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As Judges catch up to the reality and disabuse themselves of the assumption that the Banks wouldn’t file foreclosure without a good reason to do so and a legally enforceable right to do so, we get more and more decisions like this one.
BOA like the other banks is in pursuit of foreclosures for many reasons. They have no right to foreclosure and the real creditor is being blocked out of the equation. The so-called investor doesn’t even know the foreclosure was filed. And they are contractually stopped from even inquiring, just as the Trustees of the REMIC Trusts don’t know anything, don’t have anything and are not allowed to do anything or ask anything.
Some time back I had a case in which unknown to the heirs, a deceased homeowner had purchased a life insurance policy that paid BOA directly. BOA took the money, filed a satisfaction of mortgage and then went after the heirs to sign a “modification agreement” on a debt that no longer existed. This was not negligence. A few years later the heirs ran into some financial trouble and BOA filed foreclosure against them and then sought to withdraw their recorded satisfaction of mortgage. The list is endless of cases where banks have foreclosed on nonexistent mortgages — i.e., they NEVER existed. Judges entered judgments, even default judgments without seeing any evidence that the mortgage was real.
So I find it encouraging that more and more judges are taking seriously the strict procedural requirements and substantive requirements for a foreclosure to go forward and awarding damaged borrowers some money to recover from the malfeasance of the bank.
The plain truth is that BOA and other banks are pursuing foreclosures not because they are the lender or a successor to a lender or even an authorized representative of the real creditor. They are actually using the illusion of a default and foreclosure to cover up the fact that they are really suing for themselves — even if they are not the lender, the successor or authorized representatives. They are getting title to homes in which they have no investment. SO THE FREE HOUSE IS GOING TO BOA AND OTHER BANKS, NOT THE BORROWER.
But they do have investment in the “servicer advances” which are neither advances nor paid by the servicer out of its funds. Their problem is that they have no direct claim against the borrower for those advances, and if they reveal it, it will show that the “creditor” has not experienced a default because they have received the payment they expected. The creditor’s books balance and are fully reconciled. The servicer’s books balance and are fully reconciled, even if reported inaccurately.
THEY ARE NOW PACKAGING UP THESE SERVICER ADVANCES THAT THEY CLAIM DO NOT EXIST AND SELLING THEM INTO THE SECONDARY MARKET FOR SALE AS SECURITIZATION PRODUCTS. Here is the rub: The money for “servicer advances” comes from a “reserve” (slush) fund that is actually disclosed in the prospectus. The investors were paid with their own money regardless of whether the borrower paid or not.
SO the Banks are (1) foreclosing without any right, justification or excuse (2) hijacking the process so that they can “recover” servicer advances in which the investor money was used to pay the investors and (3) forcing homeowners into foreclosure so that they can make their endless scheme of fraud work for the banks — not the investors and certainly not for the borrowers.
The old “investor rejected the modification” line doesn’t cut it. They never asked the investor. Look at the PSA and the prospectus. The servicer doesn’t need to ask the investor (according to THEIR contract, which is against public policy) and THAT is because the Banks, although they were intermediaries, posed as the principals in every transaction and every foreclosure. None of it was true — where the loan (96% of all loans) was subject to false claims of securitization.
Filed under: foreclosure