One of the interesting things that nobody is talking about yet is the fact that the “business records” are either not complete or the foreclosing party is producing documents that serve its purpose when it knows that it holds documents that would negate the very proposition they are proffering in court.
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One of the interesting things that nobody is talking about yet is the fact that the “business records” are either not complete or the foreclosing party is producing documents that serve its purpose when it knows that it holds documents that would negate the very proposition they are proffering in court. Certainly a void assignment fills that bill.
The “purchaser” is really a conduit for investor funds that have been laundered six times before they got to the closing table. But regardless of how many items it is laundered it still comes down to the same thing — the Payee on the note never made the loan. Someone else did, using money from an unidentified and perhaps unidentifiable group of investors/victims.
The only REAL reasons why a bank would not demand all the actions, documents, representations and warranties (warrants) is that it already knows what you are getting and you have already performed the due diligence in another transaction cycle. These are things that could be pursued in discovery, but you must assume that what I am saying is true if you are going to fight for them. And you must commit to being very aggressive in fighting for them.
The banks will say “we complied” when they give you nothing. You should have an expert affidavit that says the banking industry doesn’t work that way. They always perform due diligence unless they control the entire transaction cycle — in which case they still have documents to give you showing they controlled the transaction cycle.
Here is the normal track for the sale of a mortgage loan:
Take this quote from one of many websites that “assist” in the sale of mortgage loans:
“If you’re like us, you can’t really start your due diligence until you reference your MLSA (Mortgage Loan Sale Agreement) and check over to see what representations (reps) and warrants are contractually included or not. It’s a given that you must know your note seller as this is absolutely a relationship based business. Remember that collateral comes post closing, so you can’t just trust everyone without some sort of verification. Sure you can have safeguards like a Bailee letter, exceptions reports, Power of Attorney’s (so you can create your own assignments and allonges as opposed to waiting for the note seller to create them), and even escrow accounts, but at the end of the day know who you’re dealing with. It’s also important to know the cure periods and terms with any buyback scenarios or missing collateral. Back in 2007 contracts looked much different than today when there were plenty of reps and warranties. Today it’s mostly buyer beware with few reps and warranties at all. If you are ever in need of document retrieval, I highly recommend trying Orion Financial.”
Filed under: foreclosure | Tagged: assignments, buback agreements, business records, collateral agreements, cure periods, mortgage loan sale agreement, originators, powers of attorney, prior relationships, Purchase and Assumption Agreement, representations, warrants |