TUNE INTO THE NEXT NEIL GARFIELD RADIO SHOW ON JANUARY 7, 6PM EST Thursdays
For more information please call 954-495-9867 or 520-405-1688.
This is general information only and not a substitute for legal advice from a lawyer licensed in the jurisdiction in which the property is located.
The point here is that there is money owed and the debt exists regardless of whether or not the note and DOT are void. THAT is the last part of the analysis. The remedy is the same as TILA rescission regardless of what the reason is — return the note to the homeowner who is not a “borrower” from anyone in the “securitization chain” , release the encumbrance and give back all the money the borrower ever paid because they were not entitled to collect it in the first place much less enforce it. The obvious fact is that a foreclosure is impossible without the homeowner executing a new DOT to the real “Lender.”
This is where people get confused because it sounds like I am saying that the debt simply disappears. It doesn’t. But it is doubtful that the investors are going to make demand for payment from homeowners directly or even though a new or old “servicer.” In order to do that they would be tacitly admitting “securitization fail” (Adam Levitin) and that the debt is not secured by an encumbrance upon the house.
And that would make many assets of stable managed funds ineligible for retention and reveal the fact that the managers of those funds were asleep relying upon the brand reputation of the largest banks the world has ever seen. So the debt doesn’t disappear but because of the multiple sales of the same loan papers, and the unwillingness of fund managers to admit they failed to do due diligence, the REAL debt might never be claimed or enforced.
Filed under: foreclosure