Tonight! Investors Are Definitely NOT Beneficiaries Neil Garfield Show

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with Neil F Garfield and Bill Paatalo

Or call in at (347) 850-1260, 6pm Eastern Thursdays

OK this is another one I contributed to like Quiet Title. Don’t try for Quiet Title because you have a 99.99% chance of losing for good reasons that I missed when I first suggested it. 

Now stop thinking about investors as beneficiaries under a REMIC Trust (PSA), a Deed of Trust, mortgage, note, debt or anything else when it comes to residential mortgage loans — which may or may not be “loans” in any conventional sense. Just like we have torts without a name as long as you can plead duty, breach and proximately caused damages, we might  have a similar situation here with an agreement without a contract that is called a bond without any definite promise to pay. 

And the courts agree. When investors sue to take advantage of terms or provisions of the so-called trust instrument, the courts tell the investors they have no standing because they are not part of the trust instrument. They are not beneficiaries, they have no right to view the assets, or to complain about mismanagement. They waive all right, title or interest to the debts, notes and mortgages that are increasingly looking like they are not “underlying.” That word implies things that are not true. Investors never see your payment and never receive the proceeds of a foreclosure sale and neither does the so-called REMIC Trust which as I have repeatedly pointed out does no exist in most instances. 

So the investors are not part of the trust and not a part of your loan deal. For example look at this:

No breach of contract claim under the pooling and service agreement was made by VNB against Wells Fargo because VNB, as a certificate holder, was not party to the pooling and service agreement.  VNB did argue that it was entitled to the benefits of that agreement because of its status as certificate holder, but the Court, without deciding whether VNB was entitled to those benefits or not, held that the rule prohibiting the negligence claims would still apply. VNB Realty v. US Bank, 2015 WL 8490948  (D.N.J. 12/10/15) 

 

How to Follow the Money

Ultimately all debts, notes and mortgages (or deeds of trust) are about money. They are not about property. The property is incidental to the deal and ONLY comes about if there is a dispute in which there is a claim that you didn’t pay money that is owed to the owner of the mortgage deed or the beneficial owner of a deed of trust. The mortgage deed or deed of trust is conditional, not absolute like your deed to your property that names you as owner. There is no such thing as a fee simple absolute mortgage or encumbrance. It doesn’t exist in our jurisprudence or for that matter any jurisprudence. 

The ONLY reason your property can be legally sold, denying you future title and possession of the property is that you owe money to the party who foreclosed — or on whose behalf the foreclosure was initiated. Mastering this one fact will pull your head and that you attorney’s head out of the weeds. 

We take it as a given that you owe money. The question is whether there is a party that can be identified as the the one to whom the money is owed. If so, who is that? What is the identification, address and contact information for the party who is actually owed money from you.

Spoiler alert: So far the banks have successfully skirted the question of money. From funding of the initial loan to the proceeds of sale fo the property nobody has actually disclosed where the money came from and where the money went when payments were made or the property was liquidated.

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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And the absolute immutable truth is that the so-called investors (i.e., the ones who bought “certificates” or “mortgage bonds”) do not receive your mortgage payments nor do they receive the proceeds of the sale your home. So who actually wants the foreclosure and why? The truth is that the investors get paid in the sole discretion of the underwriter of the “certificates.” Their payment is not conditioned upon your payment.

They get paid ONLY because the underwriter promised to pay them based upon certain conditions which does NOT include the receipt of mortgage payments. They do not get paid because you promised to pay the investors nor because your promise to pay was sold to either the investors or the trust. That sale never occurred. 

How do I know this? Because I have asked two questions thousands of times in the last 12 years. First, to whom were my payments forwarded by the self-proclaimed servicer? Answer: None of my business. Second, who received the proceeds of liquidation of the foreclosed property? Answer: none of my business. 

Knowing the banking industry as I do, there was only one possible conclusion: if they answered the question they would either perjury themselves or they would be admitting that the party named as being entitled to foreclosure was not really entitled to foreclosure. You see it is well established law — for centuries — that only the owner of a debt can foreclosure on collateral. 

For convenience sake a holder of a promissory note can enforce the note but only the owner of the debt is entitled to foreclose. If the foreclosing party claims a representative capacity the to establish a prima facie case it must disclose the party whom they claim to be representing and prove that the party being represented is the owner of the debt. 

So the one area, pointed out by Charles Koppa in So.Cal. a decade ago is what happens after the sale is authorized and the property is liquidated. He was figuring out the relationship between the bid amount and the amount the underwriter claimed as unpaid servicer advances (in the role of self-proclaimed master servicer for the nonexistent trust). Here we knew the answer but we were lucky enough to get hold of copies of a check made out to BONY/Mellon as trustee (Blah blah). BONY mailed it to the servicer and the servicer mailed it to Chase (i.e., the underwriter and master servicer doing business as the nonexistent trust, like a DBA.

No trust and no investor ever received the money. Chase got it and lest you forget, remember that Chase was all about selling loans and derivatives based upon loans and synthetic derivatives based upon the derivatives. It was never about actually making loans where Chase could lose money or buying loan as that were going to be worthless of worth less. It was about selling them. So the revelation is that BONY never had a claim to the money and either did the nonexistent trust that was ignored once the foreclosure court proceedings were over. 

Our investigations so far, with considerable help from Bill Paatalo, shows that multiple transfers of title occur AFTER the foreclosure sale or shortly before signaling the real player who is going to get the money. So you might want to think about the sale of your property title as the beginning rather than the end. It is the beginning of an action (lawsuit) to vacate the sale and award damages. 

Back to Basics: Countrywide as a Vehicle for Fraud on Borrowers and the Courts

Home Affordable Modification Agreement (HAMA) is really a HAMMER.

In my discussions with Charles Marshall and Bill Paatalo we frequently analyze and discuss attributes of documents and the underlying real events that occurred, which are often not connected in any manner with  what is written on the documents. One such fact pattern came to our attention and I issued the commentary below.

It is not hard to see why nearly everyone can’t keep track of what is really happening, to wit: investor cash was converted to investment bank cash which was converted into underwriting and “trading” fees and profits plus loans issued in the name of remote originators who were mostly unaccountable. Neither the investors nor the borrowers received any benefit from the use of their cash and credit without their consent. 

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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One of the interesting things that I notice about the Countrywide documents is that it identifies CW as the lender and discloses that  the loan can be transferred. What is does not say is that the loan has already been transferred to an undisclosed third party who may or may not be a lender. 
By selling forward the loans are sold before they exist. Hence CW, despite the representation on the document, is not the lender but rather a broker at best. The answer to most everything is in the gaps, not he documents or even the money trail. One of the things that people forget or never looked for is whether CW was ever capitalized with enough money to make loans, much less in the volume attributed to CW. It wasn’t. This same question could be applied to Quicken Loans and hundreds of other “originators” who used that moniker because it is undefined. 


The loan is with a ghost. And foreclosures are with a ghost, for the most part. In fact, that leads to the question of whether it was a loan at all or if the terms of repayment are set forth in an enforceable loan contract. If the note and mortgage (or deed of trust) name a ghost then we already know that the contract violates public policy and law, too wit: disclosure of the identity of the lender.

While there is an argument to say that the paper becomes bearer paper there are two things wrong with that line of thinking. First a mortgage is not and cannot be bearer paper if it seeks to be contract longer than one year in order to satisfy the statute of frauds. Second, the mischief of “bearer documents” is that the right to rescind and the rights to sue for violation of lending laws is eviscerated. 


The signature page of the Home Affordable Modification Agreement pretty much sums up the deficiencies and illegal activities of the banks acting through layers of conduits such that the real party in interest, as in organized crime, can never be positively identified without a wiretap. 

  1. It is dated 2013 which is long after CW was dead and buried.
  2. It is signed by a robosigner which means she didn’t know what she was signing or why. You can be sure she was not named in any existing corporate resolution as “assistant secretary” of any company let alone “Urban Settlement Services, LLC.”
  3. It is signed on behalf of Urban Settlement Services, LLC (USS) which as its name implies is merely an agent for purposes of settlement. BUT it is not signed by USS on its own behalf. Instead it is purportedly executed on behalf of Bank of America where USS is the “attorney in fact”. An attorney in fact means that there is a power of attorney. In order for the statement to mean anything it must reference or attach a power of attorney. This is never done, and it certainly is not here. So at best the assertion of attorney in fact must be ignored because it does not settle the question of whether USS has such a power of attorney, nor what might be within the scope of the power of attorney. Thus far, then, there is no execution of the instrument by any party.
  4. BOA is mentioned not as BOA but as successor to BAC Home Loans. BAC Home is merely a name change from Countrywide, which was acquired by Red Oak Merger Corp, a controlled BOA entity. Just like the nonexistence reference to a power of attorney the “Successor” moniker is used to imply that something happened in relation to the subject loan or debt. But like the missing power of attorney, there is no mention or assertion that BAC or CW owned the loan or the servicing rights at the time of the merger, nor which assets or liabilities were merged into BOA after the Red Oak merger. 
  5. The  agreement implies but does not state that BOA is the owner of the debt, note or mortgage and does not state that BOA is authorized to act as servicer but certainly implies that BOA is a servicer for an undisclosed third party because all loans from CW were “sold” into the secondary market and subject to claims fo securitization. BUT the one thing that is modified by implication is that the lender is no longer CW but rather BOA regardless of whether CW ever owned the debt or servicing rights and regardless of whether or not BOA owned the debt , note or mortgage or servicing rights. There is an obvious internal conflict between the parole evidence of sale into the secondary market and “securitization” and the implied assertions by BOA. THUS THE REAL PURPOSE OF THE DOCUMENT IS UNVEILED. IT TAKES A DEBT WITH AN UNKNOWN THIRD APRTY OWNER AND TRANSFERS IT WITHOUT CONSENT TO BOA. 
  6. This raises other interesting issues with MERS. MERS is a naked nominee meaning it has no power to do anything ever except on direction of its principal which in this context MUST be the party named as Lender. That defines the agency relationship. CW existed so the agency relationship is between MERS and CW. When CW sold the debt to an undisclosed third party (probably before the debt ever came into existence) it could no longer sell the debt to anyone else by definition. Nor would an assignment or any other implied assertion of transfer of the loan be valid after it had already been sold. The successor is the party who bought it not BOA who merely claims it by way of a tortured chain of implied statements. And yet MERS has title to the mortgage. It must receive instructions from CW only, unless CW transferred the right to direct MERS to a new party. It can’t because it is dead. So the modification agreement is intended to cure that by inducing the borrower to sign another false document, this time naming an entirely new fake lender. In other words it is a REFINANCING to the benefit of BOA in which BOA may or may not have paid any number of parties to become the new “lender,” but among those parties, none of them was CW. 

Don’t Talk Politics! HAPPY THANKSGIVING!

There is no better way to ruin a holiday or an otherwise happy family than by arguing about politics. I’m sure I am not the only one who has said something like that and I won’t be the last. 


Accordingly I have drawn up a set of optional rules and presumptions that I think should apply to political conversation, should you wish to accept them. And to start with my first rule, just because I said it doesn’t make it so. 

  1. If you don’t accept the rules, don’t talk about politics.
  2. If you must talk about politics here are the rules:
    1. Make it fun. Don’t make it contest of wills. You are both going to lose on that. Neither one will ever change their perspective on life, except on their own terms — not yours. But you can both win if you look for things that you actually share in common. For example, a majority of all voters wanted to disruption in Washington DC. They got it in Trump. Many if not most would have accepted it from Bernie Sanders. Practically everyone knows on some level that they got screwed by government and the courts which rubber stamped fraudulent bank activity. Everyone still hates the big banks. But new startups are challenging the big banks. Talk about that.
    2. Joke about ideas not about people. 
    3. Accept that all views are within the scope and intent of American politics. No point of view is inherently unpatriotic unless it seeks the overthrow of the US Government or the abandonment of the US Constitution and the laws. Example: Lots of people are worried about guns. Start with the premise that the 2d Amendment does not permit outlawing guns but does permit regulation. So if you want to take away the guns you need to change the constitution but if you want a nuclear missile in your backyard you can’t do that either. Talk about that.
    4. Your pundit is no better than their pundit. Don’t quote pundits from the media. Whether it is Hannity or Maddow their pitch is identical: “Here is what we think will keep you watching our show and advertisements instead of doing something more productive with your life.” Personally I think that 24 hour news relating the same stories over and over again is absurd. Daily shows in my opinion should be made weekly. The stupidest news stories this year were weather reporters standing their ground against a dangerous storm. Talk about that.
    5. Accept and assume that neither Trump supporters nor opponents have any monopoly on intelligence or information. Each group has the same range of intelligence and information. All groups have partial information, some of it true and some of it false. Attacking a specific assertion of fact is like noticing a blemish on an otherwise spectacularly beautiful person. 
    6. Accept and assume that Republicans and Democrats share the common goal of enhancing everyday life and opportunities for all Americans, especially themselves. Assume that the methods differ but that both have failed and succeeded. Talk about that.
    7. Accept and assume that Trump voters were not voting against their interests but rather willing to sacrifice some interests for the sake of other interests.
    8. Trump ran on disruption and kept his promise. He won on that and he governs on that. There is no shock. He is one of the few candidates that ran on a promise and kept it. 
    9. Accept and assume that for conservative  voters the point is disruption of an unresponsive system that disrespects, ignores and leaves them behind. For most of them it is not about bias and racism. For most, the dog whistle is about hatred of a corrupt system not hatred of people. Bias and racism exists on both sides of the aisle.
    10. Accept and assume that liberal or progressive voters are right when they seek to protect the equal rights of all humans on the planet. You can disagree with when and how all you want. But you are both on the same side of the goal. That is the point of being the United States of America. 

Flipping Fraud: Is It Really Any Different From What the Banks Are Doing?

Hat tip to one of our readers and a frequent client of lendinglies.com.

Flipping Fraud: the act of getting a deed executed in the name of someone who doesn’t own the property and then selling the deed to a third party.

Given the fact that ultimately when pushed to the wall none of the banks can actually prove title with facts, tricksters have discovered a huge doorway in which they can profit by selling property that they don’t own just like the banks do.

I am quoting his article as written:

One kind of property flipping fraud occurs when a deed is purchased for pennies-on-the-dollar from a party who did not have good title or possession, in this case (as in ____________ v. Stonecrest Financial) in Oct. 2017 from U.S. Bank who had lost their own UD action over 5 years prior, and then sold the loan (minus the underlying debt they never owned) [e.s.] back to Countrywide (Bank of America). The perpetrators, using an anonymous LLC, Holly Hill Investments, LLC, advertise internationally through their RICO affiliate, Stonecrest Financial, that “sales are robust from acquiring properties with title and occupancy issues.” However, there are no title issues until they record their fraudulent deed; and there are no occupancy issues until they go into court, often by ex parte hearing, to avail themselves of the archaic unlawful detainer landlord tenant laws. Often their investors are off-shore money launderers, who get their money back right away when the perpetrators immediately use the fraudulent deed to encumber the property with a house-flipping bridge loan to allegedly to fix up the property.  The scheme culminates with the property then being sold to a “bona fide purchaser” at often double the price paid for the fraudulent deed.

Red flags for this kind of illegal property flip include:

  • Seller very recently acquired the property title
  • No real estate agent is used
  • Property was recently in foreclosure or acquired at a low price
  • Appraised value is understated on the immediate bridge loan and stated at the higher value upon sale.
  • Appraiser frequently uses other property flips as comparisons

Property flipping fraud also occurs more frequently when a property is purchased and resold at an artificially high price, usually after making only a few cosmetic improvements. Straw borrowers are often used in these transactions.

The only thing I would add is that this scheme is using the bank playbook. They use institutional sounding names to make it seem real. That is exactly what happens when they use a big name as Trustee of a trust that never existed and will never get the proceeds of sale on a foreclosed home. The cases all name Deutsch or BofA or US Bank as claimant when those banks are not making any claim at all. The lawyers never talk to the so-called trustee who doesn’t have any trustee powers. The lawyers represent a self serving subservicer who is following the directions of other intermediaries. And the only witness comes not from the claimant but from this remote entity calling itself a servicer.

Foreclosure Defense Discovery Timeline

In answer to a number of very similar questions about the paid services we provide on www.lendinglies.com regarding the subject of Discovery, I submit the following:

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The TERA will definitely give you narrative from which you can cut and paste questions or at least ideas on what questions you could ask in discovery. But it is far from a complete analysis for discovery. It is a part of the analysis required to come up with a complete defense narrative that you can use to guide you through litigation and educate the judge on what is wrong with the false case against you and your property (if that is the case).
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The Case Analysis goes much deeper and completes the defense narrative as well as providing you with more in depth insight that can be used for cut and paste into discovery and the narrative for defending your discovery requests which most certainly come under attack.
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Discovery is a multi faceted approach.
  • First you have the QWR and DVL.
  • Then you have the complaints to the State AG and the CFPB.
  • Response to statutory letters often provide the basis for the next step, because your opposition will evade, lie, and provide inconsistent answers. 
  • It is not uncommon to see them back off of a sale or dismiss a foreclosure case entirely when confronted with questions and accusations from the homeowner. 
  • The next step in the discovery process is the filing in court and service of discovery requests (usually limited to a specified number — i.e., you might need to submit more than one set) in the form of one or more of the following:
    • Interrogatories
    • Request to Produce (only aimed at party who is named in litigation)
    • Subpoena for documents
    • Subpoena for deposition duces decum
    • Request for Admissions
    • Request to enter or inspect
  • Following the filing and service of any discovery request you will almost definitely be met with objections and motions to strike and so forth. You must use the defense narrative to justify your questions and to answer how your request might lead to the discovery of admissible evidence. This part requires an aggressive stance — one that is often missed by pro se litigants and foreclosure defense lawyers.
  • Once you have received an order commanding compliance with your discovery request you will probably need to consider filing a motion for sanctions for non compliance. (We know that they will never admit that there is no trust or that the claimant has no interest in the loan or that the claimant won’t receive the proceeds of liquidation of the property.)
  • And lastly you will need to preserve objections before trial and possibly file a motion in limine to restrict the evidence your opposition can introduce at trial to the extent that includes discovery items they refused to give you.
While the questions will generally follow the same theme from case to case your discovery will be shot down if it is not specific according to your  defense narrative for this case alone.
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We provide all these services either through www.lendinglies.com or by direct retainer of Neil Garfield (neilfgarfield@hotmail.com) as an expert consultant or for legal consulting and analysis that can be used in conjunction with and in support of a local attorney.
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In order to put all these elements into an actual plan for your case alone, you must submit the REGISTRATION FORM to us before even beginning. Put as much information on then form as you can do. The less information you give the more work we must do and must charge you for us to do the work.
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Finally that leads to the Consult. Usually a thirty minute CONSULT is sufficient. In that conversation we decide on the path that you wish us to take in preparing pre litigation and litigation documents. Later Consults are for strategic assistance in confronting the efforts of the lawyers for often nonexistent clients to obfuscate, wear you down and thus defeat you.
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Generally speaking we require consults to be ordered with the PDR (Preliminary Document Review). This pays us to review some of your documents and the most recent reports and correspondence in preparation for the Consult with me, Neil Garfield.
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But all of this work is virtually identical to the background work needed to defend against a motion for summary judgment. However, if you want us to write the opposing motion and brief you need to hire us to do that by direct retainer of Neil Garfield (neilfgarfield@hotmail.com) as an expert consultant or for legal consulting and analysis that can be used in conjunction with and in support of a local attorney.

How to Beat the Shell Game

The bottom line is that the foreclosures are a sham. The proceeds of the foreclosure never go into a REMIC Trust because there is neither a REMIC election nor a Trust, much less any entity that outright owns the debt, note or mortgage. In order to win, you must know that the securitization players use sham conduits and fictitious names at will, leaving an ever widening gap between the real and the unreal. It’s the gap that enables so many homeowners to win.

Without getting too metaphysical about it, I am reminded by what Ghandi said when he won India’s independence against all perceived odds. He said that in the end truth always wins out. Always. Of course he didn’t say when that happens.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

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

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I recently received an email from someone dealing with “Shellpoint” servicing. I thought it might be beneficial for everyone to see my response, to which I have added some edits.

Shellpoint is an apt name. It is a Shell company organized to deflect inquiries and claims from the real actors. The “point” is how they stab homeowners. Modifications are pointless in most cases, designed to place the homeowner in a hopeless economic situation in which they cannot avoid foreclosure.

Mods are intentionally convoluted and virtually nothing is happening on their side except the process of asking for more documentation when you have already sent or they already have it. Some mods are “granted” but only after they have raked the homeowner over the coals and they offer ice in the inter, along with their outright theft of the debt from the actual legal or equitable owner.

The new lender, effectively, is the so-called servicer who in turn has a Purchase and Assumption Agreement with the underwriters of so-called mortgage bonds or certificates. They are not bonds and they are not actual certificates. While those underwriters do business in the  fictitious name described as a REMIC trust when dealing with homeowners, they do not use the fictitious name when they create the illusion of ownership of the debt, note or mortgage.

CWABS is Countrywide. CW was an aggregator only in the loosest sense of the word. Most believe that CW acquired the loans and then was the seller to REMIC Trusts. The entire scheme was a sham. CW did not acquire any loans and was therefore not the seller of the debt, note or mortgage. The REMIC Trust was legally nonexistent and /or had no transaction conducted in its name in which the Trustee of the so-called REMIC Trust was entrusted with your loan to manage on behalf of beneficiaries who also were nonexistent.

The investors who purchased certificates issued in the name of the fake trust are not beneficiaries. The Trustee has absolutely no power to even inquire as to the affairs of the Trust much less actively manage them. Read the PSA — all the way through.

Although there are a few exceptions the investors disclaim any right, title or interest to the debt, note or mortgage. If they were beneficiaries they would have rights to the loans and rights regarding the management of those loans.  The named Trustee would have fiduciary duty to the investors regarding those loans. In truth the underwriter of the certificates was actually the issuer acting under the name of the nonexistent trust which was neither the direct nor indirect owner of any assets, much less loans. And the Trustee is merely a rent-a-name to make it look like a serious financial institution was at the head of this scheme.

Companies like Shellpoint claim their power is derived from the nonexistent trust that does not own the debt, note or mortgage and which will not receive the proceeds of foreclosure.

If their powers and rights are said to derive from the existence of the Trust, then they have no power. They have no right to collect anything or enforce anything unless a specific owner of the debt, note and mortgage is (a) identified and (b) the owner gives specific rights and direction to an agent (servicer) to conduct business in the name of the owner or for the benefit of the owner of the debt, note and mortgage.

Proving this to a judge who is at best skeptical of such claims is essentially impossible. That is because the defense narrative would require digging deep into the books and records of the trust (there are none) and deep into the records of the previous and current servicers to determine where they sent money that they collected from homeowners supposedly pursuant to the terms of a promissory note. The current state of such narratives is that they are deemed not credible or “not proven” even though they are true. And accordingly the attempts at such discovery and investigation are thwarted by the court sustaining objections to such discovery.

Those objections are lodged by lawyers who claim that they represent the named claimant. That is also a misrepresentation in many cases because the claimant they have named does not exist and has no direct or indirect power or rights over the debt, note mor mortgage. Since the claimant does not exist, that should be the end of the matter. But once again rebuttable presumptions come to the rescue of the lawyers of nonexistent clients. And once again those presumptions are not rebuttable without getting proof from sources who simply will never comply even if ordered by a court.

But just to be clear, this is a possible basis for suing the lawyers who filed such claims either knowingly or by failing to conduct basic due diligence. Any normal lawyer would not knowingly take directions from a third party in which they were to file suit or start a nonjudicial foreclosure on behalf of a nonexistent entity that neither exists nor has any interest in the subject matter of litigation. So later when you file suit for wrongful foreclosure, abuse of process, RICO or whatever you decide are proper grounds and causes of action, consider the foreclosure litigation to be  a vehicle for laying the groundwork for actions in fraud, misrepresentation and negligence.

So the lawyers who win these cases enter the courtroom knowing that the defense narrative is true but they do not assert it as a claim they must prove.  They are adept at keeping the burden of proof away from their client homeowner. The winning lawyers basically follow the track of keeping the burden of proof on the claimant who seeks foreclosure. The lawyers know that the the claimant simply will not and cannot answer certain questions that can be used to undermine the legal presumptions on which the entire claim is based, contrary to the actual facts. The winning defense lawyers are the ones who use timely objections and good cross examination (i.e., constant follow-up). In the end the witness or the document will collapse under its own weight.

 

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