I just received a request from a new service, seeking evidence of patterns of conduct by the banks, to wit: banks and servicers and trustees submitting different copies of the same promissory note while asserting that each is the original.
It is good that news services appears to be ramping up its investigative journalism, possibly in sync with the release with the deeply disturbing movies “The Big Short” and “99 Homes”. BUT the questions they are asking may be incomplete.
Some basic issues not mentioned in the request for information are whether the original notes were intentionally destroyed at or near the time of closing and thus whether virtually all the notes produced in court are fabricated and forged by mechanical equipment readily available on the internet. [see Catherine Ann Porter study in 2007 wherein she surveyed thousands of cases only to find that, at a minimum, 40-50% of all notes were intentionally destroyed.]
The second issue that jumps out is whether the payee on the note ever loaned any money to the named borrower and signatory. Starting with the premise that none of the REMIC “Trusts” were in fact trusts with any assets, we discover that the trusts were never funded.
The REMIC trustee was literally paid not to object to the investment bank keeping the money proceeds from the sale of securities issued by the trust.didn’t do what the Wall Street banks were doing — selling the notes even though none of the originators ever funded the loan.
The only reason I can think of for the destruction of the notes is either (a) the Wall Street banks were representing the loan terms to investors inconsistent with the actual borrower’s agreement to terms or (b) or that Wall Street banks wanted to make sure that originators. Maybe it was both. One thing that is clear and consistent: Wall Street banks kept absolute control over the “lending” process and the multiple players, conduits, sham servicers and sham nominees.
Hence the legal question on the ground is whether the note is valid as a claim upon the alleged borrower; and the analysis must then go to whether the risk of loss shifts to the holder or possessor of the note unless (a) the holder can show payment for the note and mortgage —holder in due course under article 3 UCC or (b) the holder actually represents the real owner of the underlying debt (who in turn must show payment).
Possession is not established by self serving “documents.” I can’t sign a bill of sale for your car and then claim that the recipient of the bill of sale now owns your car.
Here is the request from one News Service —
Happy New Year! Please distribute the query below to attorneys who may have responsive documents.
Looking for documentation regarding foreclosure cases, and other instances involving mortgage backed securities where more than one, or different versions of promissory note(s) related to real property were;
- a) entered in a legal proceeding;
- b) produced in response to a Qualified Written Request (QWR) sent under the Real Estate Settlement Procedures Act (RESPA); or,
- c) provided by a financial institution or servicer as a result of any other request from counsel or the borrower.
Examples include those cases where one promissory note is filed with an action for foreclosure or filed with a proof of claim in a bankruptcy matter, and then another note is filed in a motion to dismiss, motion for summary judgment, or relief from stay proceeding in the same matter. For example, those instances where one note does not contain indorsements, and a second note is produced or filed that does contain indorsements. Or, those cases where the borrower’s signature and indorsements are not the same, as found in the recent Florida case where the appellate panel noted the two different promissory notes:
Foot note 1 “Our review of the record reveals that the last page of the original note differs from the previously-filed copies. The borrower’s signature is not the same, and the indorsements are in reverse order and signed by different people.” Selva Adriana Calvo and Marcos Fabian Calvo vs. U.S. Bank N.A. as Trustee for Structured Asset Securities Corp. Mortgage Pass-Through Certificates, Series 2006-BC-1 (FLA 4th District Court of Appeal No. 4D14-1424 Dec. 16, 2015).
- The document that initiated the discovery of each promissory note;
- The materially inconsistent promissory notes;
- The proof of claim in a bankruptcy proceeding containing one promissory note; and
- The motion to dismiss (or other pleading) containing the second promissory note.
- The QWR sent under RESPA;
- The QWR response which includes one of the promissory notes;
- The promissory note that differs from the QWR response.
Filed under: foreclosure |