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This is not legal advice on your case. Consult a lawyer who is licensed in the jurisdiction in which the transaction and /or property is located.
Can’t help saying I told you so. The banks, servicers, trustees et al can’t come into court claiming a right to collect or foreclose when they can’t prove the transactions by which they say they came into possession of the loan documents. It has long been the successful strategy of banks to hoodwink judges into treating them as Holders in Due Course — even when HDC status is expressly denied by the foreclosing party. For them it is simple: they have the note in their possession and that is all anyone needs to know. WRONG.
Practice Note: Lawyers should use this a case to bolster their claims for discovery. The express wording of this decision clearly makes the case for information that might lead tot he discovery of admissible evidence concerning the accounting for the possession of the note — which means, as this court states, proving the actual transaction, not, “beating around the bush” with instruments that talk about the transaction as though it had occurred.
The Court is getting serious about the right to foreclose based upon false premises and doesn’t like the arguments advanced by US Bank one bit. This also applies importantly to CitiMortgage which heavily relies on the arguments stated in this decision.
“This Court cannot fill in the blanks of an incomplete chain in order to determine that US Bank actually acquired the instrument …. the transferee must account for possession of the unindorsed instrument by proving the transaction through which the [alleged] transferee acquired it…
Ultimately the problem with US Bank’s attempt to establish standing to foreclose is that it relies on a “paper trail” that beats around the bush but never axes the tree necessary to establish the legal requirement of standing. We cannot, as advocated by U.S. Bank, presume standing simply because it serviced the loan; Long standing case law prevents us from doing so.”
Lawyers who do not fight on this point are literally snatching defeat from the jaws of victory. The whole point of my work over the past 8 years has been to alert everyone that none of the transactions presumed actually occurred. The false presumption has been that the burden of proof was on the borrower to prove that even though it was the other side who had the only proof. But the burden is not on the borrower. It is on the foreclosing party to at least make a prima facie case for standing and they can’t do that through mere presumptions concerning fabricated instruments that appear to be facially valid.
In the real world of banking there are plenty of tracks that would show such a transaction if it really had occurred. The fact that the banks, servicers, trustees et al are fighting so hard against revealing those tracks is the strongest indication that no such tracks, and therefore no such transactions ever occurred. Any bank who was seriously thinking about buying into such a transaction would insist on seeing the footprints of the transaction and proof of payment. The courts should do nothing less than the banks require of each other and themselves when the transactions are real.
Filed under: foreclosure |