We are receiving reports that BAC is sending out letters declaring that they are transferring loans from BAC or Bank of America, the parent company as of July 1, 2011.
The question is why? It seems that BOA is starting to realize the title problems inherent in its takeover of Countrywide and the initiation of loans using money from investors who bought bogus mortgage bonds. There is no doubt that the fundamental defects in the original loans is starting to bother BOA and other banks, along with their shareholders and creditors. They managed to get the NY Federal Reserve Bank to issue a statement that was dismissive of such claims. But the Fed doesn’t decide contractual or property rights — that is the exclusive province of the judicial branch applying existing laws.
There is a great deal of confusion added to the chaos that is inherent in the illusion of securitization. It comes from the fact that most people, including regulators, lawyers and judges, fail to appreciate the difference between the servicer and the creditor. Indeed, the pretender lenders are counting on this confusion when they go to court and it is working, albeit less and less as Judges start looking behind the veil of attorney representation and false affidavits that leave the court record bereft of any actual evidence. It might be that the servicing rights have been transferred and not the loan.
But remember that the servicing rights arise from the securitization documents and if those were not followed, thus subjecting the loan to servicing as per the pooling and servicing agreement, the administration of the account by the servicer could be alleged as ultra vires. And remember that just because something is transferred doesn’t make it any more valid than it was before the transfer. So if the original obligation, note, mortgage deed or other closing documents were not in compliance with law, and factually were at variance with how the loan was actually funded and by whom, then the transfer doesn’t make those defects disappear. The pretenders have been largely successful at convincing the courts otherwise, but each day more judges are realizing that the fact that a “loan” was transferred, doesn’t mean that the loan even existed or that the lien was perfected.
In any event, it would seem that if you receive such a letter, you should ask to see the documents evidencing the transfer. First you are entitled by law to this information, according to Dodd-Frank law. Second whatever they send you they are committing themselves in writing to a specific set of facts that they can no longer change in the shell game they are playing in the courts. At that point it makes sense to inquiring about who signed what and to demand the entire chain. The possession of a COMBO title and securitization report and analysis will go nicely with this effort. A retort expressing the desire to rescind and/or a qualified written request will set the stage for starting off any proceeding with your truthful allegation that first, before they do anything else, they must comply with the requirements of law and respond to your request.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: BAC, Bank of America, bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, fraud, MERS, quiet title, rescission, securitization, TILA audit, trustee |