A law firm I work with had a case the other day that underscores the importance of this post… the Plaintiff (Taylor, Bean & Whitaker Mortgage Corp.) in the case was pushing for Summary Judgment. In preparation, they filed the “Original Note and Certified Copy of the Mortgage” in the case record. They also filed an “Affidavit in Support of Motion for Summary Judgment” the same day. The Affidavit was given and signed by an employee named Erla Carter-Shaw who was supposedly in charge of the record keeping, etc. In her “affidavit” she alleged that the Note had not been endorsed to anyone else and thus Taylor, Bean & Whitaker was the owner of the Note. Now, mind you that they had originally filed for a “Re-establishment of the Note” in the original Complaint because they alleged that it had been lost or destroyed… Well, purportedly, they found that original Note and they alleged it hadn’t been endorsed at all. Well, we investigated the Note they attached in their filing and what do you know, there’s an endorsement on the last page of the Note! It was endorsed in blank and guess who had signed the endorsement stamp? Oh yeah, you guessed it, Erla Carter-Shaw. So she alleges in her Affidavit that the Note has NOT been endorsed and then she attaches an Endorsed Note alleged to be the original.
Another simple but important issue to investigate is the Note that the Plaintiff actually attaches (if and when they do attach a copy of the Note). What you want to zero in on are the endorsements on the Note (or usually, the lack thereof). Understanding the securitization process is key in what you’re looking for on the Note. The endorsements should absolutely follow the chain of ownership from Originator to Seller to Sponsor/Master Servicer to Depositor to Trustee. If you’re not seeing at least 3 endorsements on the Note then you know that this is NOT an original Note regardless of what’s alleged and/or claimed as to its authenticity. We know Portfolio Lending is a dinosaur and literally >95% of all residential loans made since the late 1990’s are/were securitized. Given these facts, we know exactly what to look for.
Here’s a real example from an actual SEC Filed Prospectus linked to a real live Trust (called RFMSI Series 2007-S8 Trust) for more context…
1. Homecomings Financial was the original Lender to John Doe. Homecomings Financial is the “Originator” and “Seller” of this loan and they are the actual “Payee” on the Note the borrower signed at closing.
2. Before the loan even closed, Homecomings Financial knew it was selling this loan to a company called “Residential Funding Company, Inc.” (RFC). RFC always appears as the “Sponsor” and “Master Servicer” in the Prospectus filings with the SEC. – I’ve read well over a dozen Prospectus filings regarding RFC and their roles as Master Servicer NEVER deviates.
3. Homecomings Financial sells the loan (in a pool of loans) to RFC. Here is where you should see the FIRST ENDORSEMENT on the last page of the Note. It’s usually a stamped endorsement that says “Pay to the Order of, Without Recourse” and then you’ll see “Residential Funding Company, Inc.” just below that and the signature of an authorized signor for Homecomings Financial. That’s Endorsement #1.
4. Now, RFC isn’t going to hang on to this Note (pool of Notes) for very long. They have already setup an arrangement to sell these loans (Notes) to a company called “Residential Mortgage Securities I, Inc..” well in advance. This company is called the Depositor. They purchase the loans/notes (the entire pool) from RFC.
5. Here’s where you should see the SECOND ENDORSEMENT on the last page of the Note. “Pay to the Order of, Without Recourse” to Residential Mortgage Securities I, Inc.
6. Residential Mortgage Securities I, Inc., as Depositor is now going to Deposit these loans into the Trust and endorse the Notes to the Trustee.
7. US Bank National Association is the Trustee in this transaction as disclosed in the Prospectus, Form 424B5 (which you can actually get online at www.sec.gov by doing a search on EDGAR; if you know the name of the Trust, you can plug that name in exactly as it appears in a Google Search bar surrounded by quotes and you’ll get all the filings on that specific Trust usually)
8. Here’s where you should see the THIRD ENDORSEMENT on the last page of the Note… payable to US Bank National Association.
Now, what’s material here is that in this particular foreclosure case, the Plaintiff was “Residential Funding Company, Inc.” – here’s a short Quiz question, “Who is Residential Funding Company, Inc.?”
Do you think they own this Note? Even if they actually have the original, it doesn’t mean they’re the holder in due course or the real party in interest. But, if you file a Request for Production of Documents in the foreclosure case the Plaintiff probably won’t respond or they ‘ll try to object to your request. Why? Because, if they can find the original Note it will have these Endorsements on it showing the chain of transfers on it and they will have just produced evidence to the court which clearly evidences that they ARE NOT the owner and holder of the Note as they alleged in their Summons and Complaint.
Now, if you can believe it, we have cases where they have produced the note with endorsements on the last page that DIRECTLY contradict their allegations in the complaint. The attorney’s that work for many of these foreclosure mills aren’t very bright nor do they even understand these things often times.
Thus, you can attack this point in the form of misrepresentation or fraud on the court by showing the court the SEC filings from the Trust that this loan was deposited into. The Form 424B5 (Prospectus) will clearly disclose the parties involved, the chain of ownership and their roles. This is your evidence (as an Exhibit) that the Note in question is either not an original or there are some serious issues with its authenticity or that it contradicts their allegations. No opposing counsel will want a judge to get his/her eyes on this and will usually suspend their prosecution of a foreclosure case if you make your case right with them first via phone. We draft a Motion to Dismiss and attach the evidence as an Exhibit (the SEC Filings) and in the Motion to Dismiss will be points and elements outlining the misprepresentation on the part of counsel and the Plaintiff. My wife will then send this to opposing counsel first and find out what they want to do…
Lastly, often times we’ll see some endorsement(s) on a separate page (not on the last page of the Note) or an “allonge” to the Note. This can be attacked as well. An allonge is easy to create after the fact as it is not an actual part of the Note. Check your state statutes but most states will require endorsements to be on the last page of the Note as long as there is room on the last page. You can easily fit 4-5 endorsements on the last page of a Note.
When the law firm gets a new case, our goal is to raise enough doubt to survive Summary Judgment. Once you survive any motion for Summary Judgment, these cases get dropped off the map. We also request a jury trial in every case along with a Request for Production. If the Plaintiff doesn’t produce what we request (and they usually won’t) for reasons stated above, you’ve got yourself a case. Hope this helps all you folks out there trying to figure out how best to fight these boys at their own game.