French bookkeeping: an old anecdote that reflects reality. Three sets of books. One for himself, one for his partner and one for the government. If permitted in discovery virtually every homeowner could easily show that there are multiple sets of accounting for “loan” payments, multiple sets of accounting for insurance and multiple sets of accounting for modifications. Some are for investors based upon complete fiction.
Some are for homeowners which are mostly fictitious. And then there is a new set of books for each “servicer” that ever claimed the right to administer the alleged loan account.
Trustees have no books and records because the trust doesn’t really exist and no real world transactions were ever conducted using the name of the trust. THAT record is just paper that is changed as quickly as you edit a document in a word processing program.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
I am seeing, with increasing frequency, a phenomenon that can only be explained by reference to the false assertions to “Securitization” or as Adam Levitin has coined it — “Securitization Fail.”
We have too many stories to recount here. But a representative sampling shows that it all starts with bad posting of transactions between the alleged servicer and the homeowner who is described as a “borrower.” It is difficult to imagine how this could get through the courts, but many times, as I have personally witnessed, judges demonstrate an unwillingness to even consider the possibility that the homeowner did nothing wrong. Such judges compound their erroneous rulings by reference to the fact that a long period of time has elapsed since the homeowner made their last payment.
In each case, the “servicer” or “holder” claims a default. In each case, the homeowner had been making timely payments — right up until the moment when the servicer or bank said they wouldn’t accept payments unless the homeowner paid up an imaginary sum of money to “reinstate” the loan or to start a new modification. And even where the money was paid, the foreclosure continued. Money paid by the homeowner is not subject to accounting and neither are the original records of receipts and disbursements. The courts allow “new originals” based upon an IT platform that will produce anything desired by the user — something like the way WordPress allows me to say anything I want here in this article.
Sometimes it is about the “servicer” getting it wrong about the insurance, and then forcing the homeowner into forced placed insurance caused by the “negligence” of the servicer. Then the servicer accepts the regular monthly payments without payment for the surcharged forced placed insurance; BUT on an entirely independent set of books it shows the account as increasingly delinquent for non payment of the forced placed insurance that never should have been charged in the first place. Suddenly, without any provocation arising out of the homeowner’s conduct, a letter is received and then another reciting the delinquency on the other set of “books” and declaring a default and acceleration of the entire principal amount.
Efforts to get the “trustee” to back off because they are not proceeding on valid information are useless because they are using a third set of books that is not based upon payments from a borrower.
The point was well stated by a manager for Bank of America in Massachusetts: “we are not in the modification business. We are in the foreclosure business.” And the reason is the same as I have been saying for years: foreclosure produces the first and only authentic legal document in a chain of fraud. It is self perpetuating because of the presumptions that arise from a foreclosure judgment and a foreclosure sale.
The fact that it is nearly impossible to get the current “servicer” to correct its books for an error made by them or a predecessor absolutely corroborates the complaints that the banks simply ignored the requirement of performing real reviews. And the reason they didn’t do the review has nothing to do with negligence. The banks NEED foreclosures. They need as many loans as possible to go into foreclosure because that is the only path available to create a presumption of facial validity to the false chain of paper — a path littered with the lives of decent people many of whom had paid every cent required by a legally void note and mortgage.
Filed under: foreclosure |