Last Rev. 03/15/19 07:402am

Banks' Filings of False Affidavits - What Homeowners and Foreclosed Homeowners Should Do

Filings of False Affidavits - Fraud on the Court; Criminal; the Problem Discussed

Starting in September, 2010, the nation's press has been publishing news stories about the fraudulent filings of perhaps millions of mortgage foreclosures by Bank of America, JPMorgan Chase, GMAC, Ally Financial, Countrwide, Wells Fargo and others. To start an action, and especially a foreclosure action, the bank and its lawyers are required to review the documents upon which the action is based and (as to foreclosure actions) swear in an affidavit that various conditions have been met, and that the person signing the required affidavit has reviewed the documents, among other things. Instead of having someone do this tedious work, which could take several hours or longer, especially when documents are missing, the banks and their mortgage servicing companies and assignees have been filing actions with affidavits signed by a robot, falsely swearing to the facts set forth in the affidavit.

This is criminal conduct, and creates substantial opportunities in civil litigation for homeowners and prior homeowners (who lost their homes through foreclosure) to obtain various types of relief in court, depending on the circumstances of each case, of course.

In some cases, recovery of the sold property is possible. In other cases, dismissing a current foreclosure action is possible, or vacating a default and dismissing a final judgment of foreclosure is possible. Also, actual damages, consequential damages and punitive damages (not exceeding 9 times actual and consequential damages) are possible, together with costs and attorneys' fees. Also, declaratory judgment relief may be available as well as an injunction and preliminary injunction.

My law practice deals with a lot of foreclosure defense work, in various states. Under law, I am permitted to represent clients in the courts of any state provided in states other than New York I associate with local counsel, who will obtain admission to the local bar, for that case, in what is known as a "pro hac vice application".

If you are interested in exploring what possibility may exist under your own circumstances, please give me a call, at 212-307-4444 or email me at, and I'll be happy to discuss your options. I do not charge for these initial consultations.

Finding Out if Your Bank Has the Original Note and Original Mortgage

Many homeowners, learning that various leading banks in the U.S. may not be able to produce the original of the homeowner's note and mortgage, have made requests to the bank, lender or mortgage servicing company for an answer to the question of whether it owns and possesses the original of the note and mortgage. Guess what, most of these inquiries are not answered truthfully or at all, as you would expect.

What does this mean for a homeowner? How is the homeowner going to find out if he/she has a chance of warding off a foreclosure action by the defense that the bank (lender or servicing company) is not a proper party (and has no standing to sue) because it doesn't have the original of the note and mortgage, and doesn't even have possession of either?

The practical answer to this question in a judicial foreclosure state (of which there are 23, including New York, Florida, Illinois, New Jersey, and Connecticut) is to stop paying your mortgage and invite a foreclosure lawsuit. This of course should not be done without a great deal of thought, particularly if the homeowner can afford to pay the mortgage. But if the homeowner is unable to pay the mortgage, the answer is much easier to determine. By inviting and then defending (on a timely basis) a mortgage foreclosure action, you or your attorney will be able to find out if the bank (lender or servicer) actually owns or has possession of the originals, and if it does not, you might well have a defense to the foreclosure action, and the action would be dismissed until some other bank or lender comes forward with the original note and mortgage. Actually, this is unlikely to happen because MERS (i.e., the Mortgage Electronic Registration System) admits that many of the original notes and mortgages were deliberately destroyed when registration with MERS took place, perhaps millions of original notes and mortgages. In addition to the developing legal doctrine that a bank needs the original of the note and mortgage to bring suit, there is also an old-time doctrine of spoliation pursuant to which a person who deliberately destroys or loses a document which is expected to be needed in litigation can be sanctioned for such conduct, in some cases by denying them the right to proceed any further with their case.

For a cost of a few thousand dollars, even a homeowner who has lost his/her home through foreclosure and sale might be able to go into court on a wrongful foreclosure action and recover damages from the bank or perhaps recover the property.

Please give me a call to discuss these matters, regardless of whether you are pre-foreclosure, in foreclosure, or have already lost your home to foreclosure and sale.

I look forward to hearing from you. Things are getting much better for beleaguered homeowners as a result of these recent disclosures that the banks have been violating various laws in their foreclosure proceedings.

Carl E. Person
225 E. 36th Street - Suite 3A
New York NY 10016-3664
Tel: 212-307-4444
Cell: 917-453-9376