Is the assignment a report the bank prepared for trial or an actual business record?
Is the payment history a report prepared for trial or an actual business record?
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The difference is huge. A report generated for use at trial is NOT a business record that qualifies as an exception to the hearsay rule. Any such report must be denied admission as evidence in the court record. It is hearsay. And it is not credible because it was prepared by a party with a stake in the outcome. And a witness testifying that he saw the business records and verified that the report is accurate has not established the foundation for introduction of the report because it is in itself hearsay on hearsay. The best evidence of the records are the actual business records, and if they are in electronic form there are several steps required to get those records into evidence.
Where the forecloser abandons documents because they cannot substantiate them, they should no longer be entitled to any presumption on any document as to authenticity or validity because they have already established that they are not credible. In the case of an assignment it is essentially a report of what has happened — which is that there was a transaction. The transaction for an assignment of a loan consists of consideration paid, endorsement of the loan documents and delivery.
How does the Bank try to get around this? By attempting to introduce other documents that refer to the fictitious transaction.
In the foreclosure wars, the Banks are succeeding because they are getting judges to agree that presumptions prevail over the actual facts. If the actual facts show that no transaction exists supporting the execution of an assignment, the burden of the borrower to prove affirmative defenses is satisfied.
But more than that, the failure to establish the existence of an actual loan transaction pursuant to a valid loan contract and the failure to establish the existence of an actual transaction in which the loan was purchased means that the prima facie case has NOT been established contrary to many rulings from the bench — caused by pro se litigants or inexperienced lawyers failing to raise questions about the admissibility of documents and attacking the credibility of the the documents and the attempts to create the illusion of a proper foundation.
Remember that the records custodian of an entity with no stake in the outcome is usually not found in any foreclosure proceeding. Testimony or certification of the records by a real records custodian from an entity that has no stake in the outcome of litigation is the real deal. Anything other than that loses credibility as they slide down from credibility to just plain lying.
Listen tonight and ask questions.
FROM LAST WEEK, IF YOU MISSED IT:
News abounds as we hear of purchases of loans and bonds. Some of these are repurchases. Some are in litigation, like $1.1 Billion worth in suit brought by Trustees against the broker dealer Merrill Lynch, which was purchased by Bank of America. What do these purchases mean for people in litigation. If the loan was repurchased or all the loan claims were settled, does the trust still exist? Did it ever exist? Was it ever funded? Did it ever own the loans? Why are lawyers unwilling to make representations that the Trust is a holder in due course? Wouldn’t that settle everything? And what is the significance of the $3 trillion in bonds purchased by the Federal Reserve, mostly mortgage backed bonds? This and more tonight with questions and answers:
Adding the list of questions I posted last week (see below), I put these questions ahead of all others:
- If the party on the note and mortgage is NOT REALLY the lender, why should they be allowed to have their name on the note or mortgage, why are those documents distributed instead of returned to the borrower because he signed in anticipation of receiving a loan from the party disclosed, as per Federal and state law. Hint: think of your loan as a used car. Where is the contract (offer, acceptance and consideration).
- If the party receiving an assignment from the false payee on the note does NOT pay for it, why are we treating the assignment as a cure for documents that were worthless in the first place. Hint: Paper Chase — the more paper you throw at a worthless transaction the more real it appears in the eyes of others.
- If the party receiving the assignment from the false payee has no relationship with the real lender, and neither does the false payee on the note, why are we allowing their successors to force people out of their homes on a debt the “bank” never owned? Hint: POLITICS: What is the position of the Federal reserve that has now purchased trillions of dollars of the “mortgage bonds” from banks who never owned the bonds that were issued by REMIC trusts that never received the proceeds of sale of the bonds.
- If the lenders (investors) are receiving payments from settlements with the institutions that created this mess, why is the balance owed by the borrower the same after the settlement, when the lender’s balance has been reduced? Hint: Arithmetic. John owes Sally 5 bananas. Hank gives Sally 3 bananas and says this is for John. How many bananas does John owe Sally now?
- And for extra credit: are the broker dealers who said they were brokering and underwriting the issuance of mortgage bonds from REMIC trusts guilty of anything when they don’t give the proceeds from the sale of the bonds to the Trusts that issued those bonds? What is the effect on the contractual relationship between the lenders and the borrowers? Hint: VANISHING MONEY replaced by volumes of paper — the same at both ends of the transaction, to wit: the borrower and the investor/lender.
1. What is a holder in due course? When can an HDC enforce a note even when there are problems with the original loan? What does it mean to be a purchaser for value, in good faith, without notice of borrower’s defenses?
2. What is a holder and how is that different from a holder with rights to enforce? What does it mean to be a holder subject to all the maker’s defenses including lack of consideration (i.e. no loan from the Payee).
3. What is a possessor of a note?
4. What is a bailee of a note?
5. If the note cannot be enforced, can the mortgage still be foreclosed? It seems that many people don’t know the answer to this question.
6. The question confronting us is FORECLOSURE (ENFORCEMENT) OF A MORTGAGE. If the status of a holder of a note is in Article III of the UCC, why are we even discussing “holder” when enforcement of mortgages is governed by Article IV of the UCC?
7. Does the question of “holder” or holder in due course or any of that even apply in the original loan transaction? Hint: NO.
8. Homework assignment: Google “Infinite rehypothecation”
What’s the difference? See Matt Weidner’s Blog:
For more information call 954-495-9867 or 520-405-1688.
Filed under: CORRUPTION, discovery, evidence, expert witness, foreclosure, foreclosure defenses, foreclosure mill, GTC | Honor, MBS TRUSTEE, Mortgage, Motions, Pleading, Servicer, Title | Tagged: HDC, HOLDER, notice, PARAGRAPH 22 NOTICE, purchase for value, reinstatement, SAMAROO, Wells Fargo, where is the loan contract? | 10 Comments »