UPDATE: Since I wrote this, I have looked closely at the documents that were INITIALLY filed by the bank to start foreclosure and found out something VERY important. The promissory note that the bank filed to say that they had standing to sue, was never endorsed! That's right, no signature signing it over to the bank nor in blank is on the note! I was going by what the bank gave as evidence at the hearing. But guess what, LOOK AT ALL THE DOCUMENTS FIRST FILED. Because to have standing to sue, AT THE COMMENCEMENT OF LITIGATION, the bank has to OWN everything otherwise, they can't even get in to start the suit! My case is on appeal at my state Supreme Court which has already vacated other suits for just this reason, that the note wasn't endorsed at the start of the case! Wish me luck. :-)
I had a hearing on Monday on my motion for reconsideration at the Springvale District Court in Maine.
At this hearing we were to discuss whether the plaintiff had standing, whether the court had erred in not granting me my motion for default, whether discovery was complete and what effect (if any) did a recent Maine Supreme Court decision in Beneficial Maine, Inc vs Timothy Carter had on this case.
I want to start by saying that the plaintiff, US Bank National Association was also supposed to provide (by judge's order) a memorandum of law with supporting exhibits showing how in their view that they had standing 15 days prior to the hearing, and they never did.
Since it was my motion that we were addressing, I got to argue first.
I first showed the court a chart I had made that showed the steps that a promissory note and the mortgage deed takes to be transferred into a trust fund. For my particular case, my note was endorsed in blank. Per the trust fund SAIL 2006-3's PSA (pooling and service agreement) the note and mortgage had to be transferred from the originator (Countrywide) to the sponsor (Lehman Brothers) to the depositor (Structured Assets Security) to the trustee (US Bank Nat Assoc) and then submitted to the trust fund. Since my note was blank endorsed, to prove that a true bill of sale has occured between all parties, 2 receipts had to be produced, one of transfer and one of acceptance (or delivery) for EACH party. This way, the trust fund can prove to the IRS that indeed it was sold and transferred each step of the way and they could retain their tax free status.
It also keeps the trust fund as brankruptcy remote as possible from the originator. That way, if the originator went brankrupt, the asset of my mortgage is several times removed from them so that they wouldn't be able to claim it in bankruptcy court.
How did this effect me? Many ways.
First, regarding the case Beneficial vs Carter, that was about the foreclosing bank not having any documents submitted of business records meeting the exemption to the heresay rule. Meaning, none of their supporting documents to foreclose was above being "someone else said" that the defendant owes this and didn't pay and that the documents presented were legit. You can't say in court what someone else told you is fact. That is heresay.
In my case, not only was this the case, but the ONLY documents provided was the "alleged" originals of the note & mortgage and 2 assignments. There were no receipts accompaning the blank endorsement. I asked for many materials for discovery and one of those were 'receipts". The bank has yet to deliver that. I also asked for a copy of the PSA. Haven't got that either. So that addressed the discovery question, it isn't complete.
Going back now to the steps needed to transfer my note & mortgage, I showed the judge where this wasn't completed. In my case, the note being blank endorsed, and having no date, we had to look at the assignment of the mortgage and the PSA. There were TWO assignments of my mortgage recorded at my county register of deeds office. One was from MERS as nominee for Countrywide to US Bank Nat Assoc on October 16, 2007. The 2nd from US Bank to the trust fund on August 20, 2009.
First problem: The assignment was from CW to US Bank. This skipped the sponsor and the depositor. The PSA rules weren't followed. This created a break in the chain of title as they reported that it was sold and completed as the PSA told them, but never recorded the assignments.
2nd problem: Since the assignment showed that MERS/CW assigned my mortgage to US Bank on October 16, 2007, and that this assignment was from the ORIGINATOR, then it is logical and safe to also say that this date can also be attributed to the endorsement of the note, as the note HAS TO STAY with the mortgage. And there's no way that CW would endorse IN BLANK a note prior to this date. Why? Because when a note is endorsed in blank, it becomes a bearer instrument. This means, whoever bears (or has in hand) the note, OWNS it. So, it would be fool hearted to leave such a document laying around for anyone to pick up and walk off with it. So, the date of endorsement would be the same date that they assigned the mortgage. Well, if you look at the endorsement, it was endorsed by David A. Spector, Managing Director of CW. As of October 16, 2007, Mr. Spector no longer worked for CW and hadn't since August of 2006. So, how could he endorse a note for CW 14 months after leaving CW?
3rd problem: The dates of the assignments. The trust fund closing date was May 26, 2006. How can an assignment of mortgage 17 months after closing to the trustee, and 39 months after closing to the trust fund, be a valid transfer? The trust fund can NOT accept any transfer after the closing date. Plus, the PSA and filing documents to the SEC all said that the transfers had ALREADY been completed BY THE CLOSING DATE. By their own admission and exhibits and by the assignments recorded at the Register of Deeds office, this is proved false.
4th problem: MERS assigned the mortgage. In Maine, MERS has no standing to do so by the decision of the Maine Supreme Court.
5th problem: MERS assigned it as nominee for CW. On the date of the 1st assignment (October 16, 2077), CW was no longer the one who owned the note & mortgage. As per the PSA, CW became the SERVICER of the trust fund and no longer had any ownership rights on May 1, 2006. So, they could not assign something that they did not own.
6th problem: On June 21, 2011 the court ordered the plaintiff to produce for my inspection the original note & mortgage at a meeting in a conference room at the court. We met (I had 2 witnesses with me) and Bridget Dornbach, attorney with Shechtman, Halperin & Savage out of RI, brought documents that were all on legal size paper. On the 1st page of the mortgage, was a stamp of attestment from a CW employee stating that it was a true and accurate COPY OF THE ORIGINAL! But, she passed them off as originals. At a hearing to hear my motion to have the plaintiff produce the exact documents that Dornbach had showed me in July for the hearing on November 7th, there was a different lawyer from the firm, Miss Hawkins, with a SECOND set of "alleged' originals saying that these were what Dornbach had shown me in July as clearly, the copy I had made Dornbach give me of what she brought were certified copies of the originals. (DUH! They finally caught on that the 'alleged' original said it was a copy). At the November 7th hearing, Ms. Dornbach showed up, with the SECOND set saying that this is what she showed me in July and was offended that I was calling her a liar! Ahhhh, but I had the proof of an exact copy that she gave me to give to the judge that this was not so! So WHICH set are we to believe are the originals since the lawyers have stated BOTH were original?
7th problem: On the "alleged" original, the last page that had the notary signature and seal, the seal was flat and black in color. On an original, the seal will be white in color and raised so that when you run your finger over it, you can feel it. The only way it'd be flat & black is when you've copied it.
8th problem: The copy that the plaintiff submitted to file this claim in the very beginning had 2 black circles at the top of each page of the mortgage. This meant that the original had been paper hole punched to fit inside a folder that had 2 metal rods that folded over to keep the documents inside. Again, when you COPY these, it would show up on the copy as black circles. So, if the original has holes, how did the "allege" original being presented no longer have holes? How did the paper grow back?
It is quite clear from all of the above reasons & explanations that not only doesn't the plaintiff have the originals, but the documents were never properly transferred to the trust fund, thus the trust fund does not own my note & mortgage even if we could find the originals! The plaintiff hasn't proven that they even have the business records that is exempt from the heresay rule. They have fallen extremely short to prove standing. The judge, Hon. Michael P. Cantara, has taken all of the evidence and testimony and is now deliberating his decision. I can't see how he could come to any other conclusion but that the plaintiff hasn't proven standing and thus the case is dismissed. And since there is clearly fraud in their presentation of two sets of originals and with the deception of stating they own my note by the problem of the dates, notary stamp, copy problems and endorsement problem, the case should be dismissed with prejudice! Because if they manufactured documentation for this round, what makes anyone think that they won't manufacture different ones for another shot at this? Let's see which side of this issue, and the LAW, Judge Cantara decides to be on when he makes his decision!