Bank Lawyer’s Seminar: Rescission Changes Everything

QUOTE FROM SEMINAR: “The bottom Line: Until 3 years have elapsed, a mortgage is only as secure as the lender’s proof of compliance with TILA.”

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

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see tila-right-of-recission-041415

From one of my readers, I received the Power Point Presentation given by a law firm representing the banks. It confirms everything I have been saying. It also offers a glimpse of some of the ways they will try to wiggle out of it. Suffice it to say that in addition to losing far more cases than what has been previously been reported, the banks are now stuck with a problem that they can’t fix, to wit: when they try to “securitize” a pool of new loans they cannot say that the deal is done because the borrower could assert a right to rescind triggering a nightmare of problems for all the parties starting with origination. The appetite for mortgage backed securities is almost certainly going to decline or vanish completely.

Key points from seminar: (You would think I was the presenter!)

  1. Mailing the notice is sufficient to cancel the loan, note and mortgage.
  2. No tender of money or property is required
  3. It is risky for lender to ignore notice of rescission
  4. Rescission is really a borrower’s remorse remedy
  5. Bringing suit immediately is the only way to end the issue — but only if you have absolute proof of the loan and the disclosures conforming to TILA. [Editor’s note: any failure to disclose compensation off the books of the “closing” would probably be evidence of non-disclosure on multiple levels]
  6. AFTER the lender has complied with 1635(b) (termination of security interest), after the lender has returned the canceled note and after the lender has complied with 12 CFR 1026.23(d)(2) (Return of any money or property that has been given to anyone) THEN the borrower must tender [Editor’s Note: This imposes a requirement that will put the trusts in immediate conflict with the investors and the facts. In order to “return” the money to borrower somebody has to pay it. The servicers, the banks sand the trusts don’t have any investment in these loans. They have been getting a free ride for years. They can’t go to the investors for the money and ask them so they can only advance the funds and hope they will get it back or just steal it from investors, which looks eerily like the start of mortgage securitizations]
  7. According to TILA the lien is void upon mailing of the notice.
  8. Banks better do their homework and identify all the loans that are not supported by TILA disclosures. [Editor’s note: My observation is that this is approximately 90%-96% of all alleged mortgage loans. As I said in 2007-2008: In my opinion the vast majority of all loans produced void notes and mortgages or were subject to rescission which results in the same thing — cancellation of the note, cancellation of the encumbrance, and disgorgement of all money paid.]

60 Responses

  1. @neidermeyer

    Did you ever get to look at the wf trustee doc I sent you end of year? Sent it to your yahoo. The trust report for one on my 2 loans is listed as paid in full – this is when ocwen says the loan was charged off – I think it odd on wf master servicer report for trustee they show it as paid in full – wanted your opinion if you had one. Thanks jenn

  2. http://www.seyfarth.com/dir_docs/news_item/8026bd5e-4586-471d-b214-5748647c2d9f_documentupload.pdf

    The IRS changed some rules in 2009 regarding remics to accomodate loan modifications (news to me). This article, regarding the changes eff 09 15 2009, is dated September 29, 2009 at seyfarth’s website.

  3. JG…you should read it.
    Now you are talking my language….loan products.

  4. Jg
    Consider a sale after valid rescission and the defendant ( moi- they have burden of proof) is also arguing re right of possession and includes the jesinoski case in setting aside for non service AND prior rescission. Theres more in my favor
    Next consider a , trustee deed upon sale issued SAME day as 1099a with a 90k the extra evudent in trustee deed upon sale difference in debt owed AND the Servicer issued it
    ONLY lender issues 1099a so… Few more years at this,

  5. http://nationalmortgageprofessional.com/blog/victory-hecm-non-borrowing-spouses-at-last
    by Atare E. Agbamu

    I didn’t read this thru. Apparently, it’s good news for a surviving spouse whose now deceased spouse took out a reverse mortgage (this was, pursuant to the article, a six year battle).

  6. re: predatory lending

    “As the cases demonstrate, a lender’s typical defense to a wrongful foreclosure lawsuit is to argue that, under the prevailing law (specifically Civil Code Section 2924), a homeowner must show that there was an irregularity in the trustee sale—an often insurmountable burden for plaintiff homeowners, as the sale is presumed to be valid pursuant to statute, but this is not a closed issue.

    Just last December, the California Court of Appeal in Lona v. Citibank NA determined that when a bank fails to consider the income and credit of a homeowner before issuing a loan, that loan agreement may be unconscionable. In Lona, a lender enticed a homeowner to refinance his home for $1,500,000, saddling the homeowner with monthly payments four times greater than his income. After he defaulted on payments and the house was sold at a foreclosure sale, the homeowner filed an action for “predatory lending” (i.e., lending sums of money which cannot possibly be repaid by a borrower based on their income) against the lender, the loan servicer and others, seeking to set aside the sale.

    Despite the homeowner’s failure to tender amounts due on his loan—usually a requirement to set aside the sale—and even though no statutory exceptions to this “tender requirement” applied, the court ultimately decided that, pursuant to Civil Code Section 1670.5, the homeowner would be allowed to proceed to trial on the issue of unconscionability based on the argument that the loan was both unconscionable and illegal because they were made to the homeowner without reasonable consideration of his ability to repay the loan given his income at the time, and further, the interest rate far exceeded what was reasonable given his credit rating at the time of the application.

    Lona raises an interesting issue for homeowners, who, instead of claiming one of the four historical exceptions to the tender requirement, may now be able to argue unconscionability to circumvent their obligation to tender amounts due to their lender in order to set aside a foreclosure sale. The court made note of the four historical exceptions to the tender requirement, stating that a tender will not be required if the borrower’s action attacks the validity of the underlying debt; when the person seeking to set aside the sale has a counterclaim or set off against the beneficiary; where it would be inequitable to impose such a condition on the party challenging the sale; and when the trustor is not required to rely on equity to attack the deed because the trustee’s deed is void on its face.

    The specific holding of Lona was that the lenders failed to timely oppose the homeowner’s argument that the tender requirement did not apply due to his objection to the validity of the debt, based on unconscionability. While the case is limited in its application and is by no means resolved, this is an interesting issue which will bear observation in the future to determine if other courts refine the unconscionability argument relating to predatory lending. If so, borrowers may have another weapon in the arsenal for opposing lender foreclosure actions.”

    jg: just a reminder that claims and defenses otherwise outside any statute of limitations may be raised in recoupment.

  7. Thank you Elex and JG… Duly noted , Good stuff .

  8. Background
    ABC Mortgage Institution (ABC) enters into fixed, adjustable, and floating derivative loan

    commitments to originate mortgage loans that it intends to sell. The institution accounts for the
    commitments as derivative financial instruments as required under FAS 133.

    ABC enters into best efforts contracts with a mortgage investor under which it commits to

    deliver certain loans that it expects to originate under derivative loan commitments (i.e., the

    pipeline)

    and loans that it has already originated and currently holds for sale (i.e., warehouse
    loans).

    ABC and the mortgage investor agree on the price that the investor will pay ABC for an
    individual loan with a specified principal amount prior to the loan being funded.

    Once the price

    that the mortgage investor will pay ABC for an individual loan and the notional amount of the
    loan are specified, and ABC is obligated to deliver the loan to the investor if the loan closes,

    the
    contract represents a forward loan sales commitment. Under FAS 133, ABC accounts for these
    forward loan sales commitments as derivative financial instruments.

  9. all should read this doc.

    OCC 2005-18
    Attachment
    Date: May 3, 2005 Page 1

    Office of the Comptroller of the Currency
    Board of Governors of the Federal Reserve System
    Federal Deposit Insurance Corporation
    National Credit Union Administration
    Office of Thrift Supervision
    INTERAGENCY ADVISORY ON ACCOUNTING AND REPORTING FOR
    COMMITMENTS TO ORIGINATE AND SELL MORTGAGE LOANS

    • Originate mortgage loans that will be held for resale, and
    • Sell mortgage loans under mandatory delivery and best efforts contracts.
    Commitments to originate mortgage loans that will be held for resale are derivatives and must be
    accounted for at fair value on the balance sheet by the issuer. All loan sales agreements,
    including both mandatory delivery and best efforts contracts, must be evaluated to determine
    whether the agreements meet the definition of a derivative under Statement of Financial
    Accounting Standards No. 133, Accounting for Derivative Instruments and Hedging Activities, as
    amended by Statement of Financial Accounting Standards No. 149, Amendment of Statement 133
    on Derivative Instruments and Hedging Activities (collectively, FAS 133). Institutions should
    also account for loan sales agreements that meet the definition of a derivative at fair value on the
    balance sheet.
    The advisory discusses the characteristics that should be considered in determining whether
    mandatory delivery and best efforts contracts are derivatives and the accounting and regulatory
    reporting treatment for both commitments to originate mortgage loans that will be held for resale
    and those loan sales agreements that meet the definition of a derivative. The advisory also
    addresses the guidance that should be considered in determining the fair value of derivatives. A
    simplified example is included to provide general guidance on one approach that may be used to
    value commitments to originate mortgage loans that will be held for resale.
    The Agencies1
    believe the accounting guidance in this advisory is consistent with generally
    accepted accounting principles (GAAP). Institutions are expected to apply the guidance in this
    advisory when preparing their regulatory reports.
    1
    The Agencies are the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal
    Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union
    Administration (NCUA), and the Office of Thrift Supervision (OTS).
    The OCC now supervises federal savings associations (FSA). References to regulatory citations,
    reporting requirements, or other guidance for FSAs contained in this document may have changed.
    Please see http://www.occ.gov/about/who-we-are/occ-for-you/bankers/ots-integration.html for the
    latest information on rule, reporting and guidance changes.
    OCC 2005-18
    Attachment
    Background
    The Agencies previously issued instructional clarifications that summarized the reporting
    requirements for derivatives, including mortgage loan commitments, to assist institutions in
    properly applying the requirements of FAS 133 when preparing their regulatory reports. Based
    on the Agencies’ review of regulatory reports, it is evident that some institutions are not
    following the appropriate accounting and reporting for commitments to originate mortgage loans
    that will be held for resale and agreements to sell mortgage loans. Some commonly noted issues
    are:
    • Including the value of mortgage servicing rights in the value of loan commitments that
    meet the definition of a derivative;
    • Reporting the value of loan sales agreements that meet the definition of a derivative as
    assets when in fact they were liabilities and vice versa; and
    • Failing to report these derivatives and changes in the fair values of the derivatives within
    their balance sheets and income statements.
    Accordingly, this advisory provides additional guidance on the application of FAS 133. In
    addition, the Agencies expect all institutions, including those that are not required to file reports
    with the Securities and Exchange Commission (SEC), to follow the guidance in SEC Staff
    Accounting Bulletin No. 105, Application of Accounting Principles to Loan Commitments
    (SAB 105).
    Definitions
    Derivative loan commitment
    For the purpose of this advisory, the term “derivative loan commitment” refers to a lender’s
    commitment to originate a mortgage loan that will be held for resale. Notwithstanding the
    characteristics of a derivative set forth in FAS 133, these commitments to originate mortgage
    loans must be accounted for as derivatives by the issuer under FAS 133 and include, but are not
    limited to, those commonly referred to as “interest rate lock commitments.”
    In a derivative loan commitment, the lender agrees to extend credit to a borrower under certain
    specified terms and conditions in which the interest rate and the maximum amount of the loan2
    are set prior to or at funding. Under the agreement, the lender commits to lend funds to a
    potential borrower (subject to the lender’s approval of the loan) on a fixed or adjustable rate
    basis, regardless of whether interest rates change in the market, or on a floating rate basis. In a
    typical derivative loan commitment, the borrower can choose to:

  10. re: my ‘Johnson story’ – with a large dose of their double-talk, ns could be telling it like it is, at least in the mod agreement, but leaving out one rather salient fact: Mr Johnson was entering into an entirely new loan agreement with NS, who is then properly identified as the NEW (left out that word) creditor and lender and fnma owns the OLD (left out that word) loan. I can’t look because that Nebraska county’s records aren’t online, but I’d bet NS’s new loan isn’t recorded because they’re comfortable relying on the old one for security, the one fnma owns or owned. Plus they may well have turned in an insurance claim on his old defaulted loan or gee, actually used some HAMP funds for its intended use. (He got no principal reduction that I saw – just a lower rate) But sure looks like they lied when they submitted a poc wherein they call themselves the creditor / lender on the old loan, just like it appears in Dwight’s case. You have to be Sherlock Holmes, have your own law degree, some moxey, and a couple Brooks-Brothers-clad mouth-pieces, including a former prosecutor, to take on lying A$$ liars. (And every now and then a good shot of Jack. D.Wynn probably could use a day at the beach – hope she’s doing well).
    MERS HAS TO GO

  11. Dwight – I can only say again that it’s poss your loan owner has lost
    its right to tender by doing nothing regarding your rescission for forever. A denial of the rescission’s validity many years later is good for naught imo. See “laches”, which briefly is an inexcusable delay in asserting one’s rights. I also warned and conceded it’s an ambitious goal to hope for such a ruling. But no court will likely consider it if it’s not advanced by a homeowner. It might be that the ‘victory’ on this will go to the best case law on laches and any other arguments on the issue of tender at this point after your rescission was ignored for so long. more lay opinions. And I’ll dare say again that I think it matters not at this point whether or not you had grounds to rescind. Your lender had a statutory choice – rescind or seek relief from a court. If you swear you didn’t get the NOR to R, for instance, and they produce them and they were admitted PURSUANT TO THE RULES OF EVIDENCE, it’s poss a court would find a way to rule against you, however (unless it wants to punish them for not meeting their statutory duty).

  12. dwight, just saw elex’s GOOD imput.

  13. Dwight: like this

    I’m entitled to relief because

    A) the loan is rescinded as a matter of law and or alternatively

    B) The s o l has run and or alternatively

    C) No note has ever been properly admitted and there’s no
    basis for any claim on that score alone and or alternatively

    D) WF, while identifying fnma as the owner of the loan, has
    concurrently identified itself as both the creditor and the lender,
    leading to a reasonable conclusion some of the documents
    involved in this matter submitted are false or at least warranting further scrutiny, to wit:

    describe various claims, statements, averments in this doc and that

    and so on. This is abbreviated, of course, just to show how one may plead for alternative relief on separate and distinct bases (pronounced bay-seez).
    lay opinions – ask a qualified lawyer

  14. @DwNj –

    IANAL, but my understanding is that you may plead alternative causes of action and let the court sort out the appropriate solution. Start with the legal jurisdictions – court has no jurisdiction because statute of limitations of six years.
    In the alternative, court has no jurisdiction because loan was rescinded 20 days after creditor received my notice of [the date], and a year has passed since that time. Under TILA, the house is free and clear and cause of action of quiet title with declaratory relief is requested.

    Notice how you are setting up points on appeal, so make sure you have statute (especially fed. TILA) and case references for each point.

    Request statements of decision on the causes of action with particularity, e.g., why TILA rescission does not apply in light of recent SCOTUS decision (w/ online citation if court allows, or a paper copy attached if not).

    Devil is in the details, and you seem to have the facts and law on your side. You need to match it up to admissable evidence (e.g. your affidavit w/ attachments of evidence).

    Good shooting, and don’t step in the SCat.

  15. Java … I hope you’ll be able to file a wrongful foreclosure action someday soon, as more critical evidence surfaces, and be able to recover or be compensated for your losses. When fraud and lack of Standing are involved in a foreclosure, it’s never over until good prevails over evil.

    JG… Thanks for the opinion, I’ll look it up and read it … Also, throw this other issue into my case … The 6 year statute of limitations has run and WF should have been time-barred from filing the complaint.

    2004 (Oct)- Refinanced with Commerce Bank …

    Immediately sold to Washington Mutual …

    2007 (early 2007) – Wells Fargo takes over as servicer …

    I call them and ask questions about my loan and they are evasive .. It leads to me looking at my closing docs and discovering violations…

    Still current on my payments thru June .. I decide to rescind …

    2007 – (July 1, 2007) …mailed a rescission letter to Wells Fargo ..

    Wells Fargo files a Foreclosure on Sept. 25, 2007 …

    They claim that I defaulted on my July payment and there after …

    Oct 2011 … Wells Fargo asks judge to vacate the judgment, dismiss the foreclosure complaint and stop the sheriff’s sale …all due to the Old judge and I asking them to explain how the note got stamped by WaMu in 2011 when they went out of business in 2008 , or at least bring in witnesses that can testify under oath about the transfer of the note and how and when Wells Fargo came into possession ..the judge ordered a plenary hearing and wanted WF to bring witnesses…the lawfirm REED SMITH who had taken over the case from the foreclosure mill firm asks the judge to vacate the judgment after a year of adjournment. That was Nov. of 2011 …on a case that started on Sept of 2007, which claimed defaulted in July 2007 …

    Now on May 9, 2014 The filed a new foreclosure complaint using the same default date of July 2007 …The same acceleration of the amount due …they accelerated ..and by doing so they set a new maturity date , when they filed the 2007 complaint they had accelerated …now in 2014 they were using the same acceleration ..meaning they are well over the 6 year SOL … The courts in NJ mistakenly believe lenders now have 20 years to foreclose ..the 20 years was created after the 2008 collapse and it was intended to help the poor lenders who were burdened with so many foreclosures and so little time …but for properties that had fell thru the net and never had a FC complaint ever filed …

    The Federal Bankruptcy judge in NJ took that apart, the same way the Supreme Court exposed the errors of the courts in rescission, this Bankruptcy judge exposed how NJ courts were misinterpreting the 20 year rule and misapplying it in order to allow banks to keep refiling and getting bites at the Apple until they could eventually fabricate their documents and steal the home as a foreclosure… That judge showed that the true interpretation under NJ Statutes was that once a lender accelerates ..they infact are creating a new maturity date and calling The entire debt due ..which under NJ Statute only allows 6 yrs from the maturity date.

    So the judge in my case said he disagrees with the federal judge and that he still believes my maturity date is the one that’s stated on the mortgage which is 2034 … He does not consider their acceleration of my entire debt calling it due in full in 2007 , he doesn’t agree this is a new maturity date of the 30 year contract .. I asked how then can we have two maturity dates at the same time? You are telling me that my full loan isn’t due until 2034 …and Wells Fargo is saying its due now, since 2007 …The Assignment of Mortgage language states the same to be true …it articulates that the entire sum is now due ..the federal judge said the Assignment was the icing on the cake and left no doubt.

    So my dilemma is what argument do I want to prevail on ?

    If I prevail on the 6 year SOL from New maturity date argument in the Appellate division .. There is no enforceable mortgage left.

    But I’m also asserting a TILA Rescission..which could cause me more problems than if I was to simply prevail on the SOL 6 year argument

    If they recognise my rescission as being valid (no certified mail used) , could it lead to a court focusing on the tender process?

    At this point my paralegal is saying the SOL argument is better in his opinion, because we would use the bankruptcy judges own words in explaining why we should prevail ..that judge felt terrible about his decision because the borrower got the house, but he is a smart judge with 30 yrs on the bench and very conservative..when he ruled that the acceleration changes the maturity date, he knew what he was doing.

    The paralegal also wants to attack WF Standing, and how they lied on the Notice of Default.

  16. Dwight. I’m also in NJ. I also had WF as Servicer and Fannie as “investor”. I had (and still do argue) with WF with all their double talk and lies. I fought for 5 years but eventually had house fraudclosed and stolen by Fannie Mae with Wells Fargo doing the dirty work. I told you 3 years ago the thiefs we were fighting were very similar. Hopefully with the extra time you have been able to put together a better defense than I was able to. But I still fight with WF til this day as now I get bullshit and fraudulent 1099A from the scumbags. I will not give up when I know they stole that house. I look forward to the days the banks collapse. Good luck.

  17. I don’t know that it’ll do anyone any good, so fwiw: originators get more money for loans they fund themselves. Say ABC originates loans and sells them servicing-released to WF. If wf didn’t have to fund the loan for abc, abc gets a better rate from wf. The wf’s and boa’s funded all loans for smaller fish, like brokers. Those who fund their own loans in fact have different daily rate sheets than little guy-brokers.
    Also, fwiw, WF often sold its (closed) loans to fnma and fhlmc or an RFC (rfc bought non-nonforming loans whereas f & f didn’t or at least weren’t supposed to). “Non-conforming” actually means one or more of a couple things: either the loan amt exceeded f & f loan limits or the loan was not underwritten by f & f standards and thus didn’t qualify for purchase by f or F. If a loan exceeded f and f loan limits at the time, it’s just about a certainty it didn’t go thru f or f. If a loan were a teaser, it also didn’t go thru f or f. F & F only allow a certain rate adj per adj period (‘cap’) and over the life of the loan ‘(ceiling’), unlike teasers where the moon’s the limit. With f and f, there’s supposed to be some evidence that the borrower can keep up with the payments as they adjust on arm’s (unlike non-conforming, predatory loans).

  18. Come on, Elex. I wasn’t in your face. But I just can’t stand to let some errant if not dangerous misperceptions stand. The borrower does not owe the lender his home when he rescinds. He owes him the money the lender gave him – unless a court says otherwise as to the amt. The borrower didn’t give anyone his house. He just gave them a lien or form of interest which must be 86’d, not ‘given back’. A lender could opt by agreement with a borrower to take the house in lieu of its 300k back and it could end up being a result, but it’s not the way tila was written. Tila says the lender gets his 300k, his greenbacks (blue?) back unless a court deviates. The same position: borrower has his house and what he’s paid in / and for the loan, lender has his loan amt back.

  19. Dwight _ i had what I thought was the granddaddy of forum-shopping, false-jurisdiction-invoking cases and now know it’s gone for good ‘less I find it again (but do see nosek). Briefly: when abc assigns a debt to xyz so abc may invoke juris, it’s seen as a fraud on the court and everyone.** Xyz is to receive only a nominal amt of the proceeds (if any) resulting from judgment, but abc retains the lion’s share: abc is the rpii pursuant to frcp 17 and xyz may not pretend to be. You might take a little time on failure to join an indispensable party, but procedurally, don’t know if it’s too late to go that way or if you should stick with you rescinded and what that means at this date to each party. Can’t foreclose on the collateral for a rescinded contract, right?

    **in this case, it seems even more egregious to me since wf purports to have a legit assgt for good and valuable consideration when they aren’t getting the proceeds because fnma is or so it appears.
    Obviously, were it not for mers, none of this could happen, except you would know the rpii and be arguing with them about rescission.
    I’ve said the default law art 3 of the UCC butts heads with FRCP 17, but I’ve yet to see it taken on. One in poss of a note, even if art 3 is the bomb, doesn’t make that person the aggrieved party, which aggrievement is the key to the courthouse. But mers, it’s always mers which causes this bs: the at-will assignments instigated by transferEEs (except trusts) by way of their own employees. And where does mers get off letting these grunts purport to (sell and) assign the notes??

  20. @JG – I don’t think I would ever care to read your thoughts on what an unlawful detainer is after a foreclosure. (for the scatpack brain-damaged, that means eviction after foreclosure sale)

  21. Dwight: “The paralegal says my servicer Wells Fargo is attempting foreclosure by claiming that they are “holders” of the note.

    ** Any jg commentary is a lay opinion out of someone who often learns by fire. Ask a lawyer or 10 **

    jg: WF is claiming to be in possesson of the note and they further claim article 3 gives them the right to enforce.

    He points out to me that in their Notice of Default they identify themselves as “the Lender”.

    jg: they’re not, even if in poss of the note. I personally think we and courts are confusing one in possession with what a ‘holder’ really is: one who owns a note and has the right to payments. Imo, identifying themselves as the “lender” is fraudulent or willful misrepresentation at the very least. Since recorded, it’s a false document. Don’t be surprised. After all this time, I see that often two hands of ABC don’t know what the other is doing (saying, claiming, etc).

    He further points out that in reply to my QWR, Wells Fargo sent me a document that described the loan as being owned by Fannie Mae.

    jg: FNMA is the lender, creditor, and has the right to payments as described in the note itself (if that’s even true… You must’ve had a fnma loan and fnma made good on its guarantee and repurchased the loan is my thought). WF has failed to join an indispensable party (should be dismissed) even if wf has a connection to the loan. It’s not the party who will suffer by its non-payment (Fed rule of procedure 17, known as some other rule # in bk, but derives from 17). However, if that’s a defense you could’ve raised and didn’t………but did you know then about fnma? FNMA knows better – see in re Nosek bk MA (and online all over, like scribd, etc – just plug in at yahoo or whatnot) In fact, it was both of these actors who got nailed in Nosek. Imo a poa or whatnot will not save them at this date since even if one ‘existed’, it wasn’t declared. WF n fnam w3ere each sanctioned like 250k but the higher court reduced. There’s a pattern now imo.

    The Fannie Mae website my name, social security number, property address, etc. clearly is listed as being owned by them.

    jg: so once again, WF is impersonating the lender.

    When I attempted to raise the standing discrepencies in court with the judge, Wells Fargo attorney claimed that they are the owners.

    jg: well, someone’s lying, right? Is their reliance on the ‘mers’ assgt of fnma’s loan? If so, bogus assgt. I’m not sure what strategically is your best bet……make the allegations as based on conflicting stmts / docs or simply say you’re surely confused about who’s on first as a result of those conflicting stmts / docs and therefore can’t make your case without some explanation of the conflicts. But you don’t want them to see you coming then, so need strategy. Maybe Nozek will help, but in that case, it was during the litigation (and not before) that someone discovered or announced that fnma really owned the loan. (I think Nosek had an attorney, but it was the court that got ticked off with wf and fnma as I recall).

    The fraudulent, forged MERS/ LPS. .. Assignment of Mortgage doc. uses language that makes it appear that Wells Fargo purchased the debt for value AFTER the alleged default had occurred. This is their second attempt to foreclose using this same default date and this same Assignment of Mortgage document. So they supposedly are saying that they purchased my defaulted loan, according to the language and dates on the Assignment. Unclean hands?

    jg: Well, make a chronology of events, docs, who said what when.
    WF in all likelihood didn’t purchase the loan at all. They had an employee in a mers hat (linked, facebook, etc. the person claiming to be the mers officer – I have my own such little stack of these bums – everyone should, as I’ve suggested. imo) Was mers assgt before or after response to qwr? does it matter ss to what’s factual? Not really imo, but how are you going to demonstrate that wf didn’t buy the loan even tho it’s about a certainty they didn’t? If a dot follows a note, the dot went to fnma before it went to wf. But since mers et al claim mers is a mutual agent, they’ll just say so what that there’s no assgt to fnma. AN AGENT MAY NOT CONVEY THE INTEREST OF ITS PRINCIPAL.

    This shows why MERS MUST GO.

    “Keep in mind that during all negotiations for modifications they have asserted that they must ask the “investor” (Fannie Mae) for permission in order to get approval for any modifications. They told me that I was not elegible for Federal programs because Fannie Mae owned loans were not included in them.

    jg: the ‘investor’ is the note owner and the guy with right to payment
    Also hope you took notes during those ‘negotiations’

    “So the servicer lied on the Notice of Default by declaring that they are the “Lender” … This is a violation of the Fair Foreclosure Act.

    jg: good! false doc, too. false recorded doc.

    The paralegal claims that Fannie Mae written rules state that they are in control of the possession of the copies of the notes by using certain custodians of notes and loan documents of their owned loans, and that any servicer needing to produce the note for a court in order to foreclose would need to request it from Fannie Mae so that they can relay the information to the custodian, who would need time to locate them and send them to the requesting party. Remember in my first case the old judge demanded they produce the real note in court, they needed to adjourn for nealy 3 months. The paralegal thinks that they were requesting it from Fannie Mae ,the real party in interest, who probably only had a computer image of the original note anyway.

    jg: probably so

    The bottom line is that my refinance was a table funded loan that was funded by unknown investors monies by Fannie Mae … Fannie Mae used my pretender lender Commerce Bank to table-fund and act as the straw man lender…Commerce Bank has always been listed on all of my documents as the Lender. At closing my note was stamped and sold to Washington Mutual Bank and they are the servicer I paid for years. The fact is that this loan is owned by Fannie Mae and they have no way or desire to show proof of financial receipts proving their standing.

    jg: fnma, to my knowledge, does NOT fund loans. ABC makes loans headed for fnma, and thus theoretically underwritten to one of fnma’s programs to be eligible for purchase. FNMA generally buys closed loans in bundles from aggregators/ larger of the fishes (like boa, say, or wf). Wamu may have table funded for CB or CB may have used its own funds. Hard to say…can only speculate with a bank. But fnma didn’t fund the loan.

    “Keep in mind that I sent a timely TILA Rescission notice inside the extended 3 year window for disclosure violations. Meaning that the true and real creditor must step forward in order to contest it.

    jg: seems to me your loan is rescinded. If you sent the notice to the party who was identified to you as the servicer, it’s done imo. At this point, imo, it doesn’t matter if you had grounds or not for rescission nor whether you could tender. They failed to comply with the rescission by refunding and giving you a number $$ (for tender or a place, etc) – or alternatively – taking your tail to court to argue your rescission (and thus lost their right to holler it was baseless). Other than who’s really on first, that’s thee issue: you rescinded, they failed to rescind). You may have lost the right, the cause of action for failure to rescind (NOT the rescission which you did) for FAILURE to rescind, but the rescission is done. I think the separate cause of action for failure to rescind has a shelf life of one year (to get damages for the failure), but still, the rescission is done. imo.

    In my case, the judge was allowing my servicer Wells Fargo to waive a fabricated note around in one hand and a forged, fraudulent AOM Assignment of Mortgage in the other hand…as they opposed my TILA right to rescission …not only the fact that the note and Mortgage are void but also that Wells Fargo would need to prove standing in order to have standing to oppose my Rescission.

    jg: Your servicer didn’t waive anything – it’s attorney did. Attorneys may not testify. If the note and dot were not introduced into the proceeding by way of the rules of evidence, it’s not in, which is tantamount to not exisitng. Attorneys may not certify docs they know jack about as true and correct copies of anything or that a doc is an original. WF didn’t even demonstrate that it had poss of a note from what you’re saying = no note.

    The court lacked jurisdiction because it was a foreclosure complaint on a void Note and Mortgage.

    The court ultimately granted the motion for summary judgment and sent the foreclosure back to the offices to be processed as an uncontested foreclosure now that the court deemed there are no material facts in question or dispute.

    jg: I’ve never heard of a court calling a disputed issue undisputed verbally or in an order. Error and omg, how misleading to the casual reader of such an order. .

    So we know Fannie Mae is the owner, but probably can never show how they were financially harmed.

    jg: huh? of course the owner would be harmed by non-payment, but if you rescinded, they harmed themselves by not doing what they must and leaving it to or turning any eye to what wf was doing or not doing.
    (see Nosek). For all I know, fnma should be made to forego any claim to tender – apparently they waived it. Laches.

    Dwight et al – these are lay opinions and as stated, represent what to date re: tila would be an ambitious outcome. My opinions here are based on my lay person interpretation of law and cases interpretting that law and don’t consider any issues outside the discussion which may be relevant to your case.

  22. Judges understand the question just fine. But don’t have to touch it if its not raised as an issue.

    Title Insurers not only will not insure slander of title by the borrower..
    They also will not insure slander by the servicers.
    They will not insure 2ndary market transactions ….

    How Creative….get the granters to warranty it.

  23. Elex: “If the creditor does not receive the net proceeds of the loan back from the obligor, then the rescission is unable to be completed, and foreclosure is justified.

    **For this reason the judges were requiring tender from the obligor, but the ‘tender’ has always been the security described in the deed of trust. The judges did a half-&ssed job by not defining the tender as the secured property.” **

    jg: that’s just not true. The tender is not the secured property, altho it might be, could be, by agreement. Dwight’s description is the more accurate one. imo.The borrower used his home as collateral only. Regardless of what a mtg says or a dot says (conveyance), both are treated as liens (which reminds me that I’ve never and prob won’t get around to researching ‘mortgages’ which now purport a conveyance ,whereas I had thought they actually stated they were encumberances – pre-mers – haven’t worked with ‘mtgs’ in my line of work). To get each party back to square one, Dwight gives back what he got – 300k in loan proceeds – and the lender gives back what he got – 50k in payments and fees.
    And imo dwight is certainly correct that tila never intended to cause a borrower to lose his home as a result of exercising a lawful remedy for tila violations. A borrower is supposed to be back at square one, before his refinance, not in a deep, dark hole. It’s true there’s market movement up and down with home values historically, but never before has a home “appraised” at 700k now been worth 350k (short of natural disasters or the odd calamity) two or three years later. Should Dwight bear the consequence of someone else’s bad act? No, he shouldn’t. It’s an old maxim of the law that he who causes a loss must bear it (and by law, it’s successor – and as I’ve pointed out, investors are warned of tila consequences in the Prospectus Supplements if not the Prospectus (aka buyer beware imo). I can’t know how a court faced with the question would rule in earnest. Rescission is the prescribed remedy for violations. Tila provides that a court may rule differently, may deviate, I suppose in equity. But to me that’s a two-way street. If a court may deviate ‘this’ way for one, it must also be willing to deviate ‘that way’ for the other. The lender has more of the comparative fault if it gets to that. Lenders with their reckless abandon of x,y, and z caused Dwight’s home value to fall drastically more than Dwight did. Regardless, as in whether or not that’s true, as a victim of tila violations, he is not the guy at fault who should bear the brunt by coughing up more than he can borrow or come up with. Imo, a court should find he owes what he can come up with however he can (supported by loan commitment, affidavit, what not). If he can’t get a loan because he got a predatory loan (and can somehow prove it) or for whatever reasons was late on payments, I don’t know what a court would or could do. Put him on payments with maybe a three or five year balloon based on his loan balance at the time of his refinance, that is, where he was (x maybe now with a balloon)? The three to five years would give him time to re-demonstrate his creditworthiness for a new loan to pay off the payment plan with the balloon. It would also provide him with deserved room to breathe. Tila would be vindicated, the lender has its lien back, and no one pays so heavily he can’t live with it……? How this plays out with securitization and the loan being rescinded isn’t Dwight’s problem – wasn’t his business plan as a securitizer or as an investor in these derivatives. For all I know, with some coordination, HAMP funds (remember those – given to lenders to keep us in our homes? and in which case, forget the balloon) could be used to alleviate some of the “business plan” fallout.

  24. @DwNJ –
    As the famous Freemason George Washington explained to Congress in his farewell message “… and you can’t borrow your way out of debt”. Which is exactly what a refinance is. So you were already in the worse case. Aggravating that condition is whether your loan security, aka your home, is underwater, as a great percentage of homeowners now find themselves facing.
    For these reasons your last scenario is pure fiction; until both the creditor and the obligor have executed their duties to the statute, rescission does not occur, and the homeowner is merely an occupant undeserving of keeping the home until it is paid for. So selling the property you don’t control because there is an active deed of trust against it until you pay the net proceeds of the loan back to the creditor. In the event you are speaking of a ‘refinance’, those net proceeds included the money to pay off the original (previous) loan, plus additional principal, with the home secured by a deed of trust. And it is not likely any legitimate title company will insure the sale of the title you clouded by reneging on the rescission requirement to repay the creditor if you try to sell the property and “… walk away with the profit and disgorgement”.

    As for the ‘vesting assignment’ between Fannie Mae and WF, you need to understand what ‘rights’ are being ‘vested’ and does the recorded assignment properly describe those ‘rights’? Of the many powers the owner of the note holds, is it possible for an assignment to only assign some portion of those powers? And you may need to revisit the PSA for Fannie Mae and get an understanding of splitting the power to elect to foreclose from the power to keep the payments. What happens in loan transfers after that split takes place? Can the powers be reunited somehow? That is one ugly question the judges can’t / won’t / don’t understand.

    IANAL, and, don’t step in the ShadowScat …

  25. Dwight@11:34 _ I’m dazzled! You’ve obviously done a lot of research and come a long way. Good work if I may say!

  26. The original creditor ….
    But what do I know.
    People beat themself up…while they sleep.
    WAKE UP!

    If there is No Escrow….why in tarnations didn’t you pay those taxes?
    Oh Well … Can’t save them all.

  27. If the creditor complies with the TILA Rescission statute, which has a built-in remedy …they would need to cancel the note, file a satisfaction of Mortgage and return say 50 thousand on a 250 thousand loan.

    Now What I believe was the lawmakers intent..to keep the parties in their positions prior to when they signed the refinance. The Obliged was in their home , this is their property and was so before the refinance.

    So the TILA rescission is a borrowers / consumers protection, meaning it should be construed in the light favorable to them, which means they deserve to stay in their homes after discovering violations by the lenders.

    After the Lender complies … The Obligor would then cash his check for 50 thousand dollars and walk into a new lenders office to refinance his 250 thousand dollar home, turning over the 250K to the previous lender who is waiting for his 250K …or he could choose to refinance for less and and give back the 50K disgorgment he received …or he can sell the property for 300K and walk away with the profit and disgorfpgment.

    Only in the worst case scenarios should a homeowner have to give up his property to the bank in a rescission. Because the borrower would not have rescinded if he was in no position to refinance to tender. He would have looked for a modification. In the worst case he walks away with nothing because he didn’t want a foreclosure on his credit?

    But the intent of the law was to punish lenders …and to protect consumers …you protect consumers by keeping them in their homes, that is where they were before the deal went down ..this wasn’t a law made for banks to steal homes.

  28. John Gault … You seem to be raising something that my paralegal is also trying to zero in on as he prepares my motion for reconsideration.
    It might be related to your assertion, but I’m not as clear on the issues, so maybe you might make more sense from what he is telling me.

    The paralegal says my servicer Wells Fargo is attempting foreclosure by claiming that they are “holders” of the note.

    He points out to me that in their Notice of Default they identify themselves as “the Lender”.

    He further points out that in reply to my QWR, Wells Fargo sent me a document that described the loan as being owned by Fannie Mae.

    On the Fannie Mae website my name, social security number, property address, etc. clearly is listed as being owned by them.

    When I attempted to raise the standing discrepencies in court with the judge, Wells Fargo attorney claimed that they are the owners.

    The fraudulent, forged MERS/ LPS. .. Assignment of Mortgage doc. uses language that makes it appear that Wells Fargo purchased the debt for value AFTER the alleged default had occurred. This is their second attempt to foreclose using this same default date and this same Assignment of Mortgage document. So they supposedly are saying that they purchased my defaulted loan, according to the language and dates on the Assignment. Unclean hands?

    Keep in mind that during all negotiations for modifications they have asserted that they must ask the “investor” (Fannie Mae) for permission in order to get approval for any modifications. They told me that I was not elegible for Federal programs because Fannie Mae owned loans were not included in them.

    So the servicer lied on the Notice of Default by declaring that they are the “Lender” … This is a violation of the Fair Foreclosure Act.

    The paralegal claims that Fannie Mae written rules state that they are in control of the possession of the copies of the notes by using certain custodians of notes and loan documents of their owned loans, and that any servicer needing to produce the note for a court in order to foreclose would need to request it from Fannie Mae so that they can relay the information to the custodian, who would need time to locate them and send them to the requesting party. Remember in my first case the old judge demanded they produce the real note in court, they needed to adjourn for nealy 3 months. The paralegal thinks that they were requesting it from Fannie Mae ,the real party in interest, who probably only had a computer image of the original note anyway.

    The bottom line is that my refinance was a table funded loan that was funded by unknown investors monies by Fannie Mae … Fannie Mae used my pretender lender Commerce Bank to table-fund and act as the straw man lender…Commerce Bank has always been listed on all of my documents as the Lender. At closing my note was stamped and sold to Washington Mutual Bank and they are the servicer I paid for years. The fact is that this loan is owned by Fannie Mae and they have no way or desire to show proof of financial receipts proving their standing.

    Keep in mind that I sent a timely TILA Rescission notice inside the extended 3 year window for disclosure violations. Meaning that the true and real creditor must step forward in order to contest it.

    In my case, the judge was allowing my servicer Wells Fargo to waive a fabricated note around in one hand and a forged, fraudulent AOM Assignment of Mortgage in the other hand…as they opposed my TILA right to rescission …not only the fact that the note and Mortgage are void but also that Wells Fargo would need to prove standing in order to have standing to oppose my Rescission.

    The court lacked jurisdiction because it was a foreclosure complaint on a void Note and Mortgage.

    The court ultimately granted the motion for summary judgment and sent the foreclosure back to the offices to be processed as an uncontested foreclosure now that the court deemed there are no material facts in question or dispute.

    So we know Fannie Mae is the owner, but probably can never show how they were financially harmed.

    We have QWR replies from Wells Fargo that say Fannie Mae owns the loan.

    We have a Notice of Default that says Wells Fargo is the Lender.

    We have my TILA Rescission that mandates only the “creditor” may challenge the rescission.

    We know that nobody acknowledged or responded to the rescission, and they violated the 20 day period to comply with the remedies of the statute. Instead they send a servicer to foreclose on the void note and Mortgage, and to dispute the validity of the rescission by arguing that the originator Commerce Bank had indeed provided all disclosures.

    We know that it was a table funded loan where no disclosures were made to us about who the actual creditor really was who funded the loan. So its either a violation of disclosure which is predatory per se, or the consummation never really happened because it requires a meeting of the minds and basic contract law 101 …

    MERS of course is right in the middle of this ..as they wave around the Assignment of Mortgage which appears to say that WF purchased the note and Mortgage. But we know Fannie Mae still owns and controls it.

    This is an issue of Standing …but how do we argue it in a way to be granted deeper discovery. We have conflicting documents in regards to the QWR document identifying Fannie Mae as owner, and we have the contradicting Notice of Default that says Wells Fargo is the Lender.

  29. Neil doesn’t take the time to note what is operative law and what is practical application of law, which at times contradict each other.

    Under the circumstances of operative law, at most 36 payments plus deposits and fees have been paid to the trustee of a securitized loan due to the 3-year notification requirement. As a practical application the creditor marks the loan as satisfied, and to the investors it is a non-performing loan that is removed from the trust. Because the creditor will receive the net proceeds of the loan back from the obligor, those funds can be returned to the loan pool and the investors show no loss.

    If the creditor does not receive the net proceeds of the loan back from the obligor, then the rescission is unable to be completed, and foreclosure is justified. For this reason the judges were requiring tender from the obligor, but the ‘tender’ has always been the security described in the deed of trust. The judges did a half-&ssed job by not defining the tender as the secured property.

    The practical application is that if the obligor executes rescission under TILA, and doesn’t have the cash to cover the net proceeds of the loan, the property is turned over to the creditor.

    IANAL – I am not a lawyer, and suggest the above for your consideration only. If you think TILA rescission is a Hail Mary to save your home, you’re likely just going to p[ss off the judge in an unlawful detainer action or worse yet, have the creditor pursue judicial foreclosure and go after the deficiency.

  30. It would explain why when BAC..took over CW and refused payment for 12 months… because CW..who filed default notice without note or mortgage .. you know…Security 1st and successors liabilities.

  31. The guy who attempts to collect on the note without the collateral. ………can cause the note owner to lose the collateral as a matter of law…. Security First.

  32. Mers “officer” Cynthia Mech swears mers is note holder:
    07-16226 dkt 49-1 (NV bk) j
    jg: as if

    1) If Joe has possession of owner-Claire’s note, is Joe its “holder”?
    If Joe is its holder and thus by art 3 entitled to enforce, is Claire just out of luck? If Claire is out of luck, is she ALL out or does she have a cause of action against Joe for enforcing her note?

    2) is one in possession of a note entitled to an assgt of its collateral?
    I say not, of course, and if that guy attempts to collect on the note without the collateral, he can cause the note owner to lose her collateral as a matter of law (security first).
    Yes, I’m on a tear about mers the monster tonight – because until these guys can’t hide behind mers and do this junk in mers’ name, we’re mostly going to lose. I really can’t figure why courts tolerate assignments of notes out of “mers” even if they buy these coll instrument assignments while also buying mers as an agent (since agents can’t convey the interests of their principals).

  33. Hultman (depo) admits mers gets no authorization from note owner to assign anything: Ukpe – Sup Ct NJ dkt F-10209 -08
    (Is this because ‘mers’ acts in its own right?)

    Hilmon from last comment is dkt 19

  34. A bunch of geeks got together and formed a company called Merscorp to facilitate pawning off good and bad loans to others.
    Merscorp created a shell corporation to act as beneficiary in deeds of trust and mtgee in mortgages. Soon many other geeks who originated loans joined the Merscorp Club. Employees of these other geeks would be made mers’ officers so that mers didn’t need any employees (or the expense) and would remain bk remote. In fact, merscorp would make money by the appt of the member’ officers who were given no instructions to do anything by mers ( because, as admitted by them, they themselves received no instructions from noteholders to do anything). The original m.o. was to show the lender as the ben and then do and record an assgt to mers. That way, there was unity of the note and coll instrument. Tiring of the time and money for even that assgt, that plan was ditched in favor of a “MOM” and the members claimed mers, the shell corporation, was their common agent. Members, if not non-members, were allowed to foreclose in mers name, relying on a members tacit, but unverified, poss of the note. The ‘law’ took a look at this m.o. and said ‘not’, thousands and thousands of foreclosures later. In the CHAMPION of Conflicts of Interest, the members-employees executed assignments to their employers, and those members, generally loan servicers (if that), snarfed a gazillion homes by impersonating the real parties in interest.
    Apparently tied to no law of man and now fearless as a result, out of the blue, the m.o. changed and the member employees (if not others) began executing assignments to trusts that were closed years ago as if it were no great shakes. Despite sworn statements to the contrary re: interest,when mers was fighting against a state’s licensing requirement, merscorp member’ employees wearing mers’ hats purport to also (sell and) assign the promissory notes. (If poss is the bomb, why include the note in the assignments?)
    Despite sworn statements by Mers that these notes aren’t negotiable instruments and are regulated by Article 9, merscorp’ members yet stand on possession of these notes for their right to foreclose and for an assignment of the coll instrument (while also including an assgt of the note in the assgt of the dot / mortgage).

    Despite that all the robo-signing was done in mers’ name, courtesy of a “Hultman resolution”, neither mers nor its parent merscorp has seen or felt any of the ramifications which rightfully belong to them (and even LPS is up and at ’em again. So I guess it’s little wonder these guys are fearless today. It’s a disgrace.

    Mers swore to no interest in notes: Nebraska v Mers

    Mers: These notes aren’t negotiable: Hilmon v Mers,
    ED MI 06-13055, 2007 WL 1218718

    Merscorp’ member admits mers can’t assign note (“is mere surplusage”: In re Anderson, NV BK 10-31903 dkt 93

  35. Bankster gibberish in response to mtn to deny their standing : “When the Note rights (that is the rights to the principal and interest under the Note) (jg: what? not the note? just the right to payments?!) are sold by the original lender to others in the
    secondary or tertiary mortgage markets, the various sales of these Note rights (whaaat??) are tracked on the MERS System. As long as any physical transfer (jg: physical transfer? not transfer?) of the Note itself involves a member of MERS (jg: there are no mers members, only its parent co members), MERS remains the named mortgagee or beneficiary of record and continues to act as a nominee for the new Noteholder. If a member is no longer involved with the Note after it is transferred (jg: oh, now the note is transferred) , an assignment of the Deed from MERS to the non-MERS member is recorded in the county where the real estate is located, and the loan is “de-activated” from the MERS System.
    Here, MERS remained the beneficiary throughout the electronic tracking system of the loan until it was de-activated upon assignment to Aurora.”

    Wth? Since Aurora was a card-carrying charter member of merscorp, why does an assgt to Aurora become a trigger event, such that the loan is de-activated upon assgt to Aurora?

    “Debtor circuitously contends, based on sister-state authorities and unwarranted speculation, that MERS is unable to assign the deed of trust; or, at least, MERS was unable to do so on December 22, 2010 because SCME then no longer existed…”

    Duh. Makes sense to me. Obviously ‘mers’ can’t be a ben for a non-existant business. Thus, mers has to be acting for someone else (unless you believe as I do that mers is thee ben and acts in its own right). But, using their own bs, for whom is mers acting and how does anyone know there’s a relationship between mers and that party, that is, the last beneficiary – i.e., mers’ principal in an alleged principal – nominee relationship, (since mers is alleged to be its nominee)? How does anyone know all note owners were members in the first place?
    At least the first question is an old, old question and yet, I don’t think it’s ever been answered by any court. The homeowner in this case, like many others, just let this bs skate – as did one more court.
    How does one acting for another demonstrate his authority when the identity of that party isn’t even known? Reliance on ‘its successors and or assigns” is bs since A can’t make mers the nominee of B – or C or D or Z. What mers may do is BE the ben until it’s not (except that as thee ben it does bifurcate the note and dot and imo this was willful, maybe originally having to do with bk remoteness since mers owns nothing, owes nothing). If a dot follows a note, then recorders’ offices in states which mandate assgts be of record are due a lot of assgts and a lot of money. imo.
    MERS HAS TO GO
    REFUSE TO SIGN A MERS MORTGAGE

  36. They name them as defendants.

  37. Mr. Johnson (real name) got a loan in Nebraska, likely thru Aurora or one of its brokers . The lender is identified as Lehman Brothers Bank.
    Hold that thought.
    Aurora Bank originated in DE in 1921. It changed its name to Aurora Bank Fsb in 2009. It was at sometime or all times a sub of Lehman Bros. Bancorp, but it was NOT Lehman Brothers Bank.

    In 2011, Mr Johnson filed bk. Aurora Bank filed a secured claim in his bk (I found no record of an assgt from Lehman Bank to Aurora Bk).
    NationStar filed an amended poc, claiming it was thee creditor, not someone’s agent or att in fact (there are boxes to check). NS identified itself as both a “Party in Interest” (nnot to be confused with the real party in interest) and thee creditor when submitting the mtn to amend the poc post-claim cut-off date (this is bk and bk’s have claim cut off dates). NS entered into a loan mod with Mr. Johnson, wherein it again identified itself as the creditor in the loan mod agreement, but concurrently identifies FNMA as the “owner of the loan” (!!!) NS executed the modification agreement as the “lender”.
    How do they get away with this stuff? How did Lehman’s loan become Aurora’s and how did the servicer, NS, become the creditor and lender when FNMA owns the loan? The case is 11-81765 (NB BK) for anyone looking for some more smack regarding these ‘people’.
    Aurora Bank FSB wholly owned Aurora Loan Services, LLC, btw.
    Aurora Bank is regulated by the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corporation.
    Aurora Bank FSB wholly owned Aurora Loan Services, LLC.

    For more info on NS taking over Aurora’s servicing, read this:

    http://www.costar.com/News/Article/Lehman-Brothers-Sells-Aurora-Bank/139707

    I also ran across a limited poa from a trust to a servicer recently. There are two things noteworthy imo: 1) It’s signed by BOTH parties (as it must be) and 2) while the document describes certain things the servicer may do, it qualifies and restricts them to the terms of the related servicing agreement (if that’s the case, then why are they doing a poa? Prob because the acts aren’t authorized by the servicing agreement, but courts and others will eat it up, anyway, as if the serviciing agreement is of no import / relevance.) No one could tell if the att-in-fact-servicer could do one thing, nada, without seeing the servicing agreement, also. Further, as a matter of law, agents, for instance, may not delegate certain duties they took on (There’s no evidence any sec’n trustee is acting within his own authority by delegating whatever is alleged to be delegated in this limited power of attorney. And last but not least, such a ltd poa still doesn’t make the servicer the party who meets Rule 17’s mandates for real party in interest. Imo, they would still have to join the rpii as a named plaintiff or defendant (if all else were Hoyle).

  38. Thanks,
    Now all that being said, People listen The supreme court just came down with 2 huge decisions, 1st- Obama care, 2nd Gay Marriage, The world news reported on it tonight. The reporter stated” The Highest Court has ruled and now it is the LAW of the LAND”. So just like the Jesinoski decision like it or not it is the LAW of the LAND. Use it

  39. It’s those selfish money grubbing.. who enjoy torture of others human beings that shall perish 1st.
    Sounds like the elite who ran this country into the ground. And now While they flee the country… others like them..will be left behind and the 1st to be sent to a FEMA..camp to be reprogrammed if they are not shot first.

    Just saying….

    Melissa.. they were all smart enough to hire attorneys. And we were privileged they shared before they were gagged. Attacking Neil was to their own pearl. I still disagree with the 20 day theory… but I won’t knock anyone from taking that path at their own risk.

    But what do I know.
    I know what Works… without all this BS lengthy litigation.
    I like Simple!
    Fee Simple

  40. Melissa, what’s not right about all those people is their heads. Blockhead (Rock) probably does work at MERS, which would explain the office girls laughing uncontrollably over Rod’s deciphering of Jesinoski. No doubt that childish-squealy giggling has quieted down now that they see the ramifications, and that Neil, Rod, Dwight et al were right on the money.

    Bob Hurt’s simply a despicable old geezer who should spend the rest of his days in the nether reaches of the internet where like-minded fools exchange idiotic philosophies like how slavery’s a good thing and that people need to be subjugated due to their not being as gifted and intelligent as Bob and his ilk….when in actuality he and his are all certifiably insane and should walk the green mile just for the hell of it. I’ll clamp down the sponge and flip the lever free of charge.

    Christine’s just a narcissistic moll who got tangled up with these clowns much like that prison worker who befriended the murderers in upstate NY. She’ll reappear here before too long under another name as she and the other moron SC have many times in the past. As to SC, anyone who still posts sound effects like *GRINS* should be subject to water boarding or worse, dinner at the Cheneys. Class A Buffoon.

    Oh, and she’s a Reverse Mortgage Expert? That should land her at Gitmo just for starters. Vile concept that. I imagine she freelances at kicking kittens.

  41. Yes, Melissa, they are paid trolls. It is my belief that they have other blogs they troll on, too. Mostly, I just delete them when they post. Christine is the biggest rat of them all. They will probably be back.

  42. This is the same web-seminar I posted a few weeks back. Does anybody find it very strange that Rock, Christine, Bob Hurt and all the other goof balls are not here chiming in on this? They were calling everyone kool-aid drinkers and losers, but now NOTHING. Something is not right. I’ve been on Bob Hurt’s website, they are not there either, and remember none of them are lawyers, I think maybe they work for the banks.

  43. You all do realize the fast track of the TPP and the passing just made Obama a dictator and stripped Americans of their soverginty and the Constitution …Right?

    Lets Pray the BRICS countriesdont allow the wanna be NWO. Drag eveveryoninto WW3.

    At the very least we will have a Civil War within and they have JadeHelm prepared to enforce Marshall Law.

    Hang on tight folks…the roller coaster is on its way down the last drop..
    And its the steepest before we hit bottom.

    God Help Us All!
    Be Kind!
    Treat people how you would want treated yourself.
    And that’s how they will treat you.

    Some people like being knocked upside the head…
    They keep coming back for more….

  44. Here is a Good Laugh for all you 1st year law students.

    After all these 12 month years…hint hint….some fool filed an abandonment claim on my homestead and claimed they had been paying the taxes… The Trust this time…bahahahahaha!

    I pay the attorney to represent me on. A false claim.
    And the Judge says they have to pay them back.
    Oh Heavens….something else I have in common with Christine, Neil.

    ***Giggles***

  45. Neil has your staff updated the software to include a report button yet yet? The technology has been readily available for years.

    Feed the Hyenas…. Stop the Laughable attacks.

    You know me well enough after 7 years to know I Bite Back. Hard!!

  46. The SOL runs against both parties.

    Just saying…

  47. Well Shadowcat pays to keep Attorney on Retainer.
    Shadowcat follows that legal advise.
    They tell Shadowcat nothing except what to do.
    Shadowcat has bossy friends.
    But Shadowcat firmly believes in continuing education.

    Thee hindered Shadowcats tender?
    What fool in their right mind would refuse tender ?
    Shadowcatcat don’t want dirty money.
    Could careless what they do with it.
    Shadowcat wants what was stolen.
    If that’s not possible….Enforce the Contract!

  48. Rescission, IMHO, means that the servicer will freak out that money HAS TO BE PAID BACK to the homeowner and will slink away. However, you need to get those documents filed at the register of deeds office at the county level so the title is cleared. Just sayin…

  49. Dwight, you have not been here as long as I have or E.Tolle or Deb Wynn. SC has been a pain in the a%$ for a very long time.

  50. “In order to “return” the money to borrower somebody has to pay it. The servicers, the banks sand the trusts don’t have any investment in these loans.”

    The cert buyers were warned of the possibility of diminished return re: tila rescission ((etc) in at least the prospectus supplement. But the mechanics are of interest, least to me.
    If Dwight rescinds a 300k loan, does the trust-remitter simply deduct his 300k (plus costs of loan) from a monthly remittance? Let’s say Dwight paid 10k in ‘costs’ for his loan and the trust paid the face value of 300k for the loan (just say). Will the remitter deduct the 10k, along with all the interest Dwight paid pre-rescission, meaning the investors are now eating the loan costs (the 10k) paid to others? As a lay person, for this and other reasons (namely the restrictive language in the note itself), I still can’t see how a note which is subject to rescission is a negotiable instrument such that one may become a hdc. If it’s not a negotiable instrument, obviously mere possession means nothing, right? But – that’s of no value at this point since “mers’ is alleging to sell and assign the note & coll instrument to trusts and reliance has shifted from poss of the note (mostly post-consent order) to that assignment.

  51. “Rescission is really a borrower’s remorse remedy.”
    Not so. That’s true enough of the 3 day right of rescission, the ‘I don’t need a reason’ rescission, but not so of the 3 year ROR. It wasn’t created for ‘remorse’; it was created as a penalty for failure to comply, a point which imo rescinding borrowers should drive home to courts best they can.

  52. SC needs to take some basic English language skills classes, she has no clue … all of her posts are meaningless riddles of confusion. She posts more messages than anyone else, and says nothing.

  53. SC wrote, “What you don’t know can not hurt you.”

    Maybe, but what YOU don’t know hurts everyone who has to read through your gibberish trying to make sense of your jumbled thoughts.

    Read your post again…it makes absolutely NO sense!

    Practice tip: Think BEFORE typing!

  54. Java….having a purchase mortgage ( if you want to call it that) actually removes layers and makes it easier to get the jugular.

    I know about the theft and I know how it harmed me …….
    But most don’t know and its the popular belief of… What you don’t know can not hurt you.

    As an investor that so many here couldn’t give a hoot about and plays this the Judge is an investor crap blame game really gets me boiling.

    IPO…..initial public offering
    It could be anybody and or everybody.

    Wake UP!

  55. #4 cracks me up….

    4. Rescission is really a borrower’s remorse remedy

    Awe! Poor jilted banksters who’ve been so accustomed to stealing at will.

    Whereas prior to Jesinoski, rescission was simply a way for the banks to ignore rescission notices across the board and exactly like common criminals steal homes across the land, with, btw, the tacit approval of the judiciary, the non-existent regulators, and MIA law enforcement agencies from low to high. Misprision of FELONY, at the very least.

    #4 would better read:

    Rescission is really a borrower’s blinding enlightenment to the crime spree remedy – now bend over bankster!

  56. The judges and clerks of court, etc. in several states have a pension plan which is invested in mortgage back securities. There are even lawsuits against the banks for bad MBS’s, but the beat goes on. This is IMHO where the domino theory comes into plan. If one domino falls, all the rest will fall and all the banksters and servicers will be exposed. I still know they will fall eventually.

  57. I think its interesting… and I want to compare the illegal foreclosure situation to a plumbing emergency… water (foreclosures) gushing everywhere. Since the beginnings back in 2008 and until the present, our Legal system in this Country has been rushing to stem the flow of gushing illegal foreclosures to the benefit of the Lenders… and even in the above its apparent that whoever put the Power Point Presentation together did so for the benefit of the Lenders. Now 8 years after its initiation, with every Govt. report and hundreds of Professional viewpoints all a scathing endightment of the lenders and their fraudulant practices… with Billions $ paid in fines and clear culpability landed squarely on the shoulders of the Lenders and their minion… the Legal Industry still proceeds in their attacks against the very Law they are charged with fairly representing… to the favor of the Lenders.

  58. Send it in. You have nothing to lose and everything to gain.

  59. 1. What about purchase mortgages ??? And if not. Why only on refinance??
    2. What about modifications ???
    3. What about recisions mailed with QWR yet house was still fraudclosed ???

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