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paper trail

paper trail

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Published by: Foreclosure Fraud on Apr 13, 2013
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09/26/2013

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While placing final edits to this year-long paper, most recently, in Case No. 5D12-870
before the The District Court Of Appeal Of The State Of Florida Fifth District in Greene
vs. JPMorgan Chase Bank, N.A., the Court validated many of my opinions in this paper
and the need for servicers and their affiants, witnesses, and lawyers to follow my
protocols. In this case, brought by a pro se litigant, the Court issued key opinions and
rulings that should be fodder for borrower’s attorneys to argue and for servicers to finally
adopt protocols. The Court stated in part…

“The only evidence submitted by the Bank was the affidavit of amounts due and owing. That
affidavit did not show specific payments by Green or the dates on which they were made. As such,
the trial court erred in denying his motion as to this count.”

Footnote #2 to this opinion stated…

“None of the other documents were authenticated. Unauthenticated documents cannot be used in
support of a motion for summary judgment. Ciolli v. City of Palm Bay, 59 So. 3d 295, 297 (Fla.
5th DCA 2011)”

The Court then went on to further opine…

Second, the trial court erred in granting the Bank’s motion for summary judgment because the
Bank failed to refute Green’s affirmative defense of lack of standing. This court reviews de novo
an order granting summary judgment. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074
(Fla. 2001). To establish standing to foreclose for purposes of summary judgment, the plaintiff
must show that it acquired the right to enforce the note before it filed suit
. See Gonzalez v.
Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 253-54 (Fla. 2d DCA 2012); Venture Holdings &
Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So. 3d 773, 776 (Fla. 4th DCA
2011).

The Bank’s motion for summary judgment asserted that the Bank had standing as the holder of
the note, as evidenced by its earlier filing of the original promissory note
. The note
contained an indorsement in blank by WaMu
. On appeal, the Bank adds that its standing was

YOU CAN’T TRUST THE MORTGAGE PAPER TRAIL™

YOU MUST SECURE THE COLLATERAL/CUSTODIAL FILES & ALL ELECTRONIC ENTRIES IN THE “LENDER’S” ACCOUNTING,
FINANCIAL, & GENERAL LEDGER SYSTEMS & DOCUMENT CUSTODIAN’S TRACKING SYSTEM

62 © 1999, 2000, 2004, 2008, 2011, 2012, and 2013 Nye Lavalle mortgagefrauds@aol.com - - 561/860-7632

supported by the Purchase and Assumption Agreement, which showed that the Bank bought all of
WaMu’s assets before the Bank filed suit. The Bank also asserts that it filed an affidavit stating
that it was the holder of the note
.

Within the original note, the indorsement in blank did not establish that the Bank had the
right to enforce the note when it filed suit, because the indorsement was undated
. See
Gonzalez, 95 So. 3d 251. Moreover, the Bank’s standing also was not established by its act of
filing of the original note.
Although the filing of the original blank-indorsed note showed the
Bank’s possession of (and thus right to enforce) it at the time of filing the note, that filing
occurred more than a year after the Bank filed suit.
As for the Purchase and Assumption
Agreement, that Agreement was not authenticated for purposes of summary judgment.
Finally, the affidavit of amounts due and owing did state that the Bank “holds the Note.”
However, like the filing of the original note, the affidavit did not establish that the Bank held
the note at the time it filed suit because the affidavit was dated more than two years later
.

This opinion supports and ratifies the opinions and protocols contained in this paper. A
servicer and their affiants, witnesses, and lawyers must provide more facts and
information in their pleadings, affidavits, and testimony. They must state and show, via
authenticated and admissible records and evidence, when challenged:

• The fact that the alleged holder had physical possession and custody of any
borrower’s original wet-ink notes that are endorsed in blank, on the date a
foreclosure action is filed;
• That any Purchase Agreements such as the FDIC/WaMu/Chase Purchase and
Assumption Agreement must be an authenticated copy of the FDIC/WaMu/Chase
Purchase and Assumption Agreement.

Having been part of many FDIC/WaMu/Chase cases and investigations, I would make
the argument and state an opinion that any authenticated copy of the FDIC/WaMu/Chase
Purchase and Assumption Agreement must be produced in its entirety with all
corresponding schedules, exhibits, and all subsequent amendments to date supported by
an affidavit of the records custodian authenticating the document. I have yet to see this
done in any of the many dozens of Chase foreclosures involving WaMu I have reviewed.

In addition, facts pertaining to the document custody and possession of a borrower’s
original wet-ink note must be presented in pleadings, affidavits, and testimony with
supporting authenticated evidence from each servicers’ document custodian’s tracking
system showing: a) the dates the original wet-ink note came into the physical possession
and custody of all owners, servicers, agents, custodians, trustees etc… b) the date(s) any
endorsement(s), especially endorsements in blank, were placed on the note or any
attached allonge; c) the dates any allonges were executed and attached to a note: and d)
any certifications and exceptions reported by the custodian.

These records all exist and I will predict that more and more lawyers will be seeking this
evidence and that more and more judges will be ordering their production prior to signing
off on any foreclosure orders. Judges can streamline their dockets my creating local rules
mandating that these documents be produced in each foreclosure action or by adopting
my affidavit protocols at the end of this paper.

YOU CAN’T TRUST THE MORTGAGE PAPER TRAIL™

YOU MUST SECURE THE COLLATERAL/CUSTODIAL FILES & ALL ELECTRONIC ENTRIES IN THE “LENDER’S” ACCOUNTING,
FINANCIAL, & GENERAL LEDGER SYSTEMS & DOCUMENT CUSTODIAN’S TRACKING SYSTEM

© 1999, 2000, 2004, 2008, 2011, 2012, and 2013 Nye Lavalle mortgagefrauds@aol.com - - 561/860-7632 63

Providing only an image of a copy of a note of an unknown generation with a blank
endorsement of an unknown date is insufficient to establish note ownership and holder
status as well as the right to service a note at the start of a foreclosure action.

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