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This case is often cited by servicers and banks to enforce a note and/or mortgage. Lots of people regarded this decision as “bad” because it approved the foreclosure. The natural impulse is to run from this decision and try to cite others that conflict with it. But this decision was correct AND it provides a blueprint for making your defense successful. The Judge correctly analyzed the law and the facts and found that the homeowner had not proven anything or objected to anything that would prevent Citi from proving its prima facie case and had not proven anything or objected to anything that would have supported any of the homeowner’s defenses.
So I thought I would take this case, as I have done before, and examine it for clues on how the same Judge would have decided the case differently. Used properly this might enable the homeowner to cite to this case in support of a motion to dismiss, motion for summary judgment or to attack the prima facie case of the party initiating foreclosure. There are also plenty of clues as to proving an affirmative defense in which the final result will be that the mortgage is void or unenforceable and perhaps the note as well, leaving the debt, which arises by operation of law and is owed to the party who physically gave the borrower the money.
- LACK OF JURISDICTION — VOID MORTGAGE AND VOID NOTE: The first issue is that for reasons unknown, the borrower failed to bring up the fact that the “lender” did not legally exist in Florida and further failed to object to the finding that AHMSI and American Brokers Conduit were “one in the same [sic]”. In fact, I wonder if the case could not still be overturned on the basis of lack of jurisdiction and perhaps even that the mortgage was void, thus depriving the court of both in rem jurisdiction and in personam jurisdiction. Perhaps the homeowner did not authorize investigation into the parties. But had he done so he would have found that American Brokers Conduit (the “lender”) did not exist in law or in fact. Any claim that ABC was the alter ego or Trade Name of AHMSI was not explored in the opinion. And as to AHMSI, what difference does it make if they were supposedly the true lender under Florida law? The note and mortgage were both defective and the disclosures were deficient in failing to identify the actual party, which, as we shall see below, would have changed the view of the case entirely.
- POOLING AND SERVICING AGREEMENT: The title of the case involves U.S. Bank “as indenture trustee.” By stating that without explanation the homeowner ought to be able to inquire about the indenture, where it exists, and ask for a copy. That would be the Pooling and Servicing Agreement, which makes all arguments about the irrelevance of the PSA moot. Failure to raise the question of where the trustee derived its powers, where the servicer derived its powers, and where the terms and provisions can be found for the duties of the servicer or trustee essentially waives the issue of securitization (false or not). By raising the issue appropriately the homeowner can then inquire as to whether the trust actually owns the debt or is a holder in due course. The holding by the judge in this case that the Trust was a holder in due course was wrong —but not wrong on the facts and admissions by both sides in this case. Hence the decision was inevitable even though the real facts did not support the conclusion. The accepted facts of the case were contrary to the actual facts.
- FDCPA CLAIMS: The homeowner settled with AHMSI regarding fair debt collection practices. This might have been a mistake and might have been the reason that the Judge regarded AHMSI and American Brokers Conduit as the same thing. The settlement probably was worded in a way that prevented the homeowner from raising the authority of ABC to assign anything, much less record a mortgage or transfer a note that it could not have funded because it never existed — at least in Florida. I have several cases where the lender is very concerned about the FDCPA claims and needs a settlement. They obviously know that there is danger in those hills and that should be exploited by borrowers when challenging the debt, note, mortgage or foreclosure.
- TILA AND RESPA DISCLOSURES: Amongst the agreed facts, the court found that the borrower closed the loan with ABC, and based upon the only issues raised by the borrower, found that the disclosures were proper, and that any discrepancies worked to the borrower’s advantage and therefore did not constitute a violation of the Truth in Lending Act (TILA) or the Real Estate Settlement Procedures Act (RESPA). Hence there was no right to rescind either under the 3 day rule or the 3 year rule. Despite the fact that the borrower announced rescission within the 3 years, the court properly found against the borrower. Citi by filing the foreclosure suit, was in substantial compliance with the requirement that it timely file a declaratory action regarding the right to rescind. So if the court had found that there was no closing because ABC did not exist and that the disclosures were inadequate because the borrower raised the issues of disclosing the lender (and avoiding the predatory per se finding by Reg Z), then the same Judge who entered this order probably would have said the rescission right was at least in play and might well have decided, as per the express terms of TILA, that the mortgage was nullified by operation of law by the announcement of rescission. [Note: This issue is currently being considered by the U.S. Supreme Court]
- RESCISSION: This in turn leads to the question: if ABC didn’t exist and therefore didn’t actually loan any money then who did? The only thing we can agree on, up to a point ( but that is the subject of another article), is that the borrower did get money and that the receipt of the money is presumed, by operation of law to create a debt in which the borrower is the debtor and the source of funds is the creditor. The failure to disclose a table funded loan or worse, a naked nominee or conduit providing funds from investors who didn’t know how their money was being used, is a material violation of the disclosure requirements in TILA. That is why Reg Z underscores the importance of that disclosure by saying that failure to do so constitutes conduct that is “predatory per se.” And you can prove that by citing to this same case. Hence the rescission would have or at least could have been found to have been complete and the mortgage nullified, thus paving the way for the borrower to get alternative financing, quiet title or other other remedies.
- PREDATORY LOANS: It is unclear what exactly went on at the trial level with regards to an obviously “trick” loan that fails to disclose its hidden terms in a way that the borrower would any possibility of understanding. The only thing the borrower knew or understood is that he was getting a low interest loan. No reasonable person would sign a loan in which they understood that the interest rate was only good for one month. If you want to win on this point ,though, you need more than the testimony of the borrower. You need a mortgage broker or other professional that would testify that the loan was unworkable from the start, doomed to failure and was illegally funded from investor funds, and illegally sold to the borrower under false pretenses. THAT is how you prove unclean hands which would prevent enforcement of the mortgage.
- UCC: There is an interesting juxtaposition in the “Legal Analysis” of the opinion. The court finds that the Trust was a holder in due course. And this case can be cited for the elements of being a holder in due course. I would encourage foreclosure defense lawyers to do so because you can start out by saying in this case in which the Federal District Court found against the borrower, the elements of the status of holder in due course are summarized. If you go down to the end of the first paragraph in the legal analysis the quote about payment opens the door for your attack against the holder in due course status. Did the Trust prove or show that it PAID for the note and mortgage without knowledge of borrower’s defenses, without knowledge that it was already in default, and in good faith, and did the Trust get delivery (which according to the pleadings, they did not because the note was initially “lost”). Hence the same court that stated that the trust was an HIDC finds that PAYMENT “goes to the heart of the agreement”. If the trust cannot show it paid anything, then two questions arise, to wit: why not? and why did the endorser or assignor of the “loan” transfer or purport to transfer the loan documents to the trust without receiving any payment? If you follow that logic down the line you will corroborate your argument that ABC gave no money to the borrower and that was why ABC never received any money for the transfer of the paper, which now is visible as being entirely worthless, fraudulent and false.
- ENDORSEMENT OR ASSIGNMENT IN SECURITIZATION SCHEME: The court correctly states that under the UCC a transferee of negotiable paper can get the right to enforce the paper either by endorsement or assignment. Because the issue was apparently not raised, the court failed to address the issue of whether the enforcement could succeed at trial (as opposed to the pleading stage) if the identity of the creditor is not disclosed. The question at trial or deposition should be, if the witness is from the servicer entity, and assuming the current servicer entity had anything to do with processing payments from the borrower and to the creditor, “who did you pay?” What the court failed to deal with (presumably because the homeowner did not bring it up) is that the party claiming rights (the trustee for the trust) must show that the loan actually went into the trust because it was paid for and properly delivered. If no objection is raised, then the court can correctly presume that those elements are present. If a proper objection is made then the Plaintiff should be required and often is required now to prove the elements of a holder in due course. In cases where my team has been directly involved in litigation the opposing lawyer tried to wriggle out of this problem by declaring that the trust is not a holder in due course and that therefore they had no requirement to prove those elements. They are essentially hoping that the court won’t know the difference between a holder and holder in due course. A mere holder must establish that it has the rights to enforce on behalf of a party who actually owns the debt by identifying that party and identifying the instrument by which the “holder” was given authority to enforce. In the case of a trust that is impossible because by all accounts the trust is the final resting stop of the claims of securitization of loans. So you end up with an empty trust, in which neither the servicer nor the trustee have any legal rights to do anything with the debt created by the borrower when he accepted the money at “closing.” He still owes a debt, and if the opposition would comply with discovery requests we would know the identity of the party to whom he owes the debt. But one thing is for certain, he cannot ALSO owe a second debt created by signature on a note and mortgage made out in favor of a party who loaned him any money. The key to this is emphasizing that a holder must prove the loan in its claimed chain. But the loan will probably be presumed to exist within the chain if the borrower fails to object and raise the issues.
- DELIVERY: There is considerable confusion in the case as to the issue of delivery apparently because neither party made an issue about it. The court concludes that Citi got delivery of the loan documents (versus the lost note account that was later abandoned) but fails to show how that delivery constitutes delivery to the trust when the PSA obviously contains strict provisions as to delivery and New York law governing the trust requires any transaction outside the authority stated in the trust to be void.
- ECONOMIC WASTE: This decision stands for the proposition that economic waste is a proper affirmative defense, but unless you actually prove it with reliable, credible testimony about facts and documents, merely alleging an affirmative defense and hoping that somehow the opposition will stumble into an admission, is not a very good strategy.
Filed under: foreclosure | Tagged: AHMSI, American Brokers Conduit, and FDCPA claims, Citi Mortgage, delivery, disclosures, Economic waste, endorsement or assignment in securitization scheme, lack of jurisdiction, Pooling and Servicing Agreement, PREDATORY LOANS, real estate settlement and procedures act, rescission, Truth in Lending Act, void mortgage, void note, you UCC | 27 Comments »