Friday, August 26, 2011




If you’re allowed to foreclose and kick someone out of his or her home without being the party that either owns the loan or represents the person who owns the loan… if you can ignore those laws, why can’t you ignore other laws too?  Which laws apply, when one of the parties didn’t make his or her payments?”
Home  »  Today’s New… “But, You Didn’t Make Your Payment” Exemption to the Law

Today’s New… “But, You Didn’t Make Your Payment” Exemption to the Law

I’m not a lawyer, so let’s be very clear about that, but I’m about to tell you how the law has always worked in this country, as far as I have understood it.
If you came to repossess my car, then you were required to be the person or entity that held the pink slip to my car, or you had to be working for the person or entity that held the pink slip to my car.  If you were not the person or entity holding my pink slip, then you couldn’t come repossess my car.
In fact, if you came and repossessed my car but were NOT the person or entity holding my pink slip, then we had a phrase to describe that occurrence as well … you were STEALING MY CAR.
Pretty straightforward, right?  I don’t even think you need to finish law school if that’s the extent to which you want to understand the law.  And don’t let any of the attorneys that may be reading this around you try to make it more complicated, because it’s not.  It is that simple… you can’t repossess someone’s car unless you’re the person or entity that holds the pink slip, or title, to that car… or are working for that person or entity, of course.
That’s the same way it’s supposed to work where houses are concerned.  If you don’t make your mortgage payments, that doesn’t mean that everyone in the country is allowed to throw you out of your home… only the person or entity that holds your mortgage is supposed to be able to do that, right?  Of course that’s right, silly.  And don’t play semantics with me, that’s the deal.
But in this country today, there appears to be a new exemption to quite a few laws… it’s called the “But you didn’t make your mortgage payments” exemption, and when it comes into play, nothing else seems to much matter… you just lose.
Like, what if you don’t make your mortgage payments and the entity that comes to evict you from your home is one that you’ve never heard of before.  And they have no proof whatsoever that they own your loan or represent the entity that owns your loan.  Well, in general it’s tough cheese.  The judge just says, “But you didn’t make your mortgage payments,” and that’s the end of that.  And most everyone seems to be in agreement with this line of thinking.
You say, “But, your Honor… they’ve broken a dozen laws here… important laws… laws governing the transfer of property rights upon which the country has been built.”  And the judge just gets annoyed saying, “But you didn’t make your mortgage payments,” and that’s the end of that.  It’s almost like a get out of jail free card.
So, you say, “But your Honor, they’ve forged the documents, falsified the records, committed fraud on your court.”  But he says it doesn’t matter… you didn’t make your mortgage payments… you have no rights and the party that’s foreclosing is now exempt from all of the laws that might otherwise apply.  In fact, those laws are now reduced to being mere “technicalities.”   And no one cares about technicalities as compared to you not making your mortgage payments.
So, I’m just wondering… don’t you think this sets kind of a dangerous precedent?
Let’s say that you’re not making your mortgage payments.  And one night after dinner, the doorbell rings and you answer the door and it’s a representative of your mortgage servicer… and he punches you right in the face and then proceeds to beat the crap out of you.
And you end up in court.   And the judge says, “But you didn’t make your mortgage payments, “ and dismisses the case.  And you say, “But, your Honor… my mortgage servicer beat the crap out of me and that’s against the law, in fact there are all sorts of laws broken by him beating the crap out of me.”  But the judge just replies, “But you didn’t make your mortgage payments, “ and that’s the end of that.
Do you think I’m being ridiculous?  Why?  What’s the difference between ignoring one set of laws and another set of laws?  If you’re allowed to foreclose and kick someone out of his or her home without being the party that either owns the loan or represents the person who owns the loan… if you can ignore those laws, why can’t you ignore other laws too?  Which laws apply, when one of the parties didn’t make his or her payments?
You see, I think the reason we have laws about the transfer of property is because it was important that someone not lose their property without those laws being followed.  Whether one made their payments or not, wasn’t the point… the point was simply that the transfer of property rights has always been seen as a pretty big deal under the law, as far as I can tell.
I think the reason we let things get a little loose concerning foreclosure is that we trusted the bankers who were foreclose.  In California, and all of the non-judicial foreclosure states, as far as I know, you don’t need to prove to the court that you hold the title to someone’s home in order to foreclose, and I’m pretty sure that the reason that was okay to our lawmakers was that they trusted the bankers… and they never envisioned not trusting them in that regard.
The problem is that today there is an abundance of evidence that says we cannot trust our bankers… quite often they lie, commit fraud on the courts, and in general are more than willing and able to fabricate and falsify whatever is required to foreclose on someone’s home… period.  They don’t care at all… and they don’t get in trouble for it either, which I find the most disturbing part of the whole thing.
So, since its become clear that bankers lie, and cannot be trusted, we’re going to need to bring back the old laws about having to prove you’re the right party to be foreclosing on someone’s home before you’re allowed to do so.  Several states have already done this… Hawaii and Arkansas, most recently.  Arizona tried to pass such a law, but the banking lobby got to them and killed them both.
California had a bill that would have come close, but the banking lobby killed it in committee, for heaven’s sake.  It was too dangerous to even debate in the legislature.
Some have said to me, “But Mandelman… the banks need to be able to foreclose or repossess when people don’t make their house or car payments.”  And I reply… “No one is debating that point.  Of course they can foreclose when payments are not made.  If they’re the party who holds the beneficial interest, as the lawyers says, in the loan.  If they lost the pink slip, they’ll have to correct that problem before they can come take back my car.”
It’s no different than if my car gets impounded for being parked in the wrong spot.  When I show up to get it out of impound, I better have the registration, right?  If I don’t, what am I told by the man at the impound lot?  No ticket, no laundry, right?
We have laws about the transfer of property in this country and there are reasons for these laws.  None of these laws say anything about banks only being required to follow them when someone is current on his or her payments.
Let’s stop making this more complicated than it needs to be… if the trust can prove that it does hold the note, that the note was properly assigned to that trust, that the note was endorsed… or whatever was supposed to happen according to the laws and rules, did in fact happen, then fine… foreclose away.  But if that’s not the case, banker people… then you have to fix it… before you’re allowed to foreclose.
Sorry, and I know how unfair you think this is, but forging the documents isn’t an okay answer to this problem.  Like if you want to repossess my car and you lost the pink slip, the acceptable answer is not to fake one on your laser printer and get Linda Green to sign it, got it?  That’s not how we fix things in this country, and it doesn’t matter who made payments on time and who didn’t.
If that’s inconvenient, then so be it.  And I have to think it’s a damn sight less inconvenient than what’s going on today, and if it’s even more inconvenient than that, then the bankers in this country have really screwed up bad, and we should all be shown what they’ve done.
I ran all of this by a lawyer friend of mine and here is the language from the Deed of Trust (page 23):
“Reconveyance.  Upon payment of all sums secured by this security instrument, lender shall request trustee to reconvey the property and shall surrender this security instrument and all notes evidencing debt secured by this security instrument to trustee.  Trustee shall reconvey the property without warranty to the person or persons legally entitled to it.”
So, apparently this language appears in EVERY Deed of Trust, including yours, your Honor. So when you want your pink slip/title/note in order to have your mortgage burning party, you may be disappointed to find that no one seems to have it.
And what about title insurance in the future?  Will we be able to get it as a result of this whole mess being allowed to go on unchecked?  I don’t think anyone really knows the answer to that question.
Lastly, the question always seems to come around to one of damages.  How did the note not being properly endorsed to the trust and the trust being permitted to foreclosing anyway damage the homeowner?  Again, it’s quite simple, really…
If someone is allowed to repossess my car even though that entity doesn’t hold my pink slip or work for the entity that holds my pink slip, then whoever repossessed my car STOLE IT.  And that, by itself, sounds pretty damaging.
But what if someone shows up later and says they have the pink slip?  What then?  Will they be understanding and say, “Oh, someone else got it.  No problem, we’re sorry to have bothered you.  We’ll follow up with them.”
Somehow I doubt that will happen that way.  And there are several reasons I’m not at all sure that this won’t be the case in the years to come.  For one thing, both Taylor Bean & Whittaker and New Century Mortgage were found to have sold mortgages to more than one person at the same time, and others have admitted that it happens all the time.
And for another, I know of several homeowners who have filed quiet title actions and are still waiting for someone to show up and say they own the loan… in one case that’s recently been brought to my attention, it’s been almost a year and still no one has shown up.  Does that mean no one will?  Or will someone show up years from now?  (Here’s the case, click it and you’ll see.)
I don’t really know, but wouldn’t it just be easier for the entity foreclosing to be the entity that actually holds the beneficial interest in the loan?  You know, just as the law has always intended?
There’s another reason that it makes sense to require the right entity to foreclose… because the right entity, the entity that does in fact hold the beneficial interest in the loan would be much more likely to want to modify the loan as opposed to foreclosing on it, in instances where the payments have not been made.
You see, servicers chose to foreclose because it’s in their own best interests to foreclose, but what about the investor’s best interests?  After all the investor is who put up the money in the first place, so what about the investor’s best interests?
Surely the investor would rather have a modified loan, especially in instances where the home is terribly underwater and by foreclosing the investor will realize an enormous loss and then not be able to sell it… perhaps for several years… wouldn’t you think that investor would prefer to modify the loan and get payments again?
Louis Ranieri, who is often referred to as the father of mortgage-backed securities had the following to say about foreclosing:
“The cardinal principle in the mortgage crisis is a very old one. You are almost always better off restructuring a loan in a crisis with a borrower than going to a foreclosure.

In the past that was never at issue because the loan was always in the hands of someone acting as a fiduciary. The bank, or someone like a bank owned them, and they always exercised their best judgment and their interest. The problem now with the size of securitization and so many loans are not in the hands of a portfolio lender but in a security where structurally nobody is acting as the fiduciary.”
Well, what do you know about that?  So, it seems there are lots of good reasons that we should make sure that the entity foreclosing is the entity who does in fact own the loan, or at least work for the entity that owns the loan.
So, why are we making this so damn difficult?  And why is it such a big problem for a bank-servicer-whatever to show up and actually prove that the trust actually holds the note in question?  They don’t really expect us to buy into that whole, “But we lost them, your Honor.  All of them, your Honor.  It was a mass misplacement, your Honor.”
I mean, come on now… are we really supposed to believe that ALL of the major banks lost ALL of the notes and ALL at the same time?  Seriously?  I know 14 year-old boys that could tell you that such a story is simply not believable.
It’s time to come clean banker-people.  Your story stinks to high heaven and the homeowners, lawyers, investors, and even the government investigators are all getting closer to uncovering the truth every day.
And until the banks start telling the truth, or modifying loans in the best interests of the investors and homeowners like they are supposed to…
… how about we the people pass a bill that requires the entity foreclosing to prove they are the entity that owns the loan… because it’s clear… abundantly clear… that we certainly can’t trust the trustee any more.

20 Responses

  1. It’s time foreclosure must be outlawed and banks must be forced to modify mortgages. This is huge mess and is not doing anything good to the nation or the people.

  2. I think the Judges should ask the owner :
    Why did you not make the payment ?
    My answer : because the bank close my HELOC account .
    I TRUST the bank , that I could use the HELOC for emergency .
    May be we will get a new law , what list all corruption without
    going to gail.

  3. E tolle
    Sorry. I assume nothing where I don’t have all the info
    Sorry, as well to have to point out that some assignments, however noxious we might perceive them, do transfer a given debt
    My only point was that sometimes an “Answer” is premature where dismissal is warranted on jurisdictional grounds

  4. As to the original Posting, regarding evidence that the Plaintiff actually owns the claim of debt, the alternative strategy is to put up the money into “escrow” and sue the plaintiff (and their counsel, of course) claiming that they are perpetrating a deceit upon the courts.
    As to the matter of credit-card debt with “Capital One,” keep in mind that the entity doing the suing is most likely NOT Capital One, but some third-party debt buyer. What happens is that the third parties buy “baskets” of debt at a bid auction, then go and try to collect full value. The buyers typically pay about 6 cents on the dollar; whatever they collect, is gravy. However, as debt collectors, they now become governed by the Fair Debt Collections Practices Act, 18 USC 1692, if I remember the statute number correctly. You will find that they screw up the provisions of Statute routinely, all grist for counter-claims and special defenses in your lawsuit. Once you file a detailed set of responsive Motions, they usually walk away, and go hunt for easier pickings.

  5. I have dirt on Malik Basurto assist sec of MERS and the nortary is on two dif docs and both docs have two very very dif signatures for both Malik and Shannon Steeg the notary whom are together on the two pierce county doc from Washington. Also the pretend assist sec of MERS Dominique Johnson and the notary Deborah L. Beard are together on two dif docs and both of the two with totally dif signatures and all in May, June and August of 2011. Recently done. Proof of perjury, and fraud.

  6. @ marie, gotta love “Are you certain they have the right
    In other news, those utter wastes of a perfectly good Utah bench that just basically overturned Carpenter v. Longan should be taken out back and disrobed. I’m afraid one day these idiots will learn the hard way that people will only put up with boot marks on the neck for so long, and when that day comes it won’t be pretty.
    Day after day finds yet more yanking of basic legal protections that have been in place not only for as long as anyone can remember, but that are there for very profound reasons. Every civilization has understood that basic human rights aren’t a luxury, but a necessity for a properly functioning populace, and the removal of same will not be tolerated by people who rememeber their ancestors telling the king to kiss their collective asses. I believe we should bring back stocks so as to lock these offenders in front of their own courthouses for public humiliation, ridicule and mockery.
    Now for the weather. Here’s hoping that Wall Street will take the full fury of Irene in a direct hit as a catagory 10 even though the scale currently only goes to 5, and that it’s totally obliterated, destroying all records save for what is necessary to lock them all up. Film at 11:00.

  7. Best set of short, easy to understand arguments I have read on this site. Kudos.
    It is all so very simple folks. It was written over a hundred years ago.
    Black Letter Law.
    Stick to it!

  8. About all I can say is WOW. Simple, yet easily understood commentary. To those that think, “well you owe the money” should REALLY read this, it is as simple as written. The criminal organized crime entities known as BankSTERS need to be arrested for the crimes of stealing these homes!

  9. has new software to start petitions, I heard.

  10. A couple decent judges have gone so far as to amend the local rules of their courts to say to the banksters, essentially, don’t even show up in my court if you don’t have……. But this is the exception, unfortunately.

  11. Cubed
    Motion to strike before answer: failure to state a cause of action
    Check the court rules. Analyze analyze. They’ve probably glossed over some of the elements. Is there a necessary affidavit or statement of the debt owed?
    Are you certain they have the right
    Cubed? Don’t admit ANYTHING
    Not legal advice, just thinking of what I would do

    1. Person lost job due to economic crash…could not pay monthly “mortgage” payment—(was a refinance in 2006).
    2. Person read about HAMP—saw that they “qualified” under HAMP “guidelines”.
    3. Person applied for HAMP…sending paperwork 8 times—dealt with EXTREME ineptness…wondered–why are good people being treated this way…didn’t make any sense…finally sent stream of faxes DEMANDING ATTENTION to “Default escalations specialist”, after getting fax number.
    4.Emailing back and forth with “escalation specialist”—finally “approved” for “trial payment plan” for permanent “loan mod”. Sent ONE payment, then borrower found out about total fraud (collection rights ONLY sold), from before and after origination of “fake mortgage”.
    5. INSISTED on PROOF from servicer of an actual creditor, and actual “conveyance” of my payments to a “loan in some trust somewhere”.
    And guess what…servicer CANNOT come up with the answer…and has ignored borrower’s question and not communicated with this borrower for months…nor sent any kind of bill…borrower has sent NO MONEY for months…and borrower’s credit report says: “Paying on partial payment plan.”
    Now I ask you—would a legitimate and legal entity behave this way? NO.

  13. Well, as Mandelman explains about somebody repossessing a car, no pink slip, how can you repossess?
    Well, we just got sued by Cap 1 for defaulted CC debt. I answered the door, and served the papers. Afterwards I thought shoot, why did I answer the door and except the summons from this 70 year old lady? I felt really stupid, I mean I’m really a nice guy even though I give the finger here on this blog.
    So anyways I research now what to do. So check and type in on net being served a summons for CC debt. So looking and looking, and knowing what I know from before looking and posting here and researching.
    I find out that if I didn’t except the summons from the 70 yr old bitch, they as in lawyer for opposing party, plaintiff, can still serve even if they can’t find me by just publishing the summons in a local newspaper. Don’t that beat it all. I never read the newspaper. So they got you anyways. Better to be served and except it.
    So , in my further research, you have to answer, and if you don’t why a default judgement goes against you and you are stuck. You have to pay or get a lien, or garnishment or something.
    So I research now how to answer per se. What do I do? Hire a lawyer? Lets see, what is the cost of that vs just paying the defaulted judgement? How much do I make per month, is it worth it to fight it, hire a lawyer, not answer the summons????
    So I look it over and decide if I go per se, and take my chances, I’m out so much. If I hire a lawyer, I’m out so much but maybe save a little.
    So, in view of what Mandelman says about pink slip and stories I’ve read about people getting sued by CC’s and debt collectors and lawyers acting as debt collectors. And then I realize why this lawyer serves me with papers that says I owe Cap 1 money and they wish to sue me for the amount owed.
    So I ask myself is this lawyer really representing Cap 1? No contract was provided with the summons. No statement of actual amounts owed was provided, just stated amount in the pleadings. Just figures on the pleadings. But no proof attached.
    So just like somebody coming to repo your home or car, does that somebody actually have the right to do so? Where is the contract or written agreement that somebody, whether they be a law firm or servicer or whatever, have the right to repo, as provided from the original creditor?
    So, what to do. It’s all rules. So my research tells me to answer my summons and complaint with a demurrer. Specifically asking what gives this lawyer the right to sue me on behalf of Cap1. Where is there agreement that proves that Cap 1 hired them. In addition to the fact the no contract was attched either as to prove the debt owing to Cap 1.
    BUT, what gets me, the average person who receives such a thing because they defaulted on their debt to some financial institution, doesn’t have a clue, and they fall victim. And what gets me is that as a result of this and the rules, lawyers can just serve summons and complaints on people in a civil action and if the person served does nothing, why they looooose. Nice rules, THAT IS NOT JUSTICE.
    And you humans call that JUSTICE. Give me a break. You humans who set up these rules are just as bad as the thieves who trap people into the nuances of the words used to establish the rules. It’s all really trickery, a magicians trick on the public.
    And of course it’s all just about money…………but more importantly these days,,,,,,,,,,,,,it’s about keeping the books, the books straight.
    But the cinch in the armour, is off course the masses are not using credit or debt as much as they were (which is really velocity of money as deb issued=money), so this puts a problem onto the debt issuers…………..
    It’s really simple, if the issuance of debt is less, then money is less, so everything contracts. As debt = money in circulation. So if people, the masses, decide to borrow less, why then money in circulation becomes less. So, when all these Wall St firms and banks have leveraged themselves on debt, why that debt or money is less, so they contract. So the Gov’t takes over to borrow more, debt ceiling raised. So Gov’t makes up for the masses not borrowing(=money). Round and round it goes, but up it goes, the false debt. And what sucks is we have to pay taxes on this ponzi. There really is no reason for it.

  14. Don’t mean to be redundant; answered on the wrong thread.
    Re: The recent Utah Appellate Court ruling in Commonwealth Property Advocates, LLC vs. Mortgage Electronic Registration System, Inc. (“MERS”), 2011 UT App 232 (July 14, 2011
    More proof that the rule of law is being ignored in the quest for making America homeless to pacify the rentiers.
    Following the reasoning of “sound public policy” in rejection of “the rule of law”. But not just any law; a law from 1872 (a pretty substantial precedent, I might add, that has been attacked multiple times, to be sure!). I know Great Scot is screaming at the top of his lungs right now.
    I smell a Supreme Court case
    This is why the Utah Court is ruling the way they are ruling. The cat is out of the bag, my friends. Our story is now on the front page. They will not be able to stop the blowback.

  15. HAMP was just another tool to steal money tax money and investors money and to talk thousands into falling behind to qualify for the mod so they could steal more houses ASAP and collect insurance money for defaults and through fraud. It was all a set up. It was never meant to help the homeowner. I don’t believe the government did not know this was a set up. The servicers added up the service fees while paralleling foreclosures. These theives have not missed one beat to steal and set the trusting up for the most hellish tort and terror ever.

  16. I am with you on that Martin, to have a law specifically written for any and all entity trying to foreclose on homes to first prove that they own the NOTE, or have the PINK SLIP so to speak. But I always thought that there were regulations and laws concerning that already, isn’t there?
    There’s no reason why the banks should not modify a loan in these difficult economic times except for the fact that they don’t have any authority to do so. If they could I think they may have done so, because they gave all kinds of crazy reasons that did not make any sense as to why they could not. Then they create a reason out of thin air and try to make it stick.
    I have many conflicting letters from the servicer with several different reasons, but recently they gave me an interesting one. They said to the OCC after I filed a complaint with them that the property value was greater than the ration required to do a mod. the amount they gave to the property was higher than what the property was worth back in the highest housing boom times, LOL.
    What a joke, what else will they come up with as an excuse not to modify people’s loans? The whole system is a joke, the courts have become a joke, the judges are making mockery of our judicial system, how un-foretunate for our country!
    I will be the first to vote for a new law that will protect the consumers we just need an honest government to allow justice to take place! thinks may have changed slightly in favor of some homeowners, but certainly not enough, much more is needed!

  17. What about the people whom are most of us, that had our incomes cut in half to none at all and our businesses cut in half to none at all caused by the banks greed. Then on top of it get approved for a mod loan, only if we fell behind told to do so by the servicer, then pay five mod payments that are turned into partial payments due to mod fraud? I was never in default. I quit paying cause I was defrauded, the servicer violated honest service, and breached the contract ot me, and told me to get at least one payment behind to qualify for the mod loan, It was the bank and three servicers told me to do this, so I finally did. Are you in default if you are told to fall behind by your servicer? I find now the lender was in default and breach of contract the day i signed the loan, then tries to steal my home after I abided by all their rules. I sent a letter of debt dispute immediately trying to find the real lender and the FDCPA letter was never answered. I had no one in my state to talk to and had to send certified and process serve my Pro Se case to New York, and Ohio, and California. No agent in this city or Seattle,or Washington state. Violating the Washington CPA laws and the WA Deed of trust law. My business has been cut over a hundred thousand net a year by these gansters. Non of it mattered to the district judge Pechman. I dont consider myself to be in default. I consider the bank to be default and breach of contract. Found they did not even have the right to modify the loan. We have all been duped.

  18. They don’t but they need to pay for their attorney fees when we all sue them and share the information freely.

    “Neil does not listen — he is narrow-minded on focus that because someone else may have advanced payments for borrower — that borrower is NOT in default. This will NEVER win in courts. Courts do not care if someone else pays — they care about the borrower not paying. What we need to focus on is that borrower’s subprime refinance was unsecured — a false and fraudulent mortgage — and nothing more than debt collection on a fraudulent transfer of collection rights to a false default debt. Everyone (in subprime refinance) was in (false) default before they even refinanced.
    The banks (as debt buyers) accomplished this by falsely placing borrower in current default (and never telling them) — and then the servicer purchases the collection rights from either Freddie or Fannie. Then the servicer “reinstates” the false default debt with a fraudulent refinance. And, if there is a subsequent refinance, that is just another transfer of collection rights. Servicer reports original F/F mortgage as “paid” — but it is “Paid-OUT” — by servicer purchase — and not “Paid-OFF” by the borrower as it should have been by the (fraudulent) subprime refinance. . Thus, borrower remains in default on F/F loan – despite a subprime refinance — and borrower can never refinance with an F/F again — They are doomed if they miss even one payment on the false collection rights — and will never recover because always held in default — on both the F/F loan and the collection rights. BUT BORROWERS should not be paying on fraud!!!! They have a right withhold payments on fraudulent debt.
    All fraudulent, all in violation of consumer protection laws — and, because the “creditor” of collection right never validates the “debt” — by disclosing the actual creditor to the false default debt — in violation of FDCPA and May 2009 TILA Amendment. Meaning borrowers should not be paying anything — because of fraud and violation of federal statutes.”
    “Neil and LL have to redirect their focus — challenges after AG settlement without investigation — will be extremely difficult. Neil’s premises will not hold water – and not help the situation —- must rethink his focus — very stubborn — or he works for private debt buyers. (eventually banks sell the collection rights to private debt buyers and hedge funds — not regulated). Believe that maybe Neil and many others on LL — work for these private debt buyers — trying to “modify” again — the collection rights — just continues the fraud!!!”

  20. How does a thief legally modify the loan?

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