Legal Ethics

Judge Dismisses Mortgage Foreclosure Over 'Fraudulently Backdated' Doc

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A Florida judge has dismissed a mortgage foreclosure case filed by a national bank, finding not only that the bank couldn’t prove it owned the mortgage at the time that it filed the complaint but “fraudulently backdated, in a purposeful, intentional effort to mislead” a purported 2007 “assignment of mortgage,” reports the Wall Street Journal.

Although the document prepared by the Law Offices of David J. Stern and dated December 2007 showed that ownership passed to U.S. Bank in December 2007, the document couldn’t have been prepared until 2008, ruled Pasco Circuit Court Judge Lynn Tepper last month. The case allegedly involves a defaulted $190,000 loan to Ernest Harpster that he received in January 2007.

Attorney Forrest McSurdy of the Stern firm admitted that a careless mistake had been made, explaining that the mortgage assignment document was prepared and signed in 2007 but wasn’t notarized until months after that. The firm voluntarily withdrew and refiled other complaints after discovering similar issues with them, he tells the WSJ.

“Judges get in a whirl about technicalities because the courts are overwhelmed,” he states. “The merits of the cases are the same: People aren’t paying their mortgages.”

A U.S. Bank spokesman says it was, essentially, a middleman, representing investors who own a mortgage-securities trust that holds the Harpster loan as part of its portfolio. A Wells Fargo & Co. division collected payments from Harpster and began the foreclosure action on the investors’ behalf, he says.

In a written statement, Wells Fargo says it is “troubled” by the court’s conclusions and plans to review the circumstances of the case.

Such document issues are arising with some regularity, the newspaper points out, exacerbated by the flood of foreclosure actions over the mortgage meltdown and the ownership confusion created by the common practice, in recent years, of securitizing bundled packages of mortgages into fractional interests sold—and sometimes resold—to multiple investors.

There is a federal criminal investigation ongoing in Florida over mistakes by banks and their representatives, the WSJ notes.

In a hearing earlier this month in another mortgage foreclosure case in nearby Pinellas County, a hearing transcript (PDF) shows, the judge suggested that law firm employees “should be deposed to see whether they ought to be charged with perjury,” reports the Wall Street Journal Law Blog.

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