So many foreclosure cases have been processed without original paperwork in the last few years that the state of North Carolina has taken the issue all the way to the state supreme court[1]. Last week the court heard testimony from attorneys representing Wells Fargo and homeowner Linda Dobson, who is facing foreclosure. Dobson is arguing that Wells Fargo cannot foreclose on her home unless the produce the original promissory note that proves they are actually due the debt that she owes of about $50,000. The lender has not produced this documentation in three years of legal wrangling[2]. Dobson’s lawyer says that she cannot pay or be foreclosed on because she is “not clear who owned her mortgage.” Wells Fargo, on the other hand, says that although it has not produced original documents yet, it likely will if the court sends the case back to a lower court for trial. The lender is arguing that “photocopied loan documents and sworn statements from employees that it is truly owed the money are sufficient for the case so far.”
The problem is that in light of the robo-signing fiasco and other “loose” lending and foreclosure practices that have come to light in the wake of the housing crisis, most homeowners no longer believe that these proofs are enough. Law professors point out that “sometimes a note will be lost or destroyed,” which is the whole point of having multiple copies of the original documentation. A ruling is expected in the next few months. In the interim, Dobson will remain in her home and wait on the mortgage lender to “prove some of what that man [the Wells Fargo attorney] was saying” about her debt.
North Carolina is home to the Bank of America headquarters and has traditionally been viewed as sympathetic to lenders. Legal analysts say that the outcome of this case will likely set a precedent for future cases around the country, making it a landmark piece of litigation.
Do you think that photocopies and/or sworn statements are adequate proof of monies owed?
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[1] http://www.eforeclosuremagazine.com/foreclosure/a-whole-lot-of-legal-action-going-on-in-the-foreclosure-market
[2] http://www.businessweek.com/ap/financialnews/D9QEDB5G0.htm
Photocopied loan documents and sworn statements from employees ARE NOT ENOUGH to prove alleged debt owner is legally entitled to payment or foreclosure action. Defense attorneys must be licking their chops over this suggestion. Where’s the NC State Attorney General on this – in BOA’s back pocket?
Mike Payne > “I help property owners avoid foreclosure in Sarasota-Bradenton (FL) area.”
Photocopies and sworn statements? They must be kidding. I have seen sworn statements from lender employees who could not even spell the name of the borrower correctly, swore to wrong borrowers, wrong payments, wrong payment histories and wrong addresses. These people are clearly signing based on the same records that the bank has. There is no personal knowledge of anything. Robosigning just confirms the fact that originals are necessary.
Banks have been wrong and they will be wrong again. They must prove the position without doubt. I’d like to see a judge in foreclosure. Imagine a bank making a mistake on one of his loans.
Did you ever have a bank overcharge you for anything? What paperwork did you have to bring in to the bank to get that refund. You had to have the original, didn’t you? It could have been employee theft and you would be out of luck unless you had definitive proof that you were correct.
Free markets should have some influence. Borrowers are more aware now than ever about rules in different states. Just don’t borrow in North Carolina. Values will fall, banks will have even more troubles. Eventually, someone will get it. Paperwork matters.
If they really want to have extra copies, sign three copies at closing and have them all notarized at closing. Borrower can acknowledge that three originals were made and they can be numbered. That’s a little cumbersome and it will take an extra step at satisfaction, but that solves the lost document issue. If they lose three originals, then there are more problems than sloppiness.
Why should photocopies which can easily be doctored and sworn statements by biased employees be deemed credible in light of all the documents that have already been forged?
It appears many states are determined to let the banks off the hook for all the crimes (fraud) they have committed. Even our complicit and bank controlled president has come out with a statement that the “banks have committed no crimes.” It is going to be up to each state to make a determination. Many states want this fiasco to go away and will do anything in their power to screw the people (as usual) and set their puppet-masters free to do it all over again. We must flood our state capitals and AGs with protests telling them not to give in to the criminal banksters.
It is a FACT our elected representatives are totally in the pockets of the banksters, so we know which way they will go. Just look at the hare-brained plan put forward by the super-compromised senator from New York, Charles Schumer. He wants to sell foreclosed properties to foreign investors. Some of his buddies in the senate call this “creative out-of-the-box thinking.” Right, this is just what this country needs, more foreign ownership of property.
Good thinking “Chuck”! This stupid man has been in office for more than 20 years. New Yorkers should send idiots like Schumer off to Creedmore.
If forged or no documents will be accepted, a new low will have been achieved in our already corrupt judicial system of never punishing white collar criminals. What the hell, maybe I’ll start printing my own money.
Although I believe some banks may be guilty of somewhat dodgy practices it is quite feasible that an original note could be lost, especially if a loan is sold multiple times. The simplest solution to my mind is to ascertain whether the home owner has been making regular payments in the past. If they have been doing that then obviously there is a mortgage because no-one pays a bank for no reason. How hard is it?!
If the Bank wins this one, they will be free to rape and pilage the country. Jefferson warned the country that if the Banks took over the country is lost and the Constitution gone. The Banks must be stopped at all costs. The NC case needs to be taken to the US Supreme court if necessary to stop the Banksters. I am committed to doing that in my case. Ms. Brown you reveal your petigree with your “dodgy” practices. If all they were was “dodgy” the country might be in better shape. However, their practices are out right fraud on a massive scale. Being polite will not cut it in this situation.
If the courts wants to allow the Photocopies of the note (Negotiabale Instrument)that would be OK…..”if”….. The courts would allow me to pay the note off with Photocopied Money! Just think if I went to the bank to get $5000 cash, took it home and made color copies,then deposited the funds back into my account and got another $5K to photo copy and so on until I had $50K in photocopied cash. Then when we get the court and the judges allow the bank to use a photcopied note, then wh would agre to paid it off with the photocopied money. I ca get bank witnesses to say that I got money from my account..Would that make my photo copies real???? Just a thought!
If every “Republic” would re-establish Common Law courts you will find that the ALL Corporations have NO standing in these courts. All of you are working in Admirality and with UCC will fail.
NONE of the Administrative Banker Judges can work in Common Law.
“You CANNOT serve TWO masters”
“You CANNOT sit at both the Devils(UCC,Admirality) table and G-ds(common law/torah)table.
A guy named Judas tried that and it didn’t work out very well.
The fact is that the bank should produce the original note. Sworn statements and copies are not enough. However, as the article suggests, banks hold a tremendous amount of power, both economic and political. I encourage all readers of this site to get a copy of “The Creature From Jekyll Island”, by G. Edward Griffin. This book details the origins and power of the banking cartel, which includes major banks, the Federal Reserve, all central banks, the International Bank of Settlements, The World Bank, and other major foreign institutions. This should be obvious as a huge amount of the first and second installments of the so-called Tarp and Stimulus money, went to the big banks. The above mentioned case is truly one of an average citizen taking on a giant. I hope she wins, but sadly, the odds are against her. The only power that the people have now, is to keep informed, understand what we are up against, and take steps to avoid debt as much as possible. This will not help the struggling real estate markets, but it will help those individuals who have been (or could be) taken advantage of by the banks and the power over people that they posses.
If someone wishes to do a short sale (for example) they have to provide a multitude of documents to the lender, if any piece is missing, it goes to the bottom of the pile. Unless every piece of paperwork is provided the process grinds to a halt. If the lenders cannot provide their necessary documents in court why should they treated differently? Don’t they have check lists to account for all this paperwork when it is being transferred i.e Is the NOTE is this package that we are receiving??
No I do not think that photo copies should be allowed. The problem is that the lender (Wells Fargo) never actually loaned the funds constituting Fraud. They more than likely never actually gave her a check to endorse. They the bank (Wells Fargo) took her instrument and deposit the original with the Federal Reserve Bank and got the the funds and used them for there purpose. The did this without disclosing this to the homeowner. This is Fraud. In the mean time the Federal Reserve Bank has packaged the documents and sold the original, so the original is up in the Clouds/unknown. If they allow this then you’ll be able to use the photo copy to acquire funds from any institution or sell it as a note.
Many if not most of the originators were running a Ponzi scheme, where in the
mortgage remained with MERS, but the Note was sold multiple times, to multiple
different investors in the Note pools.
The requirement that the original Note be produced and that the mortgage be
properly assigned in the land records, each time the Note was transferred, was
meant to prevent these kinds of “Ponzi Schemes” from ever happening.
To allow the servicers to use counterfeit color photo copies in a foreclosure
case would just reinforce the fraud being perpetrated against the investors in these Notes and the homeowners being foreclosed on.
Banks should NOT be allowed to use even notarized copies unless they are blue stamped as certified true copies from the original that is supposed to be recorded in the court where the property is located, in order to be valid, as per Federal and State mortgage/Real Estate laws (Statutes). Photocopies of securities (Promissory Notes)are counterfeit of the original under the Counterfeit Detection Act of 1992, that are regulated by the Securities and Exchange Commission, SEC. If the banks are allowed to get away with producing counterfeit copies, there is no justice in the United States, a private State under the United Nations that is controlled by bankers and no more CONSTITUTION! AND if there is no justice in America, there are no home owners, just debtors oweing money just to survive.
When A Mortgage goes into a trust, all notes and other documents connected to that mortgage go to a master document custodian. there it stays and when needed to transfer servicing or sold it must be ordered from the doc. custodian, chances are, the trust that this persons note sits in has been dissolved and insurance paid on it. It is really easy for the banks to colect insurance on the trust, have their employee ( as an officer of MERS)sign the home back over to them, foreclose on an assignment that has been back dated and not filed in the courthouse until the day of sale. Study the system, one big ponzi game.
More proof that banks have too much power in America! The fact that the courts are even considering this….
Hell NO! The track record of falsified documents precludes any benefit of the doubt.
However, a photocpoy of the note MIGHT be OK as long as there is a verifiable trail that shows all of the assignments along the way. There is supposed to be a transfer and receipt when the loan changes hands. If that could be produced then at least then there could be some basis that the note actually existed and to whom it is owned. Otherwise I agree with an earlier posting…just take a copy of a cahsiers check to the bank and payoff the loan.
TRUST THE BANK!!! ANOTHER LIBERAL RUNNING STATE TRYING TO STAY IN POWER!!! SOUND LIKE SOMETHING OUR GOVENOR WOULD APPROVE. HIS NAME IS O’Malley, he thinks he is going to be the next V.P. OF THE United States. GOD help us.
It would do well for that judge to get is head out of dark smelly places here the sun don/t shine. One has to produce a birth certificate to get a drivers license, for a kid ot start school (unless they are a illegal alien) toy get stopped you have to provide an original drivers license, you can’t produce a photo copy, but on minor infractions such as a mortgage or trust deed a photo copy will be acceptable to foreclose. What planet is the dumb SOB from. Seems like the judge is far to ignorant to make logical decisions. Perhaps a tour of prison for a few years might straighten up his illogical thoughts, then foreclose on his home just cause he is so stupid he’d never realize what happened. Or better yet, build him a nice neck swing and give him one push off.
It’s very telling that the WellsFargo attorney says the bank will produce the original document if the judge requires it. Why have they balked at producing it if it is truly in their possession? By producing do they mean creating an original? Or do they mean they will go and dig through what ever box it may be packed in and bring it to court? Having dealt with real estate/homes for almost 20 years I have always relied on the mantra of a former employer, “originals trump photocopied or scanned documents every time everyday.” We had to produce originals numerous times when there were discrepencies between a buyer and the company. Sometimes the originals supported the company and sometimes the buyer.
Ditto on the recommended book “Creature from Jekyll Island”.
What interests me about all of the comments is the glaring fact that no one mentioned the “SWORN STATEMENTS BY EMPLOYEES”. Excuse me, but if a Senior Vice President were to tell a subordinate that they WILL swear to certain facts, or they WILL loose their job, what choice do they have? And worse yet, what if it is implied that not only will they loose their job, but will have their reputation smeared so badly that they will likely never work again, what would any one do? I did work for someone once who gleefully twisted facts, lied about events, attempted intimidation, and generally made life a living HELL. He made certain that all the harassment was done without any witnesses. It didn’t seem like it at the time, but getting fired by that person turned out to be the best thing that could have happened to me. Six months later, I was hired by someone who was fired by this same person a year earlier than I was. What a beautiful twist of irony. Sadly, most people who end up as victims of hatchet men don’t fair so well.
The Bank’s who try to Foreclose,they just simply try to steal your HOUSE.,and also commiting FORECLOSURE FRAUD.ALL THEY HAVE IS A COPY OF YOUR MORTGAGE NOTE,THAT IS LIKE A FAKE $100 DOLLAR BILL.SO ALL THE PEOPLES IN THE BANK SYSTEM,AND IN THE LAW SYSTEM BELONG TO THE JAIL,BECAUSE THEY COMMITING FRAUD,AND TRY TO STEAL THE PEOPLES HOUSES!