Consumer complaint received 2024-10-31
Product: Mortgage — Conventional home mortgage
Issue: Struggling to pay mortgage — Trying to communicate with the company to fix an issue related to modification, forbearance, short sale, deed-in-lieu, bankruptcy, or foreclosure
Company: Fay Servicing, LLC (NY)

Fay Servicing LLC is engaging in unlawful foreclosure practices. 

Regulation X requires servicers to timely and properly respond to a written error notice and/or requests for information pertaining to a servicing issue. 

A servicers failure to comply can lead to examination issues and legal risk because of the potential for consumer harm. 

A Notice of Error letter was sent timely and received seven days before the scheduled sale date of XX/XX/XXXX, asserting that the assignment of mortgage was robo-signed by serial robo signer, XXXX XXXX XXXX 

Robo-signing is forgery and fraud. Every robo-signed document is void as matter of law. Robo-signing is illegal and has been outlawed in the State of New York XXXX 

The enclosed assignment of mortgage recorded on XX/XX/XXXX, Instrument # : XXXX, executed on XX/XX/XXXX from XXXX XXXXXXXX XXXX XXXX XXXX, as nominee for XXXXXXXX XXXX  XXXX, its successors and assigns to XXXX XXXX XXXX XXXX  XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX  XXXX XXXX XXXX XXXX XXXX ( XXXX ) has no right or legal authority to assign the mortgage or the note. ( XXXX ) can not transfer something it never proved it possessed. XXXXXXXX XXXX XXXXXXXX did not exist on XX/XX/XXXX, or XX/XX/XXXX, and surrendered its licenses in the year XXXX. 

XXXX  does not have a beneficial interest in any mortgage ; does not loan money ; does not suffer a default if monies are not paid ; etc. The internal agreement used by XXXX expressly disavows any beneficial interest. 

On XX/XX/XXXX, XXXX XXXX, the President and CEO of XXXX XXXX XXXX the parent corporation of XXXX  XXXX XXXX XXXX XXXX XXXX was deposed in Alabama. XXXX is also an Officer of XXXX. 

XXXX admitted XXXX does not have a beneficial interest in any mortgage ; does not loan money ; does not suffer a default if monies are not paid ; etc. etc. 

On XX/XX/XXXX, XXXX XXXX XXXX was deposed in Alabama and made the same admissions. And, of course, the internal agreement used by XXXX expressly disavows any beneficial interest. 

The assignment of mortgage was never lawfully assigned in strict compliance pursuant to UCC 3201 ( 3 ) and UCC 3202 ( 2 ).

The mortgage note must be endorsed appropriately each time the mortgage is transferred, which can be a dozen times or more in the era of securitized mortgages. 
The invalid robo-signed assignment of the mortgage was not accompanied with the required affidavit, note that, on its face or by allonge, containing an indorsement in blank or bears a special indorsement payable to the owner/holder. 

Pursuant to UCC 3201 ( 3 ), Transfer : Right to Indorsement. Negotiation takes effect only when the indorsement is made and until that time there is no presumption that the transferee is the owner.

Pursuant to UCC 3202 ( 2 ), " [ a ] n indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof. 

The notice of pendency being used is not valid and expired long ago without renewal or court order. To have a lawful foreclosure sale a valid notice of pendency must be filed and exist 20 days prior to the foreclosure sale date in strict accordance with RPAPL 1331 and the property must have been lawfully advertised pursuant to RPAPL 231.

The enclosed Attorney Affirmation and Affidavit is mandatory. The affirmation must be submitted to the referee, and a copy filed with the court, no later than 5 days business days before the scheduled auction. This was not done.