For additional information or assistance please call 954-495-9867 or 520-405-1688.
It is a complicated answer. The following is NOT a comprehensive answer which would the length of a treatise.
see also Fla 4th DCA Beauchamp v Bank of New York Mellon, J Shahood reversed — Beauchamp v BONY-Mellon
The Beauchamp case brings to the forefront the issue of redemptive rights which has long been ignored. In short the 4th DCA decided that the redemptive rights are important. They decided that evidence of actual losses or damages must be established without relying on inadmissible hearsay. This is where the rubber meets the road. In order to do so the Plaintiff foreclosing party is open in discovery at the very least to showing actual proof of payment and proof of loss of the actual owner of the debt and/or holder in due course. Presumptions won’t do them any good unless the homeowner’s attorney fails to object.
Thus the real transaction with real money, in a real purchase of the loan must be established by the foreclosing party. That is part of their prima facie case. And these are liquidated contract damages — not subject to anything other than mathematical calculation of net loss. I doubt if the appellate court meant to empower the judge to “estimate” or enter a finding that is “good enough.” The homeowner, like the AMGAR program, has every right to pay off the net debt once it is established and thus prevent the sale of the home. In turn the homeowner is entitled to the recovery of the original note and mortgage or deed of trust.
Be careful because it is evidently a normal practice, contrary to current case law, for the foreclosing party in non judicial states to publish and record a self serving statement of standing in the form of a substitution of trustee. That substitution of trustee must be nullified or else the rest of the theories advanced by the homeowner might be deemed irrelevant.
The interesting thing on remand is what happens when the foreclosing party cannot show proof of payment (proof of actual transaction ) and tries to get the judge to assume that the loss is the amount on the note. If that were the case the 4th DCA would not have remanded for further proceedings to determine damages so that the borrower’s redemption rights could be established. Without a completely transparent introduction of testimony and BEST evidence of original transaction documents, there is no proof of damages and the foreclosure judgment must be vacated.
In loan transactions there usually is no actual written contract that says the creditor will loan money and the debtor will pay it back. So common law and statutory law must make certain assumptions about the loan contract — which still must exist in order for the note or mortgage to be enforced. This is till basic contract law — the elements of which are offer, acceptance and consideration each to the other. The stumbling block for most judges is that the presence of money at the table is automatically construed as consideration for the contract that is sought to be enforced.
In olden times there was no problem in using this heuristic approach to loan contracts, because nobody thought of some third party funding the loan WITHOUT a note and mortgage made out in favor of the actual creditor. But Wall Street found a way to do it and conceal it.
The actual debt — i.e., the duty to pay — arises by operation of law when the debtor receives the money. It is presumed to be a loan and not a gift. The paperwork is intended to provide disclosures and terms and evidence upon which both parties can rely. In this context before Wall Street saw the vulnerability, there was no problem in using the words “debt”, “note”, “mortgage” and “loan” interchangeably — because they all essentially meant the same thing.
The genius of the Wall Street scheme is that their lawyers saw the possibilities in this informal system. The borrower could not claim lack of consideration when he received the money and thus the debt was presumed. And with enough layers of deception, non-disclosure and outright lies, neither the borrower nor even the closing agent actually realized that the money was coming from Party A but the paperwork was directed to Party B. Nobody realized that there was a debt created by operation of law PLUS another debt that might be presumed by virtue of signing a note and mortgage. Obviously the borrower was kept in the dark that for every $1 of “loan” he was exposing himself to $2 in liability.
If the creditor named as payee and mortgagee was not the source of the funds then there is no underlying debt. The rules of evidence are designed to help the court get tot eh truth of the matter asserted. The truth is that the holder of the paper is NOT the party who was the creditor at “closing.” The closing was fictitious. It really is that simple. And it is the reason for the snowstorm of fabricated, forged and robosigned documents to cover up the essential fact that there is not one shred of consideration in the origination or transfer of many loans.
Each assignment, endorsement, power of attorney or other document purporting to transfer control or ownership over the loan documents is corroboration of the lack of consideration. Working backwards from the Trust or whoever is claiming the right to enforce, you will see that they are alleging “holder” status but they fail to identify and prove their right to enforce on behalf of the holder in due course or owner of the debt (i.e., the creditor).
Close examination of the PSA shows that they never planned to have the Trust actually acquire the loans — because of the lack of any language showing how payment is being made to acquire the loans within the cutoff period. THAT was the point. By doing that the broker dealers were able to divert the proceeds of sale of Mortgage Backed Securities to their own use. And when you look at their pleading they never state they are a holder in due course. Why not? If they did, there would be no allowable defenses from the borrower. But if they alleged that they would need to come forward with evidence that the Trust purchased the debt for value, in good faith and without knowledge of the borrower’s defenses — elements present in every PSA but never named as “holder in due course.”
If the signer of the note denies that the transaction was complete — i.e., there was no consideration and therefore there is no enforceable contract, then the burden switches back to the “holder” of the note to step into the shoes of the original lender to prove that the loan actually occurred, the original lender was the creditor and the signer was the debtor.
Filed under: foreclosure Tagged: | 4th DCA, affidavits • attesting • Daniel Edstrom • DTC-Systems • fabricating • false information • false sworn documents • foreclose • illicit business practices • improper statements • imp, beachamp, beauchamp, best evidence, damages, evidence, right of redemption, Shahood