Getting the closing instructions and the closing documents, including the wire transfer receipts and wire transfer instructions, one is able to piece tog ether that escrow was never properly closed. This could mean that escrow is still open — leaving open the option of a three day rescission. Dan points out in response to me post that there is considerable support to attacking the escrow to prove that the originator is not the lender. The issue that I failed to explain in my post is that the note was never delivered to the originator. This, combined with the failure of the originator to fund the loan, pretty much locks the door on the note or mortgage being valid enforceable instruments no matter how many times they recorded, assigned, indorsed or anything else. My post is http://livinglies.wordpress.com/2013/12/26/beforeyou-open-your-mouth-or-write-anything-down-know-what-you-are-talking-about/
EDITOR’S NOTE: So I amend my prior comments to add the second question, which has many subparts as explained below: (1) did the originator pay for the loan that the borrower received? and (2) was escrow closed? (including amongst other things, did the originator receive delivery of the note and mortgage?). In reviewing thousands of cases (I think only Lynn Symoniak might have exceed the number of cases I have reviewed) I have come to the conclusion that the answer to both questions is NO — when the origination of the loan was part of or subject to claims of a securitization scheme.
This underscores the scheme of theft by the Wall Street Banks. First they divert the money from investors from a trust into their own pocketed. Then they divert the documents that were supposed to protect the the investor to naked nominees that are controlled by the Banks, not the REMIC trust. Now they want to add insult to injury and throw the homeowner out of his home because “THE Loan” is in default, when the the only loan is the one that arose by operation of law between the investor lenders and the homeowner borrower and NOT the loan described in the note and mortgage. The escrow closing says otherwise.
Here is Dan Edstrom’s Response (Thanks Dan)
- No exception on Borrowers Closing Instructions for the security interest claimed by Residential Funding Corporation (who by the way was the sponsor of thousands of attempted securitization transactions) in the Lenders Closing Instructions
- No exception on Borrowers Closing Instructions for the security interest claimed by MERS on the Security Instrument (Deed of Trust in this case), which states “Borrower understands and agrees that MERS holds only legal title to the interests granted by the Borrower in this Security Instrument…”
- Approximately $329,000 was sent to Ocwen Loan Servicing to pay off an earlier 1st lien. Ocwen was not the payee, beneficiary, mortgagee or assignee and was not listed on any recorded document. A few weeks after closing, Ocwen recorded a full reconveyance stating that they were the beneficiary. However, Ocwen was a stranger to the chain of recorded documents. In this case the Borrower contends that payment was sent to the wrong party (the alleged note holder, beneficiary and assignee was New Century Mortgage Corporation) and the reconveyance is a wild deed. Thus Residential Funding sent approximately $329k to Ocwen and the Borrower never received the benefit of the bargain as this money was never given to the Borrower or used for the Borrowers benefit. Thus the encumbrance remains.
- The payee provided no money to escrow and the escrow company had full knowledge of this (in fact every other party had knowledge of this fact except the homeowner who was the least sophisticated party present).
Filed under: CASES, CDO, CORRUPTION, escrow agent, foreclosure, foreclosure mill, GARFIELD KELLEY AND WHITE, GTC | Honor, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, originator, Pleading, securities fraud, Servicer, STATUTES, TRUST BENEFICIARIES, trustee Tagged: | Bogan v. Wiley (1949), closing of escrow, conditions precedent to closing escrow, delivery of note, escrow agent, failure of delivery of an instrument, Jeannerette v. Taylor (1934), POSSESSION VERSUS AUTHORITY OR RIGHT TO ENFORCE THE INSTRUMENT], Sousa v. First California Co. (1950), Todd v. Vestermark (1956)