11th Circuit: Proof of Claim is Attempt to Collect a Debt. If it’s late it’s barred by FDCPA

Just a moment while I am on the run. Hat tip to my clients who sent me this. It might be time to take a harder look at making claims under FDCPA.

In Crawford v. LVNV Funding, LLC, the Eleventh Circuit held that the creditor violated the Fair Debt Collection Practices Act (“FDCPA”) by filing a proof of claim to collect a debt that was unenforceable because the statute of limitations had expired.

 In Crawford, a third-party creditor acquired a debt owed by the debtor from a furniture companyIn affirming the bankruptcy court’s dismissal, the district court found that the third-party creditor did not attempt to collect a debt from the debtor because filing a proof of claim is “merely ‘a request to participate in the distribution of the bankruptcy estate under court control.’ Furthermore, the district court found that, even if the third-party creditor was attempting to collect the debt, the third-party creditor did not engage in abusive practices. On appeal, the Eleventh Circuit reversed, holding that the third-party creditor violated the FDCPA by filing a stale claim in the bankruptcy court.

Circuit courts are split as to whether the Bankruptcy Code displaces the FDCPA in the bankruptcy context. Some Circuits have concluded that the Bankruptcy Code displaces the FDCPA in the bankruptcy context. The Second Circuit held that the FDCPA is not needed to protect debtors who are already under the protection of the bankruptcy court, and there is no need to supplement the remedies afforded by bankruptcy itself.

In Crawford, Eleventh Circuit ruled against the creditor based on FDCPA without discussing the preemption issue in this case. The Eleventh Circuit noted that Congress enacted the FDCPA in order “to stop ‘the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.’” In reaching its decision, the Eleventh Circuit stated that the FDCPA regulates the conduct of debt-collectors, which is defined as any person who “regularly collects … debts owed or due or asserted to be owed or due another.”.   The creditor did not dispute that it was a debt collector and thus subject to the FDCPA.

The Court referred to the Section 1962(e) of the FDCPA, which “provides that ‘[a] debt collector may not use any false, deceptive or misleading representation or means in connection with the collection of any debt.’” Because Congress did not provide a definition for the terms “unfair” or “unconscionable,” the Court adopted a “least-sophisticated consumer” standard to determine whether the creditor had violated FDCPA.

In Crawford, the creditor filed a time-barred proof of claim because “[a]bsent an objection from either the Chapter 13 debtor or the trustee, the time-barred claim is automatically allowed against the debtor pursuant to 11 U.S.C. § 502(a)-(b) and Bankruptcy Rule 3001(f).” Indeed, in Crawford, neither the trustee nor the debtor objected to the claim in the bankruptcy case, and the trustee disbursed the money to the creditor. The  Eleventh Circuit reasoned that a debt collector’s filing of a time-barred proof of claim, similar to the filing of a stale lawsuit, creates the misleading impression to the debtor that the debt collector can legally enforce the debt.   Therefore, the Eleventh Circuit found that under the “least-sophisticated consumer” standard, the creditor’s filing of a time-barred claim in debtor’s bankruptcy Chapter 13 case was “unfair,” “unconscionable,” “deceptive,” and “misleading” within the broad scope of the FDCPA

The Crawford decision allows debtors and their attorneys to receive damages from debt collectors who file time-barred proof of claims. Congress provided consumer debtors with a private right of action, rendering “debt collectors who violate the [FDCPA] liable for actual damages, statutory damages up to $1,000, and reasonable attorney’s fees and costs.”

Creditors should be especially careful to not file any time-barred proof of claims in jurisdictions that allow FDCPA claims. Moreover, if the debtor files a bankruptcy proceeding in a jurisdiction where FDCPA claims are allowed, he should review every proof of claim filed in his estate. If a creditor files a time-barred claim, the debtor should object to the claim. Furthermore, the debtor should file an action against the creditor under the FDCPA.

Even if the debtor or the trustee failed to object to the time-barred claim and paid off the stale debt, as was the case in Crawford, the debtor should be able to recover under the FDCPA. Alternatively, if the debtor files a bankruptcy proceeding in a jurisdiction where FDCPA claims are unavailable, the debtor should review filed proof of claims and object to any stale claims despite the unavailability of statutory damages and attorney’s fees. Whether or not FDCPA claims are available in a jurisdiction, debtors should be vigilant since creditors may continue to file stale proof of claims because the debt they are able to recover may be more than the damages they pay out in violation of the FDCPA.

See generally Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014).

See Id. at 1257.

105 Responses

  1. from David @10:13 on the 17th:
    “All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans

    and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans.

    jg: I’m not sure a loan seller may be the custodian for a buyer, at least unless there were first delivery to the buyer – calling a note-seller the custodian for the buyer looks like a disingenuous attempt to avoid the delivery which legitimizes a sale.

    On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee…..

    jg: same as above

    The Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for the Mortgage Loans which shall be appropriately identified in the Seller’s computer system to clearly reflect the ownership of the Mortgage Loans by the Purchaser….

    jg: this certainly makes it easier to pawn off a copy of the servicer’s copy of the note as a copy of the original (and not properly identify it as a copy of a copy). No foul maintaining a copy, but that sucker should be stamped “copy” to preclude copies of copies from being introduced as copies of originals.

    which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller, and if in the form of an allonge, the allonge shall be stapled to the Mortgage Note)

    jg: I know nada about the legality of stamps v wet ink for note endorsements, but no endorsement belongs on an allonge unless there is NO room on the front of the note. (I’ve seen at least one note where the endorsements – three – are all alleged to be on the back of the note* and the last one is upside down, suggesting if not evidencing it was put on by some photo-shop or fax trickery.
    *can’t tell if these endorsements are actually on the back of a note when they’re submitted to courts – need the original to see if they’re actually on the back and not a copy of someone else’s note endorsements, say, or even just some created for litigation. The original note is the best evidence pursuant to the best evidence rule of the FRE’s. And I vaguely remember that anyone who signs a note for someone else without identifying that fact remains liable on the note or like that (so I suppose that includes putting a stamp on it). But soon as we make the proper argument about that, they’ll just come up with an alleged poa and endorse as such, if history’s a clue. It’s pretty darn hard to use the truth to beat those who are willing to do whatever it takes. Luckily, they screw up because one lie usually takes another or four.

    This screwy agreement, which imo is critical to standing,** won’t stand scrutiny by those able to assimilate what’s being said. It strikes me as bs / garbage. I also note that the purchaser’s remedy is limited to repurchase by the seller, but the actual causes for even that remedy aren’t clearly defined imo.
    The banksters were clever enough, however, to be clear and articulate the separation of the servicing they retained so that they could keep it if some S hit the fan in a bk (or other) proceeding, such as seen in another of David’s cases here where the seller / servicer had to fight to retain servicing after its bk.

    **there isn’t merely reliance in these deals on article III anything as the banksters would sell – these purchase agreements are important. To the extent these notes are moved by article III anything, the endorsements are merely the culmination, as I’ve opined, of written agreements, just like a warranty deed, say, is the culmination of a sales contract on a home. But if there’s reliance on Article III because that reliance is appropriate and thus making endorsement the bomb, IF (got me) it’s like contract law, the terms of the purchase agreement here between GMAC and RAMP wouldn’t survive a note transfer to the trust. In other words, if RAMP paid and GMAC actually delivered, that could be the end of it (“it” being a transfer). It’s a maxim of the law that a real estate contract “doesn’t survive a closing”. In other words, if one closes on the purchase of a home differently than stated in the contract, the contract becomes inoperable.
    Lay opinions as always

  2. it all started with this. everyone one needs to get this UNSEALED CASE. AND READ IT, HAVE YOUR LAWYERS READ IT.

    Your mortgage documents are fake!
    Prepare to be outraged. Newly obtained filings from this Florida woman’s lawsuit uncover horrifying scheme (Update)

    DAVID DAYEN Follow
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    TOPICS: MORTGAGE CRISIS, MORTGAGE FRAUD, LAWSUIT, EDITOR’S PICKS, BANKS,JPMORGAN CHASE, WELLS FARGO, CITIGROUP, BANK OF AMERICA, BUSINESS NEWS,POLITICS NEWS

    Your mortgage documents are fake!
    Lynn Szymoniak (Credit: CBS News/60 MInutes)
    If you know about foreclosure fraud, the mass fabrication of mortgage documents in state courts by banks attempting to foreclose on homeowners, you may have one nagging question: Why did banks have to resort to this illegal scheme? Was it just cheaper to mock up the documents than to provide the real ones? Did banks figure they simply had enough power over regulators, politicians and the courts to get away with it? (They were probably right about that one.)

    A newly unsealed lawsuit, which banks settled in 2012 for $95 million, actually offers a different reason, providing a key answer to one of the persistent riddles of the financial crisis and its aftermath. The lawsuit states that banks resorted to fake documents because they could not legally establish true ownership of the loans when trying to foreclose.

    This reality, which banks did not contest but instead settled out of court, means that tens of millions of mortgages in America still lack a legitimate chain of ownership, with implications far into the future. And if Congress, supported by the Obama administration, goes back to the same housing finance system, with the same corrupt private entities who broke the nation’s private property system back in business packaging mortgages, then shame on all of us.

    The 2011 lawsuit was filed in U.S. District Court in both North and South Carolina, by a white-collar fraud specialist named Lynn Szymoniak, on behalf of the federal government, 17 states and three cities. Twenty-eight banks, mortgage servicers and document processing companies are named in the lawsuit, including mega-banks like JPMorgan Chase, Wells Fargo, Citi and Bank of America.

    Szymoniak, who fell into foreclosure herself in 2009, researched her own mortgage documents and found massive fraud (for example, one document claimed that Deutsche Bank, listed as the owner of her mortgage, acquired ownership in October 2008, four monthsafter they first filed for foreclosure). She eventually examined tens of thousands of documents, enough to piece together the entire scheme.

    A mortgage has two parts: the promissory note (the IOU from the borrower to the lender) and the mortgage, which creates the lien on the home in case of default. During the housing bubble, banks bought loans from originators, and then (in a process known as securitization) enacted a series of transactions that would eventually pool thousands of mortgages into bonds, sold all over the world to public pension funds, state and municipal governments and other investors. A trustee would pool the loans and sell the securities to investors, and the investors would get an annual percentage yield on their money.

    In order for the securitization to work, banks purchasing the mortgages had to physically convey the promissory note and the mortgage into the trust. The note had to be endorsed (the way an individual would endorse a check), and handed over to a document custodian for the trust, with a “mortgage assignment” confirming the transfer of ownership. And this had to be done before a 90-day cutoff date, with no grace period beyond that.

    Georgetown Law professor Adam Levitin spelled this out in testimony before Congress in 2010: “If mortgages were not properly transferred in the securitization process, then mortgage-backed securities would in fact not be backed by any mortgages whatsoever.”

    The lawsuit alleges that these notes, as well as the mortgage assignments, were “never delivered to the mortgage-backed securities trusts,” and that the trustees lied to the SEC and investors about this. As a result, the trusts could not establish ownership of the loan when they went to foreclose, forcing the production of a stream of false documents, signed by “robo-signers,” employees using a bevy of corporate titles for companies that never employed them, to sign documents about which they had little or no knowledge.

    Many documents were forged (the suit provides evidence of the signature of one robo-signer, Linda Green, written eight different ways), some were signed by “officers” of companies that went bankrupt years earlier, and dozens of assignments listed as the owner of the loan “Bogus Assignee for Intervening Assignments,” clearly a template that was never changed. One defendant in the case, Lender Processing Services, created masses of false documents on behalf of the banks, often using fake corporate officer titles and forged signatures. This was all done to establish standing to foreclose in courts, which the banks otherwise could not.

    Szymoniak stated in her lawsuit that, “Defendants used fraudulent mortgage assignments to conceal that over 1400 MBS trusts, each with mortgages valued at over $1 billion, are missing critical documents,” meaning that at least $1.4 trillion in mortgage-backed securities are, in fact, non-mortgage-backed securities. Because of the strict laws governing of these kinds of securitizations, there’s no way to make the assignments after the fact. Activists have a name for this: “securitization FAIL.”

    One smoking gun piece of evidence in the lawsuit concerns a mortgage assignment dated Feb. 9, 2009, after the foreclosure of the mortgage in question was completed. According to the suit, “A typewritten note on the right hand side of the document states: ‘This Assignment of Mortgage was inadvertently not recorded prior to the Final Judgment of Foreclosure… but is now being recorded to clear title.’”

    This admission confirms that the mortgage assignment was not made before the closing date of the trust, invalidating ownership. The suit further argued that “the act of fabricating the assignments is evidence that the MBS Trust did not own the notes and/or the mortgage liens for some assets claimed to be in the pool.”

    The federal government, states and cities joined the lawsuit under 25 counts of the federal False Claims Act and state-based versions of the law. All of them bought mortgage-backed securities from banks that never conveyed the mortgages or notes to the trusts. The plaintiffs argued that, considering that trustees and servicers had to spend lots of money forging and fabricating documents to establish ownership, they were materially harmed by the subsequent impaired value of the securities. Also, these investors (which includes the Treasury Department and the Federal Reserve) paid for the transfer of mortgages to the trusts, yet they were never actually transferred.

    Finally, the lawsuit argues that the federal government was harmed by “payments made on mortgage guarantees to Defendants lacking valid notes and assignments of mortgages who were not entitled to demand or receive said payments.”

    Despite Szymoniak seeking a trial by jury, the government intervened in the case, and settled part of it at the beginning of 2012, extracting $95 million from the five biggest banks in the suit (Wells Fargo, Bank of America, JPMorgan Chase, Citi and GMAC/Ally Bank). Szymoniak herself was awarded $18 million. But the underlying evidence was never revealed until the case was unsealed last Thursday.

    Now that it’s unsealed, Szymoniak, as the named plaintiff, can go forward and prove the case. Along with her legal team (which includes the law firm of Grant & Eisenhoffer, which has recovered more money under the False Claims Act than any firm in the country), Szymoniak can pursue discovery and go to trial against the rest of the named defendants, including HSBC, the Bank of New York Mellon, Deutsche Bank and US Bank.

    The expenses of the case, previously borne by the government, now are borne by Szymoniak and her team, but the percentages of recovery funds are also higher. “I’m really glad I was part of collecting this money for the government, and I’m looking forward to going through discovery and collecting the rest of it,” Szymoniak told Salon.

    It’s good that the case remains active, because the $95 million settlement was a pittance compared to the enormity of the crime. By the end of 2009, private mortgage-backed securities trusts held one-third of all residential mortgages in the U.S. That means that tens of millions of home mortgages worth trillions of dollars have no legitimate underlying owner that can establish the right to foreclose. This hasn’t stopped banks from foreclosing anyway with false documents, and they are often successful, a testament to the breakdown of law in the judicial system. But to this day, the resulting chaos in disentangling ownership harms homeowners trying to sell these properties, as well as those trying to purchase them. And it renders some properties impossible to sell.

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    To this day, banks foreclose on borrowers using fraudulent mortgage assignments, a legacy of failing to prosecute this conduct and instead letting banks pay a fine to settle it. This disappoints Szymoniak, who told Salon the owner of these loans is now essentially “whoever lies the most convincingly and whoever gets the benefit of doubt from the judge.” Szymoniak used her share of the settlement to start the Housing Justice Foundation, a non-profit that attempts to raise awareness of the continuing corruption of the nation’s courts and land title system.

    Most of official Washington, including President Obama, wants to wind down mortgage giants Fannie Mae and Freddie Mac, and return to a system where private lenders create securitization trusts, packaging pools of loans and selling them to investors. Government would provide a limited guarantee to investors against catastrophic losses, but the private banks would make the securities, to generate more capital for home loans and expand homeownership.

    That’s despite the evidence we now have that, the last time banks tried this, they ignored the law, failed to convey the mortgages and notes to the trusts, and ripped off investors trying to cover their tracks, to say nothing of how they violated the due process rights of homeowners and stole their homes with fake documents.

    The very same banks that created this criminal enterprise and legal quagmire would be in control again. Why should we view this in any way as a sound public policy, instead of a ticking time bomb that could once again throw the private property system, a bulwark of capitalism and indeed civilization itself, into utter disarray? As Lynn Szymoniak puts it, “The President’s calling for private equity to return. Why would we return to this?”

    Update: This story previously suggested that banks settled this lawsuit with the federal government for $1 billion. That number is actually the total for a number of whistle-blower lawsuits that were folded into a larger National Mortgage Settlement. This specific lawsuit settled for $95 million. The post above has been changed to reflect this fact.

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  3. But don’t open the can of worms if u don’t have to!

  4. Amount of tender and damages for fraud etc should all be part of process on bk decision and/or enforcement w/in 1 yr I recall.

  5. That’s how I understand it as G keeps saying bank has to prove standing w/out note if effective at mailing. In those 20 days bank has to rewind your unwinding! That’s why key is consummation or sale imo. But banks can go after debt not foreclose -》unsecured.

    Somehow they’re trying to make non judicial, state law a loophole don’t see it.

  6. Yes, IMHO bankruptcy is going to be something to use as well. Unsecured debt is the ticket. It is supposedly in a trust that no longer exists or never existed, and the debt was not moved into it legally. We also have the fact that MERS bifurcated the note and mortgage and now it is unsecured debt.

  7. Hammertime: “Rescind first? Unsecured debt?”

    Hot topic just now, I think. Seen it, but I forget! The question, of course, is may the amt of tender, which is unsecured, be bk’d?

  8. The other issue is “lender” can’t reject notice with a letter only. No matter what the timing they need to take action in vourt win 20 days. So they sill have hurdle to prove standing when they show up in court if they show.

  9. Louise .. If you mail a TILA rescission letter within 3 years of the consummation .. you DO NOT have to also file a lawsuit .

    The lawsuit is an option for the borrowers , but it is not required.

    The letter alone is sufficient. The lawsuit is only used to try and recover monies and damages if the borrower wants to collect them.

    The lower court erred because they thought the borrowers HAD TO file a lawsuit to make the rescission effective, but that’s not true.

    The US Supreme Court in Jesinoski ruled that you do not need to file a lawsuit in order to make your rescission letter effective.

    But so far the courts all still agree that the letter needs to be mailed within the 3 years. We are all waiting to see a case based on equitable tolling be presented for borrowers mailing outside the 3 years.

  10. For whatever it is worth INMHO, it reads like one section of the document contravenes another section of the document. It looks like it is both ways: the purchaser does not get servicing rights, but later on it looks like they do get servicing rights. What happened to contract law?

  11. I presume this means that the 3 years to file a suit does not count in this decision, however, the way it is worded, it seems “to file a lawsuit” are the big words based on this decision, not just the “rescission letter.” Little bit of a red herring here.

  12. Someone who gets it!!

  13. That’s what we’re talking about David! Thx for posting.

  14. United States Court of Appeals

    For the Eighth Circuit

    ___________________________

    No. 12-2508

    ___________________________

    Bank of America, N.A.

    Plaintiff – Appellee

    v.

    Gary R. Peterson; Sally L. Peterson

    Defendants – Appellants

    JP Morgan Chase Bank, N.A., and its successors and assigns;

    Horizon Bank, National Association; Clear & Close Title Agency, Ltd.,

    also all heirs and devisees of any of the above-named persons who

    are deceased; and all other persons or entities claiming any right,

    title, estate, lien or interest in real estate described in the Summons

    and Complaint herein

    Defendants

    ____________

    Appeal from United States District Court

    for the District of Minnesota – Minneapolis

    ____________

    Submitted: March 4, 2015

    Filed: April 15, 2015

    ____________

    Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

    ____________

    WOLLMAN, Circuit Judge.

    This case is before us on remand from the United States Supreme Court. In

    Peterson v. Bank of America, N.A., 135 S. Ct. 1153 (2015), the Court granted a writ

    of certiorari, vacated this court’s judgment in Bank of America, N.A. v. Peterson, 746

    F.3d 357 (8th Cir. 2014), and remanded the case to us for reconsidering in light of its

    decision in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015).

    In Peterson, we relied upon our court’s decision in Keiran v. Home Capital,

    Inc., 720 F.3d 721 (8th Cir. 2013), in holding that the Petersons’ claim for rescission

    under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., was time-barred by 15

    U.S.C. § 1635(f) because of their failure to file a lawsuit within three years of their

    transaction with Bank of America. 746 F.3d at 360. The Supreme Court held in

    Jesinoski that the Keiran court had erred in holding that a borrower’s failure to file

    a suit for rescission within three years of the transaction’s consummation extinguishes

    the right to rescind and bars relief. 135 S. Ct. at 792.

    In light of the Court’s holding in Jesinoski, we vacate that portion of our

    judgment in Bank of America N.A. v. Peterson that granted Bank of America

    summary judgment on the Petersons’ claim for rescission, reinstate that portion of our

    judgment that vacated the grant of summary judgment to Bank of America on the

    Petersons’ counterclaim for statutory damages, and remand the case to the district

    court for further proceedings consistent with this opinion.

    ______________________________

  15. David, the big question IMHO is whether those servicing rights are actually transferred in whole OR IN PART to the new servicer? Are they sold? More money to account for coming off the top of what is owed by the borrower if they are sold. Who took the loss if any? Maybe more to the point, what was liquidated and lost in this bankruptcy? Where did the servicing rights go? I hope I am making senses.

  16. . Line 16—Statute of limitations adjustment for all deals with tolling agreements.  I have
    been asked by counsel to analyze the effect of a six year statute of limitations adjustment on my
    analysis, taking account of all tolling agreements.31  This adjustment, with certain exceptions, would
    exclude all Trusts that were created before May 14, 2006.  For deals with tolling agreements, the cut‐off
    date is earlier by the number of days in the tolling agreement (for agreements that ended before May
    14, 2012) or the number of days between the date of the tolling agreement and May 14, 2012 (for
    agreements that extend beyond May 14, 2012).  In cases where a deal had multiple tolling agreements
    with different dates, I used the date that resulting in the longest extension.32  Line 16 shows the effect of
    this adjustment on the calculated losses due to underwriting defects.
    65. Line 17—Losses net of statute of limitations adjustment for all deals with tolling
    agreements.  Line 15 plus line 16.
    66. Line 18—Statute of limitations adjustment for deals with tolling agreements entered
    into by trustees.  I have been asked by counsel to analyze the effect of a six year statute of limitations
                                                               
    31 I understand from counsel that, shortly before the commencement of this bankruptcy (in most instances less
    than a year before that date), the Debtors entered into a small number of tolling agreements with RMBS Trustees
    and additional tolling agreements with certain investors.  I assumed for the computation described here that all of
    these tolling agreements in fact toll the statute of limitations. 32 Several trusts had two tolling agreements, one ending in 2010 and a later one ending in 2012. In the case I set
    the extension to the total number of days tolled before May 14, 2012.  

  17. Very Good DB!
    Very Good!!!!!!!!

    Want for Knowledge
    Oh….they knew alright!!!!!
    They Knew!!!!

  18. for purposes of perfecting the security interest pursuant to the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-313 and 9-314 of each thereof);

    i was never notified
    were you.

    and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of

  19. The Purchaser and Seller intend that the conveyance by the Seller to the Purchaser of all its right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage Loans by the Seller to the Purchaser.

    It is, further, not intended that such conveyance be deemed to be a grant of a security interest in the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller

  20. Safe Harbor or Adrift in Bankruptcy: Treatment of Mortgage “Repurchase Agreements” and Servicing Rights in Bankruptcy Court
    February 22, 2008
    By Philip D. Anker, Andrew N. Goldman
    The subprime mortgage crisis of 2007 has led to the bankruptcy filings of numerous mortgage companies. Before bankruptcy, some of those mortgage companies not only originated and sold mortgage loans, but also functioned as the “servicer” of the mortgage loans over the life of the loan. Within these bankruptcy cases, the debtors, the creditors’ committees, the warehouse lenders and others have battled over their respective rights with regard to the mortgage loans and the servicing business. A recent decision in the American Home Mortgage, Inc. Chapter 11 case from the United States Bankruptcy Court for the District of Delaware provides some guidance on these critically important issues. See Calyon New York Branch v. Am. Home Mortgage Corp. (In re Am. Home Mortgage Inc.), 379 B.R. 503 (Bankr. D. Del. 2008).
    The American Home court held that a contract between the debtor-mortgage company and a purchaser for the sale and repurchase by the debtor of mortgage loans constituted a “repurchase agreement” under the Bankruptcy Code, thereby invoking various “safe-harbor” provisions. Under those provisions, the purchaser’s rights under the contract that related to the sale and repurchase of mortgage loans were not stayed or otherwise limited by operation of the Bankruptcy Code. The purchaser could thus take immediate action to terminate the repurchase agreement and sell the underlying loans to third parties, eliminating the debtor’s interest therein.
    The court also held, however, that the portion of the contract that addressed the “servicing” of the loans was severable from the sale and repurchase provisions. Because the servicing portion of the contract did not independently satisfy the definition of a “repurchase agreement,” the purchaser could not take advantage of the safe harbors or affect the debtor’s exercise of its rights concerning the servicing of the mortgage loans. Rather, the debtor retained its servicing business as an asset of its estate for possible future sale.
    Facts
    American Home Mortgage Corp. and certain of its affiliates (the Debtors) engaged in the business of originating, servicing and selling mortgage loans. To fund their business, the Debtors entered into a contract (the Contract) with Calyon New York Branch (Calyon) and other institutions (collectively, the Purchasers) pursuant to which the Purchasers would provide funds to the Debtors to originate mortgage loans. Immediately upon origination, the Debtors would transfer the loans to the Purchasers on an interim basis while they arranged for final disposition of the loans, either through a sale to a private investor or placement in a securitization trust. Once those arrangements were in place, the Debtors “repurchased” the loans from the Purchasers at the original purchase price plus a “Price Differential”–in essence, the Purchasers’ gross profit component. Upon repurchase, the Debtors immediately transferred the loans to the ultimate purchasers (the investor or the securitization vehicle).
    The Contract also provided for servicing of the mortgage loans. Servicing encompasses collecting the mortgage payments, administering tax and insurance escrows, responding to borrower inquiries, and the like. The servicer collects a fee, usually based upon the amount of unpaid principal of the serviced loans.
    Under the Contract, the Debtors sold the mortgage loans on a “servicing retained” basis, meaning that the Debtors retained the right to designate the servicer under the loans. By contrast, a contract could provide for the sale of mortgage loans on a “servicing released” basis, where the purchaser (not the mortgage originator) would have the right to designate the servicer. Here, the Debtors retained that right, and designated one of their entities, American Home Mortgage Servicing, Inc. (AHM Servicing), as the servicer.
    In the weeks leading to their bankruptcy filing, the Debtors experienced a severe liquidity crisis, forcing them to discontinue their indirect loan origination business. As a result, Calyon sent to the Debtors a notice of default, demanding that the Debtors immediately repurchase all of the mortgage loans in Calyon’s possession under the Contract. Calyon also sent a separate “Notice of Default to Servicer,” in which it again asserted an event of default under the Contract, sought to designate a new servicer with respect to the mortgage loans and stated that AHM Servicing would function only as the “interim servicer” pending transfer to the new servicer. Five days later, the Debtors (including AHM Servicing) filed bankruptcy.
    During the bankruptcy case, Calyon purported to terminate AHM Servicing as interim servicer and demanded that the servicing duties be transferred to a servicer of Calyon’s designation. Calyon also filed a complaint against the Debtors in the bankruptcy court presiding over the Debtors’ bankruptcy cases, seeking that court’s judgment that its Contract with the Debtors constituted a “repurchase agreement” under the Bankruptcy Code and, as such, Calyon’s rights under the Contract were not stayed or otherwise limited by any Bankruptcy Code provision. Additionally, Calyon requested that the court order the Debtors to transfer the servicing rights under the Contract to its designee.
    The “Repurchase Agreement” Analysis
    The use of repurchase agreements is widely recognized as a critical component of not only the US capital markets, but also global capital markets. Accordingly, to prevent disruption caused by insolvencies from rippling through those markets, Congress has provided certain safe harbors in the Bankruptcy Code for the benefit of parties to a “repurchase agreement” when their counterparty has filed for bankruptcy. Under those safe harbors, the purchaser–the non-debtor party–may immediately take action to close out the repurchase agreement and liquidate the underlying securities, notwithstanding the automatic stay that generally prevents similar action by most other creditors.
    Sections 555 and 559 protect the enforceability of certain contractual rights to liquidate, terminate and accelerate repurchase agreements based on contractual ipso facto clauses–clauses excusing a solvent party from performance of a contract when the other party becomes insolvent or otherwise suffers certain benchmarks of financial distress.
    Under sections 362(b)(7) and 362(o), the automatic stay is made inapplicable to any rights of setoff under the repurchase agreement and the realization against the underlying loans.
    Sections 546(f) and 548(d) provide exemptions from the preference and fraudulent transfer avoidance powers for settlement and margin payments made with respect to repurchase agreements.
    To implicate these safe harbors, however, a contract must satisfy the definition of a “repurchase agreement.” A standard repurchase agreement provides for a two-part transaction: First, the dealer transfers specified securities to the purchaser in exchange for cash. Second, the dealer contemporaneously agrees to repurchase the securities at the original price plus an agreed upon additional amount at a specified future date not later than one year after such transfer.
    Applying that standard, the American Home court concluded that the portion of the Contract providing for the sale and repurchase of mortgage loans constituted a repurchase agreement. Specifically, the Debtors, as the dealer, agreed to transfer mortgage loans to Calyon, the purchaser, in exchange for funds, with the contemporaneous agreement that the Debtors would repurchase the mortgage loans from Calyon for the price Calyon paid the Debtors plus the agreed upon “Price Differential” within 180 days of the original transfer. Because the Contract constituted a repurchase agreement, Calyon was not stayed from immediately exercising its rights to close out the Contract and enforcing its rights against the underlying mortgage loans.
    In reaching its conclusions, the bankruptcy court rejected the Debtors’ invitation to look beyond the four corners of the Contract and recharacterize the Contract as a secured financing. “[I]f the criteria established in the statute are [met] the contract is a repurchase agreement. No further inquiry or consideration of other contractual provisions is required.” Id. at 516. Indeed, the court stated that Congress intended the Bankruptcy Code to eliminate any inquiry concerning whether a transaction is a purchase and sale, or a secured financing.
    Transfer of the Loan Servicing Provisions
    The court next considered whether the loan servicing provisions of the Contract were severable from the portion of the Contract that provided for the sale and repurchase of mortgage loans. The issue was whether the loan servicing provisions were part and parcel of the repurchase agreement and thereby entitled to the benefit of the safe harbors, or whether they were a separate contract, which would be treated in bankruptcy separately–and perhaps differently–than the repurchase agreement. To resolve this inquiry, the court turned to New York state law, the applicable law of the contract. Under New York law, severability is a question of the parties’ intent. Specifically, “a contract is severable when by its terms, nature and purpose, it is susceptible of division and apportionment.” Id. at 521 (internal quotations omitted).
    Applying that standard, the court found that the provisions concerning the servicing of the mortgage loans were severable from the sale and repurchase provisions. Of critical importance, the Contract provided that the mortgage loans were bought and sold on a “servicing retained” basis, as opposed to a “servicing released” basis, which demonstrated that the Contract itself severed the right to designate the servicer from the underlying mortgage loan. Moreover, the court touched on the economics of this distinction: “All things being equal, a buyer will pay a higher price in a servicing released transaction because the buyer is purchasing the underlying mortgage loan and the right to receive the payments for servicing the loan (which presumably generate a profit for the servicer).” Id. at 522. Since Calyon had presumably paid less in this case for a “servicing retained” contract, the court was unwilling to give it rights that it had not purchased.
    The court also found the following factors relevant:
    The sale and repurchase provisions concerned accessing financing through the repo market, whereas the servicing functions concerned collecting money, paying expenses and otherwise attending to administrative aspects of the loans.
    The consideration for the servicing functions was “readily apportioned from the other consideration flowing under the Contract.” Id. at 521.
    Calyon itself recognized the distinct nature of the two agreements by issuing two separate notices of default on the same day–one to the sellers of the mortgage loans and another to the servicer.
    The court then considered how to treat the servicing provisions, given that it now viewed them as a separate contract. It applied the definitions of “repurchase agreement” and “securities contract” to those provisions, and easily concluded that they met neither. Because no Bankruptcy Code safe harbors applied, the court found no basis to require the Debtors to transfer estate property, i.e., the servicing business, to Calyon’s designee.
    The Bottom Line
    Unless overturned on appeal, the American Home opinion signifies recognition that agreements in the mortgage loan industry for the sale and repurchase of mortgage loans can meet the Bankruptcy Code’s definition of a repurchase agreement. The purchaser may thereby avail itself of the Bankruptcy Code’s safe harbors permitting it immediately to take action to close out the repurchase agreement and liquidate the underlying securities, notwithstanding the automatic stay that would otherwise prevent such action. In that regard, purchasers under repurchase agreements should enjoy significant protections when the dealer files for bankruptcy.
    Where the contract between the parties also addresses the servicing rights for those mortgage loans, however, the servicing rights may not be protected by the Bankruptcy Code’s safe harbors. If the mortgage loans were sold on a “servicing retained” basis, as opposed to a “servicing released” basis, or if the terms of the contract and the parties’ intent otherwise allow the servicing provisions to be severed from the repurchase provisions of the contract, then the servicing rights may not fall within the safe harbors. Rather, the servicing rights may be an asset of the debtor’s estate, to be sold or otherwise administered in the course of the debtor’s bankruptcy case in accordance with the provisions of general bankruptcy law.

  21. read each line slow, look at wording very very carefully….

    MORTGAGE LOAN PURCHASE AGREEMENT

    This is a Mortgage Loan Purchase Agreement (the “Agreement”) dated as of February 27, 2006 by and between GMAC Mortgage Corporation, a Pennsylvania corporation, having an office at 100 Witmer Road, Horsham, Pennsylvania 19044 (the “Seller”) and Residential Asset Mortgage Products, Inc., a Delaware corporation, and having an office at 8400 Normandale Lake Boulevard, Minneapolis, Minnesota 55437 (the “Purchaser”).

    The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller certain mortgage loans on a servicing-retained basis as described herein (the “Mortgage Loans”). The following terms are defined as follows:

    Aggregate Principal Balance
    (as of the Cut-Off Date):
    $550,003,046.49 (after deduction of scheduled
    principal payments due on or before the Cut-Off
    Date, whether or not collected, but without
    deduction of prepayments that may have been made
    but not reported to the Seller as of the close
    of business on such date). Closing Date:
    February 27, 2006, or such other date as may be
    agreed upon by the parties hereto.

    Cut-Off Date: February 1, 2006.

    Mortgage Loan:
    A fixed rate, fully-amortizing, first lien,
    residential conventional mortgage loan having a
    term of not more than 30 years and secured by
    Mortgaged Property.

    Mortgaged Property:
    A single parcel of real property on which is
    located a detached or attached single-family
    residence, a two-to-four family dwelling,
    manufactured home, a townhouse, an individual
    condominium unit, or an individual unit in a
    planned unit development, or a proprietary lease
    in a unit in a cooperatively-owned apartment
    building and stock in the related cooperative
    corporation.

    Pooling and Servicing Agreement: The pooling and
    servicing agreement, dated as of February 27,
    2006, among Residential Asset Mortgage Products,
    Inc., as company, GMAC Mortgage Corporation, as
    servicer and Wells Fargo Bank, National
    Association, as trustee (the “Trustee”).

    Repurchase Event:
    With respect to any Mortgage Loan as to which
    the Seller delivers an affidavit certifying that
    the original Mortgage Note has been lost or
    destroyed, a subsequent default on such Mortgage
    Loan if the enforcement thereof or of the
    related Mortgage is materially and adversely
    affected by the absence of such original
    Mortgage Note.

    All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement. The parties intend hereby to set forth the terms and conditions upon which the proposed transactions will be effected and, in consideration of the premises and the mutual agreements set forth herein, agree as follows:

    SECTION 1. Agreement to Sell and Purchase Mortgage Loans. The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller certain Mortgage Loans having an aggregate amount equal to the Aggregate Principal Balance as of the Cut-Off Date.

    SECTION 2. Mortgage Loan Schedule. The Seller has provided to the Purchaser a schedule setting forth all of the Mortgage Loans to be purchased on the Closing Date under this Agreement, which shall be attached hereto as Schedule I (the “Mortgage Loan Schedule”).

    SECTION 3. Purchase Price of Mortgage Loans. The purchase price (the “Purchase Price”) to be paid to the Seller by the Purchaser for the Mortgage Loans shall be the sum of (i) $537,891,820.77, (ii) the Class PO Certificates and Class IO Certificates and (iii) a 0.01% Percentage Interest in the Class R Certificates issued pursuant to the Pooling and Servicing Agreement. The cash portion of the purchase price shall be paid by wire transfer of immediately available funds on the Closing Date to the account specified by the Seller.

    The Purchaser and Seller intend that the conveyance by the Seller to the Purchaser of all its right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage Loans by the Seller to the Purchaser. It is, further, not intended that such conveyance be deemed to be a grant of a security interest in the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that the Mortgage Loans are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that (a) this Agreement shall be and hereby is a security agreement within the meaning of Articles 9 of the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be, and hereby is, a grant by the Seller to the Purchaser of a security interest in all of the Seller’s right, title and interest, whether now owned or hereafter acquired, in and to the following: (A) the Mortgage Loans, including (i) with respect to each Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note and Mortgage and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, (D) all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, goods, letters of credit, letter-of-credit rights, oil, gas, and other minerals, and investment property consisting of, arising from or relating to any of the foregoing and (E) all proceeds of the foregoing; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of any of the foregoing shall be deemed to be possession by the secured party, or possession by a purchaser or a person holding for the benefit of such secured party, for purposes of perfecting the security interest pursuant to the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-313 and 9-314 of each thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or persons holding for, the Trustee (as applicable) for the purpose of perfecting such security interest under applicable law. The Seller shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were determined to create a security interest in the Mortgage Loans and the other property described above, such security interest would be determined to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Seller shall prepare and deliver to the Purchaser not less than 15 days prior to any filing date, and the Purchaser shall file, or shall cause to be filed, at the expense of the Seller, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Purchaser’s security interest in the Mortgage Loans, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of the Seller or the Purchaser, (2) any change of type or jurisdiction of organization of the Seller, or (3) any transfer of any interest of the Seller in any Mortgage Loan.

    Notwithstanding the foregoing, (i) the Seller in its capacity as Servicer shall retain all servicing rights (including, without limitation, primary servicing and master servicing) relating to or arising out of the Mortgage Loans, and all rights to receive servicing fees, servicing income and other payments made as compensation for such servicing granted to it under the Pooling and Servicing Agreement pursuant to the terms and conditions set forth therein (collectively, the “Servicing Rights”) and (ii) the Servicing Rights are not included in the collateral in which the Seller grants a security interest pursuant to the immediately preceding paragraph.

    SECTION 4. Record Title and Possession of Mortgage Files. The Seller hereby sells, transfers, assigns, sets over and conveys to the Purchaser, without recourse, but subject to the terms of this Agreement and the Seller hereby acknowledges that the Purchaser, subject to the terms of this Agreement, shall have all the right, title and interest of the Seller in and to the Mortgage Loans. From the Closing Date, but as of the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith, has been vested in the Purchaser. All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans. On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee.

    SECTION 5. Books and Records. The sale of each Mortgage Loan has been reflected on the Seller’s balance sheet and other financial statements as a sale of assets by the Seller. The Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for the Mortgage Loans which shall be appropriately identified in the Seller’s computer system to clearly reflect the ownership of the Mortgage Loans by the Purchaser.

    SECTION 6. Delivery of Mortgage Notes.
    ————————–

    (a) On or prior to the Closing Date, the Seller shall deliver to the Purchaser or the Custodian, as directed by the Purchaser, the original Mortgage Note, with respect to each Mortgage Loan so assigned, endorsed without recourse in blank, or in the name of the Trustee as trustee, and signed by an authorized officer (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller, and if in the form of an allonge, the allonge shall be stapled to the Mortgage Note), with all intervening endorsements showing a complete chain of title from the originator to the Seller. If the Mortgage Loan was acquired by the endorser in a merger, the endorsement must be by “____________, successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the endorser while doing business under another name, the endorsement must be by “____________ formerly known as [previous name].” The delivery of each Mortgage Note to the Purchaser or the Custodian is at the expense of the Seller.

    In lieu of delivering the Mortgage Note relating to any Mortgage Loan, the Seller may deliver or cause to be delivered a lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, and, if available, a copy of each original Mortgage Note; provided, however, that in the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, may deliver to the Purchaser a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loan in the Payment Account on the Closing Date.

    (b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as directed by the Purchaser) or the Purchaser discovers any defect with respect to a Mortgage Note which materially and adversely affects the interests of the Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt written specification of such defect or omission to the Seller, and the Seller shall cure such defect or omission in all material respects or repurchase such Mortgage Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03.

    It is understood and agreed that the obligation of the Seller to cure a material defect in, or substitute for, or purchase any Mortgage Loan as to which a material defect in, or omission of, a Mortgage Note exists, shall constitute the sole remedy respecting such material defect or omission available to the Purchaser, Certificateholders or the Trustee on behalf of Certificateholders.

    (c) All other documents contained in the Mortgage File and any original documents relating to the Mortgage Loans not contained in the Mortgage File or delivered to the Purchaser, are and shall be retained by the Servicer in trust as agent for the Purchaser.

    In the event that in connection with any Mortgage Loan: (a) the original recorded Mortgage (or evidence of submission to the recording office), (b) all interim recorded assignments, (c) the original recorded modification agreement, if required, or (d) evidence of title insurance (together with all riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv), (vi) or (vii) of the definition of Mortgage File, respectively, is not in the possession of the Servicer concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office, or, in the case of each such interim assignment or modification agreement, because the related Mortgage has not been returned by the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, or because the evidence of title insurance has not been delivered to the Seller by the title insurer in the case of clause (I)(vii) of the definition of Mortgage File, the Servicer shall use its best efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, such original Mortgage,

  22. I take it personally when falsely accused ……..
    I BITE BACK

    I will abandon something alright…right in the Ole’Smoocher.

    *Grins*
    Granny Out…Time to Ride

  23. GREED!

    Are you ready..?
    Thee Trust acting not in an individual capacity but as trustee
    seeking a mortgage foreclosure on an abandonment claim.

    Trustee advances on a force placed INS.policy ..bahahahahaha
    And 1200 for the trustee fees.

    The Advances…???

    HERE I AM CAN YOU SEE ME NOW!
    I guess not…you missed my faxes and mail…my INS agent faxes and mail denying lapse in my coverage….after they filed default and slandered the title again…..they saw it from my attorney…and the tossing the hot potato around from scum firm to scum firm began.
    And ended in “Want of Knowledge Affidavit” .

    An admission they aint got squat!!!!

    3 Blind Mice!!!

    BLIND I TELL YA!!!

  24. But I wonder where they get the b*^%# from,

  25. Like you say SC they are fake

  26. Thank You Deb. …And the same to You.
    We battle the same Elite ……
    They went through 3 lawfirms before they went down the 2nd time.
    I must admit….they had balls….fake ones!

    This time around I was NOT so nice and nailed them for legal fees.

    Do you think they will come back for more?

    Seriously ….. ? The Evidence speaks for itself.

  27. Wish you success SC

  28. A Mortgage is a two party contract.
    The Mortgor and Mortgagee
    See Instrument.

    Yep…they still want it both ways.
    Ohhh..they getting it both ways…per say.

  29. They can only invoke the due on sale clause in the Instrument …..
    When?
    What? I can not hear you!
    When?

    When what trust is defaulted by the trustee for failure to?

    Oh. Never Mind…. My Mind is Wondering again.
    If you come across it…send it home.

  30. Everybody has a Want for Knowledge…
    I know nothing….
    They know nothing…
    Nobody can prove anything….limbo

    Poor Judge…A room full of Greenhorns and Ignorents.

    Case Dismissed
    Failure to Prosecute. (Refile) SOL!

    Must Love round two drama. Coming back as trusts!
    Under new identities and not as successor…bahahahahaha
    But as trusts not acting in individual capacity but that as trustee….
    Bahahahaha

    How much do KC owe?

    You can not redirect the Master of Redirection!

    Good Bless that Poor Judge….

  31. Abandoned Property ( unclaimed property)…….
    Escheats to the State.

  32. Infinite rehype…..
    Guaranteed Stream of Income….Taxes Ins X 30.
    Irrevocably granted and conveyed….
    Warranted….

    I ask again…What do KC owe?

  33. So if the borrower gives up his homestead exemption…..and all rights to title…..

    Where does that leave me?

    You old timers will know this song……
    She got the goldmine and he got the shaft.

    What? Those are the Tools God gave us Ole’Ole’Timers.

    We Believe!! If its Broken you fix it not throw it out…..
    By working together the Shaft and the Goldmine can create illuminous wonders and squeeze out the splinter.

  34. So lets back up to closing…..
    Without a trustee agreement the deed is moot.
    And the seller estate remains the legal owner.

    Does that explain the deceased sellers trust remaining open 2 years after almost consummation?

    Now that fancy two faced instrument is another story in itself.

  35. Imagine the trouble I am having to BUY the property my husband holds title to via a Trust Deed without a trustee agreement.
    And I warranted…..but after the theft…they crashed it .
    And I am the warrantor….hahahaha

  36. They collected lenders title insurance all the while KNOWING…
    The deeds held in escrow were WARRENTED BY THE ESTATE.
    And GRANTORS UNDER THE INSTRUMENTS CLEARLY DOES SO AND ARE REQUIRED BY THE CONTRACT TO DeFEND TITLE!

    That makes ME a 3rd party to the transaction.

  37. YES DW. ..Yes a subgornation scam alright.

  38. Way back then… They filed LPs.. ..came to court with blank note..
    AND THEY ALMOST NEVER FILED AN ASSIGNMENT OF MORTGAGE.

    The Servicier.

    Think about the consequences down the line ……

    They didn’t assign the mortgage loans because they had No Authority!
    The investors got the mortgages but not the Notes when they were bifurcated . How many times do I have to repeat that.

    Investor

  39. ” SC” talks about subrogation rights I think, was it a big subrogation scam

  40. Nobody tells KC anything….
    Want of Knowledge…

    Tell them to tell KC as Warrantor what KC owes!
    Does KC have Salvage rights after a thief took a joy ride and brought my life back damaged. I mean car…lol

  41. Any volunteers out there ready to substitute for another parties liabilities?

    Just say No!
    The stole investor monies and your identity and credit.

    They substituted a debt collector to invoke the jurisdiction of the court for a foreign entity.

    Do you remember me telling you how the banksters sent my husband tax paperwork requesting verification of his status as a foreign entity. Along with a blank W-9?

    Tax Attorney

  42. The Mortgage is accelerated only when the ………….
    Oh Never Mind….they do not tell me anything.

  43. Well your Honor ….. No one else is trying to collect .
    Special Warranty Deeds without warranty to quality or quantity of title.
    Does anyone know what the Quality and Quantity of title means?

    Wake Up! They know who the original creditors are……they have UNRECORDED CLAIMS. And they Sue them right alongside the borrower on unrecorded liens.

    Think about IT!

  44. Do they use tgat excuse w clouded title issues? Just like TILA alot of past judgments were wrong on other issues. Or we let banks tell us what we can or can’t do. They get around clouded title by saying as long as no one is trying to collect it doesn’t matter!

  45. Hammertime they get around it with ” limited warranty deed”

  46. Ones of the things overlooked as well as fdcpa is marketability of title from DavidB post. Broken chain, title insurance etc

  47. Karen Hudes Whistleblower

  48. Ok…log on to your Facebook…and go read Karen Hudes latest article just published within the hour. Its PDF… Links.

    Learn…

  49. Another one to watch out for…….

    XxxTrust acting…
    Not in its individual capacity but as trustee….

  50. Hammertime…when nailed those guys file “Want of Knowledge Affidavits”…..

    Seriously…how can you not know things like how much does KC owe?

  51. Servicer knowledge of a absulate conveyance or contract for deed…..PERSPECTIVE CONVEYANCES

    Where the property is conveyed or PROPOSED TO BE CONVEYED.

  52. @ Deborah yup the dba entity shell game even Garfield posted about recently. Dba, affiliate, attorney in fact…someone had done a whole cheat sheet of fake entities, titles, forgees. But a date on rescission notice let’s them get away w it?

  53. …..did you say.
    Mortgage Loan, Mortgage Note and Mortgage all in the same sentence ?

  54. Enforcement of Due-On-Sale Clauses; Assumption Agreements.

    The Servicer will, to the extent it has knowledge of any conveyance or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by absolute conveyance or by contract of sale, and whether or not such Mortgagor remains or is to remain liable under the applicable Mortgage Note and/or the related Mortgage), exercise its rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale” clause, if any, applicable thereto; provided, however, that the Servicer shall not be required to take such action if in its sole business judgment the Servicer believes it is not in the best interests of the Trust Fund and shall not exercise any such rights if prohibited by law from doing so. If the Servicer reasonably believes it is unable under applicable law to enforce such “due-on-sale” clause, or if any of the other conditions set forth in the proviso to the preceding sentence apply, the Servicer will enter into an assumption and modification agreement from or with the person to whom such property has been conveyed or is proposed to be conveyed, pursuant to which such person becomes liable under the related Mortgage Note and, to the extent permitted by applicable state law, the related Mortgagor remains liable thereon.

    The Servicer is also authorized to enter into a substitution of liability agreement with such person, pursuant to which the original related Mortgagor is released from liability and such person is substituted as the Mortgagor and becomes liable under the related Mortgage Note, provided that no such substitution shall be effective unless such person satisfies the underwriting criteria of the Servicer and such substitution is in the best interests of the Certificateholders, as determined by the Servicer.

    ​ Another critical area to understand in the PSA is.

    b.

    Ownership. Immediately prior to the payment of the Purchase Price, the Seller was the sole owner and holder of the Mortgage Loans and the indebtedness evidenced by the Mortgage Note. The Mortgage Loans, including the Mortgage Note and the Mortgage, were not assigned or pledged by the Seller and the Seller had good and marketable title thereto, and the Seller had full right to transfer and sell the Mortgage Loans to the Purchaser free and clear of any encumbrance, participation interest, lien, equity, pledge, claim or security interest and had full right and authority subject to no interest or participation in, or agreement with any other party to sell or otherwise transfer the Mortgage Loans. Following the sale of the Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest. The Seller intends to relinquish all rights to monitor, possess and control the Mortgage Loan except in connection with the servicing of the Mortgage Loan by the Servicer as set forth in this Agreement. After the related Closing Date, neither the Seller nor the Servicer will have any right to modify or alter the terms of the sale of the Mortgage Loan and neither the Seller nor the Servicer will have any obligation or right to repurchase the Mortgage Loan, except as provided in this Agreement or as otherwise agreed to by the Seller, the Servicer and the Purchaser.

  55. Now..your question should be…..
    If one trust never existed or existed and failed ….
    What happens to the trusts assets?

    Do they go unclaimed and escheat?

  56. There is a SOL for beating your head into the wall …..
    Right Neil?

  57. Induced deeds under fraud…..
    Wild deed…..
    Return It so that I can Burn it…
    Or
    File IT…them!!!

    Make them take a position and hold their ass to the fire…

  58. One Trust is Irrecoverably yours unless you claim it was procured by fraud. Snickers
    Enforce…..

    Reside..Maintain..Tax…Ins.
    ✔✔✔✔

  59. But the trusts could not exist if the liens were record and those pesky notes been filed with the instrument.

    The liens were held off record and they stopped recording the notes with the Instrument. Did they conflict?

    Off record tax lien as taxes are paid behind a year?

  60. One trust could not hold land…
    One trust could not conduct business….

    HMMM

  61. The Land Trust was created in the Instrument that created the corporate estate dba? A trust? In PPM there WERE two trusts.

  62. David… In layman terms released parties …..including the estate.
    So I ask….. What do KC owe?

  63. FROM DAVID BELander from the RESCAP LINK MANY DOCUMENTS AND DAVID UNDERSTANDS QUITE A BIT ABOUT THIS MASSIVE BK

    read the full thing.

    ARTICLE VII. RELEASES.
    Section 7.01 Releases. Except as set forth in Article VIII, as of the Effective Date, with
    respect to each and every Trust for whom the Trustee accepts the compromise contemplated by
    this Settlement Agreement, the Investors, Trustee, Trust, and any Persons claiming by, through
    or on behalf of such Trustee (including Institutional Investors claiming derivatively) or such
    Trust (collectively, the “Releasors”), irrevocably and unconditionally grant a full, final, and
    complete release, waiver, and discharge of all alleged or actual claims, demands to repurchase,
    demands to cure, demands to substitute, counterclaims, defenses, rights of setoff, rights of
    rescission, liens, disputes, liabilities, losses, debts, costs, expenses, obligations, demands, claims
    for accountings or audits, alleged events of default, damages, rights, and causes of action of any
    kind or nature whatsoever, whether asserted or unasserted, known or unknown, suspected or
    unsuspected, fixed or contingent, in contract, tort, or otherwise, secured or unsecured, accrued or
    unaccrued, whether direct or derivative, arising under law or equity, against ResCap that arise
    under the Governing Agreements. Such released claims include, but are not limited to, claims
    arising out of and/or relating to (i) the origination, sale, or delivery of Mortgage Loans to the
    Trusts, including the representations and warranties made in connection with the origination,
    sale, or delivery of Mortgage Loans to the Trusts or any alleged obligation of ResCap to
    repurchase or otherwise compensate the Trusts for any Mortgage Loan on the basis of any
    representations or warranties or otherwise or failure to cure any alleged breaches of
    representations and warranties, (ii) the documentation of the Mortgage Loans held by the Trusts
    including with respect to allegedly defective, incomplete, or non-existent documentation, as well
    as issues arising out of or relating to recordation, title, assignment, or any other matter relating to
    legal enforceability of a Mortgage or Mortgage Note, or any alleged failure to provide notice of
    such defective, incomplete or non-existent documentation, (iii) the servicing of the Mortgage
    Loans held by the Trusts (including any claim relating to the timing of collection efforts or
    foreclosure efforts, loss mitigation, transfers to subservicers, advances, servicing advances, or
    claims that servicing includes an obligation to take any action or provide any notice towards, or
    with respect to, the possible repurchase of Mortgage Loans by the applicable Master Servicer,
    Seller, or any other Person), (iv) setoff or recoupment under the Governing Agreements against
    ResCap, and (v) any loan seller that either sold loans to ResCap or AFI that were sold and
    transferred to such Trust or sold loans directly to such Trust, in all cases prior to the Petition
    Date (collectively, all such claims being defined as the “Released Claims”). For the avoidance
    of doubt, this release does not include individual direct claims for securities fraud or other
    disclosure-related claims arising from the purchase or sale of Securities.

  64. YeAh
    Nada plus nada

  65. Is that what they call it… math?

    Teach says …. Hold’em Back.

    😷

  66. Sc
    Yes but im contesting it – ALL their math is wrong

  67. Paying them to beat us up …… Imagine that.
    Quite frankly I did not care for their service and no longer wished to use their services.
    Went to payoff what I thought was a mortgage leaving out the servicer.
    A trip to county recorders office to identify the lien holder proved fruitless.
    If I am going to be forced to maintain a relationship…with the party who raped me over…..it ain’t getting nuttin till we Croak or 30 years…which ever comes 1St.

  68. Deb. … Did you get a wake up call when you found out we paid the services and trustees fees?

  69. These stinking instruments require delivery and acceptance.
    👏👏👏👏👏👏
    Good Morning Sunshine.

  70. “Even if the . . . law firm intended the letter and documents to
    give the Reeses notice of the foreclosure, they also could have —
    and did — demand payment on the underlying debt. . . . A
    communication related to debt collection does not become unrelated
    to debt collection simply because it also relates to the enforcement
    of a security interest. A debt is still a “debt” even if it is
    secured….
    The Reese opinion notes the rule that the law firm asked us to adopt — the same rule AHMSI is asking us to adopt here — “would exempt from the provisions of § 1692e any communication that attempts
    to enforce a security interest regardless of whether it also attempts to
    collect the underlying debt.” Id. at 583. We noted that proposed rule would create a big loophole in the FDCPA: “The practical result would be that the [FDCPA] would apply only to efforts to collect unsecured debts.” Id. at 583.”

    “Based on the reasoning of Reese, it is apparent an entity that regularly attempts to collect debts can be a “debt collector” beyond § 1692f(6) of the FDCPA, even when that entity is also enforcing a security interest. ”

    BIRSTER v. AMERICAN HOME MORTG. SERVICING, 481 Fed.Appx. 579 (11th Cir. 7-18-2012) , citing Reese v. Ellis, Painter, Ratterree &
    Adams, LLP, 678 F.3d 1211 (11th Cir.2012).

  71. Louise exactly right they shifted blame with bailouts then got get out of jail card w settlements but no third time is the charm w TILA, Ocwen etc. They’re too arrogant to change and still think they can do what they want or they have to keep scam going with their enablers in courts and government. But the people tgat were asleep or too scared have woken up and are pissed off!

  72. Colorado mines are (last week) spewing nasty amts of sludge and minerals onto land and waterways (this mess was said to be 100 miles long). Suppose Uncle Hank gave you the land on which 3 of these mines sit and recorded deeds to you, but you didn’t know it. That was 4 years ago, and now some bureau is after you, the registered land owner, for the cost of clean up, which happens to exceed 10 million U.S. dollars. Uncle Hank’s been diseased for 2 years now. Think it matters to you whether you accepted his deeds or not?! These stinking instruments require delivery and acceptance.

  73. 15 U.S.C. § 1692e. False or misleading representations

    A debt collector may not use any false, deceptive, or misleading
    representation or means in connection with the collection of any debt.
    Without limiting the general application of the foregoing, the following
    conduct is a violation of this section:

    (1) The false representation or implication that the debt collector is
    vouched for, bonded by, or affiliated with the United States or any State,
    including the use of any badge, uniform, or facsimile thereof.
    (2) The false representation of —

    (A) the character, amount, or legal status of any debt; or

    (B) any services rendered or compensation which may be lawfully
    received by any debt collector for the collection of a debt.

    (3) The false representation or implication that any individual is an
    attorney or that any communication is from an attorney.

    (4) The representation or implication that nonpayment of any debt will
    result in the arrest or imprisonment of any person or the seizure,
    garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
    (5) The threat to take any action that cannot legally be taken or that
    is not intended to be taken.

    (6) The false representation or implication that a sale, referral, or
    other transfer of any interest in a debt shall cause the consumer to —

    (A) lose any claim or defense to payment of the debt; or
    (B) become subject to any practice prohibited by this subchapter.

    (7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.

    jg: it’s been my understanding that a threat of criminal prosecution (period) is taboo.

    (8) Communicating or threatening to communicate to any person credit
    information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed

    (9) The use or distribution of any written communication which
    simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.

    jg: in my opinion the latter part of this includes false / bogus assgt where the assignor has nothing to assign, where the assgt is done for the sole purpose of satisfying an antecedent debt and doesn’t convey the right to payment (iffy on this, just thinking), where the assgt is done for the sole purpose of invoking jurisdiction by an assignee who (still) isn’t the real party in interest, won’t suffer by the loss of non-payment, the recordation of an assgt where the assignee has not accepted the assignment.

    (10) The use of any false representation or deceptive means to collect
    or attempt to collect any debt or to obtain information concerning a
    consumer.

    jg: ditto my last comment

    (11) The failure to disclose in the initial written communication with
    the consumer and, in addition, if the initial communication with the
    consumer is oral, in that initial oral communication, that the debt
    collector is attempting to collect a debt and that any information
    obtained will be used for that purpose, and the failure to disclose in
    subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

    jg: this requires discussion imo

    (12) The false representation or implication that accounts have been
    turned over to innocent purchasers for value.

    jg: ahem, ahem, ahem

    (13) The false representation or implication that documents are legal
    process.

    (14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.

    jg: same as my last comment

    (15) The false representation or implication that documents are not
    legal process forms or do not require action by the consumer.

    (16) The false representation or implication that a debt collector
    operates or is employed by a consumer reporting agency as defined by section 1681a(f) of this title.

    ( Pub.L. 90321,title VIII, Sec. 807, as added Pub.L. 95109,
    Sept. 20, 1977, 91 Stat. 877; amended Pub.L. 104208,
    div. A, title II, Sec.2305(a), Sept. 30, 1996, 110 Stat. 3009425.

    jg: Check for amendments -sure there’ve been some and not sure this is the most current version. This article, for instance, discusses a 2013 proposal to grant attorneys a safe harbor. Bah.

    http://www.friedmaniverson.com/consumer/blog/debt-collection/proposed-fdcpa-amendment-could-rollback-consumers-rights/

  74. I have always wondered who do they submit their bill to, who pays them for what they do to us, like where does that money actually come from i would be willing to bet

  75. Right JG – unless they have been” indemnified” by some unknown God.

  76. Is your bankster a debt collector subject to the FDCPA?

    “….Read together and as confirmed in the Act’s legislative history, Congress’ intent is clear, the exemption is intended to include “mortgage service companies and others who service outstanding debts for others, SO LONG AS debts were NOT in default when taken for servicing.”[This scenario is often the case when an assignment is made from one servicer to another. Thus, for FDCPA purposes, the distinction between a “loan servicer” and a “debt collector” when it was obtained…….

    V. The Foreclosure Mills
    While the loan servicer may not be subject to FDCPA liability, their attorneys are.”

    http://nahoumlaw.com/when-is-a-residential-mortgage-loan-servicer-a-debt-collector-under-federal-collection-laws-it-depends-on-when-the-loan-went-into-default/

  77. FYI
    https://en.m.wikipedia.org/wiki/Doing_business_as
    The phrase “doing business as” (abbreviated DBA, dba, d.b.a. or d/b/a) is a legal term used in the United States and Canada, meaning that the trade name or fictitious business name, under which the business or operation is conducted and presented to the world, is not the legal name of the legal person(s)

  78. Strikes me in my experience that the foreclosure mill bucket shop lawyers are ” rogue” and yes I’m being much too polite I know ( but all deliberate part of the plan the one I have in mind worked for MERS prior) with BK of the outfit also part of the plan typically ” doing business as”

  79. Yes just another example of the fact that they (the servicers) just sell them willy nilly to either get rid of a problem or make some more money. I am seeing that the foreclosure mill lawfirms are declaring bankruptcy and not going out of business (so that no one can go after the partners). I am reading that the servicers (scum that they are) are not paying the lawfirms and what used to be a profitable business model is a dead end. The end is coming closer.

  80. Of course other signs of fraud. Besides consummation we have issue of fraud and damages on enforcement. So good to keep in mind valid contract, reliable evidence, valid transaction.

    Each and every variable in their definition is ripe for fraud.

    Contract – parties, meeting of minds, agreement, transaction etc.

  81. That’s interesting SC reminds me of partnership scenario I’m familiar with. Hard to follow but IMO key would be what do the closing documents say as any valid transaction. Any conflicts of who parties are and dates and what you, your husband understand purpose and terms of loan. Putting aside tgere was no “loan ” etc. What did you understand the “loan” to be at closing. To me that’s starting point then when you u did your good faith effort to obtain evidence or court discovery is there broken chain from before fake transaction and/or after leading to pretender lenders, servicer, trustee trying to steal ur property.

  82. Hammertime.
    I am a 3rd party to the contract and can only act for myself in that capacity.

    The Note between my husband and the pretender llc on the note named as lender.

    One of the missing deeds from closing was not blank and clearly…
    My husband and I granted a deed as joint tenets in common with ROS. to the funding company llc.

    Another missing deed is the WD VIcky granted my husband and I.

    Now…..the Title is held by my Husband via a Trust Deed the lawyer had attached V Icky affirmation and signature to. The trust deed is filed without. Trustee agreement.
    The Note was not recorded.
    No liens on title..just encumbered by a mortgage.

    … held in escrow until the loan is consummated and escrow closed.?

  83. Can un do the loan = undo the contract
    Can’t undo signature, it happened which is where it becomes absurd that BANKS claim that’s all there is to it.
    Worse they took it and multiplied it on counterfeit notes and toxic mushroom cloud of derivatives.

  84. Perfectly legal to take possession without notice of claims.

  85. Lost Note..right?
    Well nobody else is making claims to it your Honor.

  86. Possession taken without notice of claims.
    Put them on Notice.

  87. Under the contract…..has a maturity date and other terms that conflict with those of the borrowers note.

    How much does KC owe?
    Simple question … Right?

  88. Meanwhile, in the land of reality, my friend has the good fortune to inform the BK court that the lender who filed a claim may have sold the ‘loan’ after filing a proof of claim and before any discharge of BK. And no, the court was not informed by the ersatz ‘former’ lender of the change of possession. Penalty should have been assessed on change of possession – at least 1/2 the distance to the goal.

  89. The Plaintiff
    As One Half of the Estate.

    The Plaintiffs Note …..

  90. MERS had no authority to assign the Estates Mortgage.

  91. Oh…did I say loan…My mistake..

    THE ESTATES MORTGAGE

  92. Its just crazy how…if I wanted too…refinance and or modify the estates loan without the other..note payee permission.

    GRAY AREA

    Many Blessings to All

  93. My mistake… Correction.

    Your Honor I signed what Appeared to be a Mortgage.

  94. LAW 101 … When the Debt arises.

  95. But I can’t go back in time and undo my signature.

    Sure you can if they misrepresented the contract to induce you into signing it.

    Yes your Honor…. I did sign what I thought was a mortgage.
    But that is not what is was.

  96. That SC is where we go wrong w all this theory and going down rabbit holes. Keep it basic. When I signed on the closing papers my understanding per the documents was there was a paid off loan and a “new” loan. THAT is what I signed off on. I signed on with Chase tgat “good” bank Serena Williams is pushing not the Cayman Islands credit card co, felon. That they used those documents to go into some system in the shadows is the deception and fraud. Has nothing to do with my sophistication, type of loan, color where I live.

    But I can’t go back in time and undo my Sig is the issue? Nope. THEY have to UNDO THEIR FAKE LOAN AND FRAUD OR BE CHARGED AS THE CRIMINALS THEY ARE.

    We need to quit asking for the bankster and lawyers permission giving them authority over us.

  97. Yes Hammertime…. Your signature Reaffirmed a (non existent debt).
    Modifying Fraud….
    I mean really… How do you get a choice of what contract to enforce should you default again.

    Hogwash! Sign Nuttin!

    Stale is Stale
    Failure to State a Claim for which relief can be granted.
    Lack of Prosecution .. SOS. .Shit On Shingle.

  98. The banks and lawyers are making this into another who’s on first joke!

  99. I think Neil is waffling if that’s a word! When it comes to date, non judicial.

    The Supreme Court found language is unambiguous. The way to look at imo is there are exceptions including fraud and loan never consummated although there were documents created to mislead us, predatory lending.

    The purpose of law was to protect consumers and stop fraud.

    It’s the lenders and the politicians that have twisted the words and law ignoring the purpose.

    So if you have reason and proof of fraud etc how could referring to false paperwork, dates mean you are confirming the debt, loan?

    It’s the same bs like Chase lawyer told me that my signature meant I confirmed everything was true!

  100. Hammertime….this is where Neil and I differ on rescission.

    RTC does not start until the loan is consummated. ….

    Without enforcing the contract how is that a remedy ?

    You have to get them to take a position and hold them to it!

  101. Rescind first? Unsecured debt?

  102. I think more bankruptcy actions are going to happen to get the house out of the bankruptcy and out of debt.

  103. Yes…You should Neil!
    YES you Should!

    BK would serve them Right if he filed!!!
    It is Not an Option for everyone so keep in mind…..

    Proof of Claim is also Required at State Level ……

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