A fairly well written and well-reasoned article. But absent from the article is the fact that homeowners are not just asserting some technicality. If the Trust actually paid real money for a legally binding loan contract with an enforceable promissory note and enforceable mortgage then it would seem to be the kind of internal affair that some courts have tried to fashion by reading the word “voidable” into a statute that clearly says “void.”
But if there was no transaction and the Trust stands to lose nothing by losing a case in which it had no standing, ab initio, then you would find the same courts — that are looking for a way out of the void transaction — instead accepting the idea that the whole thing was a sham transaction. Yes, the cutoff date is important, but more important, especially in a court of equity, is whether the Trust can prove it paid consideration for the alleged “loan” transaction. It is ONLY THEN that one argue the “free house” myth that the banks have been advancing against the homeowners. The truth is the reverse; if the Trust never paid for the contract, then why should it get the house?
The real problem is that nearly everyone is still drinking Wall Street Kool-Aid. Wells Fargo and the remaining mega banks have successfully convinced almost all the people that there was a lender in these transactions who consented to put their money into a guaranteed losing proposition. Worse, Wells Fargo and the other mega banks have convinced almost everyone that somehow the bank lost money on defaulting loans and the bank lost money on “defective” mortgage backed securities. The banks were not funding or buying mortgages or mortgage backed certificates; they were SELLING them.
As long as the current myth is perpetuated, we will never drill down to the real solutions. We will continue to process and handle solutions to nonexistent problems. Wall Street traders are laughing all the way to their employer banks. They have actually succeeded in making enormous “profits” based upon intentionally induced losses incurred by the use of Other People’s Money. It is the ultimate con game.
These transactions cannot be explained as loans. They can only be explained by theft and dumping some of the proceeds on disadvantaged people, waiting patiently for the rolll-back. The banks made money coming and going while the rest of the world went into a tailspin, deprived of cash liquidity that was siphoned not only out of our economy, but every economy.
Think of it this way: if the “loan” transactions were real, why did the banks need to resort to fabrication, forgery, perjury, robo-signing and robo witnesses? Even defective loan documents can be cured through a variety of legal procedures. Why did the banks need to resort to illegal means?— unless the transactions they were claiming to exist were in fact absent?
Homeowners didn’t receive loans; they received the proceeds of an illegal scheme, and then were prevented from being in communication with the pension funds whose money was stolen. The banks created a vacuum and then stepped in to fill the void with false representations to the U.S. government, to the public, to the investors and to the homeowners. There is no creditor or debtor in these transactions — only victims.
The real solution must include as a core principle that the current group of “servicers” and “trustees” have no standing to service anything nor any right to represent the investors. That right could only have come from a Pooling and Servicing Agreement, which doubles as the Trust instrument for REMIC Trusts that never entered into any transaction in which the Trust acquired or originated a loan. If the transaction with the homeowner did not result in a loan contract that was acquired by the Trust then it follows that the Trust lacks any legal standing to assert any rights.
If such a transaction did not occur then there is no loan, there is no loan in the trust, there is no servicer, and there is no trustee. Without a disclosed lender there is no loan contract. If the Trust owns nothing, the Trustee of the REMIC Trust has no authority or rights to the so-called loan. And it follows logically that a “substitution of trustee” on a deed of trust cannot be valid because it was authorized by persons who neither owned the loan nor had any rights to represent the victims who are called investors. None of the successors qualify as beneficiaries under a deed of trust except by self-proclamation. And the same logic holds true for successors who try to cast themselves as mortgagees through the use of fabricated illegal documents.
The real solution should be cast as restitution bringing the pension funds and the homeowners together under a new infrastructure that excludes any of the mega banks or their current army of “servicers.” We should not be looking for creditors. We need only find the victims and the perpetrators.
Filed under: foreclosure