Please discuss this with your attorney: If you have already been foreclosed against, and the foreclosing entity was not registered with your Secretary of State to do business in your state, and if they were not registered to do mortgage servicing with the Banking Commissioner in your state, file a MOTION TO VACATE BASED ON LOSS OF SUBJECT MATTER JURISDICTION OVER THE CASE. Subject matter jurisdiction is not subject to a statute of limitations, and can be invoked at any time.
"Daniel P. Stipano states
National Banks Are Subject to State Laws
When Foreclosing Mortgage Loans
They Did Not Originate"
rod said...
this letter is actually known as OCC Interpretive Letter #1016 February 2005.
It took me 6 years to discover it. Same issue decided in Cuomo v Clearinghouse by US Supreme Court, June, 2009.
We all need to stress these points of law, until the courts hear us and listen and obey their own laws
February 7, 2011 11:02 PM
Kelly L. Hansen said...
Rod!
I just have to tell you how good you comment made me feel. Now I know I'm not a complete and total idiot. I knew that letter was of great importance. These damn banks keep saying they don't have to conform to state laws, yet they foreclose against mortgages in States where they aren't licenced or registered on mortgage loans they don't originate, and usually aren't even registered on at the Register of Deeds Office...and then they attempt to invoke the state's statutes in their lawsuits if it helps them to do so!
February 14, 2011 11:30 AM
Sunny said:
Could someone please explain what the OCC Letter means and it's relevance? I am not able to understand the legal jargon. Thank you very kindly in advance for your support.
Sunny
February 15, 2011 11:49 AM
Cat West said...
The OCC is the Office of the Comptroller of Currency
They are the branch of our treasury department that is supposed to be watching these banks to make sure they follow the law. Clearly, they aren't doing enough for the homeowners who have become victims of the crimes we hear about on this blog.
February 16, 2011 8:20 AM
Kelly L. Hansen said...
Sunny,
I'm not a lawyer, this is just my "slant" however when I read this I found
it to be of HUGE importance if you have been foreclosed against in a State Court, by an entity that is not registered in your state to do business, if:
that entity did not originate your mortgage loan.
In the case referenced by Rod, the U.S. Supreme Court ruled that National Banks are subject to state laws when they are litigating in state courts.
Daniel P. Stipano's letter goes a step further stating when these entities are foreclosing against loans they did not originate, once again, they are subject to the state's laws in which they are foreclosing.
What is significant about the Supreme Court decision and Daniel P. Stipano's letter is that they both clarify the law regarding National Banks being subject to state laws when foreclosing. (Because your case is subject to dismissal if the entity foreclosing against you has not followed state laws before filing its foreclosure action. Anyone who has been foreclosed against, your foreclosure is subject to a motion to vacate due to loss of subject matter jurisdiction over the case.)
National Banks continue to claim they are "exempt" from state laws: they don't have to be registered in the state to do business; they don't have to be licensed in the state as a mortgage loan servicer, etc. However, if they intend to file foreclosures and use a state court to litigate, they better conform to the state's laws prior to filing or face losing their case. CHECK IF YOUR FORECLOSING ENTITY IS REGISTERED WITH YOUR SECRETARY OF STATE AND IF THEY ARE LICENSED WITH THE BANKING COMMISSIONER AS IS REQUIRED BY STATE LAW.
Daniel P. Stipano's letter also has great relevance when it comes to SECURITIZED LOANS.
More often than not, the entity that is foreclosing against you will not be the entity that originated your mortgage loan. Usually, mortgage loans have been securitized.
Daniel P. Stipano's letter confirms that when a foreclosing entity is foreclosing upon a mortgage loan held in a securitized trust (all securitized loans) they are subject to the state's laws in which they are foreclosing. That is the majority of all mortgage loans. And it is certainly all MERS loans.
So, file a motion to dismiss on the fact that the entity foreclosing against you is not legally registered or licensed to do mortgage business in your state. Or file a motion to vacate a past foreclosure. AFTER YOU TALK TO YOUR LAWYER!!!!!!
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