Holder or PETE?

You can prove your point thus rebutting the legal presumptions that attach to facially valid paper by starting at the top of the paper trail, the bottom or anywhere in between. You won’t find a single transaction in which money exchanged hands. That means whoever transferred this “valuable” note received no payment. The transportation of a note that never should have been signed in the first place is almost irrelevant — except as to the issue of delivery which in turn goes to the issue of possession. Absent some purchase of the “loan”, such a PETE or holder may not enforce.

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

—————-

See http://4closurefraud.org/2016/06/14/north-carolina-court-of-appeals-u-s-bank-n-a-v-pinkney-a-party-seeking-foreclosure-must-establish-holder-status-of-note/

Ever so slowly and carefully, with the dread of dismantling the entire financial system, the courts are looking more closely at what the banks and servicers are doing in foreclosures. In this case US Bank says in its foreclosure complaint that it is the holder of the note and then argued that it was either the holder or the possessor with rights to enforce. What’s the difference?

A possessor is someone who physically has possession of the original note. You might liken this to a courier who is entrusted with picking up the note from one place and carrying it to another place. The courier cannot, as some have claimed, enforce the note because it merely possesses the note. In order to be a possessor with rights to enforce (PETE) it must (1) have the actual original and not a mechanical reproduction of it, (2) plead that it is a PETE and (3) prove that it has the right to enforce.

Proving the right to enforce was simple before the current era. The creditor executes the necessary paperwork and comes into court if necessary to verify that it has given the possessor the right to enforce the note. What happens to the money after the possessor gets it and what happens to the Judgment (it could be assigned) afterwards is nobody’s business. But the banks have steadfastly insisted that they should not be required to produce or even identify the creditor. That falls under the legal theory of “NUTS.” But it has been allowed in millions of foreclosures so far. A party comes into court and says I am here to enforce this “original note” on behalf of someone, but I can’t tell you who that is because it’s private.

I’ve tried a few things in courtroom in my 40 years of doing this but if I had ever tried to do that I think most judges would have literally thrown a book at me.

We are expected to presume that since the possessor has the original note it MUST have the the authority to enforce it. And THAT is where the trial judges and many appellate court have it wrong. In fact those courts have complicated the matter further by treating the possessor as a holder in due course who paid value for the note in good faith and without knowledge of the borrower’s defenses. This in the old days would have been sufficient to cause enforcement to issue even if the borrower/maker had meritorious defenses against the payee.

The court in this case looked at the complaint for foreclosure and presumed nothing except what was in the pleading. The pleading said the Plaintiff was a holder. There was no mention of being a holder, much less a holder in due course. Since there was no argument about whether the Plaintiff was a holder nor any assertion that such proof existed, the trial judge dismissed it and the bank foolishly appealed revealing its soft underbelly.

A holder is distinguished from a PETE and distinguished from a holder in due course. The banks revel in the fact that they were able to misuse the status of “holder” thus accomplishing their goal of foreclosure where in yesteryear, they would have kicked out of court probably with sanctions.

A holder must not only have possession, but also have an endorsement from the prior owner of the debt and note where the endorsement actually identifies the party receiving physical possession of the note or endorsed in blank which means it payable to the “bearer” — i.e., possessor — of the note. Thus the facts to be proven are expanded: (1) possession of an actual original (prove delivery) and (2) endorsement by an authorized signatory on behalf of a new possessor either in blank or to the new possessor. The difference between PETE and holder is that the right to enforce is right on the note. But if the endorsement is robosigned, which is to say fabricated and forged by an unauthorized person sitting in the back of LPS or a law office, the endorsement is a nullity (it is void).

If there is no objection to the authenticity of the note (i.e., whether the note is the actual original) and no objection as to whether it was properly endorsed, then the only other question is whether the party for whom the endorsement was made was the actual owner of the debt and note. And there’s the rub again.

A party comes into court and says I have the original note right here and it has been endorsed in blank so I can enforce it. What the banks never say because they don’t like jail cells is that the person who executed the endorsement was authorized and did so on behalf of a party who did own the debt and note at the time of the endorsement. They don’t say that because it isn’t true. The endorser is either MERS or some other conduit or intermediary who never had any interest in the subject debt, note or mortgage. And when the borrower tries to drill down in discovery on the truth of whether the prior endorser/possessor actually had possession or actually had the right to enforce or actually owned the debt or note, the banks run to the presumptions as if they were at trial. The problem is that trial judges have been buying that strategy for 10 years. Thus the homeowner is hit with the idea that it doesn’t matter whether any of this is real, it is still happening.

This also is something banks assiduously avoid since they are essentially throwing layers of fictitious ownership at the Judge such that the Judge assumes that it is not credible to assume that all the signatures, endorsements and assignments are void when issued by so many upstanding members of the community. And THAT is why discovery is so important because unless you are extraordinarily gifted at cross examination, the “robo-witness” is not likely to blurt out that he has no idea what happened or who owns it. If you assume nothing and deny everything and you aggressively pursue discovery, you are much more likely to come out on top.

As long as you go down the rabbit hole that the banks have prepared for you, the focus will be on the paper trail which they have created, recreated, fabricated and forged. BUT if you pursue discovery along the money trail you will find that all of the paper was signed by parties who never had a penny in the deal and probably never received delivery of the “loan” documents. That means that whoever started off the paper trail was not party of the money trail — i.e., they were never involved in any actual transaction relating to the subject loan.

You can prove your point thus rebutting the legal presumptions that attach to facially valid paper by starting at the top of the paper trail, the bottom or anywhere in between. You won’t find a single transaction in which money exchanged hands. That means whoever transferred this “valuable” note received no payment. Hence there was no purchase of the debt or note or mortgage. The transportation of a note that never should have been signed in the first place is almost irrelevant — except as to the issue of delivery which in turn goes to the issue of possession. Absent some purchase of the “loan”, such a PETE or holder may not enforce. Who would do that unless they already knew that they were entitled to nothing except fees?

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16 Responses

  1. There is always a limit on our planet. It’s not like in the unknown universe. So, if this and that not working. Discover a new way to solve it peacefully.

  2. David, in the Seller Purchaser Agreement..
    Notice the similarities between the Seller and the Mortgagor

  3. every one with ocwen, you need to read all in 8-k

    UNITED STATES
    SECURITIES AND EXCHANGE COMMISSION
    Washington, D.C. 20549
    FORM 8-K
    Current Report
    Pursuant to Section 13 or 15 (d)
    of the Securities Exchange Act of 1934
    Date of Report (Date of earliest event reported): July 1, 2013
    OCWEN FINANCIAL CORPORATION
    (Exact name of registrant as specified in its charter)
    2002 Summit Boulevard, Sixth Floor
    Atlanta, Georgia 30319
    (Address of principal executive offices)
    Registrant’s telephone number, including area code: (561) 682-8000
    Not applicable.
    (Former name or former address, if changed since last report)
    Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of
    the following provisions ( see General Instruction A.2. below):
    Florida 1-13219 65-0039856
    (State or other jurisdiction
    of incorporation)
    (Commission
    File Number)
    (IRS Employer
    Identification No.)

  4. ” FTC Protecting America Consumers ” – but we never bothered protecting anyone from those toxic mortgages.

    https://www.ftc.gov/news-events/press-releases/2016/06/ftc-halts-california-based-mortgage-relief-scam

  5. UNITED STATES

    SECURITIES AND EXCHANGE COMMISSION

    Washington, D.C. 20549

    FORM 8-K

    Current Report

    Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934

    Date of Report (Date of earliest event reported): July 1, 2013

    OCWEN FINANCIAL CORPORATION

    (Exact name of registrant as specified in its charter)

    2002 Summit Boulevard, Sixth Floor Atlanta, Georgia 30319 (Address of principal executive offices)

    Registrant’s telephone number, including area code: (561) 682-8000

    Not applicable.

    (Former name or former address, if changed since last report)

    Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

    Florida 1-13219 65-0039856

    (State or other jurisdiction

    of incorporation)

    (Commission

    File Number)

    (IRS Employer Identification No.)

    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

  6. WITH THIS THEY ARE ALSO IN VIOLATION OF
    12 U.S. Code § 2605 – Servicing of mortgage loans and administration of escrow accounts

    (a)Disclosure to applicant relating to assignment, sale, or transfer of loan servicing
    Each person who makes a federally related mortgage loan shall disclose to each person who applies for the loan, at the time of application for the loan, whether the servicing of the loan may be assigned, sold, or transferred to any other person at any time while the loan is outstanding.

    https://www.law.cornell.edu/uscode/text/12/2605

    PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED LIABILITIES
    2.1 Assignment and Conveyance of Rights to MSRs .
    (a) As of the Closing Date, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller does
    hereby sell, convey, assign and transfer, in each case, without recourse except as provided herein, free and clear of any Liens, (i) to HLSS
    -7-
    all of its right, title and interest in and to all of the Excess Servicing Fees for each of the Servicing Agreements, and (ii) to Holdings, any and all
    other right, title and interest in and to all of the Rights to MSRs for each of the Servicing Agreements.
    © 2016 Microsoft Terms Privacy & cookies Developers English (United States)

  7. The Purchaser and Seller intend that the conveyance by the Seller to the
    Purchaser of all its right, title and interest in and to the Mortgage Loans
    pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage
    Loans by the Seller to the Purchaser. It is, further, not intended that such
    conveyance be deemed to be a grant of a security interest in the Mortgage Loans
    by the Seller to the Purchaser to secure a debt or other obligation of the
    Seller. However, in the event that the Mortgage Loans are held to be property of
    the Seller, or if for any reason this Agreement is held or deemed to create a
    security interest in the Mortgage Loans, then it is intended that (a) this
    Agreement shall be and hereby is a security agreement within the meaning of
    Articles 9 of the Pennsylvania Uniform Commercial Code, the Delaware Uniform
    Commercial Code and the Uniform Commercial Code of any other applicable
    jurisdiction; (b) the conveyance provided for in this Section shall be deemed to
    be, and hereby is, a grant by the Seller to the Purchaser of a security interest
    in all of the Seller’s right, title and interest, whether now owned or hereafter
    acquired, in and to the following: (A) the Mortgage Loans, including (i) with
    respect to each Cooperative Loan, the related Mortgage Note, Security Agreement,
    Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative
    Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan,
    the related Mortgage Note and Mortgage and (iii) any insurance policies and all
    other documents in the related Mortgage File, (B) all amounts payable pursuant
    to the Mortgage Loans in accordance with the terms thereof, (C) all proceeds of
    the conversion, voluntary or involuntary, of the foregoing into cash,
    instruments, securities or other property, (D) all accounts, general
    intangibles, chattel paper, instruments, documents, money, deposit accounts,
    goods, letters of credit, letter-of-credit rights, oil, gas, and other minerals,
    and investment property consisting of, arising from or relating to any of the
    foregoing and (E) all proceeds of the foregoing; (c) the possession by the
    Trustee, the Custodian or any other agent of the Trustee of any of the foregoing
    shall be deemed to be possession by the secured party, or possession by a
    purchaser or a person holding for the benefit of such secured party, for
    purposes of perfecting the security interest pursuant to the Pennsylvania
    Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform
    Commercial Code of any other applicable jurisdiction (including, without
    limitation, Sections 9-313 and 9-314 of each thereof); and (d) notifications to
    persons holding such property, and acknowledgments, receipts or confirmations
    from persons holding such property, shall be deemed notifications to, or
    acknowledgments, receipts or confirmations from, securities intermediaries,
    bailees or agents of, or persons holding for, the Trustee (as applicable) for
    the purpose of perfecting such security interest under applicable law. The
    Seller shall, to the extent consistent with this Agreement, take such reasonable
    actions as may be necessary to ensure that, if this Agreement were determined to
    create a security interest in the Mortgage Loans and the other property
    described above, such security interest would be determined to be a perfected
    security interest of first priority under applicable law and will be maintained
    as such throughout the term of this Agreement. Without limiting the generality
    of the foregoing, the Seller shall prepare and deliver to the Purchaser not less
    than 15 days prior to any filing date, and the Purchaser shall file, or shall
    cause to be filed, at the expense of the Seller, all filings necessary to
    maintain the effectiveness of any original filings necessary under the Uniform
    Commercial Code as in effect in any jurisdiction to perfect the Purchaser’s
    security interest in the Mortgage Loans, including without limitation (x)
    continuation statements, and (y) such other statements as may be occasioned by
    (1) any change of name of the Seller or the Purchaser, (2) any change of type or
    jurisdiction of organization of the Seller, or (3) any transfer of any interest
    of the Seller in any Mortgage Loan.

  8. Accordingly, we conclude that a homeowner who has been foreclosed on by one with no right to do so—by those facts alone—sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. When a non-debtholder forecloses, a homeowner is harmed by losing her home to an entity with no legal right to take it. 3 Therefore under those circumstances, the void assignment is the proximate cause of actual injury and all that is required to be alleged to satisfy the element of prejudice or harm in a wrongful foreclosure cause of action. The opposite rule, urged by defendants in this case, would allow an entity to foreclose with impunity on homes that were worth less than the amount of the debt, even if there were no legal justification whatsoever for the foreclosure. The potential consequences of wrongfully evicting homeowners are too severe to allow such a result. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 410 (Miles).)

    AS OF 2006 , THE OWNER AND HOLDER OF MORTGAGE AND NOTE. WAS. Residential Asset Mortgage Products INC.,

    ALSO GMAC MORTGAGE CORP, WOULD NOT HAVE ANY RIGHT OF PAYMENT, ON THE NOTE OR MORTGAGE. THAT WAS INVESTED TO THE PURCHASER.

    SO IT WOULD BE IMPOSSIBLE TO BE IN DEFAULT , WITH GMAC MORTGAGE CORP OR ANY SUCESSOR/ASSIGN, IN ANYWAY

    BECAUSE THE TRUE OWNER AND HOLDER OF THE MORTGAGE AND NOTE WAS IS Residential Asset Mortgage Products INC. THAT AS OF 1 FEB 2006, OR AS CONSUMMATION DATE OF SALE, ALL PAYMENTS ON MORTGAGE AND NOTE

    BELONG TO Residential Asset Mortgage Products INC.

  9. MORTGAGE LOAN PURCHASE AGREEMENT

    EXECUTION COPY

    https://www.sec.gov/Archives/edgar/data/1351072/000135107206000009/ar1pa.txt

    This is a Mortgage Loan Purchase Agreement (the “Agreement”) dated as of
    February 27, 2006 by and between GMAC Mortgage Corporation, a Pennsylvania
    corporation, having an office at 100 Witmer Road, Horsham, Pennsylvania 19044
    (the “Seller”) and Residential Asset Mortgage Products, Inc., a Delaware
    corporation, and having an office at 8400 Normandale Lake Boulevard,
    Minneapolis, Minnesota 55437 (the “Purchaser”).

    Purchase Price of Mortgage Loans. The purchase price (the “Purchase
    Price”) to be paid to the Seller by the Purchaser for the Mortgage Loans shall
    be the sum of (i) $511,081,107.74 and (ii) a 0.01% Percentage Interest in the
    Class R Certificates issued pursuant to the Pooling and Servicing Agreement. The
    cash portion of the purchase price shall be paid by wire transfer of immediately
    available funds on the Closing Date to the account specified by the Seller

    the ownership of each
    Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the
    related Mortgage File and all rights, benefits, proceeds and obligations arising
    therefrom or in connection therewith, has been vested in the Purchaser. All
    rights arising out of the Mortgage Loans including, but not limited to, all
    funds received on or in connection with the Mortgage Loans and all records or
    documents with respect to the Mortgage Loans

  10. AS OF 2006 , THE OWNER AND HOLDER OF MORTGAGE AND NOTE. WAS. Residential Asset Mortgage Products INC.,

    ALSO GMAC MORTGAGE CORP, WOULD NOT HAVE ANY RIGHT OF PAYMENT, ON THE NOTE OR MORTGAGE. THAT WAS INVESTED TO THE PURCHASER.

    SO IT WOULD BE IMPOSSIBLE TO BE IN DEFAULT , WITH GMAC MORTGAGE CORP OR ANY SUCESSOR/ASSIGN, IN ANYWAY

    BECAUSE THE TRUE OWNER AND HOLDER OF THE MORTGAGE AND NOTE WAS IS Residential Asset Mortgage Products INC. THAT AS OF 1 FEB 2006, OR AS CONSUMMATION DATE OF SALE, ALL PAYMENTS ON MORTGAGE AND NOTE

    BELONG TO Residential Asset Mortgage Products INC.

    The Purchaser and Seller intend that the conveyance by the Seller to the
    Purchaser of all its right, title and interest in and to the Mortgage Loans
    pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage
    Loans by the Seller to the Purchaser.
    Record Title and Possession of Mortgage Files. The Seller hereby
    sells, transfers, assigns, sets over and conveys to the Purchaser, without
    recourse, but subject to the terms of this Agreement and the Seller hereby
    acknowledges that the Purchaser, subject to the terms of this Agreement, shall
    have all the right, title and interest of the Seller in and to the Mortgage
    Loans. From the Closing Date, but as of the Cut-off Date, the ownership of each
    Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the
    related Mortgage File and all rights, benefits, proceeds and obligations arising
    therefrom or in connection therewith, has been vested in the Purchaser. All
    rights arising out of the Mortgage Loans including, but not limited to, all
    funds received on or in connection with the Mortgage Loans and all records or
    documents with respect to the Mortgage Loans

  11. Who would do that unless they already knew they were entitled to nothing Except fees?

    Ta Da. . The Master Service
    Its the FEES boss…Its the FEES.

    Now lets talk about the THEFT of our Titles.
    The Master Servicer (gag banks) have them and its high time people state a claim!!!!

  12. Pete’s in BK … I think that’s where he’ll be found (out). This could be fun, like “Where’s Waldo?”

  13. well monday is my day in court, and i have a list for the judge to look at.

    first the purchase and sale agreement from 2006 from gmac mortgage corp, to residential asset mortgage corp, says right in the agreement all rights title interest got to res, and the note also go’s to them sign without recourse, it also state in the agreement that all payments belong to res-

    then am also putting into evidence the complete bk of gmac mortgage ,llc. all 636 pages of assets , as of 2012 and prior 3 yrs. as all know you cant assign something you dont own. well there is no mortgage or note as a asset of gmac mortgage ,llc. from 2009-2012 in a sign doc to bk trustee, sign by there financial officer, under purchery, and pennalty of 500,000 and 5 yrs ,.

    so from 2006 till now the only owner of mortgage and note was res, so how can a dead company assign a mortgage and note in 2012 to a trust, and sign by someone acting for the dead company.

    as the doj said and fbi said. that is impossible. go to pete. the agreement say all payments are do to res. well lets see the paper trail.

    am the plaintiff, as am trying again from being forecloded by someone that has nothing to do with the mortgage and note. as they say they do. and by them putting a assignment on my property records in 2012, stating this trust owns the mortgage and note. impossible. the assignment is void, fraud, fraudulent. so i will see if the judge here in mass are waking up to that facts.

    i hope all fathers have a great day.

  14. The judges, title companies, attorneys, realtors, insurance companies are all in on it. No justice for the homeowner after ten years. Very sad.

  15. Always the best advise Mr. Garfield. The best. Too bad the Judge denies your discovery and sides with the banks with a smile. I couldn’t compel anything. I got one judge to admit my admissions and the next judge threw it out. I denied the Note for a year and the Judge granted the bank summary judgment. I rescinded 3 years ago and the judge ignored it and even coached the banks lawyer when they were surprised that I brought it up and asked for judgment on the pleadings. Its just plain corrupt.

  16. Where’s PETE?

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