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MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. I believe our recovery will never reach the majority of struggling Americans until we restore equal protection for all citizens and especially borrowers in our debt-ridden society. LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient resources to combat bloated banks who are flooding the political market with money. We provide thousands of pages of free forms, articles and discussion of statutes, case precedent and policy on this site. And we provide paid services, books and products that enable us to maintain an infrastructure to provide a voice to the victims of Wall Street corruption.

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Reverse Redlining: Targeting the Poor and the Unsophisticated for High Risk Mortgages

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see https://www.aclu.org/sites/default/files/assets/aclumfy_mortgage_report.pdf

At this point it is clear that the banks actually targeted people of color and other demographics where the likelihood of “default” on a loan was extraordinarily high. The ACLU in its latest report on the mortgage crisis proves this to any remaining doubters. This report also shows that these disadvantaged groups are the least likely to get a modification or other settlement or assistance of the various mortgage issues that we all know now were pandemic throughout the period of 1996-present.

But what they are missing is an answer to the REAL question: Why would anyone target a demographic where “defaults” could be claimed in much higher proportion to the history in the general population? Why did they want the loans to fail, because “failure” of the loan was a basic assumption to anyone who understands the various iterations of highly complex and sophisticated loan products — a number which climbed from 5 in the 1970’s to 450 in 2008. Imagine that 450 different loan options offered to the poor, the people who don’t speak or understand English very well and the people who are poor enough that eventually when payments reset they will not pay and they won’t be able to fight for their house. The tragedy here, let me remind everyone, is that most of these were refinancing of existing home ownership — that’s right, most of the homes were in the family for generations.

The Banks targeted homes where the home values were low. Then they drove the prices up to many items the actual value by filling the bathtub with money and selling “payments” instead of principal or interest rate. They offered teaser payments that the homeowner could afford — but which changed to a monthly payment that was higher (sometimes a multiple) than the entire household income. Somehow the Banks have convinced courts to think that the disclosures were sufficient. They were not. And in my opinion if the courts would scrutinize these so-called loans the way they did before securitization none of the loans would survive any fair interpretation of disclosures required under Federal laws (TILA) and state laws, including common law.

Banks do economic analysis every day employing thousands of analysts. Those analysts knew that the prices were being driven above the value of the property, knew that the endgame was the drop of prices to resume relationship with values, and thus knew — because they rigged the game — that if they bet the mortgages would fail, they would make a lot of money. The trick was to lose somebody else’s money not their own. and that is what they did.

If the ACLU wants to do something that produces actual results, they should analyze the economics of the alleged securitization of these loans. What they will find is a note that cannot be enforced and a mortgage that was void from the start. They will find fraud with aggravating circumstances. the banks needed really “bad” loans in order to accomplish their goals. By using investor funds instead of their own, they could claim ownership of the loans when they reported their assets and liabilities to regulatory authorities; but they would assign the losses to investors, borrowers, insurers, guarantors, FDIC loss sharing, and credit default swap counterparties and take the proceeds for themselves — even though they had no losses.

The ACLU should bring actions on behalf of the demographics hit hardest by this Ponzi scheme. They should state the obvious — that the true source of funds had no idea how their money was being used, the banks that did know were intentionally creating bloated loan documents based upon fraudulent appraisals, and the real creditors were deprived of any protection for their investment while the borrowers were signing documents that recited fraudulent information as to the identity of the lender and the real cost of the loan.

The attack on enforceability of the mortgages is easiest simply because it is now fairly easy to show unclean hands. Where a loan is statutorily defined as “predatory per se” it is hard to argue for the banks that it isn’t subject to “unclean hands per se” and therefore cannot be enforced because it is against public policy.

In a court where rules of equity are applied, there is no enforcement of a deal that was, from the start, violation of Federal and State law, was “predatory per se” (Regulation Z) and was part of a fraudulent scheme. This scheme only works for the banks if the loan is secured by a mortgage on the property. That mortgage is mostly unenforceable and probably void, ab initio. True creditors can prove they lost money on the deal have an opportunity to sue and collect on money due them — (1)  from the borrower up to perhaps the amount that should have been the principal, and (2) from the banks for the rest of the money that was skimmed off the top. The amount skimmed in many cases especially in the disadvantaged demographics, was frequently more than the loan itself.

Rescission: The Wheels Are Turning

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DID YOU RESCIND?

ASK QUESTIONS TONIGHT!

We continue answering questions tonight on rescission and legal strategies that lawyers should be thinking about. It’s all about the lack of meat in the sandwich — there is no underlying transaction IN THE CHAIN CLAIMED BY FORECLOSING PARTIES — no money exchanged hands. There is no loan at the base of all that paper that banks are fabricating for court. Money was loaned — but not by anyone in the chain that claims rights to the loan. They have no rights and the judicial system needs to scrutinize these transactions and the foreclosures initiated by parties who have no ownership, no authority and cannot prove the balance of the loan.

The question is whether the courts will realize that this is about money, not paper.

Do you know where your loan payments are going? Bet you Don’t!

For further information please call 954-495-9867 or 520-405-1688

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Submitted from a person who is an anonymous source but who works deep inside an organization where the raw data is available and just to be clear —- I told you so:

Bonding experience

Subject: Bonding experience

Sorry for the title line, low hanging fruit……Anyway, I thought you both will find this of interest.) From the Citibank Trustee website you both have access to per my prior e-mail (or anyone, it is public….) you will find below the listing of the original principal balance of the loans in the various traunches for the WAMU-HE-2 Trust. The balances below are from the PSA on page 8; they track almost identically to the balances as of the funds 1st reporting date on the Citibank website (I have attached below from May 2007); Directly above the May 2007 balances is the current January 2015 balances. Notice anything strange? All principal balances are lower or gone, and reduced by half in the largest traunch (1-A). How can this be you ask?  Did that many loans default and have the homes liquidated and proceeds applied to the loans? OR,  did insurance payments, credit default swaps, TARP money, or buy backs on the loans by Chase (as likely forced by the investors who have that right for non-conforming loans) pay off the loan balances that are now gone? The answer is likely a bit of all the above.

Not to bore you with the details, but if you look at the January 2015 certificate holder statement on Page 5 you will see detail on who lost what, other pages break out reasons for reductions (yes, some of this is due to repurchase, Chase? maybe, unknown). The M-Series traunches appear to have been wiped out completely, which tracks to PSA which shows 1-A-II A’s get distributions 4th (AFTER credit default swaps and derivative holders mind you, who may be from entirely different funds! Like that, your loan payment is not even going to the fund that claims to hold it 1st, 2nd, or 3rd time around), losses last, Hence if you are M-series you are screwed.

So why does this matter in a typical homeowner foreclosure? As XXX and I pointed out to judges too lazy to want to dive into this, if your loan is in Traunch 1-IIA, which report no principal loss (any losses?) the fund has a hard time claiming standing if the certificate holders of your loan suffered no loss. Due to commingling of funds, and cross defaults, when peoples loan payments are distributed to the Servicer (Chase), it puts your payment in the loan pool, and it is likely used to pay someone else’s loan payment (ditto with foreclosure proceeds, if your loan was in M Traunch, a 100% loss was realized years ago, your proceeds go to make someone else’s loan payment). This was never disclosed to the homeowner at loan signing, your payment goes to another, your home is cross collateralized, your home may be covered by a pool level insurance policy, credit default swaps, your payment does not go to whom you bargained it would (TILA, RESPA, REG Z violations anyone?). If your loan was repurchased, the fund is not even the correct foreclosing party anymore, and if servicer advances and credit default swaps cover your loan payments (from swap holders in other funds!!) you are not even in default nor has the fund suffered a claimed loss. You can see what a mess this is, and why Chase and other “Servicers” don’t want to open the books on what happens to the Trust funds money to anyone. Investors in current lawsuits have to sue their own Trustee’s (like Citigroup) to try to get to the “real” books, sound crazy, it’s happening….  since Chase and the fund never legally held my loan due to multiple forgeries and botched assignments, they in essence committed theft through conversion of my loan payments when I made them, because they never held the legal right to accept payments from me.Like I said, this happens thousands of times daily to thousands of homeowners, and no one, not the government, regulators, judiciary, and especially the banks, want to discuss this mess. LOL, if this all gives you a headache, it should! Same process is now happening on credit cards and auto loans, anything they can securitize…..

see http://www.bloomberg.com/news/articles/2015-02-24/justice-department-probing-auto-loan-securitization-yates-says
 

REMIC 3
As provided  herein, the Trustee shall  make an election  to treat the segregated  pool of assets consisting of the REMIC 2 Regular Interests as a REMIC for federal income tax purposes, and such segregated pool of assets shall be designated as “REMIC 3.”  The Class R-3 Interest represents  the  sole  class  of  “residual  interests”  in  REMIC  3  for  purposes   of  the  REMIC Provisions.The following  table sets forth (or describes)  the Class  designation,  Pass-Through  Rate and Original Class Certificate Principal Balance for each Class of Certificates that represents one or more of the “regular interests” in REMIC 3 and each class of uncertificated  “regular  interests” inREMIC 3:

Class designation Original Class Certificate Principal Balance Pass-Through

Rate

Assumed Final

Maturity Date1

1-A $             491,550,000.00 Variable May25, 2047
II-AI $              357,425,000.00 Variable2 May25, 2047
II-A2 $              125,322,000.00 Variable2 May25, 2047
II-A3 $              199,414,000.00 Variable2 May25, 2047
II-A4 $              117,955,000.00 Variable2 May 25,2047
M-1 $                50,997,000.00 Variable2 May25, 2047
M-2 $                44,623,000.00 Variable2 May25,  2047
M-3 $                27,092,000.00 Variable2 May25, 2047
M-4

M-5

M-6

$                23,905,000.00

$                23, I 08,000.00

$                21,514,000.00

Variable2

Variable2

Variable2

May25, 2047

May25, 2047

May25,  2047

M-7 $                20,718,000.00 Variable2 May25,  2047
M-8 $                12,749,000.00 Variable2 May25, 2047
M-9 $                17,531,000.00 Variable2 May25,  2047
Swap 10 N/A Variables May25, 2047
FM Reserve 10

Class C lnterese

N/A

$                59,762,058.04

Variables

Variable2

May25, 2047

May25, 2047

Class P Interest $                            100.00 N/A4 May25,  2047

Rockwell P. Ludden, Esq. — A Lawyer who gets it on Securitization and Mortgages

see FORECLOSURE, SECURITIZATION DON’T MIX ROCKY&#39S+ARTICLE+in+the+CAPE+COD+TIMES+February+21,+2015

As I write this, I have no recall of Mr. Ludden before today. BUT his article in of all places, the Cape Cod Times, struck me as astonishing in its concise description of the illegal foreclosures that are skimming past Judges desks with hardly a look much less the usually required judicial scrutiny. He says

No one should have the legal right to take your home merely by winking and nodding their way around a significant flaw in the securitization model and whatever burrs it may leave on the industry’s saddle. …

Is there anyone with a present contractual connection to you or the loan who has actually suffered a default? If not, any… foreclosure begins to bear an uncanny resemblance to double dipping.

It is time for Judges to dust off the principle of fundamental fairness that lies at the heart of our legal system, demand a level playing field, and stand behind alternatives to foreclosure that serve the legitimate interests of homeowner and industry alike.

His article is both insightful and concise, which is more than I can say for some of the things that I have written at length. And I guess if you are in the Cape Cod area it probably would be a good idea to contact him at rpl@luddenkramerlaw.com. He pierces through layers upon layers of subterfuge by the financial industry and comes up with the right conclusion — separation not just of note and mortgage — but more importantly the separation between the note and the ultimate certificate that spells out the rights of a creditor to repayment and the rights of anonymous individuals and entities to foreclose. In securitization practice the note ceases to exist.

He correctly concludes that the assignments (and I would add endorsements and powers of attorney) are a sham, designed to conceal basic flaws in the entire securitization model. The only thing I would add is something that has not quite made it to the surface of these chaotic waters — that the money from the investors never made it into the trust — something that is perfectly consistent with ignoring the securitization model and the securitization documents.

The ‘assignment’ creates the appearance of [the] missing connection. But it is all hogwash, the only discernible purpose of which is to grease the skids for an illegal foreclosure. It is done long after the Trust has closed its doors. [referring to both the cutoff date and the fact that the trust actually does not ever get to own the debt, loan, note or mortgage]

The banks kept the money and assigned the losses to the investors. Then they bet on the losses and kept the profits from their intentionally watered down underwriting practices. Then they stole the identity of the borrowers and the investors and bought insurance that covered “losses” that were never incurred by the named insured — the Banks. The family resemblance to Ponzi scheme seems closer than mere double dipping in an infinite scheme of dipping into the funds of thousands of institutional investors and into the lives of millions of homeowners.

see also A 21st Century Trust Indenture Act?

posted by Adam Levitin

Media Still Spreading Bank Myths: Suicides, Huge Increases in Foreclosures

The media has moved on from foreclosures as the nation’s primary economic crisis. They are reading into numbers that Wall Street is putting out in those areas where Wall Street decision makers have temporarily reduced foreclosures. This is a calculated effort by Wall Street to manage the news. The truth is that there will be another 5-7 million foreclosures over the next 5 years displacing another 15 million people from their lives and homes. Some states, like Florida, have eliminated funding for a rocket docket program of dubious value or constitutionality. The paradox is that the lie about “declining foreclosures” might help get cases heard on the merits where the homeowner’s challenge to ownership and balance is taken seriously.

Once upon a time investigative journalism was considered the height of the profession of journalists. But editors in both the written and  video media have essentially opted out of the foreclosure crisis and Wall Street corruption, like the manipulation of the precious metal markets by the big banks. Nobody is asking the obvious question: why are the banks even in the precious metal markets and how did they get control? Is that where the money went that they stole from the American economy and other world economies?

see 10 States Where Foreclosures Are Increasing

More than half the states reported increases in bank repossessions, and Vermont led the way with a 280% year-over-year increase (of course, in Vermont, where there are fewer people than in the District of Columbia, it only took an increase of 12 repossessions to get that 280% jump).

see http://www.jdsupra.com/legalnews/condominium-association-assessments-in-m-34641/

Montreaux serves as a reminder that a trial court can only enforce or take action on issues pled or litigated—expressly or impliedly—by parties. As such, foreclosure plaintiffs should place the issue of assessments before the trial court. Only then may the trial court enter a final judgment adjudicating assessments….Montreaux at Deerwood Lake Condominium Ass’n, Inc. v. Citibank, N.A., _ So. 3d _, 2014 WL 7183213 (Fla. 1st DCA Dec. 18, 2014)

[Editor’s Note: The same issues upon which homeowners with few resources are winning against banks, the better financed homeowners’ association and condominium associations can foreclose against the homeowner, the “bank” or both. There are hundreds of transactions per month in which investors are buying up the lien rights of homeowners associations. Both the association and the homeowner are failing to see the forest. In Florida the foreclosing bank can neither delay the foreclosure nor ignore the declaration of condominium after foreclosure — they owe the assessments and can be easily foreclosed.]

see Foreclosure Related Suicides Doubled

A large share of the deaths (37 percent) happened within two weeks of a specific housing crisis, such as an eviction notice or court hearing. The overwhelming majority of these suicides (79 percent) took place before the renters or owners actually lost their housing.

[Editor’s Note: The CDC is pointing out that the result of these foreclosures is frequently suicide and it is obvious that the foreclosures have also resulted in more divorces, more poverty, more food stamps, more aid to the poor, increasing levels of poverty and a strain on our consumer related economy. Some of the suicides have been first, murder of the entire family, then suicide. If the foreclosures were inevitable it could be argued that is the price of a free society. But the truth is that between 65% and 95% of all foreclosures are fraudulent, propped up by a government that believes that the failure of the banks is worse than the failure of the people to survive — literally].

600,000 Unclaimed Settlement Checks and other news

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see http://blogs.wsj.com/moneybeat/2015/02/18/who-will-claim-380-million-in-unspent-foreclosure-abuse-money/

So it seems that the people who lost their homes through illegal or improper foreclosure practices cannot be found. More than 600,000 checks ranging up to $125,000 have not been cashed and are in the process of being reissued. Recipients may still bring claims for damages or even title, state law permitting. The point is that the foreclosures and the assistance to avoid foreclosure were conducted with faulty premises and improper motive. So the banks agreed to pay money with no prejudice to the borrowers who lost their homes. The interesting thing is the banks themselves have come up with those situations in which their practices are wrong. That is potentially an admission against interest — a powerful weapon to use against the banks that have already “completed” foreclosures that were either void (rescission was sent) or voidable (no proof of ownership, authority or balance).

see http://realtormag.realtor.org/daily-news/2015/02/09/1-in-4-foreclosures-are-zombies

The basic myth proffered by banks is that if we don’t allow their admittedly faulty and even fraudulent foreclosures to proceed, the entire financial system will collapse. This ignores the damage that happened anyway including upcoming announcements from pension funds that they won’t be able to honor pension benefits because of losses in mortgage backed securities. But more importantly, if the banks were telling the truth, why are they abandoning 25% of all the properties they foreclosed, most of whom were owned and might still be legally owned by people who sought modifications under which most of them would still be paying the mortgage (even if it is invalid); these properties are being foreclosed on tax deeds or even bulldozed — more than 100,000 homes receiving that treatment so far. Entire neighborhoods exploited and obliterated. How is that reality less important than the theory that the financial system would collapse if the big banks fail?

see http://www.jdsupra.com/legalnews/illinois-supreme-court-agrees-to-decide-65446/

And now the issue of who gets priority the condo association or homeowners association vs the bank in foreclosure. There are many cases, some of which we have handled where the issue seems to have been dispositive on whether the owner would settle with the association after the association foreclosed their lien or after the alleged mortgage holder had completed the foreclosure process but failed to keep the assessments current.

see http://www.reuters.com/article/2015/02/17/banks-regulations-jpmorgan-idUSL1N0VM3K720150217

And for all the efforts of the U.S> Government starting under President Bush and continuing under President Obama, the laddering, layering and leveraging continues unabated. The banks, if anything, have been emboldened by their continued success at creating illusion and perpetrating fraud. Chase is now listed as at high risk because their balance sheet contains mostly illusions of their own making.

see http://billmoyers.com/2015/02/14/needless-default/

The U.S> Government essentially made the decision that it was more important to save the big banks than to save the average American. In dollar terms this amounts to homeowners loss of around $15 TRILLION in assets, which now amounts to a gain for the banks and their co-venturers in the false claims of securitization.

see http://www.bloomberg.com/news/articles/2015-02-17/holder-asks-lawyers-to-pursue-bankers-in-morgtage-fraud

But now suddenly after years of inaction by the Department of Justice, Attorney General Holder breaks ranks and encourages lawyers to go after the big banks and especially the people who ran them and the U.S> economy into the ground.

Two Different Worlds — Note and Mortgage

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No radio show tonight because of birthday celebration — I’m 68 and still doing this

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The enforcement of promissory notes lies within the context of the marketplace for currency and currency equivalents. The enforcement of mortgages on real property lies within the the context of the marketplace for real estate transactions. While certainty is the aim of public policy in those two markets, the rules are different and should not be ignored.

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see http://www.uniformlaws.org/Shared/Committees_Materials/PEBUCC/PEB_Report_111411.pdf

This article is not a substitute for getting advice from an attorney licensed to practice in the jurisdiction in which your property is or was located.

Back in 2008 I had some correspondence and telephone conversations with an attorney in Chicago, Robert Wutscher when I was writing about the reality of the way in which banks were doing  what they called “securitization of mortgages.” Of course then they were denying that there were any trusts, denying that any transfers occurred and were suing in the name of the originator or MERS or anyone but the party who actually had their money used in loan transactions.  It wasn’t done the right way because the obvious intent was to play a shell game in which the banks would emerge as the apparent principal party in interest under the illusion created by certain presumptions attendant to being the “holder” of a note. For each question I asked him he replied that Aurora in that case was the “holder.” No matter what the question was, he replied “we’re the holder.” I still have the letter he sent which also ignored the rescission from the homeowner whose case I was inquiring about for this blog.

He was right that the banks would be able to bend the law on rescission at the level of the trial courts because Judges just didn’t like TILA rescission. I knew that in the end he would lose on that proposition eventually and he did when Justice Scalia, in a terse opinion, simply told us that Judges and Justices were wrong in all those trial court decisions and even appellate court decisions that applied common law theories to modify the language of the Federal Law (TILA) on rescission. And now bank lawyers are facing the potential consequences of receiving notices of TILA rescission where the bank simply ignored them instead of preserving the rights of the “lender” by filing a declaratory action within 20 days of the rescission. By operation of law, the note and mortgage were nullified, ab initio. Which means that any further activity based upon the note and mortgage was void. And THAT means that the foreclosures were void.

Is discussing the issue of the “holder” with lawyers and even doing a tour of seminars I found that the confusion that was apparent for lay people was also apparent in lawyers. They looked at the transaction and the rights to enforce as one single instrument that everyone called “the mortgage.” They looked at me like I had three heads when I said, no, there are three parts to every one of these illusory transactions and the banks fail outright on two of them.

The three parts are the debt, the note and the mortgage. The debt arises when the borrower receives money. The presumption is that it is a loan and that the borrower owes the money back. it isn’t a gift. There should be no “free house” discussion here because we are talking about money, not what was done with the money. Only a purchase money mortgage loan involves the house and TILA recognizes that. Some of the rules are different for those loans. But most of the loans were not purchase money mortgages in that they were either refinancing, or combined loans of 1st mortgage plus HELOC. In fact it appears that ultimately nearly all the outstanding loans fall into the category of refinancing or the combined loan and HELOC (Home Equity Line of Credit that exactly matches the total loan requirements of the transaction (including the purchase of the home).

The debt arises by operation of law in favor of the party who loaned the money. The banks diverged from the obvious and well-established practice of the lender being the same party as the party named on the note as payee and on the mortgage as mortgagee (or beneficiary under a Deed of Trust). The banks did this through a process known as “Table Funded Loans” in which the real lender is concealed from the borrower. And they did this through agreements frequently called “Assignment and Assumption” Agreements, which by contract called for both parties (the originator and the aggregator to violate the laws governing disclosure (TILA and frequently state law) which means by definition that the contract called for an illegal act that is by definition a contract in contravention of public policy.

A loan contract is created by operation of law in which the borrower is obligated to pay back the loan to the source of the funds with or without a written instrument. If the loan contract (comprised of offer, acceptance and consideration) does not exist, then there is nothing to enforce at law although it is possible to still force the borrower to repay the money to the actual source of funds through a suit in equity — mainly unjust enrichment. The banks, through their lawyers, argue that the Federal disclosure requirements should be ignored. I think it is pretty clear that Justice Scalia and a unanimous United States Supreme Court think that argument stinks. It is the bank’s argument that should be ignored, not the law.

Congress passed TILA specifically to protect consumers of financial products (loans) from the overly burdensome and overly complex nature of loan documents. This argument about what is important and what isn’t has already been addressed in Congress and signed into law against the banks’ position that it doesn’t matter whether they really follow the law and disclose all the parties involved in the transaction, the true identity of the lender, the compensation of all the parties that made money as a result of the origination of the loan transaction. Regulation Z states that a pattern of behavior (more than 5) in which loans are table funded (disclosure of real lender withheld from borrower) is PREDATORY PER SE.

If it is predatory per se then there are remedies available to the borrower which potentially include treble damages, attorneys fees etc. Equally important if not more so is that a transaction, whether illusory or real, that is predatory per se, is therefore against public policy and the party seeking to enforce an otherwise enforceable document cannot do so because of the doctrine of unclean hands. In fact, if the transaction is predatory per se, it is dirty hands per se. And this is where Judges get stuck and so do many lawyers. The outcome of that unavoidable analysis is, they say, a free house. And their remedy is to give the party with unclean hands a free house (because they paid nothing for the origination or acquisition of the loan). I think the Supreme Court will not look kindly upon this “legislating from the bench.” And I think the Court has already signaled its intent to hold everyone to the strict construction of TILA and Regulation Z.

So there are two reason the debt can’t be enforced the way the banks want. (1) There is no loan contract because the source of the money and the borrower never agreed to anything and neither one knew about the other. (2) the mortgage cannot be enforced because it is an action in equity and the shell game of parties tossing the paperwork around all have unclean hands. And there is a third reason as well — while the note might be enforceable based merely on an endorsement, the mortgage is not enforceable unless the enforcer paid for it (Article 9, UCC).

And THAT is where the confusion really starts — which bank lawyers depend on every time they go to court. Bank lawyers add to the confusion by using the tired phrase of “the note follows the mortgage and the mortgage follows the note.” At one time this was a completely true presumption backed up by real facts. But now the banks are asking the courts to apply the presumption even when the courts actually know that the facts presumed by the legal presumption are untrue.

Notes and mortgages exist in two different marketplaces or different worlds, if you like. Public policy insists that notes that are intended to be negotiable remain negotiable and raise certain presumptions. The holder of a note might very well be able to sue and win a judgment ON THE NOTE. And the judgment holder might be able to record a judgment lien and foreclose on it subject to homestead exemptions.

But it isn’t as simple as the banks make it out to be.

If someone pays for the note in good faith and without knowledge of the borrower’s defenses when the note is not in default, THAT holder can enforce the note against the signor or maker of the note regardless of lack of consideration or anything else unless there is a provable defense of fraud and perhaps conspiracy. But any other holder steps into the shoes of the original lender. And if there was no consummated loan contract between the payee on the note and the borrower because the payee never loaned any money to the borrower, then the holder might have standing to sue but they don’t have the evidence to win the suit. The borrower still owes the money to whoever was the source, but the “holder” of the note doesn’t get a judgment. There is a difference between standing to sue and a prima facie case needed to win. Otherwise everyone would get one of those mechanical forging machines and sign the name of someone with money and sue them on a note they never signed. Or they would promise to loan money, get the signed note and then not complete the loan contract by making the loan.

So public policy demands that there be reasonable certainty in the negotiation of unqualified promises to pay. BUT public policy expressed in the UCC Article 9 says that if you want to enforce a mortgage you must not only have some indication that it was transferred to you, you must also have paid valuable consideration for the mortgage.

Without proof of payment, there is no prima facie case for enforcement of the mortgage, but it does curiously remain on the chain of title of the property (public records) unless nullified by the fact that the mortgage was executed as collateral for the note which was NOT a true representation of the loan contract based upon the real debt that arose by operation of law. The public policy is preserve the integrity of public records in the real estate marketplace. That is the only way to have reasonable certainty of title and encumbrances.

Forfeiture, an equitable remedy, must be done with clean hands based upon a real interest in the alleged default — not just a pile of paper that grows each year as banks try to convert an assignment of mortgage into a substitute for consideration.

Hence being the “holder” might mean you have the right to sue on the note but without being a holder in due course or otherwise paying fro the mortgage, there is no automatic basis for enforcing the mortgage in favor of a party with no economic interest in the mortgage.

see also http://knowltonlaw.com/james-knowlton-blog/ucc-article-3-and-mortgage-backed-securities.html

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