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SO here we have the 4th DCA getting close the 2d DCA opinion posted yesterday. You have the non-existent American Broker’s Conduit as “originator”, Wells Fargo playing the part of servicer, and HSBC playing the part of Trustee for a Trust that never received the loan. Hence there was no owner and no servicer, whose rights derive from the terms of the trust (but since the trust didn’t own the loan, the servicer had no rights to service that loan).
Once again in another DCA in Florida the courts are asking “where’s the beef?” If the transactions are not real or disclosed then how is the court to treat documents that “talk about” the transactions as if there were real purchases and sales of the loans and loan documents.
The reason why there are no such proffers of real evidence is that there is no real evidence. The banks are faking it. And they have been quite successful in nearly 8 million foreclosures. Finally the courts are refusing to be used as tools in the largest economic crime in human history. We have turned the corner. Anyone who loses these cases at the trial level should take it up on appeal — if they have the resources and they have an adequate record on appeal. Remember that Standing is a jurisdictional issue and you can raise jurisdiction at any time, including on appeal, for the first time.
And there is no doubt that standing is the burden of the party who is asserting standing. It is not on the borrower to show that the foreclosing party lacks standing. It is up to the foreclosing party to prove a prima facie case with real evidence and without presumptions that shows that possession of the note was the result of a real transaction or that they have received authorization from someone who had possession of the note with rights to enforce, which means that they in turn received the note or the rights to enforce from the party who is the actual creditor. Under normal circumstances, there would be no doubt that the bank would need to show and even want to show that the transactions were real. The fact they they are fighting iit could only mean one thing — the entire chain is fabricated, forged and a total sham.
The problem is that Judges, lawyers and even borrowers are still having trouble with the notion that the banks would come to court without any reason for being there except greed. The banks come to court because they have successfully barred the real creditor from knowing about and participating in any efforts to collect on the money advanced by investors, who are the real creditors. So there is nothing to stop the banks from lying to borrowers, lawyers, judges and even appellate courts because they are the only ones who know the real story.
Filed under: foreclosure