Is Neil Garfield high on the dope of the deprecated Glaski opinion? Neil has gone off on another rabbit hunt when he should spend his energy chasing the werewolves. But even if he caught a werewolf, he has no silver bullets, so the werewolf will just laugh at him.
I have denounced his nonsense elsewhere, and on http://livingliesthetruth.com.
In his message about the Legal Impossibility that a REMIC trust does not own the note, he brags on Dan Edstrom, who does scam securitization audits that never helped anyone save the house from foreclosure or win damages from injurious participants in the loan process. And he brags on the Thomas Adams amicus brief (Glaski_Affidavit-Thomas-Adams_5-15) on behalf of Glaski who lost his house to foreclosure and should have lost it, but got an appellate win by whining that the note went into the trust after the closing date.
And Neil knows that courts all over the land have lambasted the Glaski opinion. Recently a New York appeals panel whacked Erobobo’s nonsensical assignment-after-the-closing-date argument:
******** New Erobobo opinion **********
“On July 17, 2006, Rotimi Erobobo executed a note to secure a loan from Alliance Mortgage Banking Corporation (hereinafter Alliance), to purchase real property located in Brooklyn. Erobobo gave a mortgage to Alliance to secure that debt, thus encumbering the subject premises. Wells Fargo Bank, N.A. (hereinafter the plaintiff), as trustee for ABFC 2006-OPT3, ABFC Asset-Backed Certificates, Series 2006-OPT3 (hereinafter the trust), alleges that it was assigned the note and mortgage on July 18, 2008. Erobobo allegedly defaulted on the mortgage in September 2009, and, in December 2009, the plaintiff commenced this action against Erobobo, among others, to foreclose the mortgage. Erobobo’s pro se answer contained a general denial of all allegations, and set forth no affirmative defenses. The plaintiff thereafter moved for summary judgment on the complaint, submitting the mortgage, the unpaid note, and evidence of Erobobo’s default. In opposition, Erobobo, now represented by counsel, contended that the plaintiff lacked standing because the purported July 18, 2008, assignment of the note and mortgage to the plaintiff failed to comply with certain provisions of the pooling and servicing agreement (hereinafter the PSA) that governed acquisitions by the trust, and was thus void under New York law. The plaintiff replied that Erobobo waived his right to assert a defense based on lack of standing by not asserting that defense in his answer or in a pre-answer motion to dismiss the complaint, and that, in any event, Erobobo’s contention was without merit.
“The Supreme Court concluded that Erobobo’s challenge to the plaintiff’s possession, [*2]or its status as an assignee, of the note and mortgage did not implicate the defense of lack of standing, but merely disputed an element of the plaintiff’s prima facie case, i.e., its contention that it possessed or was duly assigned the subject note and mortgage. On the merits, the court concluded that Erobobo raised a triable issue of fact as to whether the purported assignment of the note and mortgage to the plaintiff violated certain provisions of the PSA governing the trust, and was therefore void under EPTL 7-2.4. The plaintiff appeals. We reverse.
“The plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant’s default (see Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 567; Solomon v Burden, 104 AD3d 839; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856).
“In opposition, Erobobo failed to raise a triable issue of fact. Even affording a liberal reading to Erobobo’s pro se answer (see Boothe v Weiss, 107 AD2d 730; Haines v Kerner, 404 US 519, 520-521), there is no language in the answer from which it could be inferred that he sought to assert the defense of lack of standing. Nor did Erobobo raise this defense in a pre-answer motion to dismiss the complaint. Accordingly, the defendant waived the defense of lack of standing (see CPLR 3211[a][3]; [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168; Bank of N.Y. Mellon Trust Co. v McCall, 116 AD3d 993; Aames Funding Corp. v Houston, 57 AD3d 808; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244), and could not raise that defense for the first time in opposition to the plaintiff’s motion for summary judgment (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 240). In any event, Erobobo, as a mortgagor whose loan is owned by a trust, does not have standing to challenge the plaintiff’s possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of the PSA (see Bank of N.Y. Mellon v Gales, 116 AD3d 723, 725; Rajamin v Deutsche Bank Natl. Trust Co., 757 F3d 79, 86-87 [2d Cir]).
“Erobobo’s contention that the plaintiff is not a “holder in due course” of the note and mortgage, as that term is employed in the UCC, is raised for the first time on appeal, and is not properly before this Court for appellate review (see Goldman & Assoc., LLP v Golden, 115 AD3d 911, 912-913; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612, 618).”
**************
In other words, Erobobo screwed up his case out of incompetence, but it had no merit anyway. And the New York appeals court sent him packing.
The Erobobo opinion cited Rajamin v Deutsche Bank Natl. Trust Co., a case dealing with assignment into the trust after the closing date.
Read the opinion, starting with the Justia summary:
“Plaintiffs appealed the district court’s dismissal of their claims against four trusts to which their loans and mortgages were assigned in transactions involving the mortgagee bank, and against those trusts’ trustee. The district court granted defendants’ motion to dismiss for failure to state a claim, finding that plaintiffs were neither parties to nor third-party beneficiaries of the assignment agreements and therefore lacked standing to pursue the claims. It is undisputed that in 2009 or 2010, each plaintiff was declared to be in default of his mortgage, and foreclosure proceedings were instituted in connection with the institution of said foreclosure proceedings, the trustee claimed to own each of plaintiff’s mortgage and that plaintiffs are not seeking to enjoin foreclosure proceedings. Assuming that these concessions have not rendered plaintiffs’ claims moot, the court affirmed the district court’s ruling that plaintiffs lacked standing to pursue their challenges to defendants’ ownership of the loans and entitlement to payments. Plaintiffs neither established constitutional nor prudential standing to pursue the claims they asserted.”
I can barely restrain myself from calling Neil Garfield an idiot for continuing to harp on this DEAD ISSUE of whether the note assignment into a trust after the closing date has any merit. Myriad courts have denounced the question as meritless. And it makes no sense when the Uniform Commercial Code clearly states that even a person in wrongful possession of a note may enforce it.
“UCC § 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
“Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). 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.”
Apparently, Garfield wants you, the reader, to call him to help you with your mortgage problems, so that he can lure you into wasting your money on a securitization audit or his rescission package or some other useless service that will not save you from losing your home AND will not win you any compensation for injuries.
By my observation, 90% of single family home mortgagors get injured by someone involved in the lending process. The only practical, reliable way to beat the bank lies in finding those injures, and then attacking the injurious parties, demanding a settlement beneficial to you under threat of suing. And this remains true even if you have lost your home by relying on a scheming foreclosure pretense defense attorney.
Most borrowers need a competent professional mortgage examination team to review their loan-related documents in a search for evidence of injuries. Such evidence constitutes the “silver bullets” needed to subdue a lender “werewolf” in a negotiated settlement or lawsuit. And that is the ONLY methodology that works reliably.
727 669 5511
For more details, visit the Mortgage Attack web site. Then Call Me or email me for help.
Bob Hurt
727 669 5511
LivingLiesTheTruth 
Recognizing that one way to show the right to foreclose is to “show me the note”, the Court stated that there are other ways to establish the right to foreclose. The traditional way to prove title is via filings of record in the county clerk’s office. Section 51.0001(4)(C) of the Texas Property Code states that “if the security instrument has been assigned of record, the last person to whom the security interest has been assigned of record is the mortgagee. The Court also noted that another Texas statute declares that any transfer or assignment of a recorded mortgage must also be be recorded in the office of the county clerk. Miller v. Homecomings Financial LLC, 2012 U.S. Dist. Lexis 111022 (August 8, 2012 S.D. Tex.), citing, Texas Local Government Code Section 192.007(a). While noting that the absence of such required filings is the subject of current litigation, the Court held that it was some evidence that no such assignment or transfer has occurred. When, as is the case before the Court, that an assignee cannot show an unbroken chain of title, homeowners may be entitled to an injunction against the threatened foreclosure.
Wasnt this the whole scam MERS was employed for? Bypassing local recoders. Hell i think AGs sued them tight?? SO what r u talking about Bob Hurt
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Plus the same information that got the former securites attorney 9 billion dollars is the exact same info out of the web, just not a concise….
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Proving the right to foreclose, however, should not be as difficult as those attorneys and courts claim. Under the Uniform Commercial Code, a note is a negotiable instrument (just like a check),
Did they just say that ur note was a check?? what happens to someone that deposits a draft into an account…accnt rules statement 95 cash flows, someone was to get a receipt and didnt
The holder of the note (or check) whether or not he is the owner of the instrument can enforce it.
Unless thru fraud, which might be difficult to uncver…there is ur equitable tolling, easy hurt
This is no different from a check. You can receive a check payable to you and then endorse it by signing the back.
How was it signed in blank?
Here, however, is the important part when it comes to the transfer of a note. When a note has been transferred, the mortgage securing it automatically follows.
was it transferred within the safe harbor provision or did u get the deal where u dont have to pay a note til after 90 days?
http://www.americanbanker.com/bankthink/the-note-is-all-a-lender-needs-to-foreclose-1048902-1.html
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No law that I know of requires anyone to record assignment of a promissory note. People record the mortgage or deed of trust (security instrument) to put the world on notice that the property is encumbered by a lien so that someone buying it does not just hand the money over to the owner, but rather makes sure the owner of beneficial interest in the note gets paid off so as to get clear title.
MERS performed a very sensible service by minimizing expense to note assignees. The Assignee does not have to record a security interest because MERS keeps track of who owns beneficial interest in the note, and remains the one and only mortgagee. Typical securitized notes went from originator to sponsor to depositor to trustee. That would have necessitated 3 superfluous recordation fees if MERS didn’t remain mortgagee throughout all those assignments.
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Ok, Thank you, Bob. I don’t doubt you. Is there equitable tolling with some TILA violations , and what is a common example of a serious violation?
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The question about equitable tolling seems reasonable to me. What if you didn’t find out about the violation till after the expiry of the statute of limitaitons? See the Wikipedia article on the term “Equitable Tolling” and tell me whether you think you could make a case for it.
Failure to give the borrowers any disclosure of the right to rescind within 3 days after consummation extends the right to give the lender notice of rescission to 3 years after consummation. Such failure constitutes a common example of a TILA violation. But as I have pointed out, the typical borrower flubs this up in one of these ways:
* Forgetting that he received the disclosure; * Thinking that receiving only one disclosure constitutes a right to rescind; * Failing to write a proper notice of rescission; * Failing to retain proof of having timely mailed that right of rescission; * Failing to continue to make payments till the lender acknowledges the violation and tenders payment; * Failing to sue the creditor for rescission soon after sending notice of rescission and receiving no response or tender with 30 days (the law allows 20 for the creditor to respond). * Failing to raise the TILA violation and rescission notice as an affirmative defense to foreclosure. * Failing to give the creditor notice of rescission after initiation of a foreclosure action. * Failing to raise the necessary money to tender in response to the creditor’s tender.
Quoting LivingLiesTheTruth :
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Hi. What would be your opinion, if the trust was assigned the mortgage, AND the note, by MERS, Being that a note can only be negotiated ,and MERS admits that they have no authority, to assign a promissory note.. Also, what happens when the original lender is out of business for years, and then all of a sudden Mers assigns the note, and mortgage to a defunct trust many years later. ——What are the most common injuries found when examining the original loan papers. Thank you very much, and I appreciate the education you are providing!
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Robert:
MERS wears no handcuffs, and so it can assign whatever it has the legal right to assign. Your scenario of IF conditions seem confusing to me because they contain no timeline. When national banks go out of business, the FDIC takes them over and transfers their assets and liabilities to other banks. They do not need to assign all of the individual notes in order to do this. How do you know the trust went defunct? Depositors assign notes to the TRUSTEE for the benefit of certificate holders. They do not assign notes to the TRUST. If the trustee has the note in hand, the trustee will enforce it, as trustees have since securitization began hundreds of years ago, but especially since it became popular in the late 1980’s and early 1990’s.
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Hi Bob, At least in my case there is no mention of MERS in my note, only in the mortgage. So that is a nullity, as they are handcuffed by the 4 corners of the note. What I am talking about is MERS assigning the mortgage, and the note, directly from the long out of biz original lender, directly to a trustee. As a nominee, their authority to do anything on behalf of a business that does not exist is extinguished. MERS can only take an action at the direction of the companies they serve, they cannot act on their own behalf. Al West in CA, has won dozens of quiet titles against defunct lenders who did not sell the notes, before they went out of biz. In addition to that, every Fannie/ Freddie note, says the “note holder” has to be entitled to the payments. Trustees are not entitled to the payments, so they have no right to enforce. My whole point is that it would be great to use your strategies, plus some basic foreclosure defense. to really give the pretender lenders a run for their money.
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I believe you have misunderstandings about what MERS can and cannot do, about who can enforce the note or enforce the mortgage. You struggle to fight a battle you can only lose. If a borrower breaches a valid note, the PETE can enforce it, period. The borrower who can prove someone injured him at the inception of the loan has a chance to win damages or negotiate a settlement and thereby not only avert foreclosure but also end up with cash. You need to learn to fight the right battle. Right now you have focused your attention on the wrong one. The wrong battle: foreclosure defense. The right battle: MORTGAGE ATTACK!
Quoting LivingLiesTheTruth :
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IMO, MERS can assign a note only if MERS owns beneficial interest in it. No law that I know of prohibits MERS from owning beneficial interest in a note. But an assigment constitutes a nullity if MERS did not own beneficial interest in the note. IF a lender went out of business, the FDIC typicall transfered its assets and liabilities to another bank. In that case, the new creditor has no obligation to show its name as assignee of note or security instrument. In such situations the chain of ownership of beneficial interest in the note ALWAYS seems broken. But courts accept the new creditor as the PETE (person entitled to enforce the note) upon demonstration that it received the assets of the previous creditor. Regarding a defunct trust, how do you know it is defunct?
Most common injuries are appraisal fraud and loan application fraud.
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