Foreclosure Document Fiasco: Tandala Mims v. Wells FargoThe banks' constant refrain during this mortgage mess is that the paperwork issues are mere technicalities -- nothing to be concerned about. The documents are all true, they assert, we just didn't honor the proper procedures.

But it doesn't take much digging into the issue to find a case like that of Tandala Mims of New York, which calls into question the whole foreclosure process and the systems that support it.

In Mims's case, which will be argued again on Thursday, her lawyer, consumer bankruptcy attorney Linda Tirelli, argues that Wells Fargo (WFC) should not be able to foreclose during Mims's bankruptcy because the bank's documents claiming ownership of the mortgage appear to be false in several ways.

To foreclose, Wells Fargo will have to prove to the bankruptcy judge that it has the legal right to -- that it has "standing" -- because either it owns the loan or it's representing the entity that does. Wells tried to prove standing once, but the judge wasn't convinced, ruling against Wells on Oct. 27. At that point, Wells had produced a note and an assignment of mortgage, both of which were deeply flawed documents.

Wells Fargo Documents, Take One

The first note Wells introduced showed that Mims originally owed her mortgage debt to a company called Lend America, which then transferred the note to Washington Mutual. Let's remember: JPMorgan Chase (JPM), not Wells Fargo, bought Washington Mutual. Nothing in Wells's documents showed how it ended up with the note -- nor was there any indication that the note had been transferred to JPMorgan.

Similarly problematic was the paper purporting to assign the mortgage to Wells. That document says Lend America assigned the mortgage to Wells Fargo, which on its face is odd. If the note belonged to Washington Mutual as it indicated, the mortgage should have been WaMu's to assign. After all, the general rule is the "mortgage follows the note." Worse, Lend America appears to be out of business, as Tirelli's motion details. So even if it somehow retained the mortgage after transferring the note, it's hard to understand how Lend America is assigning anything these days.

Not to worry, Wells Fargo may say: The assignment occurred through the magic of MERS -- Mortgage Electronic Registration Systems, the tracking database firm named on some 60% of mortgages today.

Specifically, MERS was named on the original mortgage as Lend America's nominee, and John Kennerty, a Wells Fargo employee and known robo-signer, used his additional authority as a MERS "certifying officer" to assign the mortgage to Wells. An obvious conflict of interest exists when Wells Fargo is essentially assigning a mortgage to itself to prove its right to foreclose. But the fact that Kennerty signed as nominee for Lend America also suggests that the MERS database didn't keep up with what happened to Mims's mortgage and note because again, Kennerty -- or better yet, a MERS "officer" who doesn't work for Wells Fargo -- should be signing as a nominee for JPMorgan Chase.

In any case, Wells Fargo failed to convince the judge it had the right to foreclose, so it submitted another round of documents to prove standing.

Wells Fargo Documents, Take Two

The second time around, Wells filed a note that showed Washington Mutual endorsing it "in blank." The blank endorsement, if real, would give whoever is holding the "new" note rights in it. This endorsement, however, is problematic. When did it appear on the note? After all, Wells certified that the note without the in-blank endorsement that it first submitted was a "true and accurate cop[y] of the original document" as of Sept. 16, 2010. If the endorsement was added after that point, Wells should have asked the court's permission before adding it.

But if the endorsement is to be believed, it has to be several years old. As Tirelli points out, the WaMu entity supposedly endorsing the note ceased to exist years ago, and WaMu in any form went out of business a few years later. If the "new" note is a real copy of the original -- meaning the endorsement was done when that old version of WaMu existed -- then that version has been in existence for years, and the "old" note Wells first submitted must be quite old indeed.

So why did Wells think the first version was a true and accurate copy of the original? What research does Wells do before certifying the documents it submits to court?

Unfortunately, the idea that the two notes submitted are just snapshots of the same original at different times, with the older one accidentally being submitted to court the first time, just isn't credible. The discrepancies between the two go way beyond the endorsement. Tirelli points out that:
there are hole punch marks on the Mims I Note which do not appear on the Mims II Note. There is a bar code on the top of the Mims I Note not present at the top of the Mims II Note and a barcode at the bottom of the Mims II Note not present on the Mims I Note. There are what appear to be blackened permanent marker cross-out items which do not match as between the documents. There appear to be [check] marks throughout the body of the Mims I Note which do not appear on the Mims II Note. The size of the font [on each] also appears different...
I'd like to hear how Wells explains those differences.

As to the assignment, Wells made no substantive changes but submitted documents claiming to support what Kennerty did on behalf of MERS. Tirelli points out that if the loan is researched on the MERS site, Wells is identified as the loan's servicer, and some unnamed "investor" that chose not to reveal itself in the database as the owner. While that suggests some mystery investor has the right to foreclose, it equally suggests that Wells doesn't -- at least not in its own name. I wonder if the investor knows that Wells is trying to do just that?

I can't wait to see what the judge makes of this situation.

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I personally think that bankruptcy is much better than foreclosure. You seem to bounce back from bankruptcy a lot faster now days. They have secured credit cards and all kinds of ways to rebuild you credit. But foreclosure is more like an event that even with recovered credit, could keep you from buying another home.

July 19 2013 at 3:43 PM Report abuse rate up rate down Reply

I never had a signed contract with Wells Fargo when they bought the loan from Lend America in between August - October 2007,I refianced in March of 2008,and thats when I found out that the appraisel was not finished.Neither Lend America had one nor Wells Fargo.And The age of the house and make were falsified through documents. So what are my rights as a homeowner?

January 20 2011 at 5:42 PM Report abuse rate up rate down Reply

No doubt, Ms. FIELD has already heard an updated report on the status of this case and I am sure that we will be hearing more. I thought that others might like to scrutinize the two versions of the promissory note themselves: I have also posted the two Wells Fargo motions for relief of stay, which gives the complete representations of Wells Fargo as to its allegation that it is the holder of the alleged note: Unsurprisingly, the Court already issued an order DENYING the renewed Wells Fargo motion:

December 09 2010 at 7:31 PM Report abuse rate up rate down Reply

Yes, it is a mess. Look to see enormous increases in title insurance and the potential for title companies to refuse insuring "used" homes. This will paralyze our recovery for years.

December 08 2010 at 9:41 AM Report abuse rate up rate down Reply

Wayne, You are on the money!! Wake up America. The banksters have you and every other country in debt bondage. The debtor will always be slave to the lender! Research the death of the Polish President last spring. He had refused loans from the IMF. Poland had a solid, decent growth rate and was the only country in Europe without a national debt. Gunshots were heard after the plane crashed - to finish the job. It is through this debt system the bankers control the "pretender" leaders, drive the wars (wars require great borrowing to fund) and the economies around the world. People, read your history! You think Lincoln and Kennedy were murdered over what the news presented? Study harder, always follow the money. Yes, the banksters have too much power and our gov't (and every news network) is bought and owned by them. When enough people awaken and rise against this fiscal tyranny, we will see money reform which forces them to operate by the law and places the creation of money back in the hands of the people and its government. Yes, it is possible and is the only healing for this debt based, fiat money system. What you see in the news (primarily exposed due to the election year) is just the tip of their fraud. Every DOT and mortgage contract they have written is in fraudulent violation of contract law, yours too. Unfortunately, the cowering lawyers were taught in law school that any questions...the bank is always right and always wins. Nearly every judge in this country should be hit with a conflict of interest bond challenge because their retirement pensions are making enormous gains in foreclosure investments. Sgentilegj & Mikeclint1, have you never asked yourselves why they are allowed illegal usery in charging 3 to 4 times the actual cost of your home? I had paid the actual cost of my home with a reasonable interest, (in today's inflated dollars) after just a few years of mortgage payments. Did it never occur to you there was a reason the banks were enticed to modify loans? Why, oh why would they do even one? Because they have designed packages/service fees, etc for people to default since there is huge profit to be made in the foreclosure machine. BTW, of the $30 billion given to the banksters from the slave service of you and your progeny via our government, less than 1.3% has been used to modify bad loans. Wayne, I am with you. I made a strategic default decision, forfeited a credit score of 787 in 2009 (I know how to build it back when necessary), with perfectly seasoned payments, to fight for what I know is wrong. I am using the saved money to help educate attorneys across this nation. I have 4 children in this country which has been raped of the freedoms entitled to us as a result of the banking system. I could not in good conscience continue without a battle for bank reform to train my children to take up the torch when I pass. Wake up America, we have become sheep and cows for the slaughter. Freedom was never free and is not today. Stand for your rights or for certain, you will loose them as sure as the sun sets in the west!

December 08 2010 at 9:33 AM Report abuse rate up rate down Reply
1 reply to jlynchase's comment

jlynchase .. Thank you ... Your guns are loaded and I must say "You get it"

December 08 2010 at 8:06 PM Report abuse rate up rate down Reply

While clouded title will prevent a foreclosure, it also prevents any other type of mortgage activity. The banks may have created millions of "zombie" mortages which cannot be foreclosed upon, sold, refinanced or even paid off in full due to uncertain chain-of-title. What a mess.

December 08 2010 at 4:03 AM Report abuse rate up rate down Reply
1 reply to stubit586's comment

The Obama Foreclosure Task Force knew about this almost 2 years ago. Why hasn't anyone done anything. Why hasn't the News media picked this up. I thank Abigail for giving us the information.

December 08 2010 at 8:10 PM Report abuse rate up rate down Reply

I've got Wells Fargo mortgage on my house; the mortgage sold a dozen times in the last 17 years. They seem to be no better or any worse than anybody else we have delt with. But then we have never crossed them either.

December 07 2010 at 3:25 PM Report abuse rate up rate down Reply
Wm Good

Just imagine what it would be like if the attempt to auction off Social Security to the Wall Street friends of the AWOL IQ94 administration had happened. We're in this economic mess because of that administration. But the public seems to think whatever it's told to think and they're told it's all the present administration's fault. Of course the public also thinks Ronnie and Company were saints even after the stock market collapsed due to government debt in 88. Funny but I haven't seen any "them Clintuns a done it" posts lately. He was responsible for everything from the Gulf War to the assasination of Lincoln. I guess those trailer park denizens that so loved the last Bush administration are now quiet because they're unemployed.

December 07 2010 at 10:58 AM Report abuse +2 rate up rate down Reply
1 reply to Wm Good's comment

Mr. Collins: I liked your reference to IQ. I am reminded of the extremely, Extremely CONTROVERSIAL book "The Bell Curve: Intelligence and Class Structure in American Life" by Richard Herrnstein and Charles Murray.

December 07 2010 at 2:49 PM Report abuse rate up rate down Reply

banks are the loan sharks of the world, they have practically destroyed the world's economy, and if they get into trouble , the banks cry to their respective government for bailout, as in the usa , now ireland and i suppose every other country where the people who run the government are in conlusion with the banking industry.

December 07 2010 at 10:43 AM Report abuse +2 rate up rate down Reply

I have one of these, and with Wells fargo too -- I have a Norwest Mortgage, it was assummed or acquired by wells Fargo without notifying me. the Truth in Lending Act gives me notice that my loan has been purchased, sold, acquired, assumed etc. and I have 30 days or 60 days to find another institution if I don't like Wells Fargo. Never happened. And to make matters worse. Legally in my state, if you assume or acquire a mortgage, you must go back down to the courthouse and re-file the mortgage note with all new signatures on it and re-file it paying all deed fees. Guess what that didn't happen either. I get the impression that these too big to fail banks in collusion with one another, set up mortgage stores and lended to people (predatory lending) just to get the loan, then the mortgage note was bundled up with other notes and sold as a dervative for the commission/broker fees. Then these dervatives thru MERS were flipped so many times, that title now is so clouded. It would take a year just to muddle thru to find the correct originator. Shame on the Banksters, and Shame on BAnking Committee for allowing this to happen -- get the investors and Wall Street out of the Real Estate business and shut down MERS. God Eric Holder is so worried about Juliann Assange that he forgot to look at Goldman Sachs, Bank of America, Wells Fargo, Citi, and how they destroyed security of owning your own home in America. I tried working with Wells Fargo, and finally I asked them for a document that proves to me who owns the loan (Fannie Mae), who my investor is, and my original servicer. Haven't heard diddy from them.

December 07 2010 at 9:16 AM Report abuse +2 rate up rate down Reply