every court has ruled the borrower can not challenge the assignment
Kingsman Funding
Some one has said, every court has ruled the borrower can not challenge the assignment….but Not so. There is growing a large body of case law which I can share although it is lengthy and boring that gives standing to homeowners threatened with foreclosure to challenge a patently invalid assignment of interests in the deed of trust. But you are mixing apple and oranges in your response. Of course it is almost always true in every state as you say….” Standing to foreclose requires only proof that the foreclosing party held the note when it filed the action. Proof of prior assignments is unnecessary….").
But proving they hold the note is something they can’t do if they don’t hold it and of course you would be raising that issue as well, And as you say it really comes down to that. Often the endorsements on the note do not match up to the chain of the assignments of the trust deed, or the endorsements on the copy are provably many years by who executed them. In one case we are aware of the supposed holder that for proof has tried to pass of a copy of the note blank endorsed by a Countrywide officer who we all know was taken over in 2008 I think, so the copy has to be at least 7 years old and it is blank endorsed so the actual note could be held by anybody by now.
But the point of the post was that even if you have a state where the right to challenge the assignment per say is limited when you get them to sue you for something, THEY become the ones who have to prove THEIR standing as owners of the loan to bring the suit and you as defendant have an absolute iron clad right to challenge that.
This is what we were saying from the one case we quoted from:
Plaintiff has cited that Under the New Jersey Rules of Court, summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact challenged and that the moving party is entitled to the judgment or order as a matter of law.’ R. 4:46-2.
And asserts …. Plaintiff has established ….. Plaintiffs standing to foreclose…..these facts are amply demonstrated by Plaintiffs Certification, attached hereto and incorporated herein. As a result, Plaintiff has established its right to foreclose…… Plaintiff’s standing is not in question in this matter.
Plaintiff has established its right to foreclose in this matter, and the Defendants have failed to establish any defense to the foreclosure action. Therefore, Summary Judgment is appropriate.
Plaintiff repeatedly states: The only material issues in a foreclosure action are: (1) the validity of the note and mortgage; (2) that the defendant has defaulted under the terms of the loan; and (3) Plaintiff’s right to resort to the mortgaged premises in satisfaction of the debt. Great Falic Bank v Pardo, 263 N.J. Super. 388 (Ch. Div. 1993); Snmerset Trust Co. v. Stenherg, 238 N.J Super. 279,
283-84 (Ch. Div. 1989).
Yet an examination of Plaintiff’s case law will show that in each case In Personum jurisdiction was either proven by the Plaintiff or presumed by the court in its hearing of the case, as without it there would have been no hearing or decision by the court in these matters. And it is the first material fact that must be established by a Plaintiff in any case and is part and parcel of 3) Plaintiff’s right to resort to the mortgaged premises in satisfaction of the debt which Plaintiff clearly acknowledges MUST be established in a foreclosure action.
Plaintiff’s oversight therefore ignores material facts in dispute of Plaintiff’s In Personum jurisdiction to have brought this suit established by Defendant’s documentary and expert testamentary evidence in his answer to the complaint and as well now by Plaintiff’s responses to Defendant’s discovery that has sought dispute by the Plaintiff of these facts now in evidence.
The fact that Plaintiff’s sole right to bring this action or to have transferred its rights to a new plaintiff rests in part on the validity of the assignment TO Plaintiff executed by David McDonnell in behalf of MERS acting, himself as an officer of the original lender or a successor at that time, for MERS to THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION AS GRANTOR TRUSTEE OF THE PROTIUM MASTER GRANTOR TRUST, which as Defendant in the suit he has disputed, challenging the In Personum jurisdiction of the Plaintiff to have brought this case based on such assignment; it is his right to challenge such In Personum jurisdiction which gives Defendant standing to challenge the validity of this assignment to Plaintiff on which Plaintiff’s In Personum jurisdiction rests.
Put another way: The fact Defendant is a party to a suit where such In Personum jurisdiction of the Plaintiff to have brought this case based on such assignment is an issue in dispute gives him standing to challenge the validity of the assignment.
If you take some actions for example, that threaten the validity of their instruments in the public records, to enforce the mortgage, they will have to sue to get their rights reinstated. It doesn’t really matter whether you can ultimately win the right to do what you have done. In order to set it right, they have to sue, and to do that they have to be the damaged party who owns the loan. And when they bring their suit you can challenge their right to bring such a suit using any evidence you have that they don’ t really own the loan. The court will have to hear it and they will have to win that before anything else about the suit can go forward.
There are a number things you can do against your loan that will compel them to act. We will discuss some of those in the future or I can address questions on this if that would be a better way, Dr Weatherly
On another very important subject let me add something.
Most people don't understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He's not angry with us about anything any more.
The Bible says, He is for us, not against us.
He died in our place to purchase us for Himself and if you'll give in to Him, there's nothing He won't be able to do in your life.
I know, I have been with Him for 41 years.
And when we finally leave this world, we'll live with Him forever,
if we belong to Him.
If you need to think about that or you have someone in mind that does, I'll be glad to talk with them. My number again was 662-489-6554. I just wanted you to know that.
Dr. Weatherly
