Wednesday, October 15, 2014


Breakdown of the Robo Signing “Scandal” Settlement —- Another Elephant in the Living Room

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The story is about how the settlements are broken down. But the significance of the story is that the government is not taking the next logical step.
The settlement with ten of the banks was first announced on Jan. 7 and separate settlements with HSBC US:HBC   and two other banks came later in the month.
At issue are deficient practices on mortgage servicing and processing, improper fees, wrongful denial of modification, and the robo-signing scandal — the practice of assigning bank employees to rapidly approve numerous foreclosures with only cursory glances at the glut of paperwork to determine if all the documents are in order.
The articles breaks down the payment of fines, which from prior reports appears to be levied against the investors by the banks who committed the wrongful acts. If the practices were DEFICIENT or IMPROPER or WRONGFUL, why is there not also a breakdown of what exactly was done and why it matters.
If the Banks are paying fines for actions leading up the foreclosure then why is the foreclosure being treated as presumptively valid?
Why are we treating the note and mortgage as presumptively valid because they are “facially” valid when we know for a fact that improper, wrongful and predatory practices were used at the closing?
How do we know that ANYONE in the “foreclosing chain” has any economic interest in the outcome — except for recovery of “servicer advances” and barring liability for refunds and repurchases for the bankers that created pandemic title problems and gross fraud against the investors, the borrowers and others.
Our government is complicit in the continuing fraud on investors, borrowers, taxpayers, and the States who had to scramble to “process” (code for expedite foreclosure) an unprecedented wave of foreclosures. The economy, the pressure on state judiciaries, and the pressure on state and Federal economies, would ALL believed if the following was actually implemented. I would point out that many of these suggestions or guidelines have been enacted in some states, resulting in a huge drop in the number of foreclosures.
  1. A party seeking foreclosure must file with the claim in both judicial and non-judicial states, copies of actual transfers of money in the chain relied upon by the foreclosing party. This would be in the form of wire transfer receipts, ACH confirmations and canceled checks.
  2. A party seeking foreclosure should clearly state by affidavit the identity of the party owning the debt (not the note or mortgage).
  3. A party seeking foreclosure should clearly state their claim as a holder, a holder with rights to enforce or a holder in due course.
    1. If the party states that is only a holder, it should not be permitted to foreclose.
    2. If it swears in affidavit form that it is a holder with rights to enforce the note, then it should show all documents that specifically grant the right to enforce, the party on whose behalf the note is being enforced, and proof of ownership of the debt by the party named as the party granting the right to enforce.
    3. If it swears status as a holder in due course, then it must show satisfaction of the four elements that form the basis of its prima facie case:
      1. Purchase for value
      2. Delivery of Note and history of deliveries
      3. Acting in good faith
      4. Without knowledge of borrower’s defenses
    4. If no holder in due course is named, then enforcement of the mortgage should not be permitted.
    5. If the owner of the debt is different than the party holding the note, then the enforcement of the mortgage should not be permitted — unless a nexus is alleged and attached to the lawsuit as an exhibit and as an exhibit in non judicial actions when a substitution of trustee is filed, when a notice of default is sent, and when a notice of sale is set.
  4. The party seeking foreclosure must show a chain of actual financial transactions with actual proof of payment starting with the loan and continuing with each alleged transfer of the debt, the note or the mortgage.
  5. Courts must be prohibited in foreclosure cases from using presumptions that conflict with the known context along with conflict in the credibility of the party proffering evidence. The “facially valid” presumption should either be eliminated in these cases or discovery should automatically include proof as outlined above that the “facially valid” documents speak the truth as to the underlying transactions.
  6. Discovery requests should be presumed allowable if it relates to ownership, balance, or default. Objections or refusal to answer should result in sanctions against the foreclosing party and if the party persists in stonewalling it should result in involuntary dismissal of the foreclosure or sale.
  7. Any claim in any venue for any purpose that a party other than the lender designated on the mortgage and note must be accompanied by a sword detailed history (with exhibits of actual transactions and agreements) of the chain of money, the chain of ownership of the  debt, the note and the mortgage and the existence of a default.
  8. If servicer advances were paid to the creditors, the sworn statement must explain in a sworn statement with exhibits the amount of such payments and the basis for declaring a default on the part of the creditor.
  9. If the servicer is pursuing foreclosure because it is the only way it can present a claim for “recovery” of servicer advances, then it must submit a sworn statement with exhibits, that shows each distribution to the creditors, and that shows what bank account the money came from and the owner of the bank account.
    1. The servicer must explain whether it is “Secured” by the mortgage that is sought to be enforced.
      1. If it is not secured by the mortgage, then it must bring a separate action against the borrower. If the only claim is the servicer advances, then the foreclosure must be involuntarily dismissed.
  10. No records shall be admitted in court proceedings or acceptable in non court proceedings as business records qualifying as an exception from the hearsay rule without an affidavit from the actual records custodian of the entity for whom the records are being proffered and an affidavit from a person with actual personal knowledge as to how those records were prepared, the methods of processing data, and whether the records consists of verified data or if they rely upon assumptions, and if so, a detailed list of those assumptions.
    1. Persons hired to be professional “witnesses” with no other connection to the entity that employs them should be deemed as legally incompetent to testify.
  11. The burden of proof on conditions precedent to bringing the action shall at all times be on the party seeking foreclosure. This includes the existence of ownership, balance, and the presence of a claimed default on behalf of the owner of the debt. This conforms with existing law where the party seeking affirmative relief must provide all information related to the subject matter in dispute where the party is sole party with access to those records and witnesses.
  12. If a transaction is void under the governing law of any State, it cannot be admitted into evidence. If such a transaction is relied upon by the party seeking foreclosure in proving the debt, the note or the mortgage or any transfer then the action for foreclosure must be dismissed with prejudice.
    1. The transfer documents and the governing documents of the party claimed to be the owner of the debt, note or mortgage are relevant and must be offered in evidence upon the testimony of a witness who has personal knowledge of such documents including but not limited to the Pooling and Servicing Agreement of a REMIC Trust, if any, the Prospectus, the distribution reports to investors, assignment, endorsement or other evidence that explains the transfer of the debt.
    2. In cases where the debt, the note or the mortgage is subject to claims of “Securitization” the party relying upon such narrative shall be required to prove that the debt, note and mortgage was acquired by the REMIC the Trust and remains in the sole ownership, care, custody or control of the party claimed to be the owner of the debt, the ntoe and the mortgage.
The above is not the law of any specific states, most of which ignore the precepts outlined above. Consultation with licensed attorneys is required before any part of this article is used to make any decision or take any action in contesting the debt, the note or the mortgage.

2 Responses

  1. louise: This was in my email, directed at you I guess…this out-of-control Ohio person, should be prosecuted IMO…unsolicited emails and constant attempts at badgering people is scary. Neil gave her a free pass, now it knows no bounds.
    I’ll block anyone, any day of the week, but I still can send things to stupid people who accept my e-mails and won’t block them because… no life and Gawd forbid they’d miss out on a good gossip and a reason to complain and gather hyenas friends to join the chorus!
    FBI! CIA! NS! HS! Come and rescue me!
    Nope. Ain’t gonna happen, regardless how many medals from the military, killing civilians in so many countries…
    So, here is to stupid as stupid can be. “My Hero! Louise, you’re my Hero! In Bachmann’s song, to whom again? “The man! You’re the man!”
    louise, on October 14, 2014 at 4:59 pm said:
    Unfortunately or not unfortunately, I will have to appeal. It went well the first day but OPp. counsel made me into a grasping woman who is RIPPING OFF OCWE ARRGHHH!
    Judge took out most of the causes of action and then dismissed a bunch of the defendants including MERS. They did not take up the issues about obvious forged signatures. It wound down to: She believes in conspiracy theories and did not pay her mortgage even though the judge kept the breach of contract issue in place. I am going to file post trial motion for new trial. Problem is I have Lis pendens in place that holds the house, but I am appealing. Opp. counsel can move to cancel the Lis Pendens. I do not know how to bridge the gap. Any ideas out there?
  2. I have several people ask recently about what needs to be done at the foreclosure hearing and the answer is always the same. Raise the issue of the money trail, proof that the party bringing the suit is the party harmed. They can’t. I also believe after sitting in on lots of hearings that if you don’t bring these issues up early on, you may lose them on appeal. I realize that the superior court appeal is de novo but I have also read cases where the homeowner lost out because these issues and others were not raised at the clerk’s level. Consistency is the key to making these charges stick all the way through the process.

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