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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
Since 2007, when I started this blog I have been frustrated by the cases decided against borrowers — because they had to be decided that way. And the reason they had to be decided that way is that the homeowner, pro se or through counsel, either outright admitted or failed to take issue with the basic presumptions and presumptions about the alleged origination and alleged transfers of the loan. My suggestion to all attorneys has always been to admit nothing, because none of it is real. But even the lawyers for homeowners are having difficulty accepting the idea that the whole mortgage run-up was one giant exercise in multiple layers of fraud.
*Once the debt, note, mortgage and loan contract are admitted the court has no choice but to allow foreclosure — assuming the homeowner stopped making payments. It isn’t a failure of the justice system that it has allowed so many foreclosures while regulatory agencies and law enforcement are busy fining the same parties for filing fraudulent documents, forgery, robo-signing and fabricating false documentation. The Judge’s job is to rule on what is accepted into the record as evidence or undisputed fact.
*If you admit the allegations of the pretender lenders, there is no “but.”
*It is hard for anyone to wrap their heads around the fraud that the banks committed. Virtually everyone knows that the banks did something wrong but they are still willing to admit things that make the facts undisputed when they come before the Judge, giving him or her no choice but to rule for the banks.
*What does the homeowner know? Only that he was offered a loan and that he or she signed papers. How much was paid out as loan and by whom is a complete mystery to the homeowner. The homeowner THINKS he knows that the loan was made, and thinks he knows that the paperwork is the same as what he signed but he doesn’t know.
*Judges often regard this answer as too cute by half because the assumption is made that money went to the closing agent, which might be true but we have no record of it, and that the money came from the “lender” designated on the note and DOT, which is almost certainly not true. But that is why we have lawyers — to take the difficult positions that are right and to convince a court that the pretender lenders are just that. You can’t do that if you have already admitted that they loaned you the money and that you signed the documents they are showing the court.
*The homeowner knows now that it was custom and practice in the industry to destroy the original documents, and then to fabricate them using technology to look like the the papers he signed. The homeowner cannot identify with certainty whether the documents presented to him in court are actually the same as what he signed at closing — but the homeowner admits it anyway completely undermining his arguments about standing, jurisdiction and fraud.
*Nobody likes looking like the fool, but unless you are willing to call out the banks on what they did to you and the country, things are not going to change. When you are voting in November, at least one factor should be identifying those candidates that are running against the Wall Street banks.
*The homeowner knows that LPS (Black Knight now) posted a menu of services and prices for fabrication of documents including the signatures. Thus the homeowner upon information and belief can assert that the “lender” was following custom and practice in the industry and that it was customary practice in the industry to violate Federal and state lending laws as part of a larger scheme to defraud investors who bought certificates issued by a Trust created and controlled by the investment bank.
*The fact that almost none of these “Trusts” ever had any business, assets, liability, income or expenses coupled with the failure of the banks to assert HDC status (where they would only need to allege payment in order to avoid borrower’s defenses) corroborates the homeowner’s belief that the Trust is a paper placeholder for other third parties who are probably being defrauded by this scheme.
From my interviews with hundreds of lawyers and thousands of homeowners here is what I think the average homeowner does NOT know:
- His alleged “loan” was table funded. That means that the party on the note and mortgage or deed of trust never loaned him any money. And it means that there was NO CONSUMMATION of any loan contract between the homeowner and those who are seeking to enforce the nonexistent loan contract. AND THAT means that rescission isn’t necessary since the absence of a valid, enforceable loan contract renders the other signed documents (including the note and mortgage or DOT) void.
- RESCISSION has only become necessary because of the damage that homeowners did to themselves — admitting in words or conduct that the servicer was the servicer and that the “investor” is whoever the servicer says it is. Having admitted that, for purposes of each individual case, the reality in that case is that there is a loan contract even though we know there wasn’t a loan contract. Rescission is just another strategy of attacking the same issues of standing. Why do you think the banks NEVER file that lawsuit disputing the rescission within the 20 days provided by the TILA Rescission Statute? ANSWER: Because they can’t.
- The absence of any payment history starting with the alleged “lender” explains fully why there were no payments for the alleged transfers of the loan papers. They were transferring paper, not loans.
- The money that went to the homeowner as a purported “loan” was never reflected on any valid document. The documents, on the other hand, recite terms of a loan contract that was never consummated. Basic contract law is two people, one offer, one acceptance of the terms of the offer and consideration from each party to THAT agreement. That “Closing” money came from an account holding stolen or diverted money that everyone thought went into the trusts. The REMIC Trusts were supposed to fund the origination and acquisition of loans. Trust received neither cash nor loans — only paper that was worthless. And THAT means that the Trust never was activated, never had any business, assets, liabilities, income or expenses or even a bank account. And THAT is corroborated by one simple fact — if the Trust did pay for it they would be able claim the status of holder in due course in which case the defenses of the borrower would be irrelevant. If the Trust could prove that it paid for the loan, there would be no effective defenses. But notice that it virtually no case is the allegation made that the Trust is claimed to be a Holder in Due Course. That is because there is no proof that the Trust ever paid. Admitting that the trust can be treated as a holder in course is just as bad as admitting that the original loan came from the identified “lender.”
*Dan Edstrom, senior forensic analyst for LivingLies, comments further on the role of the “closing agent” —
*In California, the “agent” is a dual capacity agent and is the agent for both parties simultaneously. Once the escrow instructions are met 100% (substantial performance does not apply), the dual agency splits and the “agent” becomes an agent for the homeowner and an agent for the lender. At that point the documents are transferred from the homeowners agent to the lenders agent, and probably the same thing happens with the money from the source of funds. However, it would appear that the agency is never split because the instructions are never followed. So even though the documents are signed (in anticipation of the loan closing and receiving money from the “lender”), the instructions are never completed, the deed of trust is not authorized to be delivered and is never constructively delivered.
It was never the homeowners intent to give the documents to a party that did not lend the money, nor to give a security interest to a party that had not paid money, nor to give a security interest to an unknown/undisclosed party that did provide money but that was not included in the note, security instrument or TILA disclosures. And it was never the homeowners intent to give a security interest to MERS, who was never disclosed until the homeowner sat down to sign the papers (no TILA disclosures to MERS were ever given, nor was MERS disclosed prior to the time the homeowner sat down to sign the documents).
But the “agency” held by the escrow company is interesting because the escrow company will not disclose some information it receives and knows…
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