Relevance: THE FORECLOSER HAS NO RIGHT TO BE IN COURT WITHOUT THE SECURITIZATION DOCUMENTS AND RECORDS

 Courts and lawyers are continually ignoring the obvious. By zeroing in on the NOTE, they are ignoring the documents that allow the person in possession of the note to be in court. That results in elimination of critical elements of a prima facie case in which the Defendant borrower lacks the superior knowledge and resources of the Plaintiff and its co-venturers that would show the truth about his loan ownership and balance.

Premise:

Chronologically the document trail starts with the securitization documents. Without the securitization documents there is no privity or nexus between the borrowers and the lenders. Neither one of them signed the deal that the other signed. Without the Assignment and Assumption Agreement, the Prospectus and the Pooling And Servicing Agreement, the trust does not exist, the servicer has no powers, the trustee has no powers, and there is no right of representation or agency between any of those parties as it relates to either the lender investors or the homeowner borrowers.

 

The Assignment and Assumption Agreement between the originator and the aggregator sets forth all the rules and actions preceding, during and after the loan”closing”, including the underwriting by parties other than the originator and the ownership of the loan by parties other than the originator. It is a contract to violate public policy, the Federal Truth in Lending Law prohibiting table funded loans designed to withhold disclosure, and usually state deceptive and predatory lending statutes.

 

The Assignment and Assumption Agreement was an agreement to commit illegal acts that were in fact committed and which strictly governed the conduct of the originator, the closing agent, the document processing, the delivery of documents, the due diligence, the underwriting, the approval by parties other than the originator and the risk of loss on parties other than the originator. The Assignment and Assumption Agreement is essential to the Court’s knowledge of the intent and reality of the closing, intentionally withheld from the borrower at closing. It cannot be anything other than relevant in any action sought to enforce the documents produced at a loan closing that was conducted in strict adherence to the illegal Assignment and Assumption Agreement.

 

The other closing is with the investors who were accepting a proposed transaction to lend money for the origination or acquisition of loans through a trust. Those documents and records (Prospectus, Pooling and Servicing Agreement, Distribution reports, etc) provide for the creation and governance of the trust, the appointment of a trustee and the powers of the trustee, and the appointment and the powers of the Master Servicer and subservicers. Those documents also provide for there requirements of reporting and record keeping, including the physical location and custody of actual loan documents. Without those documents, there is no power or authority for the trustee, the trust, the Master Servicer, the subservicer, the Depository, the Securities Administrator the purchase of insurance, credit default swap trading, funding the origination or acquisition of loans, or collection and enforcement of loan documents. without those documents the Court cannot know what records should be kept and thus what records need to be produced to show the status of the obligation in the books and records of the creditor — regardless of whether the loan was actually securitized or just claimed to be securitized.

 

Procedure and UCC
In Judicial States, the Plaintiff is bringing suit alleging a default by the Defendant on a promissory note and for enforcement of a mortgage. The name of the payee on the note is different from the name of the Plaintiff in the lawsuit. The name of the mortgagee is different from the the name of the Plaintiff. The suit is bought by (a) a trustee on behalf of the holders of securities that make the holders of those securities (Mortgage Bonds) in a NY Trust (b) the “servicer” on behalf of the trust or the holders or (c) a company that alleges it is a holder or a holder with rights to enforce. None of them assert they are holders in due course which means they concede that the Plaintiff did not buy the loan in good faith without knowledge of the borrowers defenses. They assert they are holder in which case they are subject to all of the borrowers defense — which procedurally means the issues concerning the initial loan and any subsequent transfers can be in issue if the preemptive facts are denied and appropriate affirmative defenses and counterclaims are filed. These defenses are waived at trial if an objection is not timely raised.

 

In Non-Judicial States, the name of the “new” beneficiary is different from the name of the payee on the promissory note and the name of the beneficiary on the Deed of Trust. The “new beneficiary” files a “Substitution of Trustee”, the Trustee sends a notice of default, notice of sale and notice of acceleration based upon “representations” from the “new beneficiary.” This process allows a stranger to the transaction to assert its position outside of a court of law that it is the new beneficiary and even allows the new beneficiary to name a company as the “new trustee” in the Notice of Substitution of Trustee. The foreclosure is initiated by the new trustee on the deed of trust on behalf of (a) a trustee on behalf of the holders of securities that make the holders of those securities (Mortgage Bonds) in a NY Trust (b) the “servicer” on behalf of the trust or the holders or (c) a company that alleges it is a holder or a holder with rights to enforce. None of them assert they are holders in due course which means they concede that the Plaintiff did not buy the loan in good faith without knowledge of the borrowers defenses. They assert they are holder in which case they are subject to all of the borrowers defense — which procedurally means the issues concerning the initial loan and any subsequent transfers can be in issue if the preemptive facts are denied and appropriate affirmative defenses and counterclaims are filed. These defenses are waived at trial if an objection is not timely raised. In these cases it is the burden of the borrower to timely file a motion for Temporary Injunction to stop the trustee’s sale of the property.

 

Argument:
By failing to assert with clarity the identity of the creditor on whose behalf they are “holding” the note and mortgage (or deed of trust) and failing to assert the presence of the actual creditor (holder in due course) the parties initiating foreclosure have (a) failed to assert the essential elements to enforce a note and mortgage and (b) have failed to establish a prima facie case in which the burden should shift to the borrowers to defend. The present practice of challenging the defenses first is improper and contrary to the requirements of due process and the rules of civil procedure. If the Plaintiff in Judicial states or beneficiary in non-judicial states is unable to sustain their burden of proof for a prima facie case, then Judgment should be entered for the alleged borrower.

 

Evidence:
Virtually all loans initiated or originated or acquired between 1996 and the present are subject to claims of securitization, which is the first reason why the securitization documents are relevant and must be introduced as evidence along with proof of compliance with those documents because they are almost all governed by New York State law governing common law trusts. Any act not permitted by the trust instrument (Pooling and Servicing Agreement) is void, which means for purposes of the case narrative, the act or event never occurred.

If the Plaintiff or beneficiary is alleging that it is a holder and not alleging it is a holder in due course then there is a 96% probability that the creditor is either a trust or a group of investors who paid money to a broker dealer in an IPO where securities were issued by the trust and the investors money should have been paid to the trust. In all events, the assertion of “holder” status instead of “Holder in Due Course” means by definition that one of two things is true: (1) there is no holder in due course or (2) there is a Holder in Due Course and the party initiating the foreclosure and collection proceedings is asserting authority to represent the holder in due course. In all events, the representation of holder rather than holder in due course is an admission that the party initiating the foreclosure proceeding is there in a representative capacity.

 

THE FORECLOSER HAS NO RIGHT TO BE IN COURT WITHOUT THE SECURITIZATION DOCUMENTS:

 

If the proceeding is brought by a named trust, then the existence of the trust, the authority of the trust, the manner in which the trust may acquire assets, and the authority of the servicer, Master servicer, trustee of the trust, depository, securities administrator and others all derive from the trust instrument. If there is a claim of securitization and the provisions of the securitization documents were not followed then in virtually all foreclosure cases the wrong parties are initiating the foreclosures — because the money of the investors went direct to the origination and purchase of loans rather than through the SPV Trust which for tax purposes was designed to be a REMIC pass through trust.

 

If the foreclosing party identifies itself as a servicer and as a holder it is admitting that it is there in a representative capacity. Their prima facie case therefore includes the documents and events in which acquired the right to represent the actual creditor. Those are only the securitization documents.

 

If the foreclosing party identifies itself as a holder but does not mention that it is a servicer, the same rules apply — the right to be there is a representative capacity must derive from some written instrument, which in virtually cases is the Pooling and Servicing Agreement.

 

Representations that the loan is a portfolio loan not subject to securitization are generally untrue. In a true portfolio loan the UCC would not apply but the rules governing a holder in due course can be used as guidance for the alleged transaction. The “lender” must show that it actually funded the loan, in good faith (in accordance with the requirements of Federal and State law governing lending) and without knowledge of the borrower’s defenses. They would be able to show their underwriting committee notes, reports and correspondence, the verification of the loan, the property value, the ability of the borrower to repay and all other national standards for underwriting and appraisals. These are only absent when there is no risk of loss on the alleged loan, because if the borrower doesn’t pay, the money was never destined to be received by the originator anyway.

 

In addition, the Prospectus offering to the investors combined with the Pooling and Servicing Agreement constitute the “indenture” describing the manner in which the investment will be returned to the investors, including interest, insurance proceeds, proceeds of credit default swaps, government and non government guarantees, etc. This specifies the duties and records that must be kept, where they must be kept and how the investors will receive distributions from the servicer. Proof of the balance shown by investors is the only relevant proof of a dealt and the principal balance due, applicable interest due, etc. The provisions of the contract between the creditors and the trust govern the amount and manner of distributions to the creditor. Thus it is only be reference to the creditors’ records that a prima facie case for default and the right to accelerate can be made. The servicer records do not include third party payments but do include servicer advances. If records of servicer advances are not shown in court, and the provision for servicer advances is in the prospectus and/or pooling and servicing agreement, then the Court is unable to know the balance and whether any default occurred as a result of the borrower ceasing to make payments to the servicer.

 

In short, it is the prospectus and pooling and servicing agreement that provide the framework for determining whether the creditors got paid as per their expectations pursuant to their contract with the Trust. It is only by reference to these documents that the distribution reports to the investors can be used as partial evidence of the existence of a default or “credit event.” Representations that the borrower did not pay the servicer are not conclusive as to the existence of a default. Only the records of the creditor, who by virtue of its relationships with multiple co-obligors, can establish that payments due were paid to the creditor. Servicer records are relevant as to whether the servicer received payments, but not relevant as to whether the creditor received those payments directly or indirectly. The servicer and creditors’ records establish servicer advance payments, which if made, nullify the creditor default. The creditors’ records establish the amount of principal or interest due after deductions from receipt of third party payments (insurance, credit default swaps, guarantees, loss sharing etc.).

For more information call 954-495-9867 or 520-405-1688.

 

 

76 Responses

  1. As well as all so called Charitable Organizations. These demons don’t know the meaning of the word charity. It is all about how they csn screw and tattoo you withoit ypu ever even knowing about it. Fraud, lies, and deceit are the name of their Game As They Hide Behind The Mundane, Wall Street As Well As Corporate Names You Thought You Could “trust”. Thre is nothing
    between their lines except for Cocaine And fairy tale about Pablo Escobar and his Medalin Drug Cartel. The only drug cartel around is hiding out in a plsce called cyberspace. You may not C it BUT It Can And Does C-U. It Csn And It Will Play Ypu A Flthy – Dirty one sided Game Of Three Card Monte While Hiiding Two Cards Behind It’s Back And It Wiill Deal To You From Its Left Hand. That Is What The Black Hand Of Free Masonic Satanism always does. So, Caveat
    Emptor because Julius Caesar never died he just ReInVenTed HIMS – ELF AS AN ELF.
    are not paying attention.

  2. The Virtual Wallet is the same false based concept. A Virtual Wallet, like a wallet full of Credit Cards is not only an empty wallet but a stolen wallet.

  3. Let’s talk about BitCoin . The 13th Coin Spoken Of In The Book Of Revelations. The Electronic Currency Is The FreeMasonic, Global Satanic Master Plan For Global Tyranny and Mass Deprivation for all of humanity. BitCoin is UNCONSTITUTIONAL and
    therefore ILLEGAL, according to
    the LETTER OF THE LAW OF
    THIS LAND. BitCoin is fraud in the issuing of credit and BitCoin is false based debt.
    BitCoin Is fraudulently induced debt just like the mortgages and all credit because it is not backed by anything of value and is U.S. taxpayer funded. The Electronic Currency should be outlawed along with Obamacare. Like Obamacare, and quite frankly TARP, as well as all fraudulently indiced debt created by some unknown third party plaintiff, WHO WE ARE both unable to locate, AND WHO ARE NOT AMENABLE TO SERVICE PF PROCESS, WE THE PEOPLE OF these united states, do not need anymore fraudulently induced debt.

  4. While we are waiting around for the third party to prove up their “notes” we can file counter complaints based on the legal fact they can’t produce any business records pertaining to the original transfer.

  5. Getting people hooked on prescription meds to control them, is no different than what Your Average Drug Pusher On The Street Does. It is just a lot more of a deceptive way to steal the free will and freedom of another and with that so goes their identity, their legal right to defend their Life, Liberty and Property. IMHO The Entire Pharmaceutical
    Industry Are In Direct Violation Of The
    5th Amendment Takings Clause Of The
    U.S. Constitution. They are putting innocent people in double jeopardy as well by having licensed medical doctors
    prescribe drugs for people for no other
    reason other than to
    control the minds, bodies & souls, and therefore the destinies of
    other people.

  6. Somebody stole the FBI cup my Father gave me from back when he was in the FBI.

  7. Wall Street wants to turn some U.S. citizens into slaves for the benefit of 9 Unknown Men.

  8. However, knowing how the Art Of The Con Works On Wall Street Works Is Mainly By Principal Division, Getting A New Social Security Number Would Be Worse. We Would Give The Fraud Creators A Clean Slate In Which To Steal From The Fraud Originators And They Will Never Leave Us Alone.

    aybe we all need a household security system such as ADT.

  9. The most valuable commodity in the U.S. today is our Birth Certificates. That is the only valid legal proof of our U.S. Citizenship.

    Wall Street gambled with our Personal Security, our U.S. Citizenship Papers AKA Our Birth Certificates with Fraudulent Securities to the tune of $60
    trillion U.S. dollars by some experts
    estimates. By Doing So With No
    Accountability By Any Legal Authority Or
    Governmental Agency, The Banksters
    Have Quite Frankly Put Every U.S. Citizen
    In Harms Way And At The Risk Of Being
    Abducted By A Wall Street Operative
    Who, Could Quite Frankly Be Anyone,
    Even Your Own Spouse.

    That is the Reason we all need New Social Security Numbers. Our Identities have been Compromised By Wall Street And In Many Cases Stolen …… As A Result, The Investment Banks Have Put Every American At Risk Of Being Sold Off Into The Black Market Into The Global Human Trafficking Bankster Slave Trade. That Is What Is Being Hidden From The Public In Those So Called Dark Pools In Cyberspace That Are Completely Unregulated By The Banking Regulators.

    That Is

  10. Believing that the person in the recorder’s office is not a good place to start. As I said I have been at this for over 7 years, and I am still in my house. I go to trial on October 13, and you seem to have no ability to read what is right in front of you. You are the one that is not contributing anything useful. People who post on this blog know who I am and what I have been doing.

  11. You have a right to your opinion Louise. However, calling my observations crap, and telling me how to handle my cases when you offer no evidence to the contrary is pretty immature. You should try and dig a little deeper and do some more research before you blast me. You might be shocked at what you find out. Or maybe not. Whatever the case may be, they don’t do quiet titles in foreclosure court in Illinois. Besides I already did that and the titles are clean. That was verified to me in person at the Cook County Recorder of Deeds Office over 4 years ago yet I have been fighting
    2 foreclosures pro se for the past 4 years. What is your opinion on that Louise? Because if you are close minded you aren’t going to get very far in this fight.

  12. What Makes Their Attorney Network Criminal Is Because It Not Only Because It Is A Global Attorney Network, But Because Third Party Investors Are Fraudulently Concealing Their Identities Behind Their International Law Attorneys. And Quite Honestly That Is Why They Do Not Have A Clue About Any Of Our Laws. Nor Do They Care. This Is All About Unlawful Search And Seizure Of Our Identities To Steal Our Property And Therefore Our U.S. Citizenship. It Is A Complicated Mess Alright And It All Began When Congress Gave A Mandate To FINCEN To Operate Investment Banking Black Ops…..Foreclosure On U.S. Soil. FINCEN Are Like The Keystone Cops For
    The International Banks. However , FINCEN Had No Legal Jurisdiction On
    U.S. Soil Ever … No Matter What Congress Said. The Reason Being Is They Are In Direct Violation Of Admiralty And Maritime Law Because Quite Frankly, They Have No Legal Contracts With U.S.

  13. Linda V., all that klaptrap about international laws, etc. will not fly in state or federal court. Waste of time. If you want to be a book critic, first read the book. You need to read the pleadings of some of the winning cases, which, not unsurprisingly, are in appeals court. Read Schwartzwald in Ohio for instance or Glaski in California also In re Veal, and Ibanez. I have been at this foreclosure and related cases for 7 years and 6 lawsuits. I am going to trial on breach of contract, bad faith, declaratory judgment, quiet title, negligence and gross negligence. in October. Get educated and stop posting krap!

  14. That is my opinion Louise and I do not need to apologize for it. The truth is, if you are fighting foreclosure pro se you are a prisoner of war. That becomes your status as a U.S. Citizen. The reason being is because these foreclosures were and are caused by illicit business practices involving the U.S. Taxpayer funded International Banks and their
    Vast Multinational Corporation. Not Just
    That. Because Of 9/11, And The
    Subsequent Unconstititional And
    Therefore Illegal U.S. Taxpayer Funded
    Bailouts AKA TARP The International
    Banks….ALL OF THEM…Are In Direct
    And Criminal Violation Of The U.S. WAR
    POWERS ACT. Not Only Because They
    Were Bailed Out By The U.S. Taxpayers But, Also Because They Brought These
    Foreclosures Suits Upon We The People
    Unidentified And Therefore
    Unindemnified. Meaning They Are
    Frauds. Strangers To The Mortgage And Strangers Who Are Foreign To U.S. As A
    Direct Result We Have Foreign, As Well
    As Domestic, Third Party Plaintiffs
    Strangers To The Mortgage….Who Are
    In Direct Violation of Article 2 Of The
    UCC … Who Are Bringing Infamous Suits Illegally Upon We The People In Direct
    Violation Of The 14th Amendment. The
    Reason ….. These Suits Are Being Brought With No Proof Of Loss… No Notes. .Just Copies Of Notes…That Is Counterfeiting Upon Presentment By An Unkown Party By Proxy Of Quite Honestly, The Banks Own Global Attorney Network.

  15. You are not making sense. If you continue to post nonsense, I will report you. Matt Taibbi does not work for any banks. He is a free-lance reporter and author. See: “The Great American Bubble Machine” described Goldman Sachs as “a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money”.

  16. It seems to me that foreclosure court is where state, federal and international law collide. We are definitely at war on U.S. soil in these courtrooms. The fraud creators are in direct violation of Protocol 45 of the Geneva Convention regarding prisoner of war status. And what about how they violated the 42nd bylaw of the U.S. Constitution on 9/11 by Deception..Trading with the Enemy and Destruction of Evidence… That means they lost any legal right
    to collect any money or property from
    U.S. They charged off all of their fraud on
    that day and came back to steal everything from U.S. in their manufactured stock market crash in 2008. The stock market crash was a criminal act by
    its intent to deceive.

  17. Correct typo….I meant to say Matt seems to be very well educated.

  18. I have read Matt Taibi’s articles and saw him on TV a few times. I think he is smart and no doubt, very we educated. I get the feeling he might secretly work for an investment banking outfit.

  19. Had court today in Cook County RE the commercial property foreclosure. The judge told the Plaintiffs to amend their Motion for Summary Judgment and gave me time to respond to the Plaintiffs Motion for Summary Judgment and their request to grab money out of the receivership. There is a statustia presentation set for November 7th in room 2809 of the Daley Center, 50 West Washington downtown Chicago.

  20. Linda V, Big hint! Put it all in one post. Others have been removed for excessive posts. Learn from others mistakes. It is very powerful. I have been in this fight for over 7 years. They are all crooks, and we live in a kleptocracy. Read Matt Taibbi.

  21. Hearing on my MOTION TO SUMMARY JUDGMENT AND MY MOTION FOR RECONSIDERATION based upon my well plead argument in my RESPONSE TO PLAINTIFFS MOTION FOR EXTENSION OF TIME that I filed in Cook County Court on March 18, 2014. The hearing is at the Daley Center 50 West Washington..Downtown Chicago Illinois
    on August 28th in room 2801at 2:00
    p.m….Judge Lisa Marino is the presiding
    judge. Anyone interested in my case is welcome to be there.

  22. Big Pharma uses the Healthcare industry to turn good people into whores for their corporate slavedom on wall street to which I will have no part of.

  23. Little did I know he is in reality an evil bankster.

  24. The truth is J.V. wants to keep me out of the sunshine because the energy I get from the sun is super powerful.

  25. If J.V. thinks he is going to hand me off to one of his imposter cop friends he has another thought coming. Think about that Federal Bracelet J.V.

  26. Anyone who pushes their own agenda …… drugs or alcohol or foreclosure on another is a drug pusher and a control freak.

  27. The truth is J.V. wants to keep me out of the sunshibe because the sunshine gives me too much energy and then he has a hard time controlling me. He fears the resurection of my spirit …meaning of my mind body and soul. Well too bad because that already happened.

  28. Scadamedeva opened my eyes up to the mortgage fraud. When he had his guest Robert Shear on a few years back. He wrote the book on this international and intergallactic crime spree by the so called INVESTMENT BANKSTERS. The book is EN-TITLED…THE GREAT AMERICAN STICK UP.

  29. Scadamedeva opened my eyes up to the mortgage fraud. When he had his guest Robert Shear on a few years back. He wrote the book on this crime spree

  30. J.V. sure burps a lot. He should take some meds for that.

  31. A few years ago J.V. told a bill collector to send George Bush the bill.

  32. If he has been tax evading I never knew about it. The FEDS therefore cannot take my house from me for his criminal bullshit

  33. Or silently execute me without me even knowing it. He is the worst kind of criminal because he is so incredibly deceptive. Intent to Deceive is what makes FRAUD A CRIMINAL ACT AND INVOLVES MULTIPLE FELONIES…THOSE FELONIES ARE PROSECUTABLE UNDER RICO U.S.C. TITLE CODE 18..TAX EVASION IS PUNISHABLE IN PRISON

  34. So he wants to electrocute me.

  35. The truth is J.V. wants to keep me out of the sunshibe because the sunshine gives me too much energy and then he has a hard time controlling me. He fears the resurection but that already happened.

  36. Eat shit J.V. I am sick of u sending your criminal friends to my house to scare me into leaving. Screw you

  37. You know this country is in dire straights when you have cops telling their boss…WE THE PEOPLE….THE U.S. TAXPAYERS WHO PAY THEIR SALARIES ANF PENSIONS TO GET ON DRUGS ..

  38. One of the Oak Forest cops told me when I was leaving the police station that I should go get some meds. I told him No…J.V. should. He pulled the car over on the way to court and punched me in my head. To that the cop said ok. What an asshole drug pusher.

  39. If I were a drinker or on drugs I would have been dead by now.

  40. I believe the cure for everything is in nature. However I hate any drug natural PR otherwise that alters my mind. I like to be in complete control of my mind at all times.

  41. I suppose they keep the healthcare and big pharma fat. However I don’t trust them because they are investors as well. That is why I don’t believe in taking drugs to cope with life’s lemons. Drugs and alcohol let the devil in. Big pharma is the devils playground.

  42. I really don’t know how you attorneys cope with these banksters.

  43. Fighting Fraudclosure as i have been doing for nearly 5 years straight against an unknown third party causes Emotional Distress and is an equitable defense in fraud closure.

  44. Buzz off G.W.B.

  45. No mortgage contract was ever signed by me therefore no notes ever existed.

  46. IMHO…No marriage ever happened between us because like the fraudclosures…the marriage was initiated under false pretenses meaning it never happened.

  47. As far as I am concerned this was all preplanned and that meand no marriage was initiated under false pretenses and never happened in the physical or spiritual world.

  48. Allow me to clarify …J.V. totally abandoned me to try and completely control my life as a secret third party.

  49. J.V. does not think I realize he is ignoring me to deprive me of my most basic human needs is trol my life and my destiny. He thinks I am too deprived to even notice the total abandonment by him as a husband or a friend. He means nothing to me anymore. I want a legal separation.

  50. Hi Neil.

    Does this apply to State of California and all non Judicial States.

    Please be kind enough to answered.

    Your Courtesy is greatly appreciated.

    Nancy H.

  51. Sign it my friends! 13 days until the sheriff sale. No, it probably won’t help, but it might! Then find the second latest post to Neils Facebook wall, go onto that persons wall and find the album “fraudclosure” and have some stinkin fun, ey! http://petitions.moveon.org/sign/stevens-point-portage

  52. HA!

  53. test test, am I still being moderated?

  54. hey, elex, send me an email?
    usedkarguy@yahoo.com

  55. @elex: LMFAO
    “Where’s the spirit? Where’s the GUTS!”
    “Wermer?! HE’S DEAD!”

  56. @ukg – It’s not over until the Germans bomb Pearl Harbor.

    I haven’t seen a case in CA where the borrower pushed the point that a clear title represents a beneficial interest to the borrower, who has signed a contract obligating them to protect and deliver a clear title to the subsequent owner of the property. At least, not until my appeal. It goes to the legislative intent, so often quoted by the CA judges, that includes finality between parties as a result of a non-judicial foreclosure. A clouded title interferes with that finality. At least, to the average CA citizen, that apparently does not include the likes of a substantial portion of the state judiciary. Apparently the judges of this state think it is just to require a homeowner to sell their home in order to tender the amount ‘owing’ to an stranger claiming ‘note holder’ in order to bring an action to save their home from being sold at auction. Imagine the results if this were the justices’ Candidate’s Statement in their bid for affirmation before the voters (CA extends judges’ tenure by ballot).

  57. I really think it comes down to the note, the failure to transfer possession with delivery, and trailing assignments the security interest when exposed as fraudulent or forged assignment void of consideration. Where’s the consideration for my DEFAULTED note? . They can’t use UCC 3 if there has not been any endorsement or transfer.
    Too many courts are ignoring Glaski, out of convenience, because the securitization docs were never followed. They want to introduce the PSA as evidence of a transaction that never really occurred. And YOU have no standing to contest the PSA (allegedly). We know that’s bullshit: can’t contest the PSA used as evidence of transfer????WTF???? Plaintiff relies on the lies and we can’t object?
    Stay focused. Also, UETA was never agreed to by the maker of the note: YOU! With what the banks accomplished PLEDGING your note and title, along with the market and LIBOR manipulation, results in their windfall from the 15-times leverage through CDO’s and now they want your house without holding actual title. Now they call in the Treasury Department to foreclose in a clandestine fashion to collect on TARP assets.
    We’re fucked.

  58. I will check that out. Thanks.

  59. In CA borrowers’ cases are being tossed because the ‘all-inclusive non-judicial foreclosure (njfc) statute does not allow (or deny) the borrower to question the presumption that the party electing njfc is holder in due course.
    Curiously enough, that same statute allows a substitution of trustee after a notice of default is published, but is as silent on transferring the loan after a NOD as it is regarding challenging beneficiary interest. Separate statutes address assignments and substitutions outside of the njfc statute as well.

    I am attempting to raise at appeal the argument that since an assignment occurred in my case after the NOD, the trustee that was substituted by the errant assignee is illegitimate. Furthermore, the assignee took the loan with knowledge of the default, and cannot claim holder in due course status as defined by the UCC. As such, they are subject to the defenses of the borrower, including challenging the legitimacy of the lender / assigner for violating the ‘all inclusive’ non-judicial foreclosure statute.
    IANAL, and until published in an opinion, the foregoing is conjecture for discussion purposes only. But if argument is allowed, it puts a crimp in the thousands of njfc where the borrower was denied due process if they had an assignment after the NOD.

  60. @louise – My trial court pulled that cr@p of delaying MtnCmpl results. You might consider requesting ex parte motion to change date of the MSJ so you can include results of the MtnCmpl.

  61. The Judges want to believe that any “Holder” is entitled to enforce … the entire case comes down to whether you can convince the Judge that the party Holding the note and mortgage is not the true party in interest, and to get him to even entertain your argument and be willing to listen to it .. Due Process is supposed to allow us to state our case on the record .. when Judges cut us off and are not willing to listen to the case we are attempting to present , then it boils down to us being denied our Due Process. We’re fighting a 2 front war .. one is against the illegal criminal Ponzi scheme by the banks .. the other is against the courts not allowing Due Process in these cases. Has there even been a single Judge out there who has demanded a Holder prove the original transaction money trail? And find that the trust was not funded, and rule in the borrowers favor? Maybe these are the cases that end in settlements. Why can’t we use the facts behind the consent orders and settlements with government law enforcement to support our own cases and our demands for discovery?

  62. Cookie , “just say No Trust” ??? That doesn’t sound like an argument that any Judge will accept, unless you were just being cute. Can you expand on your answer a little bit? Are you asking the Judge for discovery to be able to prove there is no trust?

  63. 2 ways to have irrevocable closed or declared VOID. Just Say No Trust! Hit the Chicken upside the head with a frying pan or call an attorney in the jurisdiction the property is located. Many Blessings To All!

  64. The parties that should be in court are not – and the ones that are are not authorized to be. Why. Challenge this from the start. If you can’t modify a loan legally you can’t foreclose legally.

  65. I like what Neil wrote here .. this is a work in progress that hasn’t really been argued correctly in court by the borrowers lawyers from what I see. The lawyers haven’t been pleading correctly in their answers and they haven’t been objecting when they need to be. They need to be able to argue their case and educate the Judge on the points Neil raises here .. mainly that a HOLDER has no right to presumption of the debt if the defendant objects and pleads correctly from the start. The HOLDER has the burden of proving the debt beyond just producing a note and a mortgage if the defendant pleads correctly and objects to the note being the proof of the debt, it alone is not sufficient evidence of the debt. It falls short of the burden of proof because of the recent revelations of what banks did under the smokescreen of securitization. Yes its a hard uphill battle , and the Judges don’t fully accept or understand the argument, but that’s where a good attorney earns his money in the art of being able to argue his case and enlighten the Judge to why its a valid argument. And if the Judge fails to accept it as true or valid, at least have a full argument on the record that an appeals court can review to see if they agree that the Judge was in error. I think Neil is pointing out how the UCC 3 & 9 has been twisted and abused by the Judges into allowing anyone claiming HOLDER status to walk in and take the house , and this is the main problem. The Judges have put all the weight of their decisions on the fact that the HOLDER has the note and mortgage in his possession, but in reality that is not enough because of what was done in the securitization scheme. The settlements and consent orders corroborate the fact that things were done illegally. The fact that the servicer in court as the plaintiff and who has zero evidence of the transaction evidence and money trail is the weakest link in their foreclosure case, but its also the hardest and most difficult argument to make a Judge understand. The law needs to support our argument in order for the Judge to rule in our favor, the Judge can decide to either enforce the mortgage for the HOLDER … or he can choose to enforce the law and make the HOLDER carry the burden of proving the debt. So far Judges have chosen to enforce the mortgage and not the law. Its our job to show them where they are in error under the law. Neil is saying that one of those errors is when they treat a HOLDER as they would a HIDC , and the law says you cannot treat them the same .. especially if the borrower objects and denies the validity and legality of the loan transaction. The initial pleadings should set the tone and establish a denial. Neil says that at this point the court should turn to the HOLDER and make them prove the debt fully and thoroughly as though they were the originator and lender at the closing table. My biggest concern is the question of whether the law really is that clear on this issue, or are we treading into new areas and only trying to argue that this is the way it should be? I want the law to be clear so there’s no doubt in our argument .. but this whole entire mess seems to be buried in gray areas

  66. usedcarguy , what arguments will win your case in your opinion?

  67. I have to agree with you, but I still think the argument should be included in complaint with more “user friendly” causes of action.

  68. Securitization arguments are great, but they won’t win your case.

  69. I have been waiting more than a motion for the judge’s ruling on my Motion to Compel. I have another hearing on July 24 where I believe they will toss out my case in a Sum. Judgment. Then, of course, I have to appeal. It is all BS, and the worst part is that the judges know it. What happened to due process?

  70. True but the send a sub & the judge say s he wins with out proof & your facts are overridden by the sub’s false testimony

    Sent from my iPhone

    >

  71. Can someone please tell me why all the attorneys I paid and showed them my Securitization and no one used it. And to top it off, I am out of my home.
    Please tell me why I spent all this money to attorneys and I am in the street.
    Can someone tell me how to get my house back

  72. That’s exactly what I told the judge…..didn’t help. Didn’t work …..fraudclosed !!!!……Thanks for playing.

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