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dazzlerbabe

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Hello I am new to the Forum and looking for help. I'll try to make this short & simple.
In November 2015 Bank of America filed a Summons of Lis Pendens on a condo my husband & I own in  Pasco County, Florida.  The lawyer at the time was Butler & Horsch, Pa in Orlando, Fla.
We had a Fanny Mae Mortgage.

On May 1st we received a Notice of Assignment, Sale or Transfer of servicing from Bank of America.
On May 15th we received notice from Rushmore Loan Management Services that they are now servicing our loan.  It states current creditor as Wilmington Savings Fund Society, FSB, d/b/a Christina Trust, not individually but as trustee for Pretium Mortgage Acquisition Trust.

A Notice of Appearance of Counsel was filed by a new law firm Kass Shaler, P.A. in Tampa, Fla as council for plaintiff, Bank of America right around the same time this sale & transfer was taking place.  BOA is no longer servicing the mortgage for Fanny Mae as of May 1st. 2015 yet this new law firm is replying to affirmative defenses for Bank of America.

Their has been NO signed & notarized document for the transfer of sale recorded.  Rushmore has told me they are waiting for a document from BOA to continue with the foreclosure.  It was been 3 months now. It would appear to me they have no standing at the moment without it.  The Plaintiff's name has not been changed on the summons.  Is this legal?  Answering the court as if BOA still owns the note & mortgage is this legal?  I heard mortgages are bundled and sold to trusts and the Trustees are supposed to oversee the caring of the Documents in case a single property goes into foreclosure but this does not happen or gets lost. 

I am sure the court has no idea this mortgage has been sold.  I have spoke to Rushmore mitigation dept and they are definitely handling my account.  I have a new loan number.  My loan number at BOA is now void/closed.  And Kass Shaler is the new attorney on the account but not for BOA.  What is going on here?  Please advise, thanks kindly.  Dazzler help me!



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texas

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Reply with quote  #2 

"as trustee for Pretium Mortgage Acquisition Trust."

 

Since what date as per public records, second did the Trust purchase Tangible Obligation or an Account Debtor(s) Intangible Obligation?

time for the old seniors to chime in!!!

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dazzlerbabe

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Reply with quote  #3 
Thanks for replying. I didn't think anyone would.  But what is Tangible Obligation?
One error on my posting.  The summons was filed 2014 not 2015.  I am into 1 1/2 yrs. now.
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texas

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visit http://www.trilliondollarfubar.com then return here
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confused

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My first response is do you have an attorney?  If you don't, you may want to investigate into find one.  Some have creative payment options.

That being said, I'm not an attorney and can't offer legal advice...

From your post, you are showing a misunderstanding of the facts in your case or haven't conveyed them very clearly.  

BOA is just a servicer.  

The servicer changed to Rushmore Loan Management Services.  

The law requires a "hello/goodbye" letter to be sent when servicers change.  Nothing out of the ordinary there.  

"Answering the court as if BOA still owns the note & mortgage is this legal?"  "yet this new law firm is replying to affirmative defenses for Bank of America".  The servicer is just an agent acting on behalf of the owner, so the owner just changed agents.  The servicer rarely "owns the note and mortgage".  The new servicer should still be answering/responding for the owner, not for themselves. 

This will not affect standing at all which is measured at commencement.   See: Feltus v. U.S. Bank, N.A., Case No. 2D10-3272 (Fla. 2d DCA 2012); Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So. 3d 773 (Fla. 4th DCA 2012). Country Place Cmty. Ass'n v. J.P. Morgan Mortg. Acq. Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010); McLean v. JP Morgan.Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).  If the original party filing the complaint has standing, if they sell their interest to another party, that new party simply steps into the shoes of the original Plaintiff.  

Right now, I see you focusing on small nuances which are not going to help you much.  You need to nail down some facts.  This is done through discovery.  You will win or lose through discovery.  If you fail to nail down some facts and force the Plaintiff (whom ever it may be) to take a position, you will find their story constantly changes.  Once you get them to take a position, you can then determine if they lack standing or any other defense you may want to assert.

1.  Who is the owner?

2.  Who is the Servicer?

3.  Does the Servicer have a valid POA from the owner?

4.  What authority does the POA give the Servicer?

5.  Who has the note?

6.  When did they get it?  From whom did they get it?

7.  Is your loan allegedly part of a trust?

8.  When did the trust get it?

I could go on all evening of factual questions you need the answer to proceeding forward.  Not to mention finding the PSA.  Your job is really to have them take a position then not discredit it, just poke holes in it.  In just about every foreclosure case the real problem the Plaintiff has is an integrity and proof problem.  They will lie and make up facts because it is easy.  Give them every chance to perjure themselves and make them prove their position.  I personally would take any delay as a positive thing because I was still in my home and it would give me more time for discovery/sharpen my arguments.


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texas

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Reply with quote  #6 

I would ask the same question as "confused" with one added question:

Who has "Rights" to "What".

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confused

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There is a list of question after question that needs to be answered.  The point is how can dazzler know where she's going if she doesn't know where she's been?  

It seems right now is the time to take a breath, and start from the beginning.  

Who gave the loan (original lender), who was the original servicer, and where did it go from there.  From a 2 second search it appears that Fannie/Freddie sold a group of delinquent loans to the trust.  

http://www.housingwire.com/articles/33129-here-are-the-details-of-freddies-massive-delinquent-loan-sale

You should do the research on what appears to have happened, then get them to take a position on what happened.  This article in no way proves that the trust acquired the loan in this fashion, but it is an interesting start.

Once you nail down some facts with discovery answers, you can form your defenses and counter claims, eg. 15 USC 1641(g).

A nice explanation on 1641.

http://www.mcglinchey.com/publications/Detail.aspx?publication=1469

Pursuant to Section 131(g), the new owner or assignee of a mortgage loan must notify the borrower in writing within 30 days after his mortgage loan is sold or otherwise transferred.  The notice must include:

  1. The assignee’s identity, address and phone number;
  2. The date of transfer;
  3. Contact information for an agent or party having authority to act on behalf of the assignee;
  4. The location of the place where transfer of ownership of the debt is recorded; and
  5. Any other relevant information regarding the assignee.

15 USC § 1641(g)(1).  The seller of the mortgage loan has no notice obligation under Section 131(g).

An assignee that violates this notice requirement will be subject to civil penalties under Section 130(a) of TILA.  15 USC § 1640(a).  Effective July 31, 2009, the maximum penalty that an individual consumer may recover for a TILA violation in connection with a closed-end loan secured by real property or a dwelling will increase from $2,000 to $4,000.


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dazzlerbabe

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Reply with quote  #8 
The point is how can dazzler know where she's going if she doesn't know where she's been?  

Original Lender & Servicer: Bank of America
a Fanny Mae Loan.

sold to Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, not individually but as trustee for Pretium Mortgage Acquisition Trust.

  Transfer of Assignment Sale & Servicing sent by Rushmore Loan Management Services on May 14th. 2015.

I submitted to the Judge a Motion to Dismiss Plaintiff's complaint due to the lack of standing and failure of the proper Plaintiff to file the lawsuit. Among other things like Florida Statue 701.02 Assignment not effectual against creditors unless recorded and indicated in title of Document and 701.02 (1) assignment as recorded according to law.

I don't know where it will get me but worth a try.  Perhaps the new owner & servicer will have to re-file their own new lawsuit.  I wonder then if I could strike their already ridiculous "Corporate Advances" fees. 

Restless Dazzler in Pa



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confused

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You are misreading Florida Statue 701.02.  This statute regarding recording assignments is in place to protect lien holders and purchasers, it does not apply in the negotiable instrument context.  I think this case is right on point regarding your MTD 701 and standing argument; Brandenburg v. Residential Credit Solutions, Inc., 137 So.3d 604, 605-06 (Fla. 4th DCA 2014)  which can be found here:

 https://scholar.google.com/scholar_case?case=15227681839709283415&q=+701.02+foreclosure&hl=en&as_sdt=4,10

While your chances of succeeding with your MTD are low, it does benefit you because it buys time.  During this time, you need to get some effective, well thought out, discovery going.  
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Reply with quote  #10 

Elements "who, what, when, where and how" and "rights"

Within securitization documents it is routinely found that the Mortgage to Secure to the Mortgage Note is delivered to a subsequent purchaser. Who was responsible for delivery, what is the recordable form mortgage assignment, who received the mortgage assignment, "why" was it not submitted for recordation, where was the unrecorded instrument (collateral file), "how is the mortgage legally enforceable.

 

Apply the elements to what was sold and purchased as regards to a tangible mortgage obligation (tangible obligors obligation with rights to real property) and a intangible mortgage obligation (intangible account debtors mortgage obligation with rights to personal property (the paper instrument being the tangible mortgage note and the tangible security instrument [mortgage]).

Rights to extend from an intangible obligee's possession of an intangible personal property (the paper instruments) pledged mortgaged by account debtor to tangible obligor's real property would require compliance with all applicable law(s) as denoted in the mortgage of real property contract.

Question present(s), has opposing party withheld evidence to show a party is without rights, (unrecorded instrument which maybe valid between the intangible parties as personal property but does such legally bind the tangible obligor to be obligated to the intangible obligee?) What a stretch of reach!!!!

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confused

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Reply with quote  #11 
I get what you are saying...the problem is that this is a VERY sophisticated argument that is difficult to properly make and properly support for the average/beginning homeowner.  This argument is also very fact sensitive, it would work well in one case and not so much in another.

Here is one case which deals with different party rights:

The borrowers argue the trial court erred in granting a final judgment of foreclosure because Option One California never transferred its rights to HSBC, directly or through ACE. They argue that HSBC failed to connect the dots between ACE and the last identifiable holder of the note, Option One California...The loan analyst testified that Option One California was acquired by AHMS, which rebranded to Homeward Residential, which was ultimately acquired by Ocwen. HSBC argues that since "Option One" is defined under the PSA as "Option One Mortgage Corporation or any successor thereto," and Option One transferred its interest to HSBC through the PSA, HSBC had the rights of a holder. We disagree...Although Option One Mortgage Corporation was a party to the PSA, it was the Servicer. "Servicing" is defined in the PSA as "the act of servicing and administering the Mortgage Loans." Nothing in the PSA established that the Servicer conveyed rights in mortgage loans to any party....The chain of transfers starts with Option One California as the original holder of the note. ACE, as the Depositor, transferred its rights in the note to HSBC through the PSA. However, there was no evidence that Option One California transferred its rights in the note to ACE. This is the missing piece of the puzzle. See Appendix. As HSBC cannot prove that ACE had any right to enforce the note, it cannot derive any right from ACE and is not a nonholder in possession of the instrument with the rights of a holder to enforce. §§ 673.2031,.3011, Fla. Stat. (2013). Put simply, HSBC failed to prove standing. We therefore reverse the final judgment of foreclosure.

 Murray v. HSBC Bank USA, 157 So. 3d 355, 358-59 (Fla. 4th DCA 2015)

Of course these specific arguments only apply in a limited number of cases with similar facts.  

Many homeowners get into attempting to "enforce" the pooling agreements rather than using them to "show" a party doesn't have rights.  These arguments fail and have been rejected by the Courts in almost every jurisdiction.  Because the burden is on Plaintiff to offer evidence of its "rights", there are many threads here showing the importance of keeping the PSA out rather than bringing it in.  

Objections based on deficiencies in evidence and supported arguments on things such as conditions, standing, ect.. have proved to be the most effective.  While I would not dismiss these types of arguments, because they are complicated, I would have it as a secondary argument following a robust standing, conditions, evidence, ect... argument.  

All of this starts with nailing down facts in discovery, getting Plaintiff to take a position and do so by way of admissions or interrogatories under oath.   

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texas

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Reply with quote  #12 

Never try to attempt to show enforcement rights of a third party contract, that will get you rear kicked in a hurry, "Many homeowners get into attempting to "enforce" the pooling agreements", only introduce to show that evidence is being withheld.

 

Before SCOTUS is the argument does withholding of evidence constitute a criminal act, either there exists a constitution or no constitution.

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dazzlerbabe

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Reply with quote  #13 
That is a lot to take in for a newbie in the legal industry.
Perhaps you can answer my question is a simple form.

Bank of America sold me the original loan.  It was a Fanny Mae Loan and owned by Fanny Mae since wen I checked the Fanny Mae website it said they owned my loan.  Bank of America was the servicer of the loan.  
After a year and a half in foreclosure with them and getting nowhere we received a notice of assignment, sale or transfer of servicing on May 14, 2015 from Rushmore Loan Management Services.

A Motion for Substitution of Council was approved for Kass Shuler Law Firm and Butler & Hosch for Bank of America was dismissed from the case.  Since that time then new law firm has been answering the summons in the name of Bank of America, Plaintiff but BOA is no longer the servicer of the mortgage & note.  (Can a servicer file a foreclosure on a Fanny Mae loan?) I thought the owner of the loan's name has to be written as the Plaintiff.

On the notice of assignment it states the current creditor as Wilmington Savings Fund Society, FSB, d/b/a/ Christina Trust, not individually but as trustee for Pretium Mortgage Acquisition Trust.

My question is based on what you are reading here who is the current owner of my mortgage & note?
Why is Bank of America (after 3 months notice of assignment) still listed as Plaintiff on the Summons to Foreclosure?  Who's name should be up there now as Plaintiff since Rushmore is the servicer of the loan not the owner?




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confused

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Reply with quote  #14 
I think that goes to effective discovery.  You need to have a view of the "big picture" ie. What does the Plaintiff need to prove.  Then pick it apart, you should have a plan and course of action.  

Unless there is a provision for mandatory disclosure, is "evidence being withheld" if you never ask for it?  

It would seem you would have to specifically (within a reasonable degree of certainty) ask for the evidence, then file a motion to compel the answers/production.  If you were denied this evidence, after making a proper request and moving for a court order, it would seem prejudicial and "trial by ambush" to then allow this evidence in at a later hearing/trial.

If you make a properly supported argument, withheld evidence should be/would be excluded from the case.  While a party may not be able to prove their case and LOSE, they may be sanctioned for not following the rules, I don't know if that reaches to a "criminal act", guess we will wait and see.  
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texas

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Reply with quote  #15 

Per your information:

Bank of America is the party with rights to the mortgage note (tangible) and if the security instrument if it was timely filed of record) then also with rights to the security instrument (mortgage).

Fannie Mae purchased the intangible interest in the mortgage obligation. [note plus mortgage] (payment stream-intangible-payment intangible=intangible interest).

Fannie Mae's purchasing guidelines states that the seller of the payment stream (Bank of America - Account Debtor) was to deliver to Fannie Mae an assignment of "Mortgage" (security instrument) in recordable form.

Question(s) arises, time would define who breached the security instrument covenants first.
Who breached the security instrument contract first???

Have to agree with confused, very elaborate argument that does go to the heart of standing but suggest that appropriate case law of jurisdiction be applied as noticed by confused.

Mammon versus God, Evil versus Good, Monetary Value versus The People

Money is a very serious drive of "human" nature including the Federal Reserve, do you understand the magnitude of the argument?

Dazzlerbabe, send me a private email and will provide direct means to contact me, it gets complex real fast.

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confused

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Reply with quote  #16 
As Texas stated, it gets complex real fast.  Which, believe it or not is what you want defending a foreclosure.   The problem is you need to stay on point and understand the facts.  

Originally, your case was more simple.  Freddie owned your loan, you didn't pay, its servicer (who is Freddie's agent) filed for foreclosure. There should be some kind of endorsement on the note from BOA to Freddie or in "blank".  

You should have propounded discovery to nail down these facts.

Now, they allege  Freddie sold the loan to a different entity, Pretium Mortgage Acquisition Trust.  That is who they claim actually owns your loan.   While an assignment of mortgage may or may not have been recorded, there will be nothing recorded showing the actual note has been sold/transferred.  

You should be sending discovery to nail down new facts.

In Brandenburg, which I posted above (and lots of other case law) this new trust will have standing if BOA/Freddie had standing.  

At this point, they need to prove Freddie sold the loan to the trust and that they actually received the note.  It looks like the trust purchase a large pool of loans.  Transferring the records, notes, and boarding them to a new servicer will certainly take some time, which is part of the delay.  

If you push, I'm sure they will move to substitute the new Plaintiff.  If you don't push, I think your case will languish for some time till they get everything together.  

I would be less concerned with who's name is on the complaint vs. nailing down the facts and working on my defenses.  I'd be looking into standing, endorsements, the paragraph 22 letter, a 15 USC 1641(g) counter claim, a motion to compel, ect....  When things start moving, they will be moving quickly.   A good place to start is to go to Google Scholar and search foreclosure cases.  Start reading.  Look up why cases are being reversed and dismissed.  What defenses are working vs not working and why.   


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dazzlerbabe

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Reply with quote  #17 
Thank you Texas for taking your time to speak to me on the phone last night.
For the average homeowner it really is a lot to absorb.
I mailed in the request to their attorney on the assignments of mortgage.
 
My next step is to deal with my Tenant whose lease is expiring September 30th.
She has gotten all her security monies back because she found out the house was in foreclosure.  She has taken advantage of me and my husband long enough.
I searched the Internet If I could put my house up for Sale while it is in Foreclosure and all the feedback says YES!  So that is what I am probably going to do since prices have gone up and maybe I can get Rushmore to negotiate with me since some of what they are doing is very suspicious.  

Dazzlerbabe^^^




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Guest
Reply with quote  #18 
I am in a similar situation with the same companies (RLMS and Cristiana Trust) and am very curious how this sitation played out. It is a shame that the thread end with a thank you for the phone call, but none of the details of the exchange or any updates after the call. I am very interested to know which, if any of the strategies were successful, or at least able to stall foreclosure.
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texas

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Reply with quote  #19 
Guest, I am around.
I would suggest try reaching via ourlemon.com or trilliondollarfubar.com
j.mcguire AKA Texas
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