The Money Trail: Does anyone meet the definition of a creditor?

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation. In order to make it easier to serve you and get better results please take a moment to fill out our FREE registration form https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583 
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  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
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  5. COMBO Title and Securitization Review
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For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
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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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I speak to people across the country. As I discuss the issues that get increasingly complex, we reach areas in which there are differences of opinion which is why you need to consult with someone who is licensed in your state and who has done the heavy research (no skimming allowed). The issue is what payments should be credited to whom. And the answer really is you should be asking an accountant and a lawyer. This is why my team is reaching out to accountants and auditors to round out what is needed in cases.

The problem is that this is a grey area. Payments made to the beneficiaries of the trust were never intended to discharge the debt from the “borrower.” That’s obvious. But payments were made on account of this debt. So we go back to the law of presumptions. If the creditor receives a payment and the payment is on account of a particular debt due from a particular debtor, then it is discharged to the extent of the payment — regardless of the stated “intent” of the payor after the fact. So servicer advances definitely fall into that category. But in addition, if the entire debt has been discharged by the replacement of the obligation with another obligation from another party, then you have similar issues.

So first of all, the beneficiaries agreed to take payments from the REMIC Trust — not the “borrowers”. There is no relationship between the beneficiaries of a trust and any single “borrower” or group of “borrowers.” The REMIC Trust doesn’t pay the beneficiaries despite the paperwork to the contrary. The REMIC Trust is inactive with no assets, bank accounts, business activity etc.

It is the Master Servicer that pays the beneficiaries. And the Master Servicer makes those payments regardless of whether it has received payments from the beneficiaries. (servicer advances). The note and mortgage name a specific payee that is neither the Trust (or Trustee) nor the Master Servicer. So the first real legal question that I raised back in 2007 was the issue of who was the owner of the debt or the holder in due course?

The debt arose when the “borrower” accepted the benefits of funding that came from an unidentified source. It is presumed not to be a gift. The “borrower” has signed a note and mortgage in favor of a party that never loaned him any money — hence there is no loan contract and the signed note and mortgage should have been destroyed or released back to the “borrower.” Such a loan is table-funded and is almost certainly “predatory per se” as described in REG Z.

Since there is no privity between the “originator” and the Trust or Master Servicer the loan documents cannot be said to be useful, much less enforceable. Those documents should be considered void, not voidable, when the payee and mortgagee failed to fund the loan. The repeated transfers of the loan documents without anyone ever paying for them clearly means that the consideration at the base “closing” was absent. Hence there is no consideration at either the origination or acquisition of the loan documents. Acquisition of the loan documents does not mean acquisition of the loan. If there was no valid loan contract or there is no valid loan contract (rescission) executing endorsements, assignments and powers of attorney are meaningless.

So there is a serious question about whether there is a legal creditor involved in any of these loans. There are parties with equitable and legal claims, but not with respect to the loan documents that should have been shredded at the very beginning. All those claims are unsecured. And the foreclosures, in truth, are for the benefit of parties who have no relationship with the actual money that was used to the benefit of the alleged “borrower” who is looking more and more like a party who is not a borrower but who could be debtor if there is anyone answering to the description of “creditor.” No party in this scenario seems to answer to that description.

And THAT would explain why NO PARTY steps forward to challenge rescissions as a creditor and instead they attempt to retain their status of having apparent “Standing” and attack the rescission through arguments that require the court to interpret the TILA Rescission Statute, 15 USC §1635. But the US Supreme Court has already declared that it is the law of the land that this statute is not subject to interpretation by the courts because it is clear on its face. So such parties are seeking relief they didn’t ask for (vacating the rescission) using the void note and void mortgage as their basis for standing.

Thus without someone filing an equitable claim showing that their money is tied up in the money given to the “borrower” there does not seem to be a creditor at law.

Add that to the fact that most of the “Trusts” were resecuritized by more empty trusts and you have the original beneficiaries completely out of the picture as to any particular loan and the so-called REMIC Trust being completely out of the picture with respect to the loan or loan documents that were originated, even if they were not consummated.

Patrick Giunta Wins The Argument in 4th DCA: Down to the Nitty Gritty: Holder vs Owner of the Note

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation. In order to make it easier to serve you and get better results please take a moment to fill out our FREE registration form https://fs20.formsite.com/ngarfield/form271773666/index.html?1453992450583 
Our services consist mainly of the following:
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  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
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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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Patrick Giunta, Esq. chalks up another win that is right on the money. He also won attorney fees and costs. Although Patrick and I co-counsel certain cases he did this on his own. Patrick is a lawyer who gets it. His number is 954-928-0100.
This is an important case as it shows the shifting judicial attitude toward foreclosure defense. Originally thought to be mostly frivolous, defenses are taken far more seriously because of the kind of lawyering that was done in this case. The courts are now actually applying the law. This case shows that if you really break the issues down to their bare elements, you can win on appeal.
Two things important about this case are that (1) the trial court was reversed for treating an “owner” of the note as the same thing as a “holder” at the time the suit was filed and (2) the recognition that there is a difference between holder, owner and non-holder with rights of a holder (i.e., rights to enforce).
Lastly the court is following the progression of cases where instead of remanding for further proceedings (like substitution of Plaintiff) the Court ordered entry of involuntary dismissal.
And finally my comment is that there is still room for litigation in these cases, since the involuntary dismissal is against only one of what I call co-conspirators. BUT the deeper we drill the easier it is to force them into a corner. The plain fact is that they have been successfully fighting against revealing the money trail. If that was actually revealed from one end to the other on each of multiple chains used by the banks, it would be apparent that what went on here was more sinister than what has thus far been revealed — and the reason why Bush and Obama were scared into preserving the status quo rather than holding the banks’ feet to the fire.
I will explain more at a later time. But here is a teaser: the fractional reserve banking system with the Federal Reserve as the Central Bank was replaced with a virtual fractional reserve system in which non-banks acted as though they were banks.
This was tied to a virtual central bank controlled by the banks. It enabled them to act as though they were commercial banks acting within the Federal Reserve system when in fact they were operating a rogue system wherein the sale of each loan created “capital” to create more loans. The MERS model was in fact used throughout the vast universe of finance as to law firms, servicers, banks, conduits, and even the central bank.
This explains why the banks begged for and received commercial bank status effectively ratifying their prior illegal behavior but putting the real Federal Reserve in the position of having no choice but to do “quantitative easing” to make up for the shortfalls.
And it explains why the original documentation on so many loans was intentionally destroyed. The numbers didn’t add up. The amount of money invested by managed funds into dead REMIC Trusts was NOT enough to account for the number of loans given out. They were both skimming the real money and then using the proceeds of “sale” of the “loan contracts” to create both assets and income that the Banks say belong to them. So the pile-up of original notes with an inventory would have revealed that somehow the investment banks were acting as commercial banks with impunity without charters or licenses. The physical presence of the notes were an embarrassment.  Do the math.
So the notes being represented in court have a high likelihood of being fabricated through mechanical means and the “borrower” doesn’t know the difference. All of this means that on any given loan there are multiple claimants. LPS and MERS were used to siphon the cases such that one specific player was chosen for each foreclosure — when in fact none of them had any actual right to collect, enforce or foreclose.
THE DISTINCTION BETWEEN OWNER, HOLDER, HOLDER IN DUE COURSE, NON-HOLDER WITH RIGHTS TO ENFORCE AND POSSESSOR IS CHIPPING AWAY AT THE VENEER. IN DISCOVERY, THESE INCONSISTENT CLAIMS SHOULD BE USED TO DRILL DOWN TO THE MONEY TRAIL. AND FOR TRIAL THESE INCONSISTENT  CLAIMS SHOULD BE USED TO STRIP THE BANKS OF THE BENEFIT OF LEGAL PRESUMPTIONS ATTENDANT TO BEING A “HOLDER.” But note that we are still talking about the PAPER that talks about a transaction that was never consummated — as it relates to the party seeking collection or enforcement or any of its predecessors.

Bank of New York Mellon

WE HAVE REVAMPED OUR SERVICE OFFERINGS TO MEET THE REQUESTS OF LAWYERS AND HOMEOWNERS. This is not an offer for legal representation.
Our services consist mainly of the following:
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  2. 60 minute Consult — expert for lay people, legal for attorneys
  3. Case review and analysis
  4. Rescission review and drafting of documents for notice and recording
  5. COMBO Title and Securitization Review
  6. Expert witness declarations and testimony
  7. Consultant to attorneys representing homeowners
  8. Books and Manuals authored by Neil Garfield are also available, plus video seminars on DVD.
For further information please call 954-495-9867 or 520-405-1688. You also may fill out our Registration form which, upon submission, will automatically be sent to us. That form can be found at https://fs20.formsite.com/ngarfield/form271773666/index.html?1452614114632. By filling out this form you will be allowing us to see your current status. If you call or email us at neilfgarfield@hotmail.com your question or request for service can then be answered more easily.
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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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I have periodically reminded people that they should be carefully watching litigation between the perpetrators of the massive false securitization scheme. You really should see those cases, including tax cases, where the admissions and allegations in some cases directly contravene allegations by the same parties in foreclosure cases. It doesn’t bother them taking inconsistent positions because (a) nobody looks and (b) they will get away with it anyway, as long as Judges presume that all is well with the paperwork.
The prime issues in these cases revolve around a simple proposition. If the Trustee of a REMIC Trust was the Trustee of a REMIC Trust, why didn’t they act like it — demanding buy-backs, damages etc. for horrendous underwriting criteria that was opposite to what was promised in the prospectus, what was reported to the rating agencies and what was disclosed through press releases?
The answer is simple — there was no Trust, REMIC or otherwise. Investors who believed that the money would be managed by the Trust were intentionally deceived by the Underwriter/Master Servicer. The money did not go under Trustee management. Instead it went into the pocket of the Wall Street Bank that acted as the underwriter/master servicer.
While the terms of the Trust duties as spelled out in the prospectus and the Pooling and Servicing Agreement are craftily worded, it is apparent that the duties of the Trustee shrink as you read further and further. But under common law and apparently the TRUST INDENTURE ACT, a named Trustee who  accepts the assignment and is named in the Trust has duties that transcend the caveats that essentially leave the so-called Trustee with no duties at all.
Normally this would bother a prospective Trustee (US Bank, DEUTSCH, BONY/MELLON, Citi, BOA, Wells Fargo etc.). But what is STILL not being recognized is that the initial premise of the transaction never occurred. The money from the sale of the MBS to investors never made it into any account under management by the Trustee. It really was THERE that the named Trustee failed to act, even though they were recruited for their name (leasing their brand) for a monthly fee with no Trustee responsibilities. Upon issuance of the MBS from the Trust, the Trust was owed the proceeds. It never received the proceeds and the Trustee either didn’t know, didn’t care or both.
Josh Yager writes the following:

 

The preamble to the Uniform Prudent Investor Act notes, “The tradeoff in all investing between risk and return is identified as the fiduciary’s central consideration.”  For most trustees determining the return that was produced by the assets held in trust is a fairly straightforward exercise. Most investment managers are required to produce performance data that is SEC-compliant. However, defining whether the return experienced was appropriate, given the level of risk that was taken, is more complicated.

The Bogert treatise states, “The trustee cannot assume that if investments are legal and proper for retention at the beginning of the trust, or when purchased, they will remain so indefinitely. Rather, the trustee must systematically consider all the investments of the trust at regular intervals to ensure that they are appro­priate” (A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees §684, pp.145–146 (3d ed. 2009)).

To fulfill this duty to monitor the risk and return of the trust assets a prudent trustee, acting in good faith, will make the following inquiries:

Target Return: The manager’s actual performance will initially be compared to the trustee’s stated return objective. This begs the question whether the trustee has taken steps to define a targeted rate of return for the assets of which they are responsible. If they have not, they are encouraged to do so. The Target Return is stated as an absolute number (e.g., 7.0%) or as a real, inflation-adjusted number (e.g., Inflation + 4.0%).

Strategic Benchmark: The manager’s actual performance will be tested to determine whether any strategic value has been added by the manager.  This test answers the specific question, “Have the manager’s strategic investment choices produced a better outcome than a simple investment in a few major asset classes?”  This is done by comparing the actual performance and risk to that of a simple “vanilla” Strategic Benchmark that is historically consistent with the trustee’s stated Target Return (see above).  The Strategic Benchmark is a combination of Russell 3000 (US Stock), MSCI ACWI ex-US (Int’l stock including Emerging Markets), and Barclays 1-10 Yr Muni (Bonds).  For tax-deferred/free accounts, the bond component will be the BOFAML US Corp/Govt 1-10 Yr.

  1. The stock-to-bond ratio used is a mix of stocks and bonds which historically matched the client’s Target Return over the last 50 years.
  2. The Russell 3000 and MSCI ACWI ex-US are intended to represent the entire stock universe.  For example, the Russell 3000 includes US Small Cap stocks, US Value stocks, etc., and the MSCI ACWI ex-US includes Emerging Market stocks.
  3. The US-to-Int’l ratio is fixed at 70/30 to represent the “home bias” that investors of any given country typically exhibit and to recognize that the client usually spends US Dollars.
  4. For example, if the client’s Target Return is 7.0% (or Inflation + 4.0%), the Strategic Benchmark will be 40% Barclays 1-10 Yr Muni, 42% Russell 3000 and 18% MSCI ACWI ex-US.

Risk: In addition to measuring the manager’s performance against these two benchmarks, there must be an evaluation of the risk that has been accepted by each manager. Some forms of risk are quantitative and can be discovered through statistical analysis. Other types of risk cannot be deduced from statistical inquiry and require a more subjective analysis.

  1. Quantitative Risk Measures
  • Standard Deviation / Downside Deviation
  • Value-at-Risk
  • Beta
  • Max Drawdown
  • High Month Return / Low Month Return
  • Sharpe Ratio (risk-adjusted return)
  • M-Squared (risk-adjusted return)
  • Information Ratio (risk-adjusted return)
  1. Qualitative Risks
  • Lack of Liquidity: The % of the trust that cannot be liquidated within 5 business days
  • Concentration: The % of the trust held in the single largest security
  • Leverage: The % of leverage used by the trust as reflected in a debt-to-equity ratio
  • Lack of Valuation: The % of the trust assets that do not have daily valuation

Most investment managers, if provided with this overview, can help the trustee create a record that these factors have been considered and documented. If the investment manager is unable to help the trustee develop such a record, a prudent trustee will take steps to independently evaluate these factors or find an investment manager that is willing and able to do so.

Getting Your Goals Set on the Right Conclusions

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This for general information only and NOT an opinion on your case.
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I was responding to a client about the goals in opposing the wrongful foreclosures. These are hard to write or say. It might seem to be a contradiction in terms to walk away with a waiver of deficiency or some other “Settlement” or “Modification” with a party whom you know (but may not be able to prove) is false party with fake papers.

You might believe there might be as much as $50,000 in equity if and when repairs are made. My concern is that we don’t get pulled into reverse logic here. If the house is barely break-even without the repairs, then it could be wise to pursue short-sale or modification.  The real question is how much will it really cost to make the required repairs and where would you get the money from?

This is where most lay people put the cart before the horse. Equity in the home is not a matter for speculation, nor should it be calculated from a starting point of “after repairs.”

If you are looking for the pretenders to pay you damages sufficient to pay for the repairs and for them to give up on the foreclosure, it would be a mistake to assume that is going to happen without full scale litigation for wrongful foreclosure seeking money damages. That would require a lot of money in fees, costs and other expenses. You should determine whether  you have any appetite for that.

If you did have the money for repairs, then it would seem that you would have made the repairs and then sold the house, taking your equity and paying off whoever is claiming to own the loan, even if they don’t. If you don’t have the repair money, that leaves the only source of money to fix the house as the parties who wish to foreclose on it.

I have never seen them  agree to anything like that for one simple reason: They are not interested in either the house or the money. They want a foreclosure judgment and sale — that is the only path that will give them some protection against accusations of stolen money and stolen homes.

 

Since the goal of your opposition is NOT to break-even or minimize damages on the loan itself, and since their real goal is more closely related to off-record transactions in which your loan was sold multiple times, they obviously are not going to make it easier for you to save the home, save the equity, and especially [not] save the loan. They want the loan to fail not succeed. They want the foreclosure sale.

 

Now the anger and frustration nationwide with all forms of institutions flows in large part from the simple fact that we all know that the banks committed serious fraud and other illegal acts in creating these loans. We all know that there was nothing but pretense and presumption in transferring these loans and steering loans to foreclosure — rather than a workout where the original loan investments were protected, and of course foreclosure with fabricated, forged, back-dated documentation that included notes and sometimes mortgages — even if they were rescinded.

“We all know” is insufficient to prove a case or a defense. The courts have added to the problem by restricting discovery, restricting evidence on the basis that the off-record transactions (even in discovery) are irrelevant, that the money trail for the subject loan is irrelevant, and then entering orders and judgments consistent with the conclusion that might be stated as follows: “Judgment is entered in favor of the one with the most paper even if the paper does not speak the truth.”

 

My tentative conclusion, if all of my presumptions are correct, is that in situations where this analysis is relevant, on an individual basis, as a life decision, the only real goal might be to walk away without a deficiency judgment and leave it at that. Any other course of action in litigation will lead to a judgment in the trial court that statistically speaking is going to be against the homeowner, leaving the issues to be decided on appeal. That is process that will likely take at least one year and probably 2 years to complete.
From my perch of course I want all notes and mortgages to be contested if there are any claims of securitization or sale. And the proof of concept is already established — those who truly litigate all the way down to trial, have a much better chance to see a much better result than those who simply walk away. But that costs money, time and energy. And that is why I often tell lawyers and homeowners that the only right decision is what the homeowner decides to do and is willing to pay for.

CA Appelate Decision: Damage Claims Against OneWest Goes to Jury, Summary Judgment reversed

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Sue Rose is my new administrative assistant. Danielle and Geordan do not work for livinglies or the Garfield firm. If you have placed an order which is unfulfilled please call the above numbers.

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see CA Appeals OrderReversesMSJ

This case allows the jury to hear claims against OneWest for fraud, negligent misrepresentation, concealment, promissory estoppel, negligence, wrongful foreclosure, and violation of CA Business and Professional Code.

Here is an example of the obvious: a Judge takes no risk in denying a motion for summary judgment. It is only when the Judge grants summary judgment that there is a risk of reversal. With the current judicial climate changing in favor of borrowers, [including findings that the mortgage was absolutely void (invalid, non-perfected) where a sham nominee like MERS was used], Judges should take note that they are better off getting in front of the new trend and allow borrowers’ claims to be heard in a fair manner, observing the requirements of due process.

If the Banks collapse because they created 100 million invalid mortgages, that is not a problem for the Judge. And, as I have said many times here, there are 7,000 banks and credit unions that can take up whatever falls out of the mega banks as a result of investors and regulators realizing that the mortgages are void, the assets on bank balance sheets don’t exist or are far overvalued, and the liability section of the bank balance sheet is far understated as a result of damage claims like the one featured in this article.

As noted earlier on these pages, the threshold legal question has been reversed. The question now is what difference does it make if the borrower is in default if the foreclosing party had no right to foreclose?  The previous question that I heard hundreds of times from the Judges themselves was incorrect from the beginning. Their question was what difference does it make if the loan was securitized, as long as the borrower is in default? And that is where the dissenting justice in this case also got it wrong. He is still assuming that these loan transactions were in fact consummated as reflected in the alleged loan documents. The underlying assumption of the dissenting judge is obvious: that the loan contracts were fundamentally valid and whatever defects existed could be corrected before or even during foreclosure. NOT TRUE!

Here in this case is an example of how judges are now perceiving the entire loan transaction instead of just the claim of a default. And the result is that this California appellate court decided to let the case go to trial and allow a jury to hear the claims against OneWest, whose behavior was predatory from the start of when they acquired IndyMac business in 2008-2009.

The appellate court reversed the trial judge who had granted Summary Judgment for OneWest — a little plaything organized over a weekend by some of the richest people in the country. On a net basis they paid nothing and made a ton of money off of loss sharing and guarantee payments from the FDIC and and the GSE’s respectively. They also foreclosed on thousands of homes in cases where they had no interest in the loan and no right to foreclose, collect or do anything else with respect to the loan.

The hidden issue here is whether the Judge, having been reversed, will now allow the homeowner’s attorney to probe deep into the dealings of OneWest during discovery. I suspect that the trial judge will allow more liberal discovery after being reversed. And if that happens you might not never hear about this case again — as it joins the tens of thousands of cases that have been settled under seal of confidentiality. Essentially the strategy of the banks is that if they lose, they can always pay off the homeowner to keep the case from being publicized.

Modification Minefields as Foreclosures Resume Upward Volume

For further information please call 954-495-9867 or 520-405-1688

Listen to Neil Garfield Show on Thursday February 26, 2015 at 6pm EDT., and each Thursday

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see http://www.njspotlight.com/stories/15/02/02/new-foreclosure-procedures-put-to-test-as-number-of-cases-climbs-in-nj/

New Jersey now has an upsurge of Foreclosure activity. It is on track to become first in the nation in the number of foreclosures. What is clear is that the level of foreclosure activity is being carefully managed to avoid attention in the media. Right now, foreclosure articles and the infamous acts of the banks in pursuing foreclosures is staying off Page 1 and usually not  anywhere in newspapers and other media outlets online and and in distributed media. The pattern is obvious. After one area becomes saturated with foreclosures, the banks switch off the flow and then move to another geographical area. This effectively manages the news. And it keeps foreclosures from becoming a hot political issue despite the fact that millions of Americans are being displaced by illegal foreclosures based upon invalid mortgage documents and the complete absence of any real creditor in the mix.

As foreclosures rise, the number of attempts at modification also rise. This is a game used by “servicers” to assure what appears to be an inescapable default because their marching orders are to get the foreclosure sales, not to resolve the issue. The investment banks need foreclosures; they don’t need the money and they don’t need the house —- as the hundreds of thousands of zombie foreclosures attest where the bank forecloses and abandons property where the borrower could and would have continued paying.

The problem with modifications is the same as the problem with foreclosures. It constitutes another layer of mortgage fraud perpetrated by the Wall Street banks, who are now facing increasingly successful challenges to their attempts to complete the cycle of fraud with a foreclosure.

The “servicer” whom nearly everyone takes for granted as having some authority to move forward is in actuality just as much a stranger to the transaction as the alleged Trust or “Holder”. The so-called servicer alleged authority depends upon powers conferred on it by the Pooling and Servicing Agreement of an unfunded Trust that never completed its mission to originate or acquire loans. If the REMIC trust doesn’t own the loans, the servicer claiming authority from the PSA is claiming vapor. If the Trust doesn’t own the loan then the PSA is irrelevant and the powers conferred in the PSA are pure vapor.

This brings us full circle to where we were in 2007-2008 when it was the banks themselves that claimed that there were no trusts and that there was no securitization. They were, as it turns out, telling the truth. The Trusts were drafted but never funded, never used as conduits and never engaged in ANY transaction in which the Trust had funded the origination or acquisition of loans. So anyone claiming authority from the trust was claiming authority from a fictional character — like Donald Duck.

Complicating matters further is the issue of who owns the loan when there is a claim by Freddie or Fannie. Both of them say they “have” the mortgage online when they neither “have it” nor “own it.” Fannie and Freddie were one of two things in this mess: (1) guarantors, which means they have no interest until after a creditor liquidates the property and claims an actual money loss and Fannie and Freddie actually pays off the loss or (2) Master trustee (and probably guarantor as well) for a REMIC Trust that probably has no greater value than the unfunded REMIC Trusts that are unused conduits.

Further complicating the issue with the former Government Sponsored Entities (Fannie and Freddie) is the fact that many banks have been forced to buy back or pay damages for violating underwriting standards and other types of fraud.

So how do you get or sign a modification with a servicer that has no authority and represents a Trust that has no interest in the loan? The answer is that there is no legal way to do it — BUT there is a way that would allow a legal fiction to be created if a Court issued an order approving the modification and declaring the rights of the parties. The order would say that XYZ is the servicer and ABC is the creditor or owner of the loan and that the homeowner is the borrower and that the modification agreement is approved. If proper notice (including publication) is given it would have the same effect as a foreclosure and would eliminate all questions of title. Without that, you will have continuing title problems. You should also request that the “Servicer” or “Trustee” arrange for a “Guarantee of Title” from a title company.

For the tricks and craziness of what is happening in modifications and the issues presented in New Jersey and other states click the link above.

Pleading Wrongful Foreclosure

For more information please call 954-495-9867 or 520-405-1688

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see https://fightforeclosuredotnet.wordpress.com/2013/12/12/what-homeowners-must-know-about-pleading-their-wrongful-foreclosure-cases-in-the-courts/
The above link provides some very good guidance about pleading wrongful foreclosure although it appears to relate more to non-judicial states than judicial states. Remember that pleading fraud not only requires specificity but must be proved. The fact that the foreclosure filing was wrong is one thing but proving it was fraudulent rather than negligent or breach of contract is quite another.

If you are in active litigation then seeking sanctions might be either an alternative or something in addition to a separate lawsuit that arises when the case is decided in favor of the homeowner. As we have seen over the last few years, the grounds upon which these cases are decided in favor of the homeowner vary widely. Some decisions show that the acts of Deutsch or Chase or Wells Fargo or CitiMortgage et al were committed with full knowledge of what they were doing and that they were playing a shell game on the court and on the borrower. Those cases seem more conducive for fraud or spurious litigation or wrongful foreclosure. A decision based upon non-compliance with paragraph 22 — defects in the notice of default or right to reinstate or notice of acceleration might be the subject of abuse of process and might not. But without more in the proof or opinion from the Court the issue of fraud or intentional tort of some other kind seems more difficult.

Lack of standing means the homeowner wins but it does not mean necessarily that a case for fraud or wrongful foreclosure will be successful. The opposition will respond (affirmative defense) that the mistake in standing does not establish any entitlement to damages or any other action by the court because the right to foreclose still exists on behalf of some entity. But this defense is basically a crystal ball defense unless there is an established creditor who is legally pursuing collection on the loan.

Cases in which the bank blocked the sale or refinance of the property, or unilaterally tried to avoid a modification, or where the borrower was in fact current when actions by the bank forced the borrower into the illusion of default are the best cases, in my opinion, for a wrongful foreclosure.

In short, the law is murky on these issues because the whole truth about securitization “fail” has not been fully absorbed and processed by the judicial system. Right now most judges are making rulings based upon the assumption that securitization is irrelevant — a view that is inconsistent with the the alleged right of the beneficiary or mortgagee to initiate foreclosure and pursue collection. The rights to do so exist in the PSA which is often admitted into evidence. Thus the same court that accepts the PSA into evidence will often rule that the provisions that require servicer advances (hence, no default as per books of the Trust or Holders of Certificates) or PSA provisions that block any right to pursue foreclosure or collection by the Trustee or the Trust are not relevant. But the general rule is that once a document is admitted into evidence the parties can use it any way they want.

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