Tip of the Iceberg Gets Grazed with Criminal Indictment

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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see http://stopforeclosurefraud.com/2016/01/06/statement-of-united-states-attorney-charles-m-oberly-iii-regarding-indictment-of-mts-wilmington-trust-corporation/

While I wouldn’t have a victory party yet, it does seem that law enforcement is looking at the mortgage madness and concluding that continuing criminal fraud exists AND that they are going to prosecute where they find it.

This one case is not a game changer but it paves the way for a continuing drum roll for perp walks. The point of this indictment of both a company and its officers is that they were lying to the world about their portfolio. As the digging goes deeper, I am sure the prosecutor will discover that the actual fraud is much larger than his PR statement.

The reason this is important is that the lies at the top of the food chain in these fictitious securitizations completely negate the claim that a Trust or other entity is actually sitting on a portfolio of loans. That is important because the ONLY authority of the Trustee, Servicer, Depositor etc stems from a claim that they are named in the Pooling and Servicing Agreement. But the evidence points to the conclusion that none of the Trusts ever came to own the loan, which is why they have never alleged holder in due course — because the trust would then be required to prove payment.

Since the Trust or other entity never came to own the loan, it doesn’t matter what the Trust instrument (PSA) says about the authority of the Trustee, servicer et al. They simply have no such authority.

And what this new indictment shows is that yes that does matter because of the lies amounting to fraud upon a variety of people — Judges, Investors, Borrowers, etc. The charge of misrepresenting the true nature of the portfolio can easily be made against any REMIC Trust whose name is being used in connection with any foreclosure. It is a fraud upon the Court, against the borrower, and misleads attorneys on both sides — unless the REMIC Trust actually owns the loan. But if they did, then the banks would assert status of a holder in due course. THAT never happens.

Once you start with the supposition that the Trust does NOT own the loan and is NOT a holder in due course, the rest of the defense falls into place.

And this is precisely why the required lawsuits to vacate a notice of rescission is never filed. The Banks don’t have a creditor who could or would file such a lawsuit. And that is why they never filed such lawsuits as required by the TILA Rescission statute. The error currently being made in many venues is that people are thinking that the substance of the claim seeking to vacate the rescission controls the situation. It does not. It is the procedure. Once the rescission is sent the loan contract, the note and the mortgage are void.

If the Banks had any real interest they would file the lawsuit to vacate the rescission instantly upon receiving the notice and they would seek sanctions and attorney fees for the sending of a wrongful rescission. It would be irresistible for the banks to take that road since it would eliminate virtually all defenses to foreclosures and serve as an example of what the Banks will do to you for sending a rescission improperly. But they have never filed such a lawsuit. Instead they try to dance a little 2 step in court and hope that the Judge’s antipathy to TILA will sway the ruling.

 

8 Responses

  1. Friday 8 January 2016

    Bob G…

    I do not remember from which case this came for I grouped it on a notes
    list.

    § 1635(b). It next provides that, “[w]ithin 20 days after receipt of a notice of rescission, the creditor shall return to the [borrower] any money or property given as . . . downpayment . . . and shall take any action necessary or appropriate to reflect the termi- nation of any security interest created under the transaction.” Id. Subsequently, “[u]pon the perfor- mance of the creditor’s obligations under this section, the [borrower] shall tender the property to the credi- tor,” but, “[i]f the creditor does not take possession of the property within 20 days after tender by the [borrower], ownership of the property vests in the [borrower] without obligation on his part to pay for it.” Id. These “procedures prescribed” by Section 1635(b) “shall apply except when otherwise ordered by a court.” Id.

  2. @ greg

    Thank you for the link to the scot interview.

  3. Bob G,

    Is there some “rule of procedure”, protocol, “understanding” or “cultural tradition” within the “courts systems, ” or a “sense of legal courtesy” that would give rise to this idea of a “20 day requirement” to respond?

    Since the TILA Rescission is “non-judicial”, does it necessarily follow that the “TILA lender” doesn’t have to reply “judicially”?

    If the “debtor” exercises the right to file a judicial case seeking “TILA lender compliance” to the Notice of Rescission, and includes a “20 day demand” for judicial response to the lawsuit, could this be the Genesis for the idea of a 20 day response time?

    Do I/we always have to refine our questions on this forum to get reasonable, responsive, questions? 🙂

  4. this is totally on-topic

    2016-01-07 Interview & Q&A with Scot: a recent ex-patriot from 17 years in the mortgage banking industry… Scot started out as a escrow agent doing closings, then advanced to mortgage loan officer, processor, underwriter, branch manager, mortgage broker and loss mitigator for the banks. Interestingly, he says,

    “Looking back on my career I don’t believe any mortgage closing that I was involved in was ever consummated.”

    Points covered:
    1 lack of disclosure and consideration
    2 substitution of true mortgage contracting partner
    3 unfunded loan agreements
    4 non-existent trusts
    5 securitization of your note and bifurcation of the security interest and
    6 how to identify and prove the non-existence of the so-called trust named in an assignment which may be coming after you to foreclose

    recording link: http://recordings.talkshoe.com/TC-139335/TS-1039673.mp3

  5. again
    greg, on January 7, 2016 at 1:26 pm said:

    is not a lawsuit a form of response?
    MAX 20 days to initiate compliance procedures or other provide a dispute response…
    rescission being final as a matter of statute – and the only solution open to the bank to overturn the rescission being a court order – the filing of a suit within that window would be the only way to flip it…

    it is logic based upon statute

    one cannot get a reprieve from the electric chair from the governor 1 minute after they throw the switch!

  6. Bob G not Bob H. There is no statute or reg that says that they only have 20 days to file suit to challenge the rescission. If there were, someone would have provided it by now.

  7. Neil, (or others)

    Does all this mean that homeowners who have filed TILA Rescission Letters and have not encountered a responding lawsuit from the LINOs…. have a high possibility of success if they initiate a lawsuit for TILA compliance with the statuatory requirements of the “lender” before the end of one year after proof of delivery of the TILA Rescission Letters?

    Will such a lawsuit “flush out” a revelation that there never was a “consummation of a loan transaction”; that any trusts created were never “funded with assets — completed loans secured with mortgages, security deeds, or Deeds of Trust”; and that both borrowers and investors were victims of fraud?

    (While I’m asking these questions, will someone answer Bob H’s question: Where is the legal authority that mandates the “lender must file suit within ’20 days’ to challenge what they deem to be a ‘wrongful TILA Rescission action'”?)

    Also, if all of this effort reveals there is no consumated loan, no funded trusts, and no true lender, just *who* is the party or entity who must legally complete the TILA requirements to void the note, all associated leins, recorded “assignments”, and take action to expunge these documents from courthouse records (and I assume… resulting bankruptcy proceedings and negative entries in the homeowner’s credit reports)?

    Does “no consumated loan,” “no funded trusts,” “no legal leins,” mean borrowers have no legal reason, responsibility, or requirements to pay “third party strangers” such as investors not revealed at the closing table? Do they even owe taxes on proceeds they received shortly after the fraudulent “closing” theater?

    It would seem that any proceeds of this scam, remitted to an unknowing victim, should be awarded as an “advance” of damages that far exceed any monetary “benefit” received.

  8. I have 2 case are pending, in CA and NJ, need help from you.
    Sent from my Verizon Wireless BlackBerry

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