vettegirl

Help!! Hearing on Foreclosure Motion to Dismiss

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The PSA agreement defines the terms under which the buyer is protected. It's about 300 pages long. See Greenfield trust in NY, most of it is on line. Bottom line is that the loan servicer cannot foreclose, they do not own the note. The sucker who bought it has to initiate foreclosure, then they inherit all the lawsuits. They then starta fight with Countrywide / BofA. Let them fight it out.

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The PSA agreement defines the terms under which the buyer is protected. It's about 300 pages long. See Greenfield trust in NY, most of it is on line. Bottom line is that the loan servicer cannot foreclose, they do not own the note. The sucker who bought it has to initiate foreclosure, then they inherit all the lawsuits. They then starta fight with Countrywide / BofA. Let them fight it out.

Exactly, and in my case that would be BONY-Mellon as Investor was assigned last year by Countrywide/BOA, with BOA being the servicer. BONY-Mellon initiated FC last month.

Ironically, now it is BOA that is contacting me in order to stem the FC proceedings??? WTH?:?:

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They want to stop the FC because they will be held liable under the PSA agreement for selling a fraudulently written loan, if they modify it or BONYM loses, it comes back to BofA who was stupid enough to buy Countrywide.

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They want to stop the FC because they will be held liable under the PSA agreement for selling a fraudulently written loan, if they modify it or BONYM loses, it comes back to BofA who was stupid enough to buy Countrywide.

Well, LE, If and when I go to court, because my Motion to dismiss was denied. How would I bring this particular *issue* to light???

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Well dang....today It was recorded by the Atty for BONYM that they are filing a Motion to Dismiss With Prejudice-Parties in Possession. Wow-me thinks someone rapped their knuckles for jumping the gun. Anyhoo, a short reprieve before the hounds are let loose again.

::travolta::::travolta::

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With prejudice means they can't file again. What's the parties in possession part?

Sorry LE, I meant to type WITHOUT Prejudice.

And to burst my own bubble, upon reading the actual motion, I think they are only correcting how they initially filed for FC in naming the defendants.

The motion states that because there are no other parties in question besides my DH and I, they asked for a Motion To Dismiss Other Parties In Possession.

The original motion names the defendants as "Mickey Mouse and Minnie Mouse, and any other Parties In Possession".

In affect, their amending this. So it doesn't really change anything. Poo....sounds like I'm going to have to kick the Seven Dwarfs, Goofy, and The Little Mermaid out immediately. :cry:

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Shoot, you got me all excited about the "with prejudice" thing. :) Oh well, continue to give them hell however you can! And what's happening with the AG who wanted to take action??

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Shoot, you got me all excited about the "with prejudice" thing. :) Oh well, continue to give them hell however you can! And what's happening with the AG who wanted to take action??

Hey Vettegirl, We're giving it our best shot. As far as the AG, we just received a letter from our BOA "Account Manager" (whatever) and she explained that the *** Attorney General had contacted their Corporate Offices and that our "file" was moved into escalation for the DOJ determination.

So, we continue not to hold our breath and yet are able to plant all our garden pots and the garden, praying we get to see everything bloom and grow.

*sigh*

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I think if they know you are going to fight they move on to easier cases and put you on the back burner - and hopefully something will come of "fighting the good fight" for both of us. If my experience is any indication you will enjoy your garden for a while - Sept of this year will be 5 years for me since BoA forst filed FC. If I had known then what I know now I would have replaced my broken garage door opener - 4 years without a garage door opener because we are in limbo, might as well live in a cardboard box! :)

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Wow, 5 years!!! that's impressive. I guess I need to start reading back on your posts!!

Yeah, isn't it a shame, we love our home[/i}. It's always been more than a just a house to us. And with that comes a responsibility to maintain and even enhance it. Other than planting like we always do (My husband has a very green thumb and he makes all my garden "visions" come true), we really have put any necessary repairs on the back burner.

But dang, I would hate to not have my garage door opener. Winters in the upper Midwest are tough and I would despise having to get out to open the flipping door. Try Brad'slist or you know what, you can pry find one for free. :)++

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This is what was presented by the Iowa Legal Aid Foreclosure Defense Project conference in April, 2010.

www.ihoep.com/userfiles/file/Foreclosure.pp

NO STANDING

Borrowers executed N/M with Fieldstone Mortgage Co.

January 5, 2009: Notice to cure sent to borrowers by servicer (Litton).

February 2, 2009: Mortgage assigned by Fieldstone Mortgage Co. to HSBC as Trustee for Fieldstone Investment Trust.

Foreclosure filed by HSBC as Trustee.

MSJ ruling:

PSA governs how mortgages may be acquired and foreclosed upon. The PSA and TSA only authorize mortgages that are “current” to be transferred to the trust. Thus, mortgage inappropriately transferred to the trust. Trustee has no authority or standing to bring foreclosure. Trustee only has authority granted to it by explicit terms of trust.

**This is why I was interested in checking out the Pooling and Service Agreement that is critical to my loan. BONYM was assigned the loan 8/2011. A LOD was sent by BOA as servicer on 10/2010. That means that according to those two documents our loan was NOT CURRENT and therefore shouldn't have been assigned to BONYM who is the Trustee for the Investors. Then in March of 2012 BONYM filed FC. Which is a direct violation of of the PSA agreement-am I correct?

And this is why I think the PSA may be critical in instances where Countrywide is anyway involved in a FC.

Edited by sourdoughnative

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This is what was presented by the Iowa Legal Aid Foreclosure Defense Project conference in April, 2010.

www.ihoep.com/userfiles/file/Foreclosure.pp

NO STANDING

Borrowers executed N/M with Fieldstone Mortgage Co.

January 5, 2009: Notice to cure sent to borrowers by servicer (Litton).

February 2, 2009: Mortgage assigned by Fieldstone Mortgage Co. to HSBC as Trustee for Fieldstone Investment Trust.

Foreclosure filed by HSBC as Trustee.

MSJ ruling:

PSA governs how mortgages may be acquired and foreclosed upon. The PSA and TSA only authorize mortgages that are “current” to be transferred to the trust. Thus, mortgage inappropriately transferred to the trust. Trustee has no authority or standing to bring foreclosure. Trustee only has authority granted to it by explicit terms of trust.

**This is why I was interested in checking out the Pooling and Service Agreement that is critical to my loan. BONYM was assigned the loan 8/2011. A LOD was sent by BOA as servicer on 10/2010. That means that according to those two documents our loan was NOT CURRENT and therefore shouldn't have been assigned to BONYM who is the Trustee for the Investors. Then in March of 2012 BONYM filed FC. Which is a direct violation of of the PSA agreement-am I correct?

And this is why I think the PSA may be critical in instances where Countrywide is anyway involved in a FC.

Very nice! LE, if we drafted Motions to Dismiss based on the PSA agreement would we need to attach the entire agreement to the motion? If so, do you have a link to an online copy?

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"Critical Information: How to Find Your Home’s Pooling And Servicing Agreement

February 28th, 2011 | Author: Matthew D. Weidner, Esq.

IbanezThe pooling and servicing agreement (PSA) is a contract that should govern the terms under which trillions of dollars worth of equity in the land of the United States of America was flung around the world. These contracts should govern how disputes over ownership and interest in the land that was the United States of America should be resolved. Pretty simple stuff, right? I mean if I’m a millionaire big shot New York Lawyer working for big shot billionaire Wall Street Investors and banks, then I’d do my job as a lawyer to make sure the contract was right and that all the i’s were dotted and the t’s were crossed right?

But that’s not at all what’s happened. In our scraggly street level offices, far below the big fancy marble encased towers of American law and finance, simple dirt lawyers defending homeowners started actually reading these contracts. We ask lots of questions about just what all those fancy words in their big shot contracts mean. Invariably, the big shot lawyers and the foreclosure mills tell us, “Don’t you worry about all them words you scraggly, simple dirt lawyer. Those words aren’t important to you.”

But increasingly judges recognize that the words really do mean something. Take note of the following statements from the recent Ibanez Ruling:

I concur fully in the opinion of the court, and write separately only to underscore that what is surprising about these cases is not the statement of principles articulated by the court regarding title law and the law of foreclosure in Massachusetts, but rather the utter carelessness with which the plaintiff banks documented the titles to their assets.

The type of sophisticated transactions leading up to theaccumulation of the notes and mortgages in question in thesecases and their securitization, and, ultimately the sale of mortgaged-backed securities, are not barred nor even burdenedby the requirements of Massachusetts law. The plaintiff banks,who brought these cases to clear the titles that they acquired attheir own foreclosure sales, have simply failed to prove that theunderlying assignments of the mortgages that they allege (and would have) entitled them to foreclose ever existed in any legallycognizable form before they exercised the power of sale thataccompanies those assignments.

The Ibanez decision underscores the fact that it is important for all of us to know and understand how the pooling and servicing agreements directly impact what is occurring in the courtroom. And for assistance with understanding the PSA and how to find it, more commentary from Michael Olenick at Legalprise:

After that it’s the the servicers/trustee/document custodian scheme

we’re all familiar with. OK .. with that too-strange-to-make-up explanation means let’s dive

into how to find one’s loan:

1. Find the security name: it will be a year (usually the year of

origination), a dash, two letters, then a number. It will be

somewhere in one of your filings. For this we’ll use a random First

Franklin loan, 2005-FF1. [Note; they would just sequentially number

them, so the first security First Franklin floated in 2005 would be

FF1, then FF2, etc...]

1. Go to the SEC’s new search engine:

Company Search

2. Click the first link, Company or fund name…

3. Choose the radio button marked “contains” and type in the ticker;

that is 2005-FF1

4. There will be multiple filings but one of them will be marked

424B5. Click that, it’s the prospectus.

If you really want to have fun, and want to know what happened after

2008 when these all disappeared, type the ticer (again, 2005-FF1) into

the full text link from the first search page. There you’ll see lots

and lots of filings as pieces and parts of the security are blasted

everywhere. To track yours you have to find which tranche you ended

up in. Sometimes it’s in the filing but, if not, you can usually

figure it out from the prospectus if you know basic origination info

(credit-score, type of loan, where the house is, etc…); some even

list loan amounts."

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I would say request it in discovery, that way you get the correct one. If you download something off the internet they'll claim it isn't authentic, etc. You'll have to sign a confidentiality agreement to get this document. Offer to do that in your discovery request. Just means you can't use it for anything else without permission.

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My 2 cents on this post - motion to dismiss foreclosure

If a state is non judicial - notaries can witness the signing. If a state is a judicial state, an attorney needs to be present to witness the signing of the documents of a mortgage. In the 12 years have been in the mortgage business, been part of many closings.

The bank gets a copy of the documents, the attorney gets a copy, the title company gets a copy which is filed at the local court house, lastly the borrower gets a copy. Point there are means to produce to original note if needed.

"Legal eagle" above is correct about the lump amount of closing documents, that the borrower signs at closing allowing their loan to be sold.

Section 673.3011, Florida Statutes: “A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument”.

Point - if the banks attorney is able to produce the document that allowed your loan to be subject to secularization (that you signed at your closing). The statute listed above - even if they were not the original note holder. It is clear your chances of winning are slim to none.

Good Luck...

..

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Actually, yes we have heard. BONY-Mellon's lawyers did file a Foreclosure Decree and Canceled the Note and Mortgage. Which of course we did freak out about. Our liaison at BOA though explained that they do this in the event we don't complete our part of the trial in order to finalize the DOJ modification. They are just making sure they have all their "ducks in a row".

Happy to say we are almost done with our last trial payment and I look forward to finalizing this mod. I will post that info on a new thread. :)++:)++

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Coming up on 120 days since filing my answer. The plaintiff's atty's haven't filed anything in this time except one motion dropping party "unknown tenants". Waiting to see what the judge does, then firing my next round of ammo. "Slim to none" is still a chance, one must go down fighting!

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8/13 was 120 days since I filed my answer, still nothing...Do I file something to compel the judge to rule on my answer, or does he even have to?

Also at this point should I go ahead and file Produce the Note and perhaps Produce the Pooling and Servicing Agreement??

Thanks!

Edited by vettegirl

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Just an update - Sept is my 5-year statute of limitations month, so decided to mark the anniversary by filing "Produce the Note".

Also, yesterday I got a letter in the mail from BOA that as of Sept 12 they are transferring servicing of my mortgage to Greentree. Is this odd considering I am in FC??

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They did the same thing to me, BofA seems to change servicers after the five year reset period.

Interesting...what has happened since your 5 year reset?

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Greentree is clueless...they were providing servicing for modular and mobile homes. They are so tiny of a company, it will take them 6 months to a year to start to figure out what is going.

Further, since the loan is in default to begin with, it does not matter who services the loan the 5 year statute of limitations does not reset. BOA gets rid of loans they can no longer legally collect on for the investor.

Greentree has no clue that your loan is in default.

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