Banks Use Modifications Against Homeowners
Click in or phone in at The Neil Garfield Show
Or call in at (347) 850-1260, 6pm EDT Thursdays
It is bad enough that they outright lie to homeowners and tell them they MUST be 90 days behind in payments to get a modification. That isn’t true and it is a ruse to get the homeowner to stop paying and get into a default situation. But the reports from across the country show that the banks are using a variety of tricks and scams to dishonor modification agreements. First they say that just because they did the underwriting and approved the trial modification doesn’t mean that they are bound to make the modification permanent. Most courts disagree. If you make a deal with offer, acceptance and consideration, and one side performs (the homeowner made the trial payments) then the other side must perform (the Bank).
Why is this important? Because the banks converted one debt from the borrower into many debts — all secured by the same mortgage. It doesn’t work that way in real life — except now, when courts still refuse to educate themselves on the theory and reality of securitization of debt.
- Overview of Foreclosure Litigation in Florida and Other States
- The need for copies of actual case law and even memoranda supporting your line of questioning
- The Three Rules for Questioning
- —– (1) Know why you want to inquire
- —– (2) Listen to the Answer
- —– (3) Follow up and comment
- What to ask, and when to ask it
- The difference between voir dire and cross examination
- Getting traction with the presiding Judge
- Developing your goals and strategies
- Developing a narrative
- Impeaching the witness before he or she gets started
- Preparing your own witnesses for voir dire questions
IF YOU MISSED IT: Go to blog radio link and click on the Neil Garfield Show — past shows include—-
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”
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: ATTORNEY FEES, damages, FCCPA, HDC, HOLDER, notice, PARAGRAPH 22 NOTICE, purchase for value, reinstatement, SAMAROO, Wells Fargo, where is the loan contract? | 25 Comments »