Audit Reveals Putative Lender Did Not Exist And Hence The Promissory Note Is Void Ab Initio.

Posted on January 27, 2011. Filed under: Foreclosure Defense, Fraud, Mortgage Audit, Mortgage Fraud, Mortgage Law |

I thought I had seen it all but this case must take top prize for the most abhorrent attempt at foreclosure fraud perpetuated by a federal savings bank.

A client hired me to audit his loan documents in preparation for an upcoming motion hearing in Miami-Dade County, Florida. Flagstar Bank is trying to foreclose on a mortgage originated back in 2008. The putative lender on the promissory note and mortgage is “Manhattan Mortgage Services, a Florida Sole Proprietor” and, of course, MERS is named as the lender’s nominee and beneficiary under the mortgage.

The first red flag for me was the assertion that Manhattan Mortgage Services was a “Sole Proprietor” because only a natural person can be a sole proprietor. A business may be a “sole proprietorship” (as opposed to a “sole proprietor”) meaning that an individual is doing business under a fictitious business name provided the name is registered and the true owner is identified to the public. There is no legal distinction between a sole proprietor and his/her business. According to the Florida Department of State Manhattan Mortgage Services had been registered as a business back on 5/20/1998, but the registration had expired on 12/31/2003. I then looked for evidence that this entity had a license to lend money in Florida and learned that a Mortgage Broker’s license had been issued to this entity in June 1998 but revoked only two months later. So at the time this loan was originated, in March 2008, there was no active lending license on record for this entity, nor for the individual who had registered the fictitious business name.

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