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This is not a legal opinion on your case. Get a lawyer. Get an accountant.
Practice Note for Lawyers: Taking its cue from many states, the Federal Court System has adopted a new rule that went into effect 12/1/15. Basically it says that boilerplate blanket objections to discovery will not be permitted any longer.
These cases are about money. And money is about accounting. For some reason the entire accounting industry has failed to get involved in these disputes. There is a LOT of money they can make and CPA’s can present more convincing testimony by issuing a report with the appropriate opinion.
The key here is that the originator didn’t make the loan. The CPA could issue a report indicating what he or she needs in order to determine who funded the loan. THAT would be a powerful piece in support of discovery attempts by the homeowners that are universally stonewalled. And in at least 65% of all cases involving claims of securitization the other side folds instantly when the judge issues a discovery order requiring them to make the information available.
It’s simple. If they were just a pretender lender then they didn’t make the loan. If they didn’t make the loan they didn’t own the loan. If they didn’t own the loan they could not have endorsed or assigned it.
The CPA would explain that if the transaction was not posted as a balance sheet item then that means ipso facto that it wasn’t a loan by the originator. If it shows up as being posted as an income statement item then that shows that the originator was a fee based servicer acting as “pretender lender”. Hence the note and mortgage were procured under false pretenses and contrary to the federal and state requirements of disclosure as to who was getting paid what money to lure the borrower into a signing a document that was not a valid note but was going to be used in multiple fraudulent transactions.
The very fact that the note named a payee whom the borrower was deceived into believing was loaning him money — but wasn’t loaning him money makes the note and mortgage void documents — that should never have been released by the closing agent and which certainly should never have been recorded.
The second key is even if the originator does at least appear to have originated the loan, is the question of whether it “Sold”. The “endorsement”, “assignment” are only as good as the what is owned by the assignor.
This is where we get them again on lack of consideration for the initial funding even if they managed to fake the funding by the originator on their books. A CPA would report that the auditing standards require him to see the entire transaction, not just the paperwork that management wants him to see. And if bookkeeping and accounting of the successor or the originator showed no payment for the loan, then the obvious conclusion from an accountant is that the transaction documents (assignment etc) were fabricated. No reasonable business purpose can be stated as to why the originator would endorse, assign transfer or whatever without receiving payment — unless they never funded the loan in the first place or unless they had already received payment from someone else. Otherwise their assignment of a six figure asset would be a gift. Really?
The use of accountants in foreclosure litigation is key to winning more often. Standards from the FASB and GAAP and perhaps the SEC would end the discussion and shut down the entire “we are a holder” myth. The use of CPA’s would result in collapse of the case of the foreclosing party long before trial.
Filed under: foreclosure |