Archive for April 26th, 2011

Did you find the Fraud?

I had lots of great comments/responses to this blog, where I posted this Assignment of Mortgage in one of my cases and asked everyone “Can you find the fraud?” 

My intent wasn’t to initiate a complicated legal argument, but to show that anyone, even a non-lawyer, can find fraud in foreclosure cases.

Here’s my take…

Before I get to the fraud, a little backdrop is important.  The case in which this Assignment of Mortgage was filed started out as a two-count Complaint for mortgage foreclosure and re-establishment of a lost note.  The plaintiff, a securitized trust, had a copy of the Note attached to the Complaint, but no indorsement, and there was no Assignment of Mortgage recorded in the public records as of the date the Complaint was filed. 

So no assignment, no indorsement, and no possession of the original Note. 

I move to dismiss, and it’s granted.  In fact, multiple motions to dismiss were granted, forcing Plaintiff to file a Third Amended Complaint.  Now on their fourth (fourth!) attempt to state a cause of action, the Plaintiff now, magically, has possession of the original Note, which, unlike previously, is indorsed in blank.  Plaintiff also attached an Assignment of Mortgage that, as of the filing of the Complaint, was nowhere to be found. 

So let me get this straight.  When the suit started, Plaintiff had no note, no indorsement, and no assignment, but now, after it’s lawsuit has been repeatedly dismissed for these problems, it somehow, magically, has the Note, which has an indorsement, and an Assignment of Mortgage.  And, by pure coincidence, the Assignment was recorded in January, 2010, after the lawsuit was filed, but was executed and notarized in August, 2006 (meaning the plaintiff held onto the assignment, for nearly four years, without recording it).  Gotcha. 

Sure, it’s my job to be skeptical, and yes, I’m biased.  But knowing what I know and seeing what I’ve seen, I find it impossible to believe this newly-discovered “evidence” is on the up and up.  It’s just far too convenient to think the plaintiff had possession of the Note all along, with an indorsement, and the Assignment, yet held that Assignment for three-plus years without recording it.  And sure enough, even a cursory review of the Assignment of Mortgage reveals the fraud.

If you look closely at the Assignment, you’ll see the mortgage that was supposedly being transferred was recorded on September 21, 2006.  In fact, the Assignment, which was purportedly executed and recorded on August 31, 2006, actually cites the book and page number where the mortgage was recorded – some three weeks later. 

And there is the fraud.  It was necessarily impossible for Ameriquest (or anyone else) to know, when this Assignment was executed and recorded on August 31, 2006, that the mortgage would be recorded on September 21, 2006 at the OR Book and Page number identified.  The Assignment had to have been executed after that date.  How long after?  Who knows.  I strongly suspect it was done in January, 2010, shortly before the Assignment was recorded (and after the lawsuit was filed), as that’s the standard M.O. for these banks (to execute and record and Assignment of Mortgage after filing suit).  In some respects, though, the specific date is irrelevant – the fraud has been proven, as there is no way the bank could have known the recording date or the OR Book and Page Number on August 31, 2006. 

You may think this is irrelevant.  After all, who cares if the date is wrong – isn’t the point whether the Plaintiff is the correct Plaintiff?  Well, the date makes a big difference. Under well-established law, a plaintiff cannot acquire standing to foreclose after filing suit.  See Progressive Exp. v. Mcgrath Chiropractic, 913 So.2d 1281 (Fl. 2d DCA 2005).  Avoiding dismissal on this principle of law is clear motive for the plaintiff to back-date this Assignment of Mortgage.  The date matters – a lot. 

You may think this isn’t fraud and there is some other explanation.  For instance, it’s theoretically possible the Assignment was executed and notarized on August 31, 2006 and the “Recorded 9-21-2006″ and the OR Book and Page were filled in afterwards.  The problem with that argument, though, is that it’s illegal to alter a notarized document after-the-fact.  Hence, taking the position that information was filled in later is to admit to notary fraud.  In other words, whether the Assignment was fraudulently backdated or the Recording information was filled in afterwards … either way, it’s fraud (particularly once the plaintiff used that fraudulent document in support of its standing in the pending lawsuit). 

As several readers commented, there are other problems with this Assignment of Mortgage.  A few readers delved deep into California notary laws to discuss problems with this Assignment.  That is great stuff, and I’m not trying to diminish its value.  My point, though, was that you sometimes don’t have to be a legal expert to see the fraud in the documents banks use to prosecute foreclosure cases … you just have to have a keen eye for detail and know what you’re looking for.

Mark Stopa

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Insurance Companies – as bad as Banks

I’m known for being a foreclosure defense attorney, but I spend a fair amount of time litigating against insurance companies as well.  And while I don’t think anything can compare to the disgust I feel on a regular basis in my foreclosure defense practice, the insurance industry comes close.  

Many insurance companies’ idea of a business model is to wrongly deny coverage on claims they know to be covered, knowing many homeowners will never do anything about it.  From the insurance company’s perspective, if they deny all covered claims and half of those homeowners never complain, then that’s half of their covered claims they don’t have to pay (even though they should).  And for those that do complain, they can always change course later and pay with little or no penalty.  Quite a way to make a profit, eh?  Screw over everyone and hope they don’t complain. 

Many homeowners don’t know how this process works.  They think “it’s an insurance company, they must be right,” so they accept the wrongful denial of coverage without filing suit.  (This is terribly similar to what most homeowners thought about banks a few years ago – they must be acting on the up and up – they’re my bank.)  Many other homeowners fear making a claim will prompt the insurance company to drop coverage, which makes me wonder ”what’s the point of having insurance if you can’t submit a claim when you need it?”

In my experience/opinion, some insurance companies are worse than others.  Personally, I’d go without homeowners’ insurance rather than insure my home with Florida Peninsula or Liberty Mutual.  Just my opinion. 

If you’ve had any repairs/problems with your home, don’t take your insurance company’s word for it that the damage is not covered.  For example, I represent companies who repair/restore attics after raccoons, opossums and bats cause property damage (which happens with surprising regularity).  It may surprise you to know that, under most policies, these are covered items.  This is just an example – there are many others.   In other words, like I say with foreclosure cases:

You have rights.  Don’t give up.  And don’t trust your insurance company – they make money by denying claims. 

Mark Stopa

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