Posted on October 14, 2014 by Neil Garfield
For assistance or information regarding your loan or foreclosure, collection attempts and other notices of delinquency, default or demands for payments, Attorneys and Borrowers may call 954-495-9867 or 520-405-1688. We provide expert witness consultation, testimony, reports and litigation support with a complete team that will produce memoranda, discovery and motions as well as preparation for trial, motions in limine, suggested voir dire and direct examination and cross examination questions.
It comes as a surprise to nobody that Banks have been steering borrowers into default, foreclosures and judgments, and now they are arrogant enough to seek deficiency judgments where there was NO LOSS on the part of the party claiming to be the creditor. The FCPB, engineered by Elizabeth Warren is doing more than other agency to address this practice. Investigators at that agency know and understand that it all begins with lies. Now they are taking action see http://realtormag.realtor.org/daily-news/2014/09/30/bank-accused-driving-borrowers-foreclosure
Also listen to NPR Story: AIG Lawsuit Presents Different Versions Of 2008 Bailout
Here are the lies:
- Borrowers are contacted by a stranger who demands payment, gives notice of delinquency, notice of default and/or offer of modification. The stranger to the transaction (see San Francisco study) is assumed by the borrower to be legally authorized to represent itself as the servicer or trustee for the creditors. They are not.
- The balance claimed by the stranger (pretender lender) is usually wrong by a wide margin and may not even exist. The claim is presented as the balance due as shown on the books of the servicer and not the creditor. The two are vastly different — starting with the fact that under the terms of the Pooling and servicing agreement the creditors (investors) are paid (a) in a different amount than the the alleged “terms” of the loan as shown on the promissory note (which is probably invalid and void) (b) the investors are frequently showing NO DEFAULT because they are continuing to receive scheduled payments and (c) the balance is not calculated by offset for third party payments received on behalf of the creditors by the broker dealers (investment banks).
- The mortgage encumbrance is probably void and subject to nullification because no owner of the debt is secured by it.
- Hence any attempt at “foreclosure” on the “mortgage” is a false claim.
- And no attempt to collect on the note can be successful because no owner of the debt is named as the payee.
- The ownership of the debt is being intentionally withheld so that it becomes obtuse, giving the opportunity for the pretender or stranger to claim that it is irrelevant how the debt is apportioned — a completely worthless legal argument that is nonetheless attractive to judges on the bench.
- The delinquency probably does not exist.
- The default probably does not exist.
- The balance probably does not exist.
- The real loan is probably undocumented. This is the difficult one for people to get their minds around. The existence of paperwork, the execution of the paperwork by the borrower, the appearance of money at closing to payoff old loans or pay for a new house is indisputable. The argument is not just that the pretender lender never made the loan as originator — more importantly it is that the actual lenders were never mentioned at closing which is “predatory per se” (Reg Z) and instantly creates double potential liability for the loan — (1) one to the actual lenders (investors) whose money was used to fund the origination or acquisition of the loan and then potentially to the holder of the paperwork that was released to an undisclosed third party who also did not fund the loan (except as a conduit for investor funds). NOTE: This is NOT warehouse funding which WOULD make the originator the Lender if there was any liability or risk of loss IN REALITY.
- Therefore the note is NOT evidence of the debt, even if it contains some terms for “repayment” albeit not to the lenders but to a disinterested third party.
- The mortgage is probably void since it secures the NOTE, not the debt. The note is is made payable to a party who had nothing to do with the funding of the loan. But the debt, by operation of law, arises when the borrower receives the proceeds or benefits of the loan from the undisclosed investors who are equally clueless that their money went to the closing table instead of the REMIC Trust.
- Assignments and endorsements of defective paper are lies in most cases. They refer to a monetary transaction that never occurred, which is why the banks fight like hell to avoid having to show consideration of the loan, assignment or endorsement. The assignment, endorsement or “transfer” of the loan through a power of attorney or any other documents are hearsay instruments that imply that a transaction took place. Just ask them and you will see they will not because they cannot produce proof of payment and delivery at any time, much less within the cutoff period for the REMIC Trust to do “business” (origination or acquisition of loans). Thus the underlying presumed transaction does not actually exist. Banks are using certain evidential presumptions in lieu of the truth.
- The servicer is mostly unauthroized to act as servicer for the LOAN even though they might be the authorized servicer for the TRUST. They have no power to service, enforce or otherwise act on the loan UNLESS THE LOAN IS IN THE TRUST, which is the sole reason and basis for them calling themselves “servicers.”
- Offers of modification are designed to get the borrower to stop paying thus creating an apparent default under the paperwork executed by the borrower at the alleged “Closing.”
- The note and mortgage are subject to borrower’s defenses for any violations at closing. But the banks were smart enough to wait out prosecution of even filed foreclosure actions until the statute of limitations has apparently run out on borrower’s claims and defenses. Failure of consideration is not a defense on which the statute of limitations runs.
- But if the paperwork executed by the borrower ends up in the hands of a party who legitimately paid for the paper, in good faith without knowledge of borrower’s defenses and received delivery of the paperwork, is a holder in due course and therefore NOT subject to most borrower defenses and the holder is presumed to have a higher protection from risk than the borrower, who now has double liability.
- The servicer thus has no right to collect incentive (HAMP) payments nor fees, because they are not the legal representative of the creditors.
- The servicer has no right to enter into settlement agreements, modification agreements, nor to execute a “release and satisfaction of mortgage”. If you are REFINANCING, GET THE NOTE BACK MARKED PAID IN FULL — ESPECIALLY IF THERE IS A “WAIVER OF DEFICIENCY” (which is also void because the servicer had no authority to execute such a document.
- Since the servicer advances were remitted but not paid by the alleged servicer the “servicer” actually has no claim — which is why they don’t make one.
- The statement that the offer of modification or settlement was sent or communicated to investors is false. In most cases the servicers say that they asked, but they ever did and the offer is turned down even though the investors would get as much an 10 times the proceeds reportedly received on liquidation of the property. The servicer is not authorized under the Trust documents to act on behalf of the creditors because the Trust never acquired the loan during its 90 window of operating a business.
- THE CLAIM THEREFORE IS FOR THE UNSECURED FALSE SERVICER AND NOT FOR THE OWNERS OF THE DEBT, who are also unsecured. They are looking to “recover” servicer advances which in fact are split between the servicer and the broker dealer who in most cases in the MASTER SERVICER.
- The absence of claims that the Trust is a holder in due course is an admission that the Trust did not pay for the loan nor receive it. The other elements of good faith and knowledge of the borrower’s defenses do not appear to apply.
- By simple logic — if the Trust is not the owner of the debt (they didn’t pay for it), the servicer is not the owner of the debt (they didn’t pay for it), the trustee is not the owner of the debt (they didn’t pay for it) and one of those entities received delivery during the 90 day cutoff period after which no business can be conducted by the REMIC Trust, then it follows that the only owner of the DEBT are the investors. And ownership of the paper, while true, is not enough to collect unless the claimant is a holder in due course — something which they steadfastly avoid.
- Hence the mortgage is void because it does not secure anyone unless someone acquires the paperwork as a holder in due course. Unless the owner of the debt is present and properly represented in court the action should be dismissed.
Filed under: foreclosure