Forclosure Defense Request for Admissions Checklist

22 Jan

This is from a Judicial Foreclosure state for California Just Reverse the role between Plaintiff and defendant ie. In California the Defendant is the Bank.  One Advantage we have in California is that a Plaintiff can begin discovery 10 days after service of the Summons. Sooooo.. Serve the complaint on the bank. Ten days later Request for admissions with Form Interrogatories be sure and check 17.1 and your off to the races….gavelhouseimages

Foreclosure Defense

REQUESTS FOR ADMISSION CHECKLIST

STANDING 2

ASSIGNMENTS 3

ENDORSEMENTS 3

WITNESSES 3

LOAN SERVICING 3

SERVICING REQUIREMENTS-HAMP 3

STABILIZATION ACT OF 2008. 3

SERVICING REQUIREMENTS-HUD 3

LOAN ORIGINATION 3

FEES/CHARGES 3

PAYMENT HISTORY 3

LOST NOTE 3

TRUTH IN LENDING [TILA] 3

SECURITIZED TRUSTS 3

MERS 3

CERTIFICATE OF AUTHORITY (F.S. 607.1502) 3

GENERAL/MISC. 3

SERVICE OF PROCESS 3

NEGOTIABLE INSTRUMENT 3

FEDERAL/FLORIDA DEBT COLLECTION PRACTICES ACT 3

MORTGAGE REVENUE BOND PROGRAM 3

REQUEST FOR ADMISSIONS CHECKLIST
STANDING

1. Admit that [Plaintiff] Mortgage Corporation has no standing to initiate foreclosure proceedings against [Defendant].

2. Admit that the mortgage note, if attached to Plaintiff’s Complaint, is an exact and authentic copy of the original.

3. Admit that the Plaintiff is not the lender named in the original mortgage note which is the subject of this case.

4. Admit that the original lender has not transferred possession of the original mortgage note or any rights thereunder to Plaintiff.

5. Admit that Plaintiff is not in possession of the original mortgage note.

6. Admit that Plaintiff is not the holder of the original mortgage note.

7. Admit that Plaintiff is not the owner of the original mortgage note.

8. Admit that Plaintiff did not have actual physical possession of the original mortgage note prior to filing the foreclosure Complaint in this case.

9. Admit that [Plaintiff] did not retain or authorize [Plaintiff’s attorney] to commence the above entitled action against [Defendant] or any other defendant relating to the Subject Property.

10. Admit that the alleged copy of the promissory note submitted as plaintiff’s “Exhibit A” attached to the named plaintiff’s complaint is not a true and correct copy of any promissory note which [plaintiff bank] lost or destroyed.

11. Admit that the alleged copy of the promissory note submitted as plaintiff’s “Exhibit A” attached to the named plaintiff’s complaint includes no allonge showing any assignment to named plaintiff [plaintiff].

12. Admit that no paper showing any assignment of the promissory note in this instant case to named plaintiff [ ] ever existed.

13. Admit that [plaintiff bank] has not contracted with [plaintiff’s lawyer’s name, address] in these proceedings.

14. Admit that your company’s disclosed claimed holder in due course of the monetary instrument, deed of trust, and/or asset is holding such note in compliance with State and Federal law and is actually entitled to the benefits of payments;
ASSIGNMENTS

1. Admit that [Lender/Mortgagee] has assigned the Promissory Note and Mortgage to a third party.

2. Admit that [Signer] did not have authority to convey by assignment, the subject mortgage from [Lender/Morgagee] to [Plaintiff] on [Date] in [city/state].

3. Admit or deny that [signer] did not have a valid Power of Attorney from [lender] authorizing him/her to convey the subject mortgage by assignment to [Plaintiff].

4. Admit or deny that [signer] is not an officer or employee of [lender/mortgagee] corporation.

5. Admit or deny that the Assignment purporting to convey the subject mortgage and promissory note in the instant action was signed and executed after the filing of the complaint and commencement of this action.

ENDORSEMENTS

1. If the original mortgage note in this case included an allonge, then the said allonge was not permanently affixed to the said note.

2. An allonge cannot be permanently affixed to a mortgage note by way of a paper clip, staple or scotch tape.

3. An allonge was affixed to the original mortgage note in this case because there was insufficient room at the bottom or foot of the original mortgage note for any endorsements.

4. Admit that [Signer] did not have the authority to endorse the promissory note that is the subject of this action from [Lender] to Plaintiff.
WITNESSES

1. Admit that [Affiant] is not the authorized person to swear the Affidavit of Merit.

2. Admit that [Affiant] does not have first hand knowledge of the alleged facts reported in his/her affidavit.
LOAN SERVICING

1. Admit that each servicer and/or sub-servicer of this mortgage has not serviced this mortgage in accordance with statute, laws and the terms of mortgage, monetary instrument/deed of trust, including but not limited to all accounting or bookkeeping entries commencing with the original loan solicitation through and including any parties, instruments, assignments, letters of transmittal, certificates of asset backed securities and any subsequent transfer thereof;

2. Admit that each servicer and/or sub-servicer of this mortgage has not serviced this mortgage in compliance with local, state and federal statutes, laws and regulations commencing with the original loan solicitation through and including any parties, instruments, assignments, letters of transmittal, certificates of asset backed securities and any subsequent transfer thereof;

3. Admit that this mortgage account has not been credited, debited, adjusted, amortized and charged correctly and disclosed fully commencing with the original loan solicitation through and including any parties, instruments, assignments, letters of transmittal, certificates of asset backed securities and any subsequent transfer thereof.

4. Admit that interest and principal have not been properly calculated and applied to this loan.

5. Admit that any principal balance has not been properly calculated, amortized and accounted for.

6. Admit that all good faith and reasonable disclosures of transfers, sales, Power of Attorney, monetary instrument ownership, entitlements, full disclosure of actual funding source, terms, costs, commissions, rebates, kickbacks and fees were not and still are not properly disclosed to our client(s), including but not limited to the period commencing with the original loan solicitation through and including any parties, instruments, assignments, letters of transmittal, certificates of asset backed securities and any subsequent transfer thereof.

SERVICING REQUIREMENTS-HAMP

1. Admit that [Plaintiff Bank/Servicer] is the parent corporation of [Plaintiff]

2. Admit that [Plaintiff] took [xx] Billion in TARP money in November 2008.
3. Admit that as a recipient of TARP funds, [Plaintiff] is obligated and contractually committed to comply with the Home Affordable Modification Program guidelines.
4. Admit that [Plaintiff Bank] signed a COMMITMENT TO PURCHASE FINANCIAL INSTRUMENT and SERVICER PARTICIPATION AGREEMENT for the HOME AFFORDABLE MODIFICATION PROGRAM under the EMERGENCY ECONOMIC STABILIZATION ACT OF 2008.
5.. Admit that [Plaintiff] has not provided the defendant in this action the required servicing under the Home Affordable Modification Program Guidelines.

SERVICING REQUIREMENTS-HUD

1. Admit that Plaintiff failed to have a face to face meeting with Defendant before three full monthly installments were unpaid as required by 24 C.F.R. 203.604.

2. Admit that Plaintiff U.S. Bank, N.A. did not comply with the HUD loan servicing and loss mitigation regulations pursuant to 24. C.F.R. 203 subpart C.

3. Admit that special loan servicing requirements promulgated by the Secretary of HUD and codified in the Code of Federal Regulations are incorporated into the terms of the mortgage and note at issue in the instant case.

4. Admit that failure to comply with the HUD loan servicing regulations constitutes a breach of the mortgage contract.
LOAN ORIGINATION

1. Admit that this mortgage loan was not originated in lawful compliance with all federal and state laws, regulations including, but not limited to Title 62 of the Revised Statutes, RESPA, TILA, Fair Debt Collection Practices Act, HOEPA and other laws;

2. Admit that the origination and/or any sale or transfer of this account or monetary instrument, was not conducted in accordance with proper laws and was a lawful sale with complete disclosure to all parties with an interest;
FEES/CHARGES

1. Admit that charges, fees or expenses, not obligated by the Defendant in any agreement, have been charged, assessed or collected from this account or any other related account arising out of the subject loan transaction.

PAYMENT HISTORY

1. Admit that [plaintiff] is not in possession of the account and general ledger statement, authenticated by a competent fact witness, proving a deficiency owed by [defendant].

2. Admit that absent possession of the account and general ledger statement, authenticated by a competent fact witness, proving a deficiency owed by [defendant], [plaintiff] cannot prove a deficiency owed by [defendant].
LOST NOTE

1. Admit that the original mortgage note has not been lost or destroyed.

2. Admit that the original lender has not filed an affidavit attesting to the loss of the original mortgage note or its destruction.

3. Admit that Plaintiff does not have a signed Power of Attorney authorizing it to file any type of affidavit attesting to the loss of the original mortgage note or its destruction.

4. Admit that Plaintiff never had possession of the original mortgage note before it was allegedly lost.

5. Admit that Plaintiff has no actual knowledge as to who lost the original mortgage note.

6. Admit that some party other than the Plaintiff lost the mortgage note in this case.

TRUTH IN LENDING [TILA]

1. Admit or deny that proper statutory disclosures regarding the mortgage, its interest and other related charges and mode of payment has been made to [Defendant].
2. Admit that no Truth In Lending Act disclosures were provided to [Defendant] prior to his/her signing the loan documents.

3. Admit that Plaintiff’s assignor did not provide [Defendant] with any Truth In Lending disclosures three days prior to the time when he/she signed the loan documents.

SECURITIZED TRUSTS

1. Admit that the original mortgage note in this case is part of a securitized trust composed of more than one mortgage loan.

2. Admit that the securitized trust was created by a Pooling and Servicing Agreement.

3. Admit that the Pooling and Servicing Agreement includes mandatory rules as to the time for the transfer of all original mortgage notes and security instruments (mortgages and deeds of trust) to the Trust.

4. Admit that the original mortgage note was not transferred and delivered to the Custodian for the Trust.

5. Admit that the original mortgage note was not received by the Custodian for the Trust prior to the final date for the delivery of the same as set forth in the Conveyance rules of the Pooling and Servicing Agreement.

6. Admit that the Custodian filed a written report with the Trustee for the securitized trust in which it attested to the actual possession and custody of the original mortgage note in this case.

7. Admit that the named Depositor for the securitized trust in this case did not transfer the original mortgage note to the Custodian for the trust.

8. Admit that the Sponsor for the securitized trust in this case did not actually transfer the original mortgage note to the Depositor for the trust.

9. Admit that the Originator for the mortgage loan in this case did not transfer the original mortgage note to the Sponsor for the securitized trust.

10. Admit that the Trustee for the securitized trust in this case is not the lawful owner and possessor of the original mortgage note.

11. Admit that no party, other than the Trustee for the securitized trust in this case, has any legal claims or rights in the original mortgage note.

12. Admit that any and all documents that purport to transfer the original mortgage note from the Originator to Plaintiff would not be consistent with the mandatory conveyance rules in the Pooling and Servicing Agreement for the trust that actually owns the original mortgage note.

13. Admit that the securitized trust that owns the original mortgage note in this case issued bonds or certificates to various parties who thereby acquired an ownership interest in the corpus of the trust.

14. Admit that the corpus of the trust consisted and does consist of original mortgage notes such as the note in this case.

15. Admit that the bonds issued by the trust were rated by a bond rating agency such as Fitch, Moody’s or Standard & Poor’s.

16. Admit that the investment-grade bonds issued by the trust could not have been sold without such ratings by a bond rating agency.

17. Admit that in rating the bonds, the bond rating agency represented and confirmed to the potential bond buyers that the Custodian actually had physical possession of all original mortgage notes to be delivered to the trust, including the note in this case.

18. Admit that in rating the bonds, the bond rating agency represented and confirmed to the potential bond buyers that all of the original mortgage notes had been properly transferred and delivered to the Custodian in an unbroken chain of transfers and deliveries from the originator to the intermediate parties and from such parties to the said Custodian for the trust.

19. Admit that the Master Document Custodian for the securitized trust in this case verified in writing to the Trustee for the trust that it had confirmed an unbroken chain of transfers and deliveries of the original mortgage note from the Originator to the Sponsor, from the Sponsor to the Depositor, from the Depositor to the Trustee for the trust, and from the Trustee to the Master Document Custodian for the trust.

20. Admit that in rating the bonds, Fitch, Moody’s or Standard & Poor’s represented and confirmed to the potential bond buyers that all of the original mortgage notes had been properly transferred and delivered to the Master Document Custodian in an unbroken chain of transfers and deliveries from the originator to the intermediate parties and from such parties to the said Master Document Custodian for the trust.

21. Admit that in rating the bonds, Fitch, Moody’s or Standard & Poor’s represented and confirmed to the potential investment-grade bond buyers that all of the original mortgage notes had been transferred to the trust in true sales from each party in the chain of transfers and deliveries.

22. Admit that the Prospectus for the trust in this case represents that the trust is the lawful owner and possessor of all original mortgage notes included in the trust, including the original mortgage loan in this case.

23. Admit that the Prospectus for the trust in this case represents that the mortgage loans are owned by the trust and are bankruptcy remote from any claims against the originators of the said loans.

24. Admit that the Prospectus for the trust in this case represents that each transfer and delivery of the original mortgage notes from the originator to the sponsor, from the sponsor to the depositor and from the depositor to the Master Document Custodian for the trust was a true and arms-length sale.

25. Admit that the Prospectus for the trust in this case represents that the trust is the lawful owner and possessor of all original mortgage notes included in the trust, including the original mortgage loan in this case.

26. Admit that plaintiff trustee does not possess a delivery and an acceptance receipt for each sale in the chain of assignments and transfers described in the PSA from the originator of the loan to the trust.

27. Admit that plaintiff trustee does not possess any document from the master document custodian for the trust confirming that all of the required transfers of defendants’ mortgage and note occurred.

28. Admit that plaintiff trustee does not possess any document from the master document custodian for the trust confirming that there is an “Unbroken chain” of transfers from the originator to the sponsor, from the sponsor to the depositor, and from the depositor to the trust.

MERS

1. Admit that MERS has never claimed any beneficial rights or any form of ownership rights in the original mortgage note.

2. Admit that MERS is not the holder of the original mortgage note in this case.

3. Admit that any rights MERS may have had in the original mortgage note were transferred to the Master Document Custodian for the securitized trust when the trust was formed or shortly thereafter.

4. Admit that MERS has no business records as to the receipt of any payments on the original mortgage note.

5. Admit that MERS has no business records as to the application of payments on the original mortgage note.

6. Admit that MERS has on employees who have never serviced the original mortgage loan in this case.

7. Admit that as between MERS and the Trustee for the securitized trust, the Trustee has all rights of ownership and possession with respect to the original mortgage note.
8. Admit that Mortgage Electronic Registration Systems Inc. (”MERS”) did not retain or authorize [Attorney for Plaintiff] to commence the above entitled action against [Defendant] or any other defendant relating to the Subject Property.

9. Admit that MERS did not provide any information to [Attorney for Plaintiff] used in drafting the allegations of the Complaint which [Attorney for Plaintiff] served and filed.

10. Admit that MERS did not have any direct or indirect involvement in controlling any other aspect of the above entitled action against [Defendant].

11. Admit that MERS has no direct knowledge that [Attorney for Plaintiff] commenced the above entitled action against [Defendant] under the name of MERS.

12. Admit that MERS has never verbally communicated with [Attorney for Plaintiff] with regard to the above entitled action during any stage of the action.

13. Admit that MERS has never communicated with [Attorney for Plaintiff] in writing at any stage of the above entitled action that [Attorney for Plaintiff] has commenced against [Defendant] by simply naming MERS as the Plaintiff.

14. Admit that MERS could not have authorized [Attorney for Plaintiff] to commence the above entitled action against [Defendant] or any other defendant relating to the Subject Property, because MERS has no pecuniary interest in the subject property and therefore has no standing and/or authority to sue [Defendant(s)].

15. Admit that MERS has no legal or beneficial interest in the promissory note underlying the security instrument for which it serves as “nominee”.

16. Admit that MERS has no legal or beneficial interest in the loan instrument underlying the security instrument for which it serves as “nominee”.

17. Admit that MERS has no legal or beneficial interest in the mortgage indebtedness underlying the security instrument for which it serves as “nominee”.

18. Admit that MERS has no interest at all in the promissory note evidencing the mortgage indebtedness.

19. Admit that MERS is not a party to the alleged mortgage indebtedness underlying the security instrument for which it serves as “nominee”.

20. Admit that MERS has no financial or other interest in whether or not a mortgage loan is repaid.

21. Admit that MERS is not the owner of the promissory note secured by the mortgage and has no rights to the payments made by the debtor on such promissory note.

22. Admit that MERS does not make or acquire promissory notes or debt instruments of any nature and therefore cannot be said to be acquiring mortgage loans.

23. Admit that MERS has no interest in the notes secured by mortgages or the mortgage servicing rights related thereto.

24. Admit that MERS does not acquire any interest (legal or beneficial) in the loan instrument (i.e., the promissory note or other debt instrument).

25. Admit that MERS has no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.

26. Admit that mortgage indebtedness for which MERS serves as the “nominee” is not reflected as an asset on MERS’ financial statements.

27. Admit that failure to collect the outstanding balance of a mortgage loan will not result in an accounting loss by MERS.

28. Admit that when a foreclosure is completed, MERS never actually retains or enjoys the use of any of the proceeds from a sale of the foreclosed property, but rather would remit such proceeds to the true party at interest.

29. Admit that MERS is not actually at risk as to the payment or nonpayment of the mortgages or deeds of trust for which it serves as “nominee”.

30. Admit that MERS has no pecuniary interest in the promissory notes or the mortgage indebtedness for which it serves as “nominee”.

31. Admit that MERS is not personally aggrieved by any alleged default of a promissory note for which it serves as “nominee”.

32. Admit that there exists no real controversy between MERS and any mortgagor alleged to be in default including [Defendant].

33. Admit that MERS is never the holder of a promissory note in the ordinary course of business.

34. Admit that MERS is not a custodian of promissory notes underlying the security instrument for which it serves as “nominee”.

35. Admit that MERS does not even maintain copies of promissory notes underlying the security instrument for which it serves as “nominee”.

36. Admit that MERS did not retain Cheatham or obligate itself in any way to pay any legal fees to Cheatham with regard to Cheatham commencing the above entitled action.

CERTIFICATE OF AUTHORITY (F.S. 607.1502)

1. Admit that [plaintiff bank] is not domestic to the state of Florida

2. Admit that [plaintiff bank] has not registered as a business entity with Florida’s Secretary of State or his agent.

3. Admit that [plaintiff bank] is not chartered as a bank in Florida.

4. Admit that [Plantiff corporation] does not have a valid Certificate of Authority to conduct business in the State of Florida.
GENERAL/MISC.

1. Admit that it is the practice of [plaintiff bank] to charge-off and sell notes in arrears after collecting insurance on the outstanding amount of indebedness.

2. Admit that after [plaintiff bank] charges off and sells evidence of indebtedness, the commercial paper illustrating the duty between the mortgagor and mortgagee or assignee becomes legally uncollectible.
SERVICE OF PROCESS

1. Admit or deny that Summons has been served properly on [Defendant] in this case.

NEGOTIABLE INSTRUMENT

1. Admit or deny that the promissory note at issue in this action is not a negotiable instrument under Florida Statute 673.1041 because it is governed by and subject to the HUD default loan servicing and loss mitigation regulations, 24. C.F.R. 203 subpart C.
FEDERAL/FLORIDA DEBT COLLECTION PRACTICES ACT
MORTGAGE REVENUE BOND PROGRAM

1. Admit or deny that the subject mortgage loan was pooled into Mortgage Backed Securities (MBS) which have been sold to investors.

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