Do I have a case for wrongful foreclosure based on "standing" if assigned trust can't prove they had timely endorsed note?

Asked almost 2 years ago - Atlanta, GA

"note" Proof of claim filed in bankruptcy (7) 2010, was unendorsed. Lender went debunked in 7/2008. Foreclosure in 10/2012. Now suddenly "note" has stamped blank endorsement, from Michele Soleinjoiner who worked in 2007 but denies ever stamping any notes. But this note differs from original note copy I have , meaning no punch holes, etc. in top. Assignment duplicated in 2009/ 2011, to same trust by Mers. Countrywide original lender. Georgia jurisdiction. Can Mers assign if the principal is debunked? Can lender cure an endorsement after they cease to exist? What basis is the best way to proceed? Thank You.

Attorney answers (3)

  1. Ryan Thomas Strickland

    Contributor Level 8

    5

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    Answered . In my experience, challenges to problems in the Note or Assignment are not successful. These are perfectly legitimate arguments, but there are a large number of bad decisions on these issues which can persuade an an unfamiliar judge to rule incorrectly. However, if Ms. Soleinjoiner is willing to sign an affidavit confirming that she did not sign or authorize her signature on that Note, then you may have a case (depending upon the dates on which all of this occurred). You may have other arguments based on the notice letter they sent to you. You need to discuss your options with a GA foreclosure attorney,

    This response is for general informational purposes only and does not constitute legal advice or counsel. By... more
  2. John P Fazzio III

    Pro

    Contributor Level 16

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    Best Answer
    chosen by asker

    Answered . It sounds like you should hire a local foreclosure defense attorney. You will have to see what post-foreclosure options are available. In New Jersey, there is something called the Consumer Fraud Act that applies in situations like this one. I would just make one point. If a document is submitted to Court and it is signed by an agent or nominee (i.e., M.E.R.S.), you need a couple of things for that to be valid. Let's take the situation like you have that M.E.R.S. is the nominee and makes an assignment to a Countrywide Trust. First, the foreclosing servicer or successor bank needs a Power of Attorney appointing M.E.R.S. as the nominee for the original lender. Then they need something showing that the signatory, Michele Soleinjoiner is actually authorized to sing on behalf of M.E.R.S. Finally, you need an original Assignment document. To authenticate that original assignment document or present a copy to the Court, someone with knowledge of the original execution of the assignment has to swear to the circumstances of the execution in an affidavit under oath. I count 4 authenticating documents needed to button-up the authority to sing in a case like that. So the good news is there probably is some foreclosure issue here. The bad news is it will be a lot of work to revive it. You should also be aware that the Big 5 Servicers (Bank of America, JPMorgan Chase, Wells Fargo, Citi and GMAC/Ally) have had to pay out under a Federal Settlement and if the original or successor entity/servicer was one of these banks, you may have a claim to those monies and should contact an Independent Reviewer from the Federal Reserve.

  3. Steven Navaro

    Contributor Level 9

    4

    Lawyers agree

    Answered . You may wish to read my article on Avvo regarding foreclosure defenses and what works and what doesn't. However, it does sound as if something fishy is going on. I would highly recommend hiring a good foreclosure defense attorney in GA who is knowledgeable about securitization, the role of MERS and the issue of standing. Generally speaking, a Borrower does not have standing to claim a violation of a PSA (pooling and servicing agreement) between a lender and the trustee of the trust). However, there are other arguments that could be raised upon review of the documents.

    This answer is for general information only and does not create an attorney client relationship between Navaro &... more

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