. Keep calm and carry on! All the best to you all.
The key term in this action is "bifurcate". This is the act that essentially killed the deal and broke the trust. This was done by the lender when both instruments were in their control. Once the soul and body were separated, death occurred. Every home buyer and home owner has suffered the consequences of this action in the massive reduction of home values since this practice has been brought to light.
Treble damages and a clear title to the aggrieved party would be a nice start for the civil charges. But these should pale in comparison to the criminal charges that should be executed on those that have successfully ground the US and virtually the world's economies into the ground.o.
I wonder if any of the Muppets on stage tonight in NH will mention this?
whoa! That is a clown face in the mushroom cloud!
I didn't even get a hat tip from 4closurefraud.org for tipping him off on this one. A friend is a high-up in NY and the case crossed his desk.
No matter. I just wanted the word out. Release the hounds!
the power of peer networking. Thank you FreeNewEnergy.
Good catch! I'll give you a tip - stay out of dark alleys - sorry bad joke.
If you like reading things like that you might be interested in U.S. Magistrate Martin's "recommendation and opinion" I linked above. It's the Magistrate's belief that anything that takes place after closing is none of the alleged borrower's business. (boo-hiss)
Maybe it's just me but I think the Veal opinion seems to contradict (cancel) Martin's exactly. Martin's opinion is super-flawed because that's the whole gig. That's why they (the servicers mostly) don't want anyone to know that multiple claims have been made on the same transaction (that's their "trade secret" or "proprietary information"). With the NY FED investigation and Veal popping I think the Ponzi is starting to unravel.
Most if not all of these "investors" had insurance and they can't collect more than once. I think they messed up their paperwork and did just that.
Attention Tide Fighter
Ok as I understand then whoever has physical possession of the note may file for foreclosure.
In order for one person to claim the note he would have to pay off the other people who have an interest in the note, which was split up in various tranches among hundreds of investors most likely.
No one will ever do that (pay off all the other people who have a partial interest in the note) because the property gained in foreclosure would not be worth the full price of the note.
It appears unless this is overturned that the person now has a free house. Time to file a quit claim. Any individual investor may only suffer a few thousand dollar loss, so it is not worth it to try to aggregate all the claims to the note into one claimant in order to foreclose.
It appears unless this is overturned that the person now has a free house. Time to file a quit claim.
Yes, agree with your summation fully.
I imagine TideFighter's gone...so I wouldn't hold out much hope. I pretty much had the same question for him but no answer so I think we've got it. It's not as simple as "having MERS assign it back to the originating lender so that they can foreclose". MERS is now a ghost, per the court. And yes, I find it hard to believe that the "current" lender will be able to have the originating lender to come back in to the mess unless originator gets to pay only 10-cents on the dollar for the debt...in which case the "current" foreclosing bank would probably be liable for the loss to the MBS investors.
these contracts had fairly standard putback clauses that if a lender took a specific mortgage out of the MBS then the lender had to pay the full value of the note or place another mortage into the MBS of similar value.
countryside is no longer in the business of lending as I understand it, so they can't trade out mortages.
The originating bank will never take a mortgage out of the MBS in order to foreclose, because the originating bank takes a big hit, most likely by having to purchase the note out of the MBS>
Therefore unless this is overturned it looks like a free house for those dwelling within it. No originating bank is going to commit hari kari by voluntarily pulling out a specific mortgage from the MBS. Unless fraud is proven the originating bank has no obligation to buy back a loan.
As a buddy of mine from the South used to say, "There you have it"
When the original note was chopped and sold, the sales document for each piece could have contained a blurb that named the selling entity as an agent of the buyer for foreclosure purposes. If that is the case, the selling entity/bank who loaned the original monies (assuming they are the same) could simply begin foreclosure proceedings now that the courts have ruled that MERS does not have standing to do this. They would not need to buy the note back from the thousand people they sold it to, and they would not lose money one the deal (other than foreclosure costs that might not be recouped). The originating entity would simply be foreclosing on behalf of all the buyers that granted it agency to forclose.
Well, not to be disrespectful, but a mortgage assignment is pretty simple procedure (banks really screwed this up though). When you assign a mortgage, you give the ownership of that debt to the buyer for an agreed amount of money. The buyer wouldn't want the seller to still have the right to foreclose...that makes no sense. The seller could sell the debt AND foreclose...what, and then, by their good graces, give the buyers the proceeds from the foreclosure sale? Banks are seriously squeezed here if, and only if, borrowers fight. Either the borrowers win or the MBS holders win. Banks were incredibly stupid with the way that they securitized the debts through the MERS process.
The buyer wouldn't want the seller to still have the right to foreclose...that makes no sense.
Yes it does, in terms of agency. An agent can act on behalf of the principal only in a narrowly-defined way. The agent could not foreclose arbitrarily.
It seems that you are discussing assignment. I'm discussing agency. Two different animals. Assignment involves transferring ownership. Agency involves giving an entity the legal right to act as though they were me in narrowly-defined circumstances.
I could buy a mortgage note from a bank and make them my agent for the foreclosure process - because they know how to do it and I don't. If the homeowner defaults such that foreclosure is appropriate, the bank would act as though they were me and foreclose. No doubt there would be a fee for this, but other than that, the bank receives no money. They are collecting the money at my direction and on my behalf.
Now, multiply me by a thousand (using my example from above). If all thousand who bought a piece of this single mortgage note legally made the bank their agent, the agent can foreclose on behalf of all of them.
Just one little flaw nullifying your premise: The note & mortgage were never legally (dejure) transferred to the cuurent defacto owner(s) of the debt, and way-after-the-fact assignments aren't being recognized either.
Exactly. The rule of assignment is that you cannot assign any more right in an instrument than you have... if you're not the holder and you can't determine who is without a declaratory action by a court (for sure anyway), then you're stuck in limbo.
In order to clear up the chain of assignment, literally the entire chain of assignment will need to be made parties to an action and have a court determine where the assignment(s) went awry. The person/entity receiving the last good assignment is the real holder.
Even if the entire chain of assignment were to agree amongst themselves who the holder is and who is entitled to the proceeds of a foreclosure, they still could not guarantee a court would agree with their determination (and thus whoever they choose could lack standing). Ultimately, I think they'll have to make an agreement as to how to split the proceeds, but I suspect the counter interests involved (especially for those who got rid of the toxic crap "fair and square") are going to err... will also require court intervention.
To Richard's example, if you had an agency agreement with the entire chain of assignment, you might be able to get away with it... but a court still will not be able to determine who is entitled to the proceeds of sale (who is the real party in interest/holder) without diving into the chain of assignment... in the end, this MUST be determined so as to assess the legal rights and remedies of the other assignment parties.
Practically speaking, if a defendant poses the easier route of simply denying the foreclosure because of failure to be able to prove standing, they're gonna go for it... hey judge, we can have a 1 hour trial or a 2 week trial... and it's fishing season, whatcha wanna do?
This is why I believe Tidefighter is wrong. He was such a troll about it too. Saying everyone else was stupid.
The originating bank does not own the loan and has no obligation to take back a non performing loan unless fraud is proven. The loss will be born by the investors in the MBS that owns the loan. Even if one investor could find all the others and legally purchase the loan out of the MBS (and somehow get a clean title) that investor would lose even more money by purchasing the loan at full price and then foreclosing on a home that has lost significant value.
In many, but not all cases, a free house is the result, if this is upheld on appeal. The people who get a free house are those whose loans have been securitized and now have a loan to value ratio of greater than 1.
A free house is not necessarily a result... I think more accurately, it would be a significantly longer period of squatting is the result. There will be a solution developed to work through the issue... the system has natural safeguards for this sort of thing and ultimately I think the banks will eat the risk of securities putbacks to try their hands at the foreclosure weenie. I don't think they have any choice (although they will delay til the cows come home).
What a lot of people are missing is the tax sale side. If these people cant pay their mortgages, they're definitely not paying their property taxes... the time it takes to certify property from a county to the state, to build the auction catalog, and get around to auctioning off the properties can take upwards of 5 years... as a result, the vintage of delinquent properties now being sold is (at least around here) 2006. The tidal (title?) wave is approaching... and the banks are often times lax in understanding and adequately safeguarding themselves from tax sales (the lienholder of record is the only one who will get notice from the state; if this was assigned... look out below). Once the statutory period rolls around, it's name John Does 1-100, file a quiet title action, publish notice in a newspaper of general circulation and get a warning order put out... and rock and roll. It'll take a couple years to clear up title, but it's coming. And states need that cash (no respite for the banks).
Lets watch it be reversed in the Court of Appeals
Sorry for the link in a link but includes commentary and a lengthy opinion and recommendation on MERS and securitization in general...
It's all good!
The bankers and their dapper attorneys will be carrying Magistrate Martin in a chariot feeding him grapes...
This is a different scenario. You can't look at precedent, THIS IS THE NEW PRECEDENT.
Who else gets the house if not the people living in it? The gov't? Other tbtf's? Demolished? Those answers are far worse than the peope living in it that were defrauded.
The people that are dreaming are the ones saying people who didn't sign a valid document have to pay. Meanwhile with no ownership who should have this house? This isn't a lost note, this is a never had a note. Big difference. The banks NEVER OWNED THE PROPERTY, thus they have no right to a 'lost note' affidavit. edit: the note was willfully destroyed, there is no original note for the property to be rewound to. That is if it wasn't directly inputed into the MERS process as soon as signatures to the bank's satisfaction were given.
People STILL DO have their head up their asses. Too much propoganda over the years means the people can't get a benefit from others' mistakes? There is no one who should have the property more than the people living in it, otherwise you are giving THEM a free house.
SO since there are millions of free houses, who should get them? The people living in them or the banks or the gov't or demolished? Those are basically your choices. Somone IS getting them for free. The only question is....who. The correct thing to do is to give it those actually LIVING in them, or were LIVING in them.
No other way around it. But when our economy becomes fraud, the imalances get big and hard to correct. Who should you blame about free houses if it's so horrible? Blame the big banks who wrote the loans and created this process to line THEIR pockets.
No one deserves these houses more than those living in it.
You are overthinking things. Then making mistakes saying we should take these houses away because it doesn't meet some other idiot arbitrary idea? Man, wake up.
The houses are already BUILT. The money was ALREADY created out of thin air. Everything is in the PAST. The only damage being done, is trying to KEEP it status quo. You know like bailing out the banks instead of taking these things off the balance sheet, as well as all derivative products based on them. In the end, the banks won't have any of these MERS loans on either the asset or liability side in any fashion. Thus why will we bail them out on this account? We won't.
Glass-Steagall, and yes these people get to keep the house. You don't need to find another case to fortell the future because we are at the forefront of the new future where this has actually occurred. It hadn't in the past, thus there is no precedent.
It's a little like saying America could never be free in 1775 because there was never a precedent in a country doing what we did. It's a piss poor argument. It's called sophistry.
Even if somehow we said, pay 100 a month, what's a 100 a month if the money supply drops by 90 percent? There is a huge variation of where we can go, hyperinflation/hyperdeflation....Dow 300,000....Dow 300. Plus since they aren't in a valid contract, how can you force anyone to sign a contract? There was no legal loan. Banks engaged in outright fraud, and lots of people got rich off it fraudulently. They should be ashamed of what they did, but that said, they took the money and ran, and should be content with that. The pump and dump is over. At least this version. The rest ain't too far behind now.
I have to add here that during the credit boom, folks got really greedy and really stupid. Then when the MBS paper milling machine stopped, you saw all sorts of 'hardship'. Attached are 36 pages of actual "Hardship Letters" that are required by the banks to accept a reduced payoff or "short sale".
These are nothing more than sheeple attempting to blame someone else. Nobody put a gun to their head to sign the documents. It was pure greed. No different than the banksters, execept for the fact that you're now dealing with the lowest common demominator. Retail investors looking to become the next Trump.
Popular Mortgage Servicing Inc.
Dear Sir or Madam:
I Jermaine S. McDougal, inform you with great regret, that I am financially unable to
maintain my obligations for the note on the property at 2700 N. 77th St. KC KS 66109.
My break up with my fiancé has caused a serious financial hardship for me. When I
Refinanced in 2005 they had me do a blended loan that made the payment $300.00 higher
than what it was prior. My ex-fiancé was paying half the mortgage and all the bills. She
ran up my credit cards at the boats gambling, but I did not find out until they were all
maxed out. Please except the offer because I do not have any equity to list the property
with a realtor and this is the only person to offer to purchase the property.
They are talking lay-offs at the Ford plant here in Kansas City where I work this worries
me because I am low man on the seniority pole. I will be moving out as soon as I find an
apartment looking to move in with a friend to help with bills. I have been told by my co-
workers to file for bankruptcy but I do not want to do it!! Please, Please help by
accepting this offer.
Thank You
Jermaine S. McDougal
Loan# 048348194
Countrywide Home Loans
P.O. Box 650070
Dallas, TX 66102
Dear Sir or Madam,
I am asking for your help as you hold the note to my old property.
Recent events have caused my financial situation to go south rapidly.
We bought the house with the dream to raise our children in the American dream
a small modest single family home. We thought we realized that dream when we saw
the house at 705 South 74th Terrace. The house needed a little T.L.C. but I am good with
my hands. I started to tear into the repairs everything was going well… That us up to
December of last year when just 2 days before Christmas my wife of many years said
she wanted a divorce, and promptly moved my stuff out on the curb.
I did not know but in the State of Kansas a spouse can request control of the marital
Property until the divorce is settled. The judge quarted that to my ex. I did not even know she was filing until the day she told me that.
She wanted a divorce and that the lawyer would make me move out. I thought she
was bluffing but found out the next day Christmas Eve Day that she was not. I moved
into an apartment with a friend. Even today if I could I would pay you everything that
I OWE YOU. I tried to sell the house F.S.B.O but the repairs I started and not being
able to get back in made that impossible. When I talked to realtors none of them wanted
to list a house that would not bring what is owed in it.
I finally called those we buy house ads you see in the local papers they told they could
only pay me 60 to 65 thousand which would not cover the note.
My attorney handling the divorce told me I could file Bankruptcy. I didn't want to do
That and was ready to just give up when this buyer (Chris Tarman) told me you might
Consider a Short Sale. Please work with him. He is the only person to show interest in
the house.
Thank You.
Joel Crider
Juanita Leavell
631 Pepperwood Lane
Stone Mountain, GA 30087
October 16, 2006
Washington Mutual
Default Alternative
P.O. Box 2439
Chatsworth, CA 91313-9717
Account: 0695608406
Address: 3700 Newhalem St. S.W., Atlanta, GA 30331
Dear Sir or Madam:
I am writing to mask for your help. Circumstances beyond my control recently
caused my life to change. A year ago when I bought my dream home my husband and I
were happy to be living in Atlanta, Georgia and everything was going well. In January,
2006, the marriage started to unravel and my husband and I separated. Immediately, in
January, I put the house on the market for sell because my husband refused financial
assistance. I also immediately I filed for divorce.
The bottom line is that I cannot continue to make payment on my house in
Atlanta, GA. I have tried many different things to sell my house and pay off the money
that I borrowed from you. The house has been listed since January 17, 2006 and all the
offers received were below payoff of my loan.
I was on my way to file bankruptcy when fortunately this buyer said that you
might consider a "Short Sale" or reduced payoff. Please, please work with this buyer,
they are the only ones who have given me hope and any reason not to file bankruptcy.
I am a responsible person who has always paid my bills and I am afraid of what will happen if this does not work.
Your consideration is greatly appreciated.
Juanita Leavell
To Whom It May Concern,
I purchased my home a year and a half ago. I received a loan from your
company. The person who sold me the home, unfortunately turned out to have
not been as helpful as I believed. She arranged the loans for me. It ended up that I
have 2 loans, which has left me with higher payments than I would have had with
one loan and higher interest. Both of my loans are expected to increase interest in
June. This forced me into putting my house up for sale a few months ago. A
couple of weeks ago I discovered that my realtor had taken my house off the
market without telling me and only after showing my house once. Therefore, it
was not advertised to other real estate companies. I will not even make enough
off the house to move.
I am in desperate need of help! I will not even make enough off the house to
move, if I sell it. I have been unemployed at times since I bought the house. And
am now at a job at a lower rate. I am having to put bills on credit cards just to
make my house payment. The climbing interest rate has continually made it more
and more difficult to keep up with my payments. I am now having to consider
selling to an investor or going into pre-foreclosure. This will not benefit you or
me. Is it at all possible for you to help me? Would you be willing to lower my
interest, consolidate my two loans, or give me a loan that is not an interest onlu
variable rate? Or is there any way at all that we can make some sort of a
arrangement until my house sells, at which point you will receive your money. I
need to make arrangements before June when interest goes up on both of my
I would really appreciate your help and quick response. You may contact me by
phone at (816) 255-8936.
May Kening
Wilshire Credit Corporation
P.O. Box 8517
Portland, OR 97207-8517 August 24, 2006
Re: Loan NO. 1578262
To Whom It May Concern:
In March of 2006 I accepted a job in Winter Park, Florida. Relocation help was
not part of the offer. We had to pay for the move and living separately ourselves. My
wide, D. Lynne stayed in Kansas with the kids to finish the school year out and sell the
house. D. Lynne wasn't employed outside the home.
The house was put on the market in March. We had to make improvements on
the house to prepare for the sale. Items that we did to prepare: paint interior, landscape,
termite/bug prevention, new dishwasher, new stove and microwave, custom blinds, deck
treatment, new sump pump, fenced backyard and alarm system. We did everything we
could to make the house shine. We kept the utilities on until August 6th and the realtor
was trying to sell until that point. The contract ended and we couldn't afford to keep the
utilities on. During this process we only had once income.
We have a lot of debt and we weren't able to keep up with the living cost of two
places and our debt. We used our savings up and we borrowed $3800 against our
retirement fund in May. We then had to borrow from family $7000 to move my family
from Kansas to Florida so we could be together in one house. We sold personal items to
pay back some of our debts. We have no other means to pay the debt of the Kansas
house. We sold everything we could sell. We used "For Sale By Owner" web site and
we listed with realtors.
We were told by the realtors that there were too many houses on the market at this
time. We lowered the house to our loan value. We still couldn't sell it.
We are sunk financially and we are hoping we can receive help from you to get
the house sold. We will be paying for years to get rid of the debt we have accrued due to
this house not selling.
H. Brad Hobson
Ronna M. Harlow
7539 Garnett, #8
Shawnee, KS 66214
August 10, 2006
Countrywide Mortgage HELOC
Attention: Customer Service
To Whom It May Concern:
I am writing to ask for your help. Circumstances beyond my control in the last few years
have caused my life to change dramatically. At the beginning of 2003, the company for
which I had worked for six years went out of business and I have struggled financially
ever since. Unable to find a comparable position, and using credit cards to make ends
meet, I was finally resigned to file bankruptcy last summer; that bankruptcy was
discharged in November of 2005. I am a single parent of a teenage son, without the
benefit of child support.
I have tried to sell my house in order to pay off my mortgage; however, I have been told
by real estate agents that my house requires work to market it and I owe more than the
house is worth in its current condition. Even several investors have told me they could
not buy my house because of the lack of equity and the amount of work required to fix it
It needs extensive landscaping work, tree trimming, roof, leaks, electrical box looks
funny with wires hanging out, porch is falling down, hole in back kitchen wall, foundation cracked in several spots, snakes are getting in there, large crater in backyard from old swimming pool, all rooms and outside need painting, roof is in bad shape, bathrooms need work, carpet is really bad, and driveway is cracked and lifting by stairs
and front pad, someone told me the electrical where it comes ion the house isn't to code either.
I decided I was going to have to let my house go into foreclosure; but then I ran across
Midwest Invest and they have told me that you may consider a "Short Sale" or a reduced
payoff. I would really appreciate if you would work with this group.
I would like to avoid a foreclosure and they are the only ones who have given me any
hope for my situation. Having the bankruptcy on my credit record is bad enough; I have
always been a responsible person and always paid my bills on time, but having a
foreclosure in addition to the bankruptcy would damage my credit even further. At this
point it is all I can do to just meet the basic needs for my Son and I, with not spousal
support to assist me and being unemployed again.
I would greatly appreciate your consideration in this matter.
Ronna Harlow
Tammy E. Simpson
217 W Martin St.
Edgerton, KS 66021
August 22, 2006
EMC Mortgage Corp.
909 Hidden Ridge Dr. Suite 220
Irving, TX 75038
Dear Sir or Madam,
I am writing to ask you for help. Circumstances beyond my control recently caused
my life to change. Almost two years ago my children and I were very happy living
in Edgerton. However, about 8 months ago October 05 my significant other ditched
(left) me with paying the note on my own. I have struggled to try and keep up with
the mortgage payment. I am not able to pay it promptly or at all many of the months.
It has been hard to even afford to buy gas for my car just to get back and forth to
work and I have run out of gas many times to and from work. I can often not even
afford to buy food and I am left begging just to have food in my home. I moved to
Edgerton to give my children a better education but have failed them miserably.
I have tried filing bankruptcy to lower other bills but this was also ineffective. I still
fall terribly short on making the mortgage payment. I have been working with you
to try to keep the house and have struggled to make the payments by borrowing from
everyone I know.
My resources have run out and I am left owing family and friends money. I cannot
pay them back.
I have talked with real estate agents who are unable to help due to the lack of equity
in the house and the needs for repair I am unable to keep up with.
I was on my way to simply giving up and turning the house back over to you when I
met and investor that said you might consider a "Short Sale" or reduced payoff. I beg
you to please consider working with the buyer. Mr. Talman is the only one who has
given me any hope and reason not to give up and foreclose.
I am simply at the end of my rope and have no more options.
Your consideration is greatly appreciated.
Tammy E. Simpson
To: CHASE HOME SERVICES
RE: Loan # 1766146830
Our original intention was to become investors and purchase rental properties in the areas
of Kansas City that were predominantly investor owned. We wanted to provide housing
and at the same time have a good long term investment that would pay off in the future years. We started by purchasing four rental houses in the Ruskin Heights are of Kansas City. We completely rehabbed one house and rented it and the other three were already rented to tenants when we purchased them.
We then purchased a package of ten rental houses from Barber Construction &
Renovation Group, specifically dealing with Brett Barber in June and July, 2004. These
houses are in the South Metro area of Kansas City and were supposed to be fully
rehabbed and supposed to be rented out to tenants when we purchased them. We were
promised a cash flow amount of $150-$200 per house based on mortgage payments and
Section 8 rent payments. Mr. Barber also was to manage the properties for us and for the
first year he would make any needed repairs at no charge to us.
Upon purchase of these properties, the rents were given to us by the Barbers and we then
made the mortgage payments. After receiving the first month, July 2004 rents from the
Barbers we were very upset and went to them asking why the rents were so low. We
were promised a cash flow of $150-$200 per house and the rents were substantially
lower than that. They acted very sorrowful and blamed an employee who worked for
them but quit right after we closed on the first few houses we bought. They said that she
has accepted lower Section 8 vouchers just to get them rented and that this was certainly
not their policy. Brett continued to badger us to purchase more houses after our last
purchase July 28, 2004 and we told him that we wanted to see how things went,
especially due to the low rents and that this promises of cash flow had not materialized.
We received August, 2004 rental payments from only by me constantly calling the office
to find out when we could meet to get our money. They put us off a few weeks and then
finally we were told to come to their house one evening. When we arrived there was a
note with an envelope taped to the garage door. The check was there but I thought this
was very strange. They had been so friendly before, always asking us to come over to
their house and visit that it just didn't make sense. Then in September, 2004 we
repeatedly tried to make contact with the Barbers at their office and residence but
received no return phone calls. This is only the third month and when the nightmare truly
began. Sometime during the third week of September I finally talked to Brett on the
phone and was informed there was no check for us. We were confused and upset and
then reality struck that he truly intended to keep the rent payments. I still tried to contact
him to meet with us but to no avail. Our mortgage payments total $7,880.00 and we
managed to make the September, 2004 payments. We sent the Barbers and official letter
of termination of our management agreement with them to ensure we were breaking all
ties with them or so we thought. My thoughts are that he was angry that we questioned
the low rents and that we didn't buy more houses from him. But I believe this was all
planned and part of their scam.
We then hired another property management company (Preferred Property Management)
to manage the houses. They spent the first six months trying to keep Brett Barber from continuing to collect rents. He even sent employees of his to the Housing Authority of
Kansas City to sign a lease on one of our houses after we officially terminated our
management agreement with him in writing. Apparently not all of the houses were even
rented out as promised; the two foreclosures weren't and another one has a tenant
without a signed lease from HAKC yet so they weren't paying rent to anybody. He also
continued to collect co-pay amounts directly from the tenants, lying and saying he was
collecting on our behalf. We were never reimbursed for any of this stolen rent and there
were several costly repairs needed for the houses at Section 8 inspection time. We were
beside ourselves as these houses were supposed to be completely rehabbed and need very
little, if any, work done at inspection time. On top of all that we discovered that two of
the houses purchased from Brett Barber were foreclosures and one was supposedly rented
and the other one had a prospective tenant. Irene Player with Preferred Property met with
Julie Barber to get keys and copies of leases and Julie informed her that the house that
was really rented was not and the other one was. I think this was just to slow us down
from finding out the real truth. There were people living in 1942 E. 72nd St. but they
were not paying the Barbers or us any rent. We has Irene file eviction on these people
and it took approximately 6 months to have them removed. Because Preferred Property
took so long and botched up the first eviction date by not having 'Jane Doe' on the notice
when the Sheriff arrive to removed this woman and her 3 sons from the house, he could
not do so. This gave these people another week before another notice could be issued
and the removal would take place. They removed the front door from the house and took
all the carpeting, furnace, water heater and duct work, left an abandoned car and filled the
house with trash. So now we know we have costly rehab work to do.
In the meantime Irene rented out the other foreclosure house, 2404 E. 69th Terrace to a
Section 8 tenant. It was vacant which is not what Julie Barber told us; she lied to us and
Irene Player insisting that it was rented but somehow didn't have keys to either this house
or 1942 E. 72nd St. Her rehabbers informed us that it would cost approximately
$9,000.00 to get the house to pass the Section 8 inspection. The furnace, water heater
and duct work were also gone from this house. In addition, Irene had not sent anyone to the house as I asked to make sure it was okay since they had winterized it and we found
out there was more damage due to extremely cold temperatures that month.
A whole new set of problems began with Preferred Property. Irene only rented two of
our houses for the 10 months we were with her. For the first few months things seemed
to go well and then when I started questioning the status of the copays and had letters
been sent to the tenants to ensure that they don't pay the Barbers she assured me that she
had done so. At my urging she went to HAKC in person and that is when she stopped a
check from going to the Barbers; apparently Brett sent an employee to HAKC and had
them sign a lease on one of the houses he sold us 6 months previously. The tenant had been living there since June, 2004 and it was December, 2004. Why HAKC let this
happen I don't know. Brett saw a window of opportunity and took it. When Irene
informed them we owned the house, they sent the money to us rather than the Barbers. I
was then suspicious that Irene wasn't going to do a good job on her own. I was still
getting inspection notices for the houses from HAKC and when I contacted someone
there to find out why they had no record of our management agreement on file with
Preferred Property.
I informed Irene of this and she assured me she had done that. I then requested she go
directly to the houses to make sure the tenants paid us the copay to ensure the Barbers
didn't collect the rent. There were several months where I heard the same story from
Irene. She called the caseworkers and informed them the tenants weren't making their
payments. However, HAKC does not enforce that they make their payments, it is
completely up to the landlords to collect and if they can't do so, they must pay to evict
them. At this point since we still couldn't come close to breaking even due to losing the
full month of rents from Barber in September, 2004 and the expensive rehab for 2404 E.
69th Terrace we had to take what we could get to keep our vacancy rate low.
Then matters became worse as Section 8 inspections came up for the properties that were
rented. Labor was fairly high and many times no one from Preferred Property or their
rehabbers were showing up for the inspections. Irene would tell me she didn't receive a
notice, I must be getting them and it was HAKC's fault. I told her I wanted her to go in
person and get the communication straightened out and ensure they knew to contact them
since they were supposedly managing the properties. The situation worsened by the 8th
month to the point where tenants were starting to vacate the properties which I later
found out was due to their calls and issues being ignored. Our rent payments from
HAKC are directly deposited into our checking account and each month I had a
discrepancy in the amount and had to fight with Irene to receive a copy of the HAP
statement which contains the amount paid that month for each house. She told me that
the Housing Authority was undergoing management and personnel changes and that it
would definitely get straightened out. I then began receiving violation letters from the
city for various infractions, like rank weeds, abandoned or unlicensed cars on the
properties, etc. She refused to enforce the terms of the leases which stated that the
tenants were responsible for maintaining their lawns and ignored the violation letters I
faxed to her. By the time we terminated with her during the last two months of my trying
to get information from her and HAKC, we discovered that 3 or 4 houses had missed all
inspections and would be kicked off the program and that a few of the tenants had moved
without our permission. Irene shouldn't have signed the HAKC form allowing them to
move to another Section 8 property because they owed us money for damages to the
house and nonpayment of their copays. When we asked her to produce her
documentation to tenants and HAKC showing she had been trying to collect rents,
straighten out inspection, etc. she told us that she thought it better if we terminated our
agreement with her.
By this time we were really beginning to think there was no way we could find somebody
honest in this business that would truly manage out properties and be fair and honest
about any needed repairs, collect the rents, make tenants responsible for their damages,
and work with HAKC. But we were determined not to give up and to try another
property management company.
We hired Absolute Property Management in August 17th, 2005 to try to straighten out
this mess. We had two tenants that had vacated and out one conventional renter that just
decided to quit paying and no good status on the houses or documentation from Preferred
Property. There were also a couple of houses that would be put into abatement by HAKC
if they didn't pass the next inspections. Connie Burton, president of Absolute, assures us
that she was very experienced in property management and that our properties would be
in good hands from now on. I had contacted so many property management companies at
this time that didn't even return my phone calls that I was just grateful someone would
actually meet with me and seemed to understand the Section 8 process. Additionally, the
rehab/maintenance costs were much more reasonable than anyone else we had dealt with.
Approximately four weeks after signing our agreement with Absolute, we received a call
from a gentleman who was a client of Absolute's who was asking about Preferred
Property Management and wanted to know about our experiences with them. He told us
that Connie was quitting property management altogether due to a death in the family and
sent him to us because she knew how we had been treated and what a horrible experience
we had with Preferred. In a panic I spent days trying to reach the office of Absolute and
there was no answer. Finally, Connie did answer her cell phone and informed me she
would be managing the properties until the end of the month and would meet with us to
give us a status on all of them. At this meeting she gave us one co-pay in the form of a
money order that she didn't endorse properly and said nothing was really going on with
the properties, there was no change in rent status or any tenant problems. I called her
repeatedly afterward to try to get her to take the money order back, deposit the funds in
her account and write me a check be she never answered her phone again. To this day I
don't know if they are completely out of business or not. The client that called us telling
us about her quitting said that he was fairly certain she kept some of his rents. At this
point I'm really wondering if we can ever find anybody that is reputable.
We began our search again for another property management company and we settled on
Turnkey Properties LLC mainly because they seemed professional and businesslike.
However, their rehab/maintenance costs are extremely high at $45 an hour. We
continued to call and research anyone else in property management that we can find and
still can't get most to even return our phone calls. We were in desperate need of
management for the houses so we signed an agreement with Turnkey on October 17,
Turnkey proceeded to work with HAKC to get a real status on each property and
subsequently found out that four of the properties had missed inspections and that we
would quit receiving rent on them until they completed a third inspection if granted by
HAKC. This was our first test run with Turnkey's rehab/maintenance people and the
charge was $3,200.00 for one house to pass inspection. Additionally, they charged us
approximately $1,500.00 just to change the locks on the houses. Meanwhile, we're only
receiving around $3,000 to $3,500 in rents, paying a 10% management fee to Turnkey
and rehab/repair costs are sky high. We received another bid for a house they found a
tenant with a Section 8 voucher for and it was $3,550.00. This was for a house that they
had stated on an earlier invoice was in really good shape. We asked for a couple of more
realistic quotes since the items listed didn't require expensive materials and the number
of days between then and the inspection didn't come close to $3,550.00 even if they
worked every single day just on that house. We were determined not to go down the path
of wasting any more money and we definitely did not want to get ripped off again for this
kind of labor. The response we received from Turnkey was that they told the client to
find another house. The next house that came due for an inspection came back with the
same quote of $3,550.00. We went to the house to meet the Turnkey's maintenance
foreman and when we walked through the house looking at his list it was very obvious had not been truthful. He didn't want us to look at it to begin with and I could tell he
wasn't banking on us knowing anything about the houses. What he didn't know was that
we had been to that house knew the condition of it. It was so grossly overcharged that we
couldn't believe it. I call these kinds of charges criminal. Materials wouldn't be more
than $100.00 and it constituted approximately 1 ½ days of labor.
A summary of the financial picture shows that we spent about $36,000.00 in 2004 and
$25,000.00 in 2005. For 2006 we are already at $4,000.00 for maintenance. Additionally,
only 6 houses are currently rented and at all times throughout our ownership period we
have only had a 50% occupancy rate. In addition to that we normally have to cover
around $4,000.00 per month in payments for the houses that aren't rented, equating to
$48,000.00 a year.
Since we both work full time and have jobs that require a lot of time and dedication we
do not have time to work on the houses ourselves. After a couple of years of dealing with
all these hurdles our savings has dwindled and we are just not able to continue making
the payments and paying for repairs. We are completely worn down financially and
emotionally. This has been exhausting and is making it very difficult to devote the time
we need to our careers and family. We truly feel that we have done everything humanly
possible to make this investment path work and we just have not been able to succeed
based on the many obstacles. Going from dealing with Brett Barber who has definitely
proven to be less than honest and then going from one property management company to
another who either didn't fulfill their duties, lied to us, or charge outrageous dishonest
prices for their work has been the worst experience in our lives.
Lisa Carver
Curtis Carver
January 5, 2007
To Whom It May Concern:
Due to circumstances beyond my control, I am facing foreclosure and bankruptcy.
I purchased a home that was pre-foreclosure through a loan officer promising to fund
me a home that would fit in my monthly price range.
Wanting to impress my parents, and family I decided to complete this transaction
on my own without input or or advice. I was told by my loan officer that I had to
purchase pre-foreclosure properties sight unseen. Not knowing much about the process
I agreed. This home was presented to me with something called temporary loan. I was
told that because of the rush to prevent the foreclosure of the previous owner, I
would have to sign this loan first, even though it had a higher monthly payment than
was promised.
Convinced that the permanent loan would end up in my price range and with the current homeowner offering to out $10,000.00 toward my loan which also never happened. I signed the deal.
Once escrow closed on my home I realized it needed new carpet through out, new paint on the inside, replace handles that were removed from the laundry room doors, replace
the window coverings that were removed, repair/replace the garage door that broke
shortly after I moved in, and landscape the entire backyard.
Once I told my family about my new home and all the pitfalls it came with, they
recommended that we look over my loan. I was shown that there was a huge pre-
payment penalty leaving me with an outrageous loan, and repairs I could not afford
to make. I was able to make every payment on time until I found myself without
a job in June 2006. I panicked and took a large cash advance out on my credit cards
making them out to pay my mortgage and other bills.
By September I found a permanent job and called Countrywide offering to
negotiate a payment plant to get back on track. This is when I was informed that
unless I make $3,000.00 payment Countrywide would begin the foreclosure process.
Again, I tried to negotiate a different plan, when I was told I can pay any amount
less than $3,000.00. However, it would not stop the foreclosure. I was shocked and
saddened that the Countrywide payment associates would not work with me.
This is when I realized I would lose my house to foreclosure unless I could see it.
After interviewing several Realtors they each told me I would have to pay their
commissions out of my own pocket. Obviously I could not afford this. I began
aggressively marketing my house with the help of friends and family.
My parents found a buyer. However the house fell out of escrow due to the major
decline of the Real Estate market in Las Vegas. We could not find anyone else
willing to buy this property until I came across Dandrew Capital. Please negotiate
with them to purchase this home. This will help prevent me from filing for
bankruptcy and help me turn my life around. I am young, heavily in debt, in
collections with most of my credit card and just want to make right with your
I appreciate any help you can offer.
Ava Marie Kamber
Sylvia Banquil Dauterman
4175 S. Decatur Blvd., #260
Las Vegas, NV 89103
July 17, 2006
Michelle Bohrer
Default Operations Support
American Servicing Company
7485 New Horizon Way
Frederick, MD 21703
Dear Ms. Bohrer
Re: ASC Loan Number: 1100189655
This is with reference to your letter of June 23, 2006 regarding the above housing loan.
The information about myself that was submitted to the originating financing company, New Century Financing Mortgage Company were falsified, and fraud was committed in obtaining the loans by a group of people, Bama Long Island Investments and Dum-Bil Investments, LLC. Gail Bilyeau and Malcolm Childress are the leaders of these two companies. Attached
is a copy of my letter to New Century Mortgage Corporation dated May 15, 2006 regarding
the fraud.
There is no way, I can be approved for a housing loan when I could not even be approved for
a Discover credit card because of my bankruptcy record in 1997 even though I got a pre-approval in the mail. At the time the loan was obtained, I was only earning $9.70 an hour and
on Social Security retirement. The Social Security is not enough that's why I have to work
for $9.70 an hour to be able to survive. Before New Century, there was already two other
housing loans in my name.
These groups of people has a patterned of falsifying documents. Attached is the Police Report, Affidavit of Forgery and other documents that I received from and sent to Medi-Credit. Upon getting all the information from me, my social security card, driver's license, etc. when they did the house loans, they turned around and applied for more credit in my name. I just found out how many weeks ago about this when Medi-Credit called me and
was asking for their money because the account is 90 days overdue. Gil Bilyeau did the loan
application and applied for $6,500 credit to use the money for plastic surgery for Sherill
Winchester (I never met her), a loan officer for A-Fresh Start Mortgage, who worked on the
New Century housing loans. I found out also that Gail Bilyeau and Malcolm Childress
owed her money. Gail and Malcolm run out of money and the only way to pay her is to
forge my signature, steal my identity, and applied for more credit in my name so she can
have her plastic surgery.
The housing loan frauds are already in the hands of the Attorney General's Office here in
Nevada for investigation and prosecution. I am sorry that these happened. I never knew
anything about the frauds when I signed the documents. That's why, as soon as I learned
about it, I right away called and made an appointment with the Mortgage Lending Division
of Nevada and contacted the Attorney General's Office. I learned from the Attorney General's Office that there are ten other people who came forward and reported them also.
My identity theft and forgery is also being handled by the Attorney General's Office. For
further information on this matter, you may contact Colin Haynes, Investigator at the State Attorney General's Office, telephone number (702) 486-3799, here in Las Vegas.
The handwritten letter to Janine Smith of Medi-Credit is Gail Bilyeau's handwriting. Please
note the pay stub that they made for me that I am working for A-Fresh Start Mortgage and that I am earning $249,000 a year (how I wish). Please note also the false information about
Sherill Winchester that she is my daughter. She is black and I am Asian with a fairly light skin, never had a daughter or children and that she is working for Paris Hotel and Casino (they switched our employers). They also attached the final Decree of my bankruptcy.
Also, I was reported to the credit bureau by Coast to Coast Financial, a collector agency for
Republic Services, and I never knew anything about this account. Gail Bilyeau is responsible also for this account.
The house is back in the real estate market for sale. I have a realtor who is working with me in selling the house. I have a buyer who is really interested in buying the house and I would like your approval for a Short Sale on the property.
Sylvia Banquil Dauterman
Attachment: as stated
cc: Colin Haynes, Investigator
State of Nevada
Office of the Attorney General
Bureau of Consumer Protection
Gail Bilyeau was also the Notary Public, who notarized the Deed.
Mr. Gregory Roberts
10824 Lionel Dr.
Little Rock, AR 72209
December 15, 2006
Homecoming Financial
P.O. Box 890036
Dallas, TX 75389
Dear Homecoming Financial,
I am writing to ask for your help. Things have happen to me over the last couple of
months I cannot control. I was recently fired from my job for voicing my opinion about how
some things would work better if you do some things different. Ownership wasn't happy about it so they called me in to the office and told me they were letting me go. Ever since then things have been going downhill for me. My car broke down on me, I have to save money to get it fixed. Don't get me wrong I have another job, but not enough to my house note, car note, insurance, groceries and to take care of five kids. Bottom line I cannot continue to pay on my home. I tried selling it but the offers received were below the payoff of my loan. Only thing I though was left was bankruptcy until I received a letter in the mail stating someone wanted to buy my home so I called the number and know I am writing for help, help that would be greatly appreciated. I am a responsible person who has always paid my bills and I am afraid of what will happen if this does not work, so please, please, please work with buyer.
Your consideration is greatly appreciated.
Gregory Roberts
October 10, 2006
Dear Sir or Madam:
I am writing to ask for your help. Here is my situation, I had been considering going
into real estate investing. I met a person who told me that this was a great way to make a decent supplemental income because the market was doing so well. They said they could help me do a deal that would make me some capital to get me started.
I put a lot of trust in them and their team of "seasoned investors." They claimed they could find me a foreclosed home to buy at a discounted price, and then they had other investors who would buy it from me closer to the market value and I would profit the difference. It sounded like a great deal since I am struggling to make ends meet, living paycheck to paycheck.
They found me a house that appeared to have a lot of equity in it and assured me I would be qualified for a loan. I told them I wanted no part in anything that was illegal. They assured me of that and that before my first mortgage payment was due they would have a second buyer to purchase the property from me. They also promised to make my payments on the house if he couldn't get the buyer approved fast enough. Now I have lenders calling me everyday when I can barely afford my own small house payment, let alone this huge house payment that I was never supposed to have to make.
Bottom line is I can't make a single payment on this house. I have tried to sell it on my own. Come to find out, they even falsified things on my loan application after I signed it, and a huge prepayment penalty associated with the loan. Bankruptcy was my next option and fortunately I found this buyer who said you may consider a Short Sale or reduced payoff. Please, please, please work with this buyer. This is the only person who has given me any hop and any reason not to file bankruptcy. I am a responsible person who has always paid my bills and I am afraid of what will happen if this does not work. Your consideration is greatly appreciated.
(Signature has no name under it hard to transcribe)
October 2, 2006
8742 Nucent Blvd., Ste 300
Highlands Ranch, CO 80129
We are writing to ask for your help. Circumstances beyond our control have caused our lives to change drastically. A year ago we moved from California to Pennsylvania to be neat aging parents and help them as much as we could before they pass. We knew we would have to sacrifice, but didn't realize how much.
We purchased a home, using some of the proceeds from the sale of our California home for a down-payment and se the remainder aside for living expenses until we got established. After some time, we realized that we will never make the money here that we were used to making. We are failing here and we can't afford to move back to California due to higher cost of living there.
I now have a permanent job earning $30,000/ year and my husband is still struggling eith his business. He owned a carpet cleaning business for the last 14 years and hoped to keep operating here. He has spent most of his savings on advertising and insurance costs over the last year. His phone just isn't ringing enough.
I withdrew money from my 401K to pay off his work van and try to reduce his monthly burden. His business is failing and money is running low. He recently took a part-time job, evenings and weekends, to try and make ends meet.
We have been using our "nest" egg to supplement our monthly expenses and that is getting low also. We are trying not to file bankruptcy.
This rental property has been on the market for almost a year. Our realtors have exhausted their resources. As you are aware, we are nearing foreclosure. We now have a buyer for the property. We are hopeful that you will once again approve a "Short Sale" or reduced payoff. This is our last hope. Please, please, please work with this buyer.
Up until a year ago, we both had excellent credit (700+) and have always paid on time. This is ruining us financially and emotionally.
Your prompt consideration is greatly appreciated.
Ronald Bettencourt
November 1, 2006
Patricia Chavez
4764 San Sebastian
Las Vegas, NV 89121
Washington Mutual Home Loans
Dear Sir/Madam,
I am writing to ask for your help. Circumstances beyond my control have recently changed my life. Last year when I purchased the house at 3120 Kookabura, Las Vegas, NV 89084, I invested (What I thought was an investment) in this property with two other people who work at Mortgage 2000 the agreement was that they would make all the mortgage payments well as you can see they haven't made a payment since February/March of this year, they have ran off with the money on the second mortgage and have also stole my identity and opened several credit cards under my name. You might have already talked to someone from the attorney generals office because this case is under investigation.
I have tried to sell the property but with no success as you know there was an offer for a Short Sale in the past which Washington Mutual declined, from that point I had consulted with a bankruptcy attorney and was ready to file for chapter 7, then I met this buyer and decided to try another Short Sale before filing for a chapter 7 bankruptcy. I am asking you to please consider this Short Sale.
The bottom line is I am a single mother and live paycheck to paycheck and cannot afford to make these payments, this Short Sale is my last try to sell this house before having to file bankruptcy.
Patricia Chavez
Sylvia Banquil Dauterman
4175 S. Decatur Blvd., #260
Las Vegas, NV 89103
May 15, 2006
HSBC Mortgage Services
P.O. Box 2393
Brandon, FL 33509-2393
Dear Sirs:
Re: Account Numbers 0011834934
With regards to the mortgage on the property located at 2287 Keego Harbor Court,
Henderson, NV 89052, I would like to ask for both your patience and leniency.
This matter is currently under investigation with the State of Nevada, Office of the
Attorney General, Bureau of Consumer Protection fro fraud committed to me by the
2287 group of individuals calling themselves, Bama-Long Island Investments, LLC and
Dum-Bil Investments, LLC. This group involved me with your mortgage company, by
using my good credit rating and falsifying information about me in order to secure these
Several weeks ago, the two main players in these scams, dumped this and two other
investments in my lap and walked-away from the responsibilities of their actions. Since
that time, I have been informed of other fraudulent activities they had committed in my
name. I was completely unaware of what they were doing and all the frauds that they had
committed to you and to me in all these transactions.
I was just informed of another piece of property that was acquired and the deed was in my
name and had no knowledge of this transaction until an attorney I was consulting with
informed me of it.
I have currently placed all these properties back on the real estate market for sale. I have
also contacted an attorney to better assist me in my civil action against this group of
For further information on this matter, you may contact, ColinHaynes, at the State Attorney General's Office, phone number (702) 486-3799, here in Las Vegas.
Your cooperation and patience on this is greatly appreciated.
Sylvia Banquil Dauterman
Sylvia Banquil Dauterman
4175 S. Decatur Blvd., #260
Las Vegas, NV 89103
May 23, 2006
HSBC Mortgage Services
P.O. Box 2393
Brandon, FL 33509-2393
Dear Sirs:
Re: Account Numbers 0011834934
Financing Fraud
I am so sorry, I omitted this information in my previous letter regarding the fraud purchases of the property located at 2287 Keego Harbor Ct, Henderson, NY 89052 using my name.
I did in fact receive a total of $10,000 in return for the use of my name in buying this property. I did not understand the legal ramification of my action, but I wasn't to make sure that I did not accidentally omit any details. Please consider this an addendum to my letter dated May 15, 2006. I received bad advise from someone who was not legally qualified to advice me on this matter.
Upon learning of the fraud, I immediately contacted the District Attorney's Office and I was
referred to the Mortgage Lending Division of Nevada and reported the incidence.
I apologize for all the inconvenience this might have caused you.
Sylvia Banquil Dauterman
November 1, 2006
Patricia Chavez
4764 San Sebastian
Las Vegas, NV 89121
American Home Mortgage
Dear Sir/Madam,
I am writing to ask for your help. Circumstances beyond my control have recently changed my life. Last year when I purchased the house at 8829 Lauderhill, Las Vegas, NV 89131, I invested (What I thought was an investment) in this property with two other people who work at Mortgage 2000 the agreement was that they would make all the mortgage payments well as you can see they haven't made a payment since February/March of this year, they have ran off with the money on the second mortgage and have also stole my identity and opened several credit cards under my name. You might have already talked to someone from the attorney generals office because this case is under investigation.
I have tried to sell the property but with no success, from that point I had consulted with a bankruptcy attorney and was ready to file for chapter 7, then I met this buyer and decided to try another Short Sale before filing for a chapter 7 bankruptcy. I am asking you to please consider this Short Sale.
The bottom line is I am a single mother and live paycheck to paycheck and cannot afford to make these payments, this Short Sale is my last try to sell this house before having to file bankruptcy.
Patricia Chavez
Ryan Heapy
9965 Mystic Dance St.
Las Vegas, NYV 89123
America's Servicing Company
PO Box 69768
Los Angeles, CA 90060-0768
Dear Sir or Madam,
I am writing to ask for your help. Circumstances far beyond my control have completely caused my life to change. A year and a half ago when I bought my dream home, my fiancé and I were living a wonderful life. I had a promising business, a steady job on the side, serious financial help from my future wife, and great roommates. It only took a couple of months for most of that to start slipping away. My business partners were squandering hard earned money and my fiancé and I had differences large enough to split up. I still felt that I had enough support with my side job, savings, and roommates to make ends meet. Well, my side job wasn't making the money I thought it would and eventually laid me off
for over 3 months, both my roommates moved out owing me significant amount of money, and on top of all this my family was having great difficulties dealing with my father's death one year before. To add to the migraine, the closest person in my life passed away in a sudden accident. My savings had run dry and I reached out for loans, and almost every other bill I have. I have always been successful at most all that I do, and now I find myself not only embarrassed, and disgraced but seriously, and clinically depressed because of my situation. I need help.
The bottom line is I cannot continue to make the payments on my house in Las Vegas. I have tried everything to sell my house and pay off the money I borrowed from you.
I listed my house over 7 months ago and the few offers I received were below the payoff of my loan. I have also called many investors that told me they couldn't buy the house because there was no equity in it and it required work. This market is now looking like it is just getting worse and I need to do something now before my foreclosure is inevitable.
I was on my way to file bankruptcy when fortunately this buyer said that you might consider a "Short Sale" or reduced payoff. Please, please, please work with this buyer and help me get out of this nightmare. They are the only people who have given me any hope and any reason not to file bankruptcy. I am a responsible person who has always paid my bills and I am beyond afraid of the implications of what will happen if this does not work. Truly my life is in your hands.
Your consideration is greatly appreciated.
Ryan Heapy
Sheryl L. Trask
1401 Stanphil Rd # 1922
Jacksonville, AR 72076
November 16, 2006
American Servicing Company
P.O. Box 10328
Des Moines, IA 50306
Dear Sir of Madam,
I am writing to ask for your help. Circumstances beyond my control has recently caused my life to change. Six months ago I purchased a home for myself and my children. This was supposed to be my first home for me and my children to call our own. But it turned out to be disastrous. The person whom I thought was a licensed realtor and thought he had my best interest at hand. He knowingly sold me a house I could not live in. After purchasing the home and preparing my children for the move I found out that the house needs extensive repairs which I cannot afford.
The reason for this letter is that I need your help. I have spoken with attornies, I've tried to sell the house back to this person, I have done everything I know and have been told to do and nothing has worked thus far. I am recently living in an apartment where I pay rent and utilities plus other mortgage also. The mortgage is currently two months behind.
I have been to a bankruptcy attorney and he spoke with me about liquidation and he also told me that I would probably lose my car too. That would cause me not to have transportation which would cause me to lose my job. I was on my way to file bankruptcy when fortunately this buyer said that you might consider a "Short Sale" or reduced payoff. Please I am asking that you work with the buyer. I ask this to keep from being in bankruptcy and losing everything I have to a foreclosure or bankruptcy on my credit. I pay my bills to the best of my ability.
Your consideration is greatly appreciated.
Sheryl L. Trask
John M. Barnes
Christi M. Barnes
3100 W. 28th St
Greeley, CO 80634
Dec. 8th, 2005
Everhome Mortgage
Dear Sir or Madam,
I am writing to ask for your consideration. Circumstances beyond my control has recently caused our life to change. My ministry position moved us from our lovely TX home
two years ago. We were making it work having the home rented out to keep up with our debts for this home. For the second time our renters broke the contract and vacated the premises last month; this case due to divorce. There is no one in the home and we cannot afford they payments.
I have tried many time to sell my house and pay off the money owed. My real estate agent says I owed more than the property is worth and it will not be able to sell for what it will take to pay off the debt owed. Investors say that they can't buy the house because there is no equity in it.
This buyer has contacted me for the consideration of a "Short Sale" or reduced payoff. PLEASE work with this buyer. He is the only person who has given me any hope on this property. I am a Pastor, responsible person who desires and always has paid my bills and debt. If this doesn't work I don't know what we'll do.
John Barnes
Christi Barnes
Dear Sir or Madam,
I am writing to ask for your help. As a responsible individual who has worked extremely hard to establish myself, I purchased this home a year ago and my mother and I had a very happy home and everything was going well. Due to the nature of my employment status I was forced to take a job away from this home without a relocation package. I have been trying with great exhaustion in trying to sell my house. I have been forced to make a critical decision to file bankruptcy.
The bottom line is I have already moved and cannot continue to make payment on this house and be able to support myself. I have tried many different things to sell my house and pay off the money I borrowed from you. I talked with many real estate agents, but the home is considerably less than what I owe on it. I have sought other means by calling investors, they told me that they couldn't by my home because there is not equity in it and it required repairs.
As I have swallowed this decision to file bankruptcy, a buyer said that he might consider a "Short Sale" or reduced pay-off. Please, if you can work with this buyer I would like to have this situation resolved favorably for all parties. This person is the only one who has given me any hope and a reason not to file bankruptcy. I have worked extremely hard to establish my credibility.
(Name Cut off on pdf cannot be transcribed)
To Whom It May Concern:
I am writing this letter to first explain the recent tragic events that affected my life in a negative way so that you may have a better understanding of why I am in the current situation that I am in. And second, I ask from the bottom of my tired heart your help to get my life back together.
I graduated from Chiropractic School in December of 2000. I went to school three years straight in under graduate school with no regular breaks and I repeated the same cycle in Chiropractic School. I was tired and exhausted but pleased with my accomplishment but could not rest because of a huge financial aid debt to repay. As I did through school and during my breaks it was time to continue to work to survive.
I decided to move to San Diego California from my parent's home in San Jose. I left with two fellow classmates one who was my girlfriend and soon to be wife who I met in school, and the other was my best friend. Together we set out to work for the chiropractor that I worked part time/full time while I was attending San Diego State University. I was promised
that we would be there until we wanted to retire.
That was the first promise of many that were to broken. He worked us seven days a week 14 hour days and paid us minimum wage. We worked so hard that I forgot who I was, brainwashed to the point, today I do not know who I am. When we did not produce what he wanted for him, he let us go, onto the street. We were left with no job so we lived off of unemployment and credit cards. At this time we decided to file a claim for the improper employee violations that our boss committed.
As we awaited arbitration, together the three if us decided to build our own clinic from scratch. We were over qualified to be hired elsewhere and with no income it was an obvious choice to make.
We set out and worked 16-18 hour days seven days a week this time for us. We worked so hard to support our clinic, what was left for us was to barely eat and pay our rent for the apartment we shared. We would have slept in our office if the landlord would let us. We continued to work the devilish schedule to achieve some of our dreams, each of us buying our first home.
Unfortunately because of the damage of working so hard we were always in survival mode, never home but always at work to pay debt and to serve others without question faithfully and with honor and humility.
Recent insurance laws changed in California and cost our business and personal income to be cut by 2/3. This brought a lot of tension to the clinic and we lost our focus. Since we were not business people but doctors, we relied on so professional in their field to assist us where we were deficient. One of those areas was payroll.
My girlfriend was in charge of finance of the clinic and unfortunately made a grave mistake with accounting for payroll takes. At the same time my best friend who was the third partner embezzled money from the business. Because of her mistake and the stolen money gone, the IRS and State Payroll Tax departments demand their accounts be paid. Needless to say my "Best" friend left the clinic a year ago and decided to sue the very same clinic he helped start with a frivolous lawsuit and named me as well. My girlfriend who I proposed to and said "No" decided to leave this past September.
They both abandoned their responsibilities and now I must face regular harassment from the IRS and State, plus defend myself and the clinic in a lawsuit. At the same time trying to maintain a business that 2/3 of its income on the advice of legal counsel I must dissolve the company and start a new one.
While this was going on in my business life my personal life is also just as bleak. 9 months ago my grandfather passed away. I could not even mourn the death of my grandfather properly because my "Best" friend was calling me threatening to sue while at the same time my "girlfriend" was threatening to leave the business if I did not take care of her and the clinic. With this going on my mom who I loved dearly who lives alone needed my support the most I could not be there for her mentally 100%. Do you know how ugly this made me feel inside.
Now sometime in 2003 I came into contact with a broker in Austin TX by answering a classified ad that he out into our local newspaper here in San Diego. He explained to me he had a system to give investors and opportunity to invest in new home in the surrounding suburbs of Austin. What made his opportunity unique was that the homebuilder was willing to give 8% back to the buyer of home as a cash incentive. What the broker shared with me was if I put 5% down he would supply the lender that would finance the home, he would find a renter and secure them with a lease before I bought the home, and the broker would return to me the 5% was it closed escrow. In addition he would also serve as the property manager and sell or lease the home in the future. He referred to an insurance broker for home owner insurance. Before I made the decision to buy he provided a cash flow sheet of what to expect expenses per month.
I explained to him I was a new chiropractor with zero experience in real estate investing. He
assured me that he would assist me and give me his knowledge of real estate and this vehicle would secure my future. I asked what if the tenant left what should I do? He explained to me to have a reserve of 3 months rent just in case, so I did. After some thought, I decided to do it. What made me decide to move on this opportunity had several factors of motivation. The first was to secure my retirement for myself. The second was to be financially stable to care for my mother, estranged father, and my sister and of course girlfriend. I felt secured by the fact that the broker has a proactive approach in helping me get started and would not leave me astray. Boy was I wrong.
Once I bought the house the tenants that he chose were nothing short of terrible. I paid $50.00 a background check only to receive people with bad records but he assured me they were the best he could fine. Once I decided to trust him they would be there one month gone for several. I was forced to pay for months the mortgage payments and expenses outside of the reserve of 3 months that I exhausted. To add insult to injury, the cash flow chart he gave to me was incorrect and that the property taxes was more than double than what it was quoted. Not only was I behind on mortgage payment but property taxes as well. I asked them begged him to help me find tenants.
I asked him to sell the property. He explained it was impossible to do so because brand new homes in the area were cheaper to buy. I could not go outside to other agents until the contract with him, the brokerage real estate company plus leasing company that he both owned expired. That was a year so I was stuck trying to manage a property from San Diego with no help from him or his companies and pay for expenses that the property was incurring with my personal savings. What was not told to me was how to protect my personal credit from being destroyed. I asked him repeatedly if I should put the property in a trust and he said to me it was not needed. Because of him my personal credit is now ruined.
After my personal savings were exhausted I had to basically find a way out once my contract with him expired. I changed property management companies ASAP who happened to be worse than he was. They lost my lease agreements and do not do what they say they do. I signed on with several real estate agents to try to sell the house, was promised the moon and starts and six months later, nothing. I have been doing all that I can to salvage this property so that I would not face foreclosure.
With this all going on around me my grandmother passed away 2 weeks ago. She was the center of our family. Everyone is depressed and is lost without her. She was everything to me. She raised me as a child almost more a son than a grandson. I will always be thankful for her loving ways.
I cannot do this any longer. I am at the last of my rope. Financially, I am ruined, personal family is a mess, and my own life is a shell of its former self. Frankly I am the walking dead. I understand that foreclosure proceedings are not good for the bank. I have tried endlessly to explain myself to customer service about my situation. Sometimes depending who is on the phone I receive empathy and every more of the time I do not. I have never been asked to write in or call to speak to the loss mitigation department. I only know that term now after threatening phone calls from "Investor" assistance representatives have said this a 100 times without explaining what it is.
My willingness to cooperate 100% with the banks are a constant. I do not want to lose what I have left and I certainly do not want to have the bank lose as well.
My purpose in life is to serve others with the outmost of conviction. Give more than what you receive. In the past six years I have not taken a vacation. I am literally dying. I want peace. I am pleading for your help.
I have recently moved out of my house because I cannot make the payments. My mothers has no proper plumbing with no money to get it fixed.
I cannot continue to make payments on this house. I have tried to sell, pay off, borrow money to help pay what I borrowed from the bank. Now because so much time has passed real estate agents have told me I owe now more than what the house is worth and it is not worth listing. I have called investors and because of little to no equity it was not a good buy. And with houses that are brand new selling for cheaper with foreclosures right next to it I am stuck.
My hope is that you consider this buyer to work with you to conduct a sale of the home to them. Please please please please work with this buyer to find a solution for yourself, the buyer, and I. This will in effect give my life back so I can focus on helping my mother who desperately needs me, my family, and the community I serve. Your help affects us all in a positive way.
I have been a responsible person and have paid my bills I am afraid of what will happen to me and my family if this does not work out.
Thank you so much for your time in reading my letter of explanation of what has happened to me. I hope and pray that you can help me.
Please contact me ASAP if you require my assistance. I look forward to hearing from you and thank you again for your sincere cooperation in this troublesome matter.
Jose Candelario
Chris & Sheila Paikai
517 Leap Frog Ave
Las Vegas, NV 89123
April 11, 2006
Dear Sir or Madam,
I am writing you today because I am in desperate need of your assistance. In the past few months, certain circumstances has changed my normal day to day living. For several
months now, I haven't been able to obtain my normal hours at work which caused us to
fall behind on our mortgage and other bills. At the hospital where I work, if business is
slow, staff is usually sent home to keep budget down. At the time, I thought it was
temporary thing so, to compensate for the reduced income, my husband and I faced
having to take out loans against our vehicle just so we could pay for our mortgage. It was
just a matter of time though before that caught up to us and soon enough we found
ourselves having to out the house up for sale. Something we never imagined we would ever do. We've taken great pride in owning our home but eventually had to swallow our
pride to try and find a solution to the damage being done. The house has been on the
market for several months but we've had no luck in finding a buyer. The house recently
appraised for 590k and we've even lowered our price to 560k. I was seriously thinking of filing for bankruptcy when fortunately this buyer suggested you might consider a
"short sale" or reduced payoff. Please, please work with this buyer. This may be
the only thing that will save is. We are genuinely good people, both registered nurses,
trying to do good for our family and others around us. We've just happened to fall
through the cracks and we just desperately want to fix things. This is a HUGE lesson
learned for my husband and I. If you can work with this buyer, my husband and I would
sincerely appreciate it.
Chris & Sheila Paikai
March 13, 2006
Angela M. MacDonald
PO Box 821946
Vicksburg, MS 39182
Saxon Mortgage
P.O. Box 161489
Fort Worth, TX 76161-1067
Regarding Loan Number: 1044093284
[6000 Reims Road, Unit 4008-Houston, TX 77036]
To Whom It May Concern:
I am writing to ask for your help. Circumstances beyond my control have recently caused my life to change. In addition to the impact of Hurricane Rita on the Houston area, a forced move to Mississippi to care for an elderly aunt and pursuit of full time college education, I have been put in a very difficult financial position.
The bottom line is that I cannot continue to make payment on my house in Texas. I have tried many different things to sell my house and pay off the money I borrowed from you. I talked with a few real estate agents, but they have said that since I owed more than the house is worth, that they would not list it for me. I called some investors that told me they couldn't buy the house because there was no equity in it.
I was on my way to file bankruptcy when this buyer said that you might consider a 'Short Sale' or reduced payoff. Please, please, please work with this buyer. They are the only company who has given me any hope and reason to NOT file for bankruptcy.
Your consideration is greatly appreciated.
Angela M. MacDonald
Susan H. Leis
8876 Happy Stream Ave, Las Vegas, NV 89143
(702) 395-8595
August 14, 2006
Wilshire Credit Corporation
P.O. Box 8517
Portland, OR 97207-8517
To Whom It May Concern:
I am writing to ask for help with my mortgage with Wilshire, Loan #947537. My husband, Ronald Valdez, has always been a commercial truck driver, and in 2004 we were fortunate to be able to purchase a truck and trailer and start an auto-transport business under our LLC name, Copper Mountain Carriers Ltd. New businesses always take time to develop, and we had a plan for success to follow. However, in Spring 2005 Ronald began having a problem with his voice involving hoarseness. He saw a doctor and was told he had vocal cord polyps which should be removed. We scheduled surgery, and during the process we were told that our insurance wouldn't cover because it was a pre-existing condition, and the doctor did not do anything to challenge the insurance decision. Therefore we were forced to postpone the surgery until we could save some money. Ronald's voice got worse and he became unable to sustain the work load required. We had no choice but to sell our truck and trailer and his decision was to go to work as a company driver. We had to wait 90 days for insurance to be effective. Meanwhile Ronald's health continued to decline and he had to be admitted to a local hospital where a tracheotomy was performed to help him breathe. He was diagnosed with Stage-4 laryngeal cancer and one month later he had a total laryngectomy operation.
We filed a Chapter-7 Bankruptcy in October 2005 and have continuously struggled to meet our obligations. My husband is recovering but we still do not know the outcome of his advanced cancer. I listed the house in January and reduced the price by $10,000 after a few months. I have not had any offers to date, and I realize that even if we had an offer, the closing costs, commission and late fees would not cover the proceeds from the sale. I withdrew the listing and called Wilshire to convey this information, and hoping to get suggestions as to what my options are. When I canceled the listing, agents began calling me to relist, and one of them suggested that I consider a "Short Sale" or reduced payoff. I was referred to a person who actually may be able to help me.
I have had very good credit in the past, as well as satisfactory mortgage history. It is very difficult to foresee serious things happening, but when they do asking for help and having an intent to overcome hardship is frequently the only choice available. This has been an extremely difficult time for my husband and me, but we are optimistic that this buyer can help and request that you agree to work with him as it may be our only real hope of resolving this problem.
Susan H. Leis
Dewey Vaughn
803 Aylesbury
Allen, TX 75002
May 25, 2006
1st lien: Homecomings Financial
2711 N. Haskell Ave.
Suite 900
Dallas, TX 75204
RE: 1500 Fawn Hollow Ct.
Allen, TX 75002
Loan #: 0655521136
Dear Sir or Madam,
I am writing to ask for your help. Circumstances beyond my control recently caused my
life to change. Over two years ago when I bought my dream home, my kids and I were
happy to be living at 1500 Fawn Hollow Ct. and everything was going well. In November
of this last year things changed, I lost my job and I had made some bad investments and
my father had to move in with me due to an illness, this all happened at once. All of this
combined with the fact that I am a single father of 2 teenage children has put me under a
huge financial crunch.
The bottom line is I cannot continue to make the payments on my house at 1500 Fawn
Hollow Ct. I have tried many different things to sell my house and pay off the money I
borrowed from you. I talked with some real estate agents, but they said that since I owed
more than what the house is worth that they would not list it for me. I called some
investors that told me they couldn't buy the house because there was no equity in it and it
required some additional work.
I was on my way to file bankruptcy when fortunately this buyer said that you might
consider a "Short Sale" or reduced payoff. Please, please, please work with this buyer.
They/he/she is the only person who has given me any hope and any reason not to file
bankruptcy. I am a responsible person who has always paid my bills and I am afraid of
what will happen if this does not work.
Your consideration is greatly appreciated.
Dewey Vaughn
Norman W. & Bobbi A. Coates
429 Crestview Point Drive.
Lewisville, TX 75067
May 2nd , 2006
Homecomings Financial
2711 North Haskell Ave. Suite 900
Dallas, TX 75204
Re: 0432638104
Dear Sir or Madam,
I am writing to ask for your help. Unfortunately, circumstances beyond our control
since we originally bought our home several years ago have changed. When we bought our
home in 2001 it was a dream come true for us and everything in our lives was going fine. We
were a two income family and had both been employed with reputable companies for many
After two years in our home, my wife lost her job of 11 years. A loss of over 50,000.00 a year income. She was unable to find a job in her field for over a year and resorted to a
15.00 an hour retail position just to help make ends me however was laid off from that
position last summer.
During this time, your company and representatives have all been very considerate in regards to helping. I have been faced with foreclosure on several occasions but have always been
able to work out repayment arrangements or have had to resort redrawing from our savings to catch up payments in arrears. The bottom line is I have depleted our savings during this
time period and can no longer continue to meet the terms of our repayment plan to afford
to keep the house any longer.
The recent illness and death of my father set us back even further. It was a long term illness,
he lived out of state and expenses multiplied for us during this time.
Each and every month I have tried to come to some resolution that is best for everyone. I have contemplated filing bankruptcy and have even talked to several real estate agents, but
most have advised that I owe more on the house that they would be able to sell it for and all
refused to list it for me at a reduced commission. I have also spoken with several investors
to no avail because of my lack of equity.
Fortunately when I spoke with this buyer he gave me more promise that I have had in
quite some time. He said that you might consider a "Short Sale" or reduced payoff. He
is the only person who has given me any hope and any reason not to file bankruptcy.
Please, please, please work with him.
We are responsible people who have always paid our bills and only wish to do what is
best for everyone involved. I am willing at this point to move on, lose all interest and
monies invested.
I am very fearful of what will happen to my family long term if this does not work.
Your consideration is greatly appreciated.
Norman W. Coates
Bobbi A. Coates
Kevin Nelms & Traci Nelms
3731 Charter Drive
Frisco, TX 75034
EMC Mortgage Corporation
P.O. Box 141356
Irving, TX 75014-1358
Dear Sir or Madam,
I am writing to ask for your help. Circumstances beyond our control recently have caused our
life to change. A year and a half ago we bought this house as an investment property along with several others. After the purchase, we were advised by the contractor to make major
upgrades to the house, because of where the house is located. He said that we would get our
money (investment dollars) back from the sale of the home. We invested over $26,000.00 into the house, because we were told that the house could easily sell for $360,000.00 (+).
Due to the advice we were given, we sacrificed a good portion of my wife's income, our
retirement plan funds and money from our parents to pay for the rehab, upgrades and to address our monthly debt service obligation. In the beginning we tried selling the Charter
Drive property on our own (FSBO). We also placed it on the MLS with no results. We
then enlisted the services of a full-time agent. After six month, with no results, we terminated
the MLS Agreement with the agent and hired another agent.
The bottom line is we cannot continue to make the payments on the 3731 Charter Drive property. I have tried many different things to sell the house and pay off the money we
borrowed form you. The house has been listed for the past 11 months and all the offers
received were below the payoff level of our loan.
I am self-employed and business has been very bad for me with minimal opportunities for
the immediate future. The stress of this situation has impacted my wife's employment as
well. Her employer has noticed a change in her personality and has discussed some alternatives with her in which some are not favorable.
We were on our way to file bankruptcy when fortunately this buyer said that you might
consider a "Short Sale" or reduced payoff. Please, please, please work with this buyer. They are the only people who have given us any hope and any reason not to file bankruptcy. We
are responsible people who have always paid our bills and I am afraid of what will happen if
this does not work.
Your consideration is greatly appreciated.
Kevin Nelms
Traci Nelms
edit: the note was willfully destroyed, there is no original note for the property to be rewound to.
In general, contract law states that a contract is created when one or more persons says I'll give you this if you give me that and one or more other persons accepts that agreement. That agreement is what creates the contract, not the ink on a piece of paper. This truth is born out in court during contract disputes when the court tries to determine the intent of each of the parties to the contract when it was created.
In the case of a mortgage, Person A said to Person B, I'll give you this house if you agree to pay Note-Holder C or his assignees or successors the specified number of dollars. That agreement among all parties created the contract, not the ink on paper. The ink on paper is simply an acknowledgement that the parties had contracted amongst themselves.
Question: If someone intentionally destroys a piece of paper with ink on it, does that destroy the contract? Homeowner agreed to pay lender or its assignees or successors. Destroying the original note does not destroy the contract. However, if it is no longer possible to determine who the original lender's assignee or successor is, it seems that new legal ground will need to be plowed. Perhaps a new law will be created stipulating that homeowner must continue to pay mortgage into an escrow account for, say, 5 years. If no one can prove by then that they are the assignee of or successor to the original lender, the homeowner gets the house as well as the money in escrow. Kind of like what happens now in some jurisdictions when large sums of money are found by private individuals. If no owner legitimately claims the money within a defined period of time, the finder gets to keep the money.
Be careful to note that breaking chain of title is a different legal issue than breaking a contract (contract exists and was breached) - which is a different issue from nullifying a contract (determining that no contract ever existed). An agreement to pay is not broken simply because chain of title is broken. But agreement to pay may be modified by the court if no legitimate owner of the right to receive payment from the homeowner comes forward.
You're discussing typical contract for performance vs contract for debt in real estate (mortgage). They work diiferently.
Contract for performance may be proven on evidence in many cases, without presentation of a signed contact.
Contract for debt in real estate (mortgage) requires presentation of a signed contract for a court to enforce the debt and exercise recourse.
This is one reason county governments require mortgages be recorded in county records to be enforceable.
If a mortgage is transfered (assigned) to another party and the transfer is not recorded, the county court simply won't recognize the transfer, and it's that way to prevent fraud, multiple parties presenting fake transfers or prior real transfers.
A deed and mortgage serve different purposes. A deed is recorded in county records for chain of ownership purposes and declaration of rights & encumbrances. A mortgage is recorded in county records to establish a debt obligation (lien) against a deed and declare recourse rights.
Many people believe the MERS fiasco will cloud chain of ownership.
It won't. Recorded deeds prove chain of ownership, and MERS has nothing to do with deeds. MERS deals only with a mortgage, the proof of debt against a deed.
If chain of mortgage is broken and unprovable, the deed still stands, the property buyer is still the owner.
This is what banks don't want people to know.
All the bruhaha about notes and mortgages is a smokescrean, trying to keep people's thoughts off the DEED, which establishes OWNERSHIP.
Disclaimer: This comment is intended as mere opinion, not legal advice. For legal advice consult an attorney.
I was not clear. I was creating a possible orderly way to resolve the free house issue, based on precedent in contract law (not necessarily mortgage contract law). The homeowner originally intended to pay back the loan to the owner of the loan. The current problem is in getting these two parties together - because it may not be clear who the current holder of the loan is.
I think you are not quite clear on the difference between deeds-of-trust vs. mortgages, but I'll not comment on that - other than to say that in California we use deeds-of-trust, not mortgages. Use Wikipedia to look at "deeds" or "foreclosure" for an indepth discussion of differences.
I thought the current problem with MERS was that it allowed transactions to proceed without filing anything with the Recorders office. You seem to be saying otherwise.
You seem to be saying otherwise.
Not just me, COURTS are saying otherwise. MERS recording is not recognized by county courts, it's being tossed out of county courtrooms all over America.
Now we have a NY appeals court tossing MERS out on its ear too.
I was creating a possible orderly way to resolve the free house issue ...
There is no way to resolve the "free house" issue.
If chain of mortgage is broken or unprovable to a court's satisfaction, the DEED still stands, the property is the homebuyer's, end of story.
If the homebuyer wants to finish paying it off, ok, fine. If they don't, tough shit.
Why do you have a problem with this "free house" thing? Is it unfair for someone to get a free house when you didn't?
Well guess what. Nobody cares about your view of fairness.
In their insane greed banks and MBS trusts carelessly created a free-home lottery called MERS, and yes there will be winners, lots of 'em likely.
Disclaimer: This comment is intended as mere opinion, not legal advice. For legal advice consult an attorney.
First, a mortgage or other lien on a property need not be recorded to be enforceable against the mortgagor. Even if otherwise unrecordable or invalid, it is still good against the party signing it. However, if it does not comply with a jurisdiction's recording acts, then it's going to get thrown to the back of the bus on priority... still secured, but at the back of the line.
Second, generally speaking, interests involving real estate and contracts involving real estate must be executed in writing to be enforceable... this is the statute of frauds (and other statutes)... however, there is a notable exception to the statute of frauds, part performance... which is certainly met in these cases. Wet ink isn't necessary... a copy of a contract (or to a more disputed extent, affidavit of the lost instrument) will suffice to establish the parties' rights and obligations thereto.
Third, if chain of assignment is broken, the result is not necessarily a free house. All of these cases have not invalidated the instruments, they have simply denied the purported holders the right to foreclose (and in some instances, as a penalty for fraud upon the court, invalidated the liens). The issue is that even if the lien is extinguished, the note still remains... the last person who received a valid assignment of that note is the real holder... and can enforce the note (not mortgage) against the maker. If a deficiency judgment is available in the particular debtor's jurisdiction, then they'll simply sue on the note as a general creditor and once judgment is obtained, foreclose. More accurately, this simply prolongs the debtor's ability to squat.
I think enterprising squatters should be sure to notify their creditors of their intention to hold against them and to refuse payment in perpetuity... with the average time to foreclose approaching 3 years... a successful defense on standing may very well bump them into their requisite holding period for adverse possession...
Perhaps we should just sit back and see how it all plays out. Got popcorn?
If a borrower was frauded by the lender, or engaged in any type of predatory lending, the borrower is fully entitled to damages, but not a free house. In those cases, damages are paid, and the borrower signs a release to transfer ownership back to the lender. Keep in mind, this is the worst case scenario for the lender. I am not talking about Detroit houses that have depreciated to zero, that does not count.
The MERS debacle has caused some delays for sure, but show me ONE example where a borrower got a free house due to their actions (there are none). I am not a defender of MERS, I think their circumvention of paying county transfer fees alone warrant the legal actions agains them. But their actions do not entitle a borrower to something they don't have to pay for. Banks frauding the documents after the loan? Sure, it's criminal too, but the fines and fees are going to the government, not the borrower. Strategic defaulters need an end plan, please don't think your house will be free someday. A write-down is a strong possibility, but you will need a plan to pay off the house or have credit to refinance or hopefully, take advantage of the then subsidized rates. But, all this crap about free homes is just crap, from people that are dreaming.
Fraud is not a prerequisite for a "Free House". At issue is the de-coupling of the House from the Debt. Sans proper assignment of the Note, the loan can easily become un-secured.
The MERS situation has created a very murky if not totally opaque picture of whom/what actually owns the debt.
The borrower already owns the house, the only back up plan to consider is one that wipes out all liens, the mortgage(s)/deed(s) of trust being the most important naturally.
So much misinformation:
If a borrower was frauded by the lender, or engaged in any type of predatory lending, the borrower is fully entitled to damages, but not a free house.
Try reading up on remedies to fraud under TILA or RESPA. How about nullifying the mortgage, jail time, compensation for all payments, the house and possible treble damages.
True, there are TILA and RESPA remedies, but these cases (nullifying the debt) are very, very rare. And...most of those cases invloved a small on-off lender, not JPM, BoA, etc. I just checked ABACUS, and found a few, but a quick read revealed there were "other factors" involved.
Any type of "settlement" will be done in a back room, out of court, and include a 50,000 page non-disclosure agreement.
Wish I had a crap mortgage with MERS
If you believe...it will come true. The write-down versus foreclosure are two separate issues. Try to focus here. The original bank files a "Lost Note Affadavit" and then commences foreclosure. The fact that the originals are lost, i.e., a "wet note" original is required is true, so the bank files the LNA and it's game on. It may cause a delay, but not the outcome.
Lost Note Affadavits are being rejected now in many states due to a lack of proof. Have been for the past few years.
But this just goes to show how muddy and aweful the whole scene is becoming.
They never had a note. They didn't even use their money, it was created out of thin air.
This isn't a valid note, lost or wet. This is a house that never had a legal note. Big difference.
edit: caught up in semantics
The original note, where one existed, was willfully destroyed. It was not lost or wet. Thus no legal note can be retroactively applied. SO it is a big difference where these noteless houses are and what the process for a lost/wet LEGAL note is.
Nothing about that difference changes the outcome.
I used to trade mortgage securities like M&M's. Now, I sit on an advisory board of a regional bank. Do you want to be privy of the boardroom's whispers? On several occasions, I have reviewed our RE portfolio reports (RE & CRE) at the request of the board after receiving such request from Fannie and Freddie. A massive, three-year writedown plan is being proposed in the area of 25% to 40%. The hold up is specific geographic valuation conditions. Moreover, if you live in DC, you may get little or no write-down. If you live in Las Vegas, you could win the lottery. The reports all have the same conclusion, a massive write-down will create defaults even in those areas that have not depreciated much. Bottom line, it is extremely questionable to continue paying your mortgage until the write-down occurs. Naturally, this will be before the 2012 elections.
"I sit on an advisory board of a regional bank. " Huh.... Stop paying the mortage so you guys can keep any payments made and keep the property?? You are tripping my banker buddy.
Thanks for the sober reality...it ain't gonna be a pretty sight, is it?
Meh, a non-story. MERS assigns the note back to the original bank and the original bank forecloses. 90% of what these guys put out ain't true, the other 10% is case/state specific. Courts don't care if the note has been on a world tour, fact is, it's back home now.
to pull it out of a MBS the bank has to pay off the specific MBS security the full value of the loan or switch it to a performing loan of equal value.
So it is not so simple just to hand it back to the bank, because it is securitized, right? That one note has multiple owners.
Many states require a wet ink, original note to maintain chain of title. The legal precedent for it goes back centuries. MERS was a legal bypass to enable high speed bundling of MBS's - since they bypassed the county recorder's office processing delays AND the associated fees.
Courts DO CARE if the note has been on a world tour because it is despicably easy to commit fraud on a large scale if you bypass the normal legal procedures.
Meh, I guess you missed the part of the ruling about MERS NOT having the legal standing to assign the note for foreclosure?
I guess you need to know what you are talking about before you comment. Unfortunately, you do not. MERS cannot assign the FORECLOSURE proceedings on THEIR note to another. They have every right to assign the mortgage back to the originating lender who commences a new foreclosure complaint. This is case fact, and what is happening in the courts now. I guess the difference in reading is what you want to believe versus what is truthful. In fact, challenges to MERS ability to assign note back to lender are getting the "fast tracked" to foreclosure now. Idiots that follow your advice will find themselves without a home much faster.
The original lender does not want that note back.
It was securitized along with thousands of other mortgages and sold in an MBS to thousand of investors. The original lender is liable for the full value of the note and has to pay off the specific MBS in which that note resides before that bank can take possession, or do I have it wrong.