Showing posts with label Emergency Economic Stabilization Act of 2008. Show all posts
Showing posts with label Emergency Economic Stabilization Act of 2008. Show all posts

Wednesday, October 15, 2014

BANKS DRIVE HOMEOWNERS INTO FORECLOSURE. YES. SO, WHAT ELSE IS NEW?

Banks Have Been Pursuing Policy of Driving Homeowners Into Foreclosure

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.
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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
Here are the lies:
  1. 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.
  2. 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).
  3. The mortgage encumbrance is probably void and subject to nullification because no owner of the debt is secured by it.
    1. Hence any attempt at “foreclosure” on the “mortgage” is a false claim.
    2. And no attempt to collect on the note can be successful because no owner of the debt is named as the payee.
  4. 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.
  5. The delinquency probably does not exist.
  6. The default probably does not exist.
  7. The balance probably does not exist.
  8. 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.
    1. 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.
    2. 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.
    3. 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.
    4. 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.”
        1. 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.”
        2. 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.
        3. 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.
        4. The servicer thus has no right to collect incentive (HAMP) payments nor fees, because they are not the legal representative of the creditors.
        5. 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.
        6. 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.
        7. 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.
      1. 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.
    5. 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.
      1. 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.
      2. 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.

Tuesday, July 12, 2011

H.RES.344 REP. MARCY KAPTUR (D-OHIO) HOUSE OF REPRESENTATIVES THAT THE STATES SHOULD ENACT A TEMPORARY MORATORIUM ON RESIDENTIAL MORTGAGE FORECLOSURES

112th CONGRESS
1st Session
H. RES. 344
Expressing the sense of the House of Representatives that the States should enact a temporary moratorium on residential mortgage foreclosures.
IN THE HOUSE OF REPRESENTATIVES

July 8, 2011

Ms. KAPTUR submitted the following resolution; which was referred to the Committee on Financial Services

RESOLUTION
Expressing the sense of the House of Representatives that the States should enact a temporary moratorium on residential mortgage foreclosures.
Whereas there are nearly 6,900,000 fewer jobs in the United States economy since the start of the recession;

Whereas, in April 2011, the unemployment rate remains at 9.0 percent, nearly double the unemployment rate of the pre-recession economy;

Whereas the Director of the Congressional Budget Office testified as follows in a Senate hearing on January 28, 2009: `Challenging conditions seem likely to persist for some time in the housing and mortgage markets as well. Housing sales remain weak, and construction activity continues to decline. With the housing market's large glut of vacant properties, the prices of homes are likely to fall considerably further, pushing the value of more borrowers' homes below the value of their outstanding mortgages. As more of those `underwater' borrowers experience losses of income during the current recession, rates of delinquency and foreclosure on residential mortgage loans are likely to rise further.';

Whereas the current economic situation began to unfold some time ago and, in fact, the Federal Reserve System first began to supply additional liquidity to credit markets in August 2007, as pressures from losses on mortgage-related assets unexpectedly began to mount;

Whereas many economists today believe that to avoid relapsing into another devastating financial crisis, a key component is the Nation's housing markets and providing necessary changes for our Nation's financial markets;

Whereas the intent of the Troubled Assets Relief Program of the Department of the Treasury, established by the Emergency Economic Stabilization Act of 2008 (Public Law 110-343), was to, in large portion, purchase troubled assets, including securitized mortgages, and to enable banks and other lenders engaged in the mortgage market to engage in mortgage modifications, loan workouts, and other processes designed to stem off the ever-rising tide of foreclosures, and that has not happened to the level necessary to stem the tide of foreclosures and it continues;

Whereas there were nearly 219,000 new foreclosures in April 2011, which is 7,300 homes per day;

Whereas it is projected by housing market experts that there are approximately 11,000,000 homes in the Nation which are underwater or in foreclosure;

Whereas the United States finds its housing market in a precarious and unstable state, where homeowners' mortgage balances are routinely larger than the current value of their homes and where people are losing their homes at an alarming rate;

Whereas during the Great Depression, the State of Minnesota declared an economic emergency, and enacted a law granting relief in certain cases, `for inequitable foreclosure of mortgages on real estate and execution sales and for postponing certain others' (Chapter 339, Laws of Minnesota, 1933, page 514);

Whereas the Minnesota statute included provisions that postponed foreclosure sales or extended mortgage redemption, as well as taking actions relating to the jurisdiction of such activities, and the Minnesota statute established a hard and fast deadline of when such relief would end, making the Act temporary in nature;

Whereas this law was challenged in the case Home Building & Loan Association v. Blaisdell, which was argued before the United States Supreme Court in 1933, with the Court ruling in 1934 in favor of the Minnesota law;

Whereas there are clear challenges to implementing a nationwide moratorium on mortgage foreclosures, yet this case tells us that the States can take action using the police power of the State; and

Whereas, in this time of instability and uncertainty, with unemployment at 9.0 percent for April 2011, a global financial system still reeling from the effects of the recession, a volatile housing market, and our Nation's citizens struggling to balance essential needs of housing, work, and nutrition, it is time that the Nation, through the action of the President of the United States, declare a national foreclosure emergency and State-by-State seek to end the foreclosure crisis: Now, therefore, be it
    Resolved, That it is the sense of the House of Representatives that--
      (1) the President of the United States should declare a national residential mortgage foreclosure emergency and, through such declaration, encourage the States, by use of their police power, to enact a moratorium on residential mortgage foreclosures similar to the moratorium enacted by the State of Minnesota in 1933 and upheld by the Supreme Court of the United States in Home Building & Loan Association v. Blaisdell (290 U.S. 398 (1934)); and
      (2) the States should exercise such power and enact such a moratorium.
END

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