YOU DON’T. YOU PROVE THAT THE LIEN WAS NEVER PERFECTED
- The question being asked is a red herring. The problem with securitization is that, for the most part, it never happened. In a way our report is only part of the story. There are really three trails — the actual document trail, the purported document trail and the money trail. The actual document trail we do the best we can. We provide all recorded or public records documents and then some. The purported money trail includes the documents that should have been executed and delivered properly. The securitization report shows that. The money trail shows how they treated the loan even though the securitization never took place as was required by the PSA etc.The loan level accounting report shows that, up to a point.
- Thus proving that it WAS securitized is not actually in the interest in the borrower. Proving that the pretenders treated it as securitized establishes the lender-borrower relationship between the borrower and the investor/lender. This is probably done through loan level accounting. Proving that the “Securitization” was side-stepped establishes that the people who are getting the money actually don’t have the documentation entitling them to receive, distribute or otherwise use the money except to the extent that the money finds its way to the investor. So what the lawyer is proving is that the indorsements and transfer and delivery never occurred and that the lender of record, as was proven in the money trail, is not and never was the creditor (except in a few instances like World Savings).
- Go back to title: in the title record we have a mortgage originator who in most instances was a thinly capitalized “bankruptcy remote” entity, like First Magnus, whose collapse had no effect on the flow of funds, or so they hoped. As such the mortgage originator, although designated as “lender” or even “beneficiary” is not the creditor even for a hypothetical instant in time. The mortgage originator is as much a straw-man as MERS. So in most cases we have two straw men, one lying and the other swearing to it.
- The failure to identify the undisclosed principal creditor creates uncertainty as to who one would approach if they wanted a satisfaction of mortgage. If that is not apparent on its face, and it is an actual known fact that the originator is a straw-man, then the lien was never perfected. The “perfected lien” in one that gives reliable notice about eh debt and the creditor. This does neither one, since it neither identifies the creditor nor does it describe the terms received by the creditor via the PSA and other securitization documents.
- An unperfected lien is no lien at all and therefore cannot be foreclosed. But that is only a title issue — it does not address the issue of the obligation which surely arose because the borrower received the benefit of the funding of the loan from SOMEONE, even if he doesn’t know who it is.
- So the objective is to prevent foreclosure and then leave the issue of damages for loss of money to anyone who can prove they actually lost money. The interesting part of this is that the investors are not doing that. In fact, from all appearances it would seem that they are abandoning the claim against the homeowner in favor of making claims against the investment banker that sold them bogus mortgage bonds using non-existent pools with nothing in them.
- It is the unwillingness of investor/lenders to make a claim against the borrowers that has created the mess we see now. Their absence from the fight creates a void where the banks using their credibility based upon brand identification, step in and say we are foreclosing on the property but we won’t tell you who the creditor is nor will we tell you the balance that is due after the payments provided for in the PSA.
- It is the payments made pursuant to the PSA and Assignment and Assumption agreement that need an accounting — which the homeowner can get if he is successful at getting the Judge to allow discovery. What he will find is that there were payments made on behalf of the pool or the trust to the investors but that these payments did not reach the investors, or that they did not entirely reach the investors. No attempt has been made to allocate the payments to the underlying supposed assets, which are not assets, as set forth above because the loans never made it into the pool.
- So far the pretenders have been successful at fighting back any attempt to get such an accounting and then allocating on a reasonable basis the payments received to the obligations for which they received third party payments. If that barrier is ever broken, then the loan balances would be required to be reduced because the creditor was paid. There may or may not be a balance still due and owing. It will probably vary from case to case. But if the foreclosure has been stopped because the lien was never perfected then any court that understands this (mostly you will find people who do understand perfection and priority of liens), the obligation might still exist but it is unsecured.
- Once the homeowner has won on the issue of an unperfected lien, he has a clear path to Quiet Title, which again addresses only title and not the obligation itself.
- So the answer is that the homeowner doesn’t want to prove that the securitization DID take place. The homeowner wants to prove that it did not take place but that it was treated as though it was real. The actual facts of the closing being that the mortgage originator and designated “lender” was merely a mortgage broker, defeats perfection of the lien. Their own attempts at fabrication and forgery of robo-signed documents proves that the loan was not intended to be a loan from the mortgage originator to the borrower. The second thing which might never be necessary unless a real creditor shows up, is to establish that the principal demanded on the notice of default and notice of sale was wrong because they never gave an accounting for third party payments.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND |