The Case Against the Escrow Agent: Did Escrow Close on Mortgage Loan

The possibility of a lawsuit against the escrow agent in the closing of the mortgage loan that was subject to securitization or claims of securitization raises several essential issues. In most cases the escrow agent is also the title agent. The title agent has it issued a title commitment and a title policy presumably based upon their research of the transaction and preceding transactions that were recorded in the public records of the county in which the property is located.

The exchange shown below raises the question of whether escrow had in fact ever been closed. I would raise one more question. Is there any way in which escrow could have been closed? Was the closing a sham?  Of course this does not apply to all loan originations but it probably applies to the great majority of loans that are considered to have been originated by a pretender lender and closed by an escrow agent.

Consider the following fact pattern: the closing agent receives documentation that must be executed before the closing agent releases money from escrow to the borrower or releases money for the benefit of the borrower. In that documentation the name of the lender is clearly shown on the promissory note and presumably the mortgage or deed of trust.

In analyzing this transaction we must stop here and pause to consider what is happening. The originator at this point is offering to make a loan provided that the borrower first executes (signs) the closing documents which includes the note and mortgage or deed of trust. The issue as I have raised in court is what happens when the originator doesn’t make the loan? The additional question here is what happens when the originator never receives delivery of the note and mortgage? It seems to be well settled that recordation of an instrument does not constitute delivery of the instrument.

So we have an originator who did not make the loan and never received possession of the note and was clearly not the lender. If that is the case, I can see no legal basis for treating the transaction as though there was a closing at escrow. My opinion is there was no closing. The escrow agent had done the right thing, the note and mortgage would of been handed back to the borrower. And since the escrow agent is normally a title agent for one of the major title insurance companies, there appears to be a very deep pocket for damages if a cause of action can be brought against the escrow agent.

The key to any exploration of this cause of action would be getting the closing instructions in the closing documents, including the wire transfer receipts and the wire transfer instructions. The wire transfer receipt and instructions might represent the only documentation showing that a third-party was the actual lender in the transaction and that the originator and escrow agent failed to protect the actual lender by having the note and mortgage (or deed of trust) executed (signed) in favor of the party who supplied the funds at closing.

Any escrow agent who wasn’t “in on the game” would probably have reported to all of the proposed parties that the transaction cannot be closed without showing that the money wired into the account of the escrow account had indeed come from the originator or as a result of some legal relationship between the originator and the source of funds. Of course this leads to the issue of whether the parties would be admitting to a table funded loan which is predatory per se according to Reg Z.

In the case of Jacobitz v Thomsen, 238 Ill. App. 36,  the appellate court correctly said “the note never became an obligation binding, as such, upon the defendants.”

As the facts are revealed in this massive fraudulent scheme, my initial comments back in 2007 when I started this blog appeared to be fully corroborated. Closing was never completed. It is not that the homeowner needs to rescind the transaction because that would be admitting that the transaction occurred. The point is that the transaction did not occur. And thus the point is that the homeowner never owed any money or any other obligation to the party designated as the “lender” or “mortgagee” or  “beneficiary” (under the deed of trust).

The failure of lawyers and the courts to take notice of this fact has not just resulted in bogus foreclosure sales at bogus auctions.  It has resulted in Wholesale fraud in which money was taken from investors under false pretenses and then used in ways that the investors never intended. The investors failed to receive the protection of a promissory note or an enforceable mortgage, which is the allegation that the investors are making when they sue the investment banks that sold them the bogus mortgage bonds.

see http://livinglies.wordpress.com/2013/12/26/beforeyou-open-your-mouth-or-write-anything-down-know-what-you-are-talking-about/

Here is Dan Edstrom’s Response (Thanks Dan)

Excellent source of information for lawyers.  Here is what I think is critical that you need to include and discuss.
My assumptions are that it is well established that escrow requires specific performance (at least this is true in CA, and probably all other states).
My assumptions are that the following is generally true in all states.
Without fulfillment of the conditions precedent to closing escrow, escrow cannot close (specific performance).
If escrow never closed you have failure of delivery of an instrument.  The conclusive presumption of delivery avails an alleged note holder nothing if escrow did not close.  In CA it is stated this way:
No delivery of the note, within the meaning of section 3097 of the Civil Code, took place. As the court says in Sousa v. First California Co. (1950), 101 Cal.App.2d 533, 539 [225 P.2d 955],“Only after strict compliance with the condition imposed … does the escrow holder begin to hold for the party thereby entitled. …” Bogan v. Wiley (1949), 90 Cal.App.2d 288, 292 [202 P.2d 824], holds, “No rule is better settled than the one that the payee gets no property in a negotiable instrument until its delivery.” And Todd v. Vestermark (1956), 145 Cal.App.2d 374, 377 [302 P.2d 347], states: “… a delivery or recordation by or on behalf of the escrow holder prior to full performance of the terms of the escrow is a nullity. No title passes.”
You could state what you listed in your article a different way (that the payee provided no consideration at loan closing): [EDITOR'S NOTE: POSSESSION VERSUS AUTHORITY OR RIGHT TO ENFORCE THE INSTRUMENT]
Yet these respondents recognize the rule that a security interest serves as an incident to the debt (Civ. Code, 2909), and on oral argument before this court admitted “if we didn’t have a promissory note, and if it … wasn’t an obligation … [t]here would be nothing for that security to secure; so it couldn’t exist.” Moreover, as the decisions have held, the mere recordation of a deed of trust by the escrow holder, in accordance with the trustor’s instructions, does not establish delivery. Thus in Jeannerette v. Taylor (1934), 2 Cal.App.2d 568 [38 P.2d 831] (petition for hearing in Supreme Court denied), the “title company, following plaintiff’s instructions, recorded a deed to the property which she had signed and acknowledged, the defendant being named therein as the grantee. Following this the title company … mailed the recorded deed to defendant.” The court then stated: “The evidence shows that this was done without express authority. … No one who had possession of the deed was authorized by plaintiff to deliver the same to the defendant. The delivery to the title company was for the limited purpose of recordation. No authority was thereby conferred to make delivery, and its act in mailing the instrument to the defendant did not have the effect of passing title …” (Pp. 569-570.)
Holder and Holder in due course may not apply if there was no consideration and escrow never closed:
Since Builders did not become a holder in due course, the conclusive presumption of delivery avails respondents nothing. (Civ. Code, 3097.) The cited case of Baker v. Butcher (1930), 106 Cal.App. 358, 367 [289 P. 236], does not apply; respondent Walker’s admission 231*231 that his rights depend upon the status of Builders as a holder in due course proves fatal.
The following quote seems to agree with what you are saying, that the Plaintiff can sue based on the obligation or the contract:
Respondents fourthly and finally contend that the conception of the payment of $4,022.14 as a condition precedent to delivery necessarily must void the entire transaction or work an unjust enrichment to appellants. In essence this contention suggests that appellants must rescind the contract in order that no unjust enrichment accrue to them; that, having elected to accept certain contractual benefits, they must ignore Henderson’s breach of his duties. Yet respondents seek to collect upon a note under which appellants are not obligated for want of delivery; respondents’ rights properly rest only upon the underlying contract or in quasi-contract. Thus, as is stated in Jacobitz v. Thomsen, supra (1925), 238 Ill.App. 36–“the note never became an obligation binding, as such, upon the defendants. … The reversal in this case, however, will be without prejudice … to any right Thullen may have to recover from defendants whatever sum, if any, may be due from them under the terms of the original contract … or the value of work, labor and materials furnished. …” (Pp. 38-39.) Gray v. Baron, supra (1910), 13 Ariz. 70, 74, likewise points out–“Under the terms of the escrow agreement and the facts … there was no such delivery of the note … and … the judgment entered by the court for the plaintiff requiring the payment of the note … [must be reversed as] outside of the issues set forth in the pleadings. … The theory of the trial court seems to have been that the plaintiff had established a cause of action based upon the breach of a contract to purchase the stock. The error of the trial court was … in attempting to enforce such a cause of action … in an action based simply upon the promissory note, and not one based upon the breach of the contract to purchase.”
All of the above quotes come from Borgonova vs. Henderson, 182 Cal.App.2d 220 (1960), attached.
Getting back to the conditions precedent, here are some that I have seen.  But keep in mind that all of the loan closing documents I have seen are different.  Some bring up certain conditions different from others (your mileage may vary).  The following are all from one loan closing (notice the impossibility of meeting the conditions precedent):
BORROWERS CLOSING INSTRUCTIONS
You are authorized to deliver and/or record the above and close in accordance with the estimated closing statement contained herein (subject to adjustment);
and when you can procure/issue a 06-ALTA Loan w/Form 1 – 1992 coverage from Policy of Title Insurance from Fidelity National Title Insurance Company with a liability of $500,000.00 on the property described in your Preliminary Report No. 4008203, dated August 16, 2005, a copy of which I/we have read and hereby approve.
SHOWING TITLE VESTED IN:
[borrowers names ...]
FREE FROM ENCUMBRANCES EXCEPT:
[...]
6.   A First Deed of Trust, to record, securing a note for $500,000.00 in favor of Mortgage Lenders Network USA, Inc..
LENDERS CLOSING INSTRUCTIONS
Named Lender who provided the closing instructions: Mortgage Lenders Network USA, Inc.
[...]
Residential Funding Corporation has a security interest in any amounts advanced by it to fund this mortgage loan and in the mortgage loan funded with those amounts.  You must promptly return any amounts advanced by Residential Funding Corporation and not used to fund this mortgage loan.  You also must immediately return all amounts advanced by Residential Funding Corporation if this mortgage loan does not close and fund within 1 Business Day of your receipt of those funds.
Closing Agent/Attorney acknowledges the foregoing instructions and understands that failure to properly follow set of instructions may result in legal recourse by MORTGAGE LENDERS NETWORK USA, INC.
Identified conditions precedent in this case that may not have been met:
  1. 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
  2. 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…”
  3. 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.
  4. 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).
In my opinion if the borrower was fooled at loan closing, the escrow should not have closed.  That is unless the escrow company was fooled also.  But they were not fooled – they knew everything.
Remember also that the homeowner never sees MERS or the above loan closing instructions until they are put before the Borrower on the day of signing.  Up until about 2010 I would say that there was no homeowner who could have remotely understood what any of the above meant.

 

 

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59 Responses

  1. ” Of course this leads to the issue of whether the parties would be admitting to a table funded loan which is predatory per se according to Reg Z.”

    I have a hard time with that. Can you cite chapter and verse please?

  2. “The wire transfer receipt and instructions might represent the only documentation showing that a third-party was the actual lender in the transaction and that the originator and escrow agent failed to protect the actual lender by having the note and mortgage (or deed of trust) executed (signed) in favor of the party who supplied the funds at closing. ”

    NG, for the millionth time, I think you’re barking up the wrong tree about who’s the lender when a note is payable to XYZ – XYZ is the lender (at least generally). A more likely cause of action against TC for not delivering the note to XYZ: if xyz never took delivery (here poss) of the note with his name on it as payee, he probably never became a holder. It may be problematic for the TC that the TC caused the recordation of an encumbrance on property when there was no delivery of the note to the payee. And if xyz never had possession, it’s unlikely he could negotiate or transfer the note. The problem is the hidc, who takes with blah blah and no notice of “irregularities”. or maybe it’s a problem. that seems like a toughie if there were never poss. Not sure what that makes the note.

  3. ps – brokers have never gotten the orig dot. They are retained by the TC who did the closing and they send them for recording and then they’re sent to some black hole, a lot of times in TX (see “after recording mail to….”); the broker NEVER gets the orig dot. The broker gets a certified copy from the TC and makes a copy of THAT for its own records. The cert’d copy from the TC is sent with the closed package to the bigger guy by the broker – the cert’d copy from the TC goes to the party to whom the broker is selling or (has sold) the loan. The original note is – or was – sent to the warehouse lender in accordance with the agreement between the bigger guy and the wh lender. Either an officer (the one or ones named in the broker agreement with the bigger guy) of the broker has to go to the TC to endorse the note after its execution (or they were rubber-stamped then or later?).

  4. Neil – you are most likely correct. The party named on the note and dot never gets poss of the executed note and coll instrument when closing was done by a TC or escrow co. – small, if not all, brokers on info and belief weren’t trusted with the docs from about 2000 on. And case law mostly says that a TC is NOT the agent of the lender – there may be some cases out there saying otherwise, but I think the majority is TC not agent of lender.

  5. If we don’t have air—housing won’t matter…

    http://www.globalmarchagainstchemtrailsandgeoengineering.com/index.html

  6. @iwantmynvp

    They are spraying a lot more than aluminum—you should read that article by Dane Wigington—about the earth entering the “Venus syndrome”, etc…I’m not “doom and glooming”—I’m just saying nothing else matters if what they started with the geo-engineering doesn’t stop—soon…it’s all related to the “weird weather”—which is all manufactured at this point…we have NO natural weather patterns in the world anymore—thanks to geo-engineering.

  7. I was wondering why Szymoniak has not been vocal and I see one of her client was the actual information for her Qui Tam claims, and the dude keep all the emails that he was sending her for about 6 months before she filed her claim as her as the Realtor in the case and not him. He was the one that found out about LPS and not her, and the emails shows all the information he supplied her.

    I glad I also kept the emails I wrote her also and the phone time and dates and explains to me why she wanted to her what I had to say but was short in the email response that she could not help. I just wondering if her and her team have filed the WaMu information I gave her.

    Not only are we being screwed by the banks but the lawyers your hiring to help when you, if you can find one is trying to screw you. I back out of this specialist in Qui Tam because they wanted all the information I had uncovered and did not want me to have a even a single copy and they said they were ready to file within days back in Jun 2011, but I could not in my mind see not having at least copies of the boxes of information I just spent the least year of collecting.

    This information on Szymoniak is disheartening but as I been saying that see did not seem like a very smart person, but she had to be somebody who had nothing else to do to uncover what DocX was doing, but the client lead her to her mortgage assignment being signed by Linda Green or should I say forged Linda Green signature to a forged assignment.

    This is why I submitted on my own a whistle-blower claim, which conveniently lost (the first one) right before the Jan 2012 Robo/Foreclosure settlement and my complaint has and resubmission has a direct bulleye on WaMu/Wells Fargo and Ginnie Mae MBS.

    I think this is why I write (not to good of writing), but at least we all know what each other been blabbing about and is why I always use my name for my post. Thanks folks for at least listening.

  8. Iwantmynpv,

    Aluminum is the least of anyone’s worries. Barium would be more of a problem and Fukushima’s uranium and spent rod fuel would be a really, really serious problem… except that humans have the technology… given freely, no strings attached other than a worldwide non-aggression agreement and commitment never to use it for destructive purpose. Japan and China are in. So are Russia, Iran, Italy, and this whole list:

    https://maps.google.fr/maps/ms?msa=0&msid=218425273006042132759.0004ce14cbaec0d660a78

    Damn it! The US signed in 11/2012! Right about the time the military started getting cleaned up… and a big push was made to disable nuclear plants. Tepco won’t last very long either.

    Yes, all the money banks are paying is serving a purpose: clean up the earth and clean up the economy. By all means, keep the fight against the banks. But don’t underestimate what goes on behind closed doors.

    I am more than ever not bowing down to the IRS: they mean absolutely jack in the really big scheme of things. And nor do banks. We’re big enough to be told how close we came to disaster and wise enough to want to participate freely. Things are happening worldwide. Much bigger than a house. The very least civil servants can do is talk to us. They choose to talk above us: I ain’t paying their salaries.

  9. Carie, it is actually aluminum they are spraying to force the ionosphere to replenish our atmosphere. if that doesn’t work, expect a couple billion less to be roaming around.

    TSMIMITW

  10. Carie,

    Get off the doom-and-gloom. I got Anon out of it over 2 years ago with the evidence she needed and she embraced it. Contact her, ask her what she now knows she didn’t then and what difference it made in her life and you’ll understand what I’ve said all along:

    Foreclosures were meant as a distraction to stop people from taking action and… it worked! Fukushima is the same deal and… it works! Distraction. Ask Anon. We know: distraction from something so much bigger!

  11. NONE of this stuff matters if the earth is destroyed—which is where we are headed, my friends:

    http://www.geoengineeringwatch.org/global-geoengineering-fueling-venus-syndrome/

    I walked out of my home this morning and literally saw, smelled, and tasted a massive amount of sulphur dioxide—which is being sprayed daily around the world from the chemplanes—we need to wake up and stop this—who cares about foreclosures when there is no earth left—seriously, this topic is more important than anything.

  12. JG, thanks for the discussion; aren’t we indicating in these revelations the payment of the note was made yet someone created a security based upon the fact that the note once existed?

    I mean, if a note is created and they rush someone to closing, and they create the security while they payment is not yet posted for the note, insure the security, then pay the note that’s where the borrower may have been deceived and the co-obliger has the homeowner/borrower’s payments keeping the security instrument alive and to claim the insurance when the homeowner/borrower stops paying toward their creation?

    Again I may be confusing the issue. I don’t mind. I don’t know legalese.

    Trespass Unwanted, Creator, Corporeal, Life, People, Free, Indepenedent, State, In Jure Proprio, Jure Divino

  13. That undisclosed co-obligator tried to con me into taking over his obligations by novation.
    He wouldn’t let my husband …. but he Begged me a hundred times over.

    hahaha

  14. In 2008 they scratched the borrower/loan and in 2010 made the household estate whole. Who is the beneficiary of the Estate? Its not MERS. Would it be … could it be…your spouse and/or heirs? Could that be the reason they are Sued in the fc suits too? That’s how they do it in the Reverse mortgage FC after the demise of a grantor. Odd don’t you think?

    But I think you have to die first. Oh Well.

    Don’t Scratch My Hubby!
    Get Your Dirty Hands Out of OUR Cookie Jar!

    You Damage It… You Pay for It!
    You Steal It … I’ll cut your legs off and you will never stand again.

    But that’s Just Me …

  15. But, charles cox, you could be right – that it’s a novation (v. co-obligation) when someone else, even tho already obligated, undertakes to pay the payments AFTER it’s clear the note maker hasn’t and is not going to. (Seems like a stretch to me, though, and again I’m not talking about a contract which replaces the right to payments on the notes.)

  16. Charles Cox said something last week, and assuming its veracity, I think it’s really important and would appreciate any comments. Don’t know when NG cuts off old post stuff. Here’s part of what he said re: NG’s post on novation of the contract:

    “I would contend, advances by the servicer or anyone else is a novation of the obligation having been “taken over” (related to “[a]ny person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all the promises made in this Note” also contained in this section.”

    Hmmmm…if a servicer or anyone guarantees payment on the note, then I’d say he’s a co-obligor. Seems that would be true of anyone who endorses the note, also, by the language you quote from the note. (that ‘without recourse’ stuff is operative, also; thought I had a handle on it, but now think I don’t) But becoming a co-obligor by virtue of the language in the note, which imo, it’s taken subject to, isn’t a novation. imo. A novation of a contract is when the old contract is abandoned in favor of new one. If people contracted to pay certificates in a manner which doesn’t mirror the pymts on notes, imo, that’s a novation, and I think that’s what Neil is saying. The note doesn’t speak, by the way, to any subrogation right of one who becomes a co-obligor, so my impression is there isn’t any as it’s a voluntarily assumed risk. If subrogation rights exist, it has to be by way of another agreement. Can’t say as we’ve seen any such thing.
    A co-obligor doesn’t 86 the obligation of the borrower, however. What 86’s, mol, the borrower’s obligation is that a loan not in default may not be called (and it’s not in default when ANYone is making the payments). And, if there are co-obligors, imo they must be named just as the borrower is named. If not, the borrower, if a defendant, should or at least could name the co-obligors, even as John Doe’s, in a counter-suit, and if a plaintiff, should similarly name them if only as John Doe’s. Can a plaintiff (bankster / trust) choose to go after only one obligor, the homeowner, when more than one exist? I don’t know, and that’s why I suggest naming John Doe’s or FNMA (pursuant to their guarantee) when a loan went thru fnma, for instance. I’d like to see fnma try to say its guarantee is irrelevant! We can’t sue fnma for its contract with another, but we can imo if that contract makes fnma a co-obligor (and ditto on endorsors – no wonder they want to limit the endorsements on a note).
    think we’ve overlooked the naming of co-obligors, even as we are now considering the sale and payment of certificates as a novation.
    lay opinions

  17. Mr. Garfield ,

    The best example I can think of is K.E.L. Title in Orlando , Florida ,, if the name sounds familiar it is because K.E.L. Attorneys is basically the “McDonalds” of foreclosure defense firms in Orlando and Tampa… The title subsidiary of the firm went into state receivership about a year ago… It’s just a guess but the partners probably looked back through their files and made an attempt to legally distance themselves from the closings they presided over.

    They are well worth contacting… they should be a wealth of information.

  18. Did I say that? Oh My! I Better Go Find Something More Productive to Do. Sorry?

    Many Blessings to All!

  19. “Household” … not the borrower. The Household Estate is the Warrantor of the Debt. Grantors cease/decease/croak the estate then and only then can be settled. Sorry unsecured buttwipes… who wasn’t being reasonable? Bite Me!

  20. The BOLD letterhead says MORTGAGE but in plain sight inside …is a Creation of a Life Estate Trust Granting MERS bare legal title irrevocably free and clear of all liens.

    Sounds a lot like a Reverse to me …

  21. After FC you get 1099 abandonment claim from the servicer.
    Who abandoned what?
    Did you move out?
    Did you fail to pay your taxes and ins?

    If I was in their shoes, I would pay/buy up the taxes and pay the ins.

    Just Saying ….. Tax Sales and FC are a Deal Killer

  22. ** when a note is paid (but where’s the proof, as you say), the coll instrument is toast as a matter of law – my source = case law

  23. Since I see Todd is here, I’m going to go ahead and post this comment from another post I made today (don’t know if NG cuts off notifications of new comments from old posts):

    Todd said:
    “But what if we entered into a trust arrangement and not a contract? With DOT is seems plain and unambiguous to me a trust was formed, not a contract.”

    Imo, yes, of course a trust is formed. It’s the trust in deed of trust.
    There’s a trustee of the trust, the one abandoned as soon as they feel like it (for a new one, prob some co. which they own). There are two forms of fee simple title – equitable and legal. The borrower generally retains legal while the trust is granted equitable. (or so I’ve always believed). The trust holds one form of title (for the benefit of the beneficiary / lender) until the loan is retired. That’s why dot’s require a reconveyance v a release (which is used for a lien). The trust must re-convey to the homeowner the form of title granted to the trust – that’s what being reconveyed.** A non-judicial foreclosure of a dot is a quiet title action, essentially, (we mistakenly generally only think of a qt the other way around). The trustee “relieves” the homeowner of his legal title. Both forms of title, legal and equitable, are quieted in one party, the successful bidder at the sale. We granted the trust trustee the right to do that (but only for the lender and not some schmoe).
    The legislated privilege of non-judicial foreclosure requires strict compliance. I can promise anyone that not even the most jag-off legislator would have approved the use of the dot and non-j had he known of its future abuses. (Most should know this by now, but prior to the legislation of the dot, mortgages were used. Mortgages were purely a lien, and not a granting of any form of title to the lender; they required judicial foreclosure and had a lengthy right of redemption) A more or less sacred trust was created when the borrower granted one form of title to someone else, the trust.

    Whether or not the note and the trust created by and in the deed of trust actually constitute a contract (acknowledging that there is a trust formed) , guess I can’t say, though I’ve always thought so – that together they formed a contract.

    You might try contacting that attorney in CO – Wm Bronchick (found in a link here at LL from KC). He seems to be an authority on real estate.
    Pretty heady stuff you have there, Todd. Makes me feel like an eejit! I think I’ve heard that when a court doesn’t rule by a time certain, it may be taken as a denial….??? Time for interlocutory???

    .

  24. Did they close escrows in Oct 08?

  25. C – just finished reading his lengthy comment and found his email. duh.

  26. You Are Welcome JG

  27. johngault, on January 5, 2014 at 9:28 pm said:

    At the last post, KC linked a case which I’d call educational and informative (thanks, KC). If you skip to “Argument and Law Assignment of Error”, you won’t miss much. If my link won’t open, I highly recommend going back to the last post for KC’s link on the 2nd at 10:37 pm.

    http://stopforeclosurefraud.com/2014/01/02/bac-home-loans-servicing-l-p-v-blythe-ohio-court-of-appeals-bac-has-failed-to-demonstrate-that-it-has-standing-to-accelerate-the-note-and-foreclose-the-mortgage/

  28. KC, on January 3, 2014 at 3:59 pm said:

    Homework! There is No reason to Fail, unless you don’t study.
    Or you could just hire an attorney & an accountant.

    http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=5&ved=0CEMQFjAE&url=http%3A%2F%2Flaw.lclark.edu%2Flive%2Ffiles%2F6936-property—blummdoc&ei=yvfFUsTaIMin2AWc3YDACQ&usg=AFQjCNEnP1jbW3PyoRJM1pqRQIgdt8Dljg

  29. KC Family Tree of Names …

    Smart
    Allgood

    LOL!

    Good Point T.U.!

    I Like HangMan!

    By Golly JG … I think you’ve Got It Right!! :)

  30. C – you appear to be in contact with Todd. Please ask him to check my comment at the “Before You Sign Anything” post. thanks

  31. Thanks EULE,
    Credit doesn’t do well when they are a bank and have to give up real assets.. LOL. That means they have to go into the JPMC vault and pull out some currency, some reserves.

    JPMorgan Chase Bank, N.A., its affiliates, and their predecessors
    (collectively and separately, “JPMC”)
    ——————————
    on or about October 29, 2008, JPMC filed a report with the United Kingdom Serious Organised Crime Agency (“SOCA”) pursuant to the U.K. Proceeds of Crime Act. In that report, which identified Madoff Securities as its “Main Subject – Suspect,” JPMC reported that, among other things, “the investment performance achieved by [the Madoff Securities] funds … is so consistently and significantly ahead of its peers year-on-year, even in the prevailing market conditions, as to appear too good to be true – meaning that it probably is,”JPMC reported that, “[a]s a result,” it had submitted redemption requests for more than $300 million of its own funds, which were invested in Madoff Securities “feeder” funds.
    ———————————

    I haven’t finished reading, but I do ponder this thought.
    If JPMC reported their ‘concern’ to the United Kingdom and then submitted a request to take JPMC’s own funds out, what prevented JPMC from making the same report in the United States to the SEC and does JPMC’s interest come before the investors of the fund since JPMC was managing the assets in JPMC accounts for the Madoff Securities ponzi?

    play on words, JP Morgan, J(y)P Mor(e)ga(i)n – Gyp More Gain
    Madoff, Mad(e) Off – Made Off

    When it comes to those names, I’ll buy a vowel, or two, or three to try to see what they are up to.

    Trespass Unwanted

  32. The slang for free rent is how the banks have used language against us and we use it against ourselves. An extension of how we shouldn’t benefit when they’ve stolen trillions of dollars and millions of homes. We lost equity, payments on false promises, our home memories and even lives as we end up trapped in our homes as was long predicted.

  33. A new bedtime story : 60 pages jpm

    http://www.courthousenews.com/2014/01/07/Jackpot.pdf

  34. the other day, KC linked an article by attorney Wm Bronchick. He has written extensively about real estate and seems like one smart cookie. He’s in (it appears) Aurora, CO. Don’t know if he takes on h.o. defense, but it’s sure worth a shot for those in Colorado.

  35. When I was learning about the corporate person, long before the Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) case exposing corporations having the same rights as persons, thus finally, finally, letting people know (who don’t look in legal dictionaries) that corporations=persons=individuals=associations but do not equal people.

    I was hoping that people can open their eyes and say, well if a corporation is a person, then what am I? But people won’t do that, and when some who are trying to awake but are sleepwalking rise up and open their eyes; instead of knowing who they are, they say, “We the People” as if that’s who they are, as if those three words have to always be them. The Citizens United ruling wasn’t for “We the person” for the corporation, so why the extra “We the” when they are trying to indicate People have rights. When words are grouped, they mean one thing over a single word, so “We the People” is not the same as “People”. “We the People” would have to be defined, whereas People already has a legal definition in Black’s Law. Like saying “Some National Company” vs the word Company. In a legal document they would have to define Some National Company so they would state something like “Some National Company, hereafter identified as “Company”) to give some indication of what they mean.

    When I studied Redemption, and that’s when the movement was huge and lots of books and audio was out there. There was something I came across and it will take a while to figure out where, who, how, or why, but the base info was that someone trying to get their rights in the system by Redemption was told by a judge any case before Erie Railroad Co. v Tompkins could not be cited in court because after that case, things changed. Since that case occurred in 1938, Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the above case is a valid case cite for what we are discussing.

    http://en.wikipedia.org/wiki/Erie_Railroad_Co._v._Tompkins

    (wikipedia editors can be slighted to some agenda so use discernment.)

    Personal note: Redemption has it’s flaws, but the history lessons and info is worth learning. The remedy is not the remedy, but you have to know what you are dealing with before you can make a plan for how you will deal with it.

    The remedy is here, we have been denied it. We should not ever have to go to court if we are living our lives free from trespass. Even if we have property and someone wants to steal it and has all the paperwork in the world to steal it, we shouldn’t have to be in court telling someone we don’t owe them any money and still having our property taken from us. We won’t get remedy from their false suit/claim/accusation if we don’t go to court, but we won’t get remedy from their false suit/claim/accusation it if we do go to court. Judges know this. It’s criminal how this has occurred and once the laws that are on the books are implemented, they will get their justice.

    I’m reminded of a story of a samurai cat. A dojo temple was controlled by a terrible mouse, and a sensei sent many ninja cats to attack the mouse and the mouse defeated them all. The dojo temple asked for more help and the sensei sent a samurai cat. The cat got to the temple and all it did was witness what the mouse had done, and the mouse would do things to the samurai cat hoping to pull it into a battle to be defeated but the samurai cat would just watch or sleep. Eventually the mouse thought he had total control because he had defeated the best cats that were sent to defeat him. One day the mouse was given a giant sticky ball of rice and as he greedily went after the rice he got stuck in it and the samurai cat defeated him and made him leave the temple forever.

    It’s not the battles we fight in court nor the face to face confrontations with the judges and lawyers. They have signed enough documents to sentence their selves because as they think or pretend they are doing the work of the crown or the papal, they have been removed from immunity and as such they’d have to resolve the prior judgments that aren’t aligned with the Holy See and his assets as well as the current. If the Holy See truly does have direct communication with the One, then it must have been informed of what the One has witnessed and is conveying that what is being done is no being endorsed as acts blessed by the One. Why else would you remove someone’s immunity unless you have witnessed them do things that they cannot be immune to. Things done in conscience that is unconscionable.

    We act as if we have to teach a judge how to see a law that is being broken, and they know the law. Courts are like walking into a debate setting and whoever is the better debater wins, but we aren’t debating issues, this is real life, property, rights, that are at issue and there is a higher level of protection their oath is supposed to support us with.

    We try to go in as the living male or female and if we don’t state it at the right time, or in the right manner, or by our answer before we go, or their room is designed to not even have us there, so they don’t see us, then we are denied our Right to Life, Liberty and Property because we didn’t say the magic word.

    It should never have been that way, and it will unravel come hell or high water, and both are happening now. I hear Hell is defined in their legal dictionary as the hull of the ship. As I remember that’s where they stuck the slaves as they traveled the high seas and whoever died there, tough luck in their eyes. Judges have been captain of a vessel long turned into a pirate ship, what fitting justice than a place in hell on the vessel they commanded.

    I don’t judge, but that doesn’t mean I don’t see injustice; and doesn’t mean I don’t know what justice would manifest as.

    Neil, this is a great post. You do mix terms, or I can’t seem to keep up with who is who without making assumptions and assumptions are not good. I don’t know if that’s intentional, but it is your website.

    # In most cases the escrow agent is also the title agent
    # originated by a pretender lender and closed by an escrow agent
    # closing agent receives documentation that must be executed before the closing agent releases money from escrow
    # the escrow agent is normally a title agent for one of the major title insurance companies,

    I can’t discern if closing agent is presumed to be the escrow agent which is also presumed to be the title agent.

    I don’t take anything for granted in legalese, and I don’t understand legalese.

    Trespass Unwanted, Creator, Corporeal, Life, People, State, Independent, Free, In Jure Proprio, Jure Divino

  36. Kc
    No , not today

  37. Or was it ..

    A. “Special Copy of Any of the Above prepared just for the courts”
    B. Something filed with the Co Recorders Office
    C. Something NOT filed with the Co Recorders Office
    D. All of the Above

  38. LDTX
    This post could not have came at a better time for me. I wanted to share with all of you that my home is up for foreclosure today 1-07-2014 at the Harris County Clerks Office. After trying to get all the necessary information from the Title Company where I closed on my property about the Lender, of course, I was told that that was private information the Title Company does not have and I would have to get it from my Lender America’s Wholesale Lender and she gave me a disconnected phone number to contact. I did send out Request of Validation Debt Letters, Qualified Written Request which came back on numerous occasions that Bank of New York Mellon Trustee fka Asset Backed Certificates 2007-2 was the owner of my note/loan in which BONY Mellon denied. However, Bank of America and their attorney’s kept writing Bank of New York Mellon is the owner/holder of the note. One last attempt to find out who the creditor was or holder of the debt was attempted and ReconTrust sent me a letter which I received yesterday 1-06-2014 via Federal Express. The author of the letter wrote and said the Creditor of the underlying debt is America’s Wholesale Lender, 4500 Park Granada, Calabasas, CA. The author of this letter is the same one who wrote me August 2013 and told me
    MERS is the nominal beneficiary under the Security Instrument. As nominee, MERS is authorized to take any action required of the Lender, which includes assigning all beneficial interest to another entity. THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS INC., ASSET-BACKED CERTIFICATES, SERIES 2007-2 and initiating the foreclosure process. Therefore Bank of New York appointed ReconTrust Company, N.A. as the new trustee. The response I received from Bank of America yesterday 1-6-2014 did not state who the creditor is or was. It just said pending further investigation. What a sad day in America when the Banks can steal your property.

  39. Deb, Would you like to disclose to us what you found?

    Was it in the in…
    1. The Note
    2. The Mortgage/DOT
    3. The NOD
    4. The Mo statements
    5. All of the above

  40. If it encourages any one I’ve being moving forward since 2012 I was loosing until then but I kept moving forward with what I had I recently “glanced back” you would not believe what I discovered.so I must remain hopeful and forward thinking is the best way always.

  41. Dan almost described very same situation in detinue case, wild deeds and all. My guess is Balto. Co Circuit (already have one default ) “lost” Req For Default on Litton (filed 22 Nov 2013) and now “lost” entire case file to try to figure way to hook up their criminal buddies but they can’t. always making my record. How incompetent to lose not only docs filed but now entire case file?? Hope they are reading since can of whoop a….. Is coming next to those trying to cover up Exactly what Dan. E & all

    & LL is talking about here. Will keep updating with live case that articulates this very topic in real time

  42. I don’t know about modifications. I was in very unique position of having 2 houses in Fraudclosure ….

    1. I was willing to fight to the death on

    2. Willing to fight but also wanted a compromise.

    House 1 , I would say had a scale of 10 on the Fraudclosure meter. Originally just wanted a modification. 2 years of being lied to (the same exact lies as another servicer on house 2. Strange how that happened. Lol). I woke up and fought them for 3 more years. No one will ever convince I didn’t prove my case. I had 7 different defenses and as many exhibits as I could dig up and present court. All Failed !!! Fix was in most likely , house foreclosed after 5 year fight. Still not going away. But bottom line , as of today , house is not mine

    2. House 2 , I am pretty sure is a Fraudclosure scale of an 8. Could be more but never took the fight to full blown octagon. Fought for 3 years and out of blue after many denials a modification came FedEx. I would say other than no principle reduction it was a great modification.

    Both were fannie/Freddie investor mortgages. House 1 did everything to refuse modification while house 2 did refuse until out of blue modification. I will say I decided to fight to death with house 1, expecting I should/could/would win defending. Turns out so far I was wrong. Could a lawyer done a better Job. Perhaps. But they would never have fought as hard as I did and still do.
    Why house 2 changed even though they are fannie investor as well I don’t know. I just know based on 5 year journey I have been on and what results as of today, I’m OK with modification , as I need a house to live in as its damn cold outside today !!!!

    Remember I like you all here. Do don’t bite my head off ……. LOL

  43. Oh boy do I hear you Christine but there’s nothing like opening a vintage bottle even if it tastes awful it’s like a precious place in time that brought us to where we are now, however I’m in court rules apply – to both parties and that IS the playing field whether they like it or not.

  44. I said … You cant stop a FC but you sure as hell can delay it for many years.

    I was Wrong! Yes you can! *giggles*

    Sorry!

    I think in that situation where it can not be stopped but delayed for many years is slang for FREE RENT!

  45. Deb,

    The old rules reflected an old reality that no longer exists. The new rules reflect a new, one-side reality. Going back in time is not the answer. Writing new laws is not the answer. Tearing down the system and rebuilding it on sound bases is what’s required. You can’t put new wine in old skins. Why? Because old skins tear. Old skins alter the taste.

    Simply put: you can’t make something new with something old. What’s required is not a re-volution (a 180 degrees turn around) but a re-creation: defining the world we want to live in and building it together.

    And let’s face it: yesterday has always been “the good old days’ for every generation. Today is built on all those yesterdays and we see how it turned out.

    Yesterday can’t have been that great… or we would have stayed there as a species!

  46. Don’t Sign Anything!!

  47. They finally agreed to start doing short sales and DIL on properties they could not invoke jurisdiction on. THEY NEED YOUR SIGNATURE ON THE TITLE … THEY NEED YOU TO SIGN IT OVER TO THEM.

    ITS YOUR TITLE …..
    CALL YOUR COUNTY RECORDER AND ASK IF THEIR IS A LIEN!

    NO NO NO LIEN … You hold the property Free n Clear with one Encumb … A living estate Trust..

    You cant stop a FC but you sure as hell can delay it for many years.

    Just Sayin … You need an Attorney. I do not give legal advise, I just think out loud to much.

  48. In fact the older the better means nothing tops it no new precedents
    Unfortunately we are suffering from a certain amount of bench law ,I say that with all due respect because our judges are being lied to. So it must be challenged to preserve justice.

  49. Regardless what happens in the court, an intense revolution is going on worldwide. People appearing in court and demanding from the judge to prove that he has the authority to sit where he does and to acknowledge declare where that authority comes from. The more people are forcefully removed from court and the stronger the current toward truth.

    Amazing how much of what Karen Hudes is saying is actually being said by hundreds of thousands worldwide. People may not draw blood. Their actions are nevertheless revolutionary. I am very optimistic that we will see more and more of those people until, finally, the entire truth has been brought to light.

  50. Java, its not us, its how they used the mod offers and bombarding of refi offers with lower rates and payments to get you into a New Agreement.
    They used them to get your signature on a set of admissions of false statements and waivers of your rights .

    Its not your fault.

  51. Christine , hence we need to shepardize case law , so until a better case tops the cited ones doesn’t matter how old it is.

  52. I think you are all being too hard on anyone who chose a modification.

    Believe me, I know !!!

  53. KC your right about modification & refinancing, plus short sale, because the people acted in their own interest and resigned Notes and DOT or Mortgages and in a short sale your acting as yourself and sold your interest so there was no damage. Now I would think that these modification the borrowers were lured into the signing but they should later be able to fight if thing change, or the mods must clearly state they are final, as refinancing are final, but as a homeowner sold there interest in the properties before they could prove any damages, the sale of the property was at the choice of the borrowers!

  54. Dan Edstrom is doing a tremendous research work on how, way back then, courts ruled on everything from standing to holder in due course and pretty much anything having to do with real estate transactions and loans.

    My question remains, though: those cases he cites are old. Every single one of them. Since then (and more importantly, in the last 6 or 7 years), there have been more cases undoing what had existed to promote stability than any time before that. Every single one of the recent rulings having served to condone the different aspects of the greatest financial scandal ever visited upon humanity is being used, day in, day out, to perpetuate the scandal. Banks don’t cite 100-year old cases to seize someone’s property: all they have to do is cite any case decided the past 5 years to score a homerun.

    To which extent can those very old cases cited by Mr. Edstrom be substantial enough to reverse the foreclosure course on which courts have embarked nationwide in the recent past? It seems to me that, if we had a civil code as most countries do, going back to old rulings would probably work at restoring the original intent of the law. In the case of this country, laws have been made and rewritten as courts made their often-unequitable rulings.

    As Bill Cosby once said: “I don’t know the key to success but I know the key to failure: trying to please everyone.” The entire landscape has changed and the number of people to please has grown exponentially… but they all belong to the 1%. Recording used to be compulsory and went by the wayside. MERS blurred everything and is not going anywhere.

    Are even Edstrom’s cases relevant in today’s climate?

  55. The Fraud is on the Face of the Contract, and the Words on the Face of the Contract and the Words inside the contract conflict! Witch is Exactly Why they didn’t show it to ME at closing. I was reading everything in a room full of BS’ers just wanting to collect their next paycheck.

    No Presentation! No Acknowledgement or Acceptance! VOID!

    Discover the Fraud, .. that is when your SOL runs…. if you signed it.. its still Voidable But if you signed a refi or mod (waiving your rights) … its going to be much more difficult to deal with.

    I’d say the Escrow didn’t close alright.

    Many Blessings to All … Stay Safe & Warm.

  56. Remember your SOL. However tolling can be argued because it doesn’t commence until fraud discovered. No sol on fraud- from fraud nothing can follow I forget the Latin for that.

  57. Escrow Interest : I did not get any interest on my escrow , but than I
    found out there is not many state who are banks required to pay interest on the escrow. So you better find out in which state is
    your bank, before you sign your mortgage with escrow requirement .

  58. Sent from my BlackBerry 10 smartphone. From: Livinglies’s WeblogSent: Tuesday, January 7, 2014 7:25 AMTo: harry.milhisler@gmail.comReply To: Livinglies’s WeblogSubject: [New post] The Case Against the Escrow Agent: Did Escrow Close on Mortgage Loan

    a:hover { color: red; } a { text-decoration: none; color: #0088cc; } a.primaryactionlink:link, a.primaryactionlink:visited { background-color: #2585B2; color: #fff; } a.primaryactionlink:hover, a.primaryactionlink:active { background-color: #11729E !important; color: #fff !important; }

    /* @media only screen and (max-device-width: 480px) { .post { min-width: 700px !important; } } */ WordPress.com

    Neil Garfield posted: “The possibility of a lawsuit against the escrow agent in the closing of the mortgage loan that was subject to securitization or claims of securitization raises several essential issues. In most cases the escrow agent is also the title agent. The title age”

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