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FHFA Loan Reduction, Reduction: What’s Your Function?

PRM_Map

The Fair Housing Financing Agency has announced the details on the principle reduction program. The program is severely limited and requires that reductions be made only to owner-occupied borrowers who are 90 days or more delinquent as of March 1, 2016. The program will only apply to borrowers whose mortgage have an outstanding unpaid balance of $250k or less, and whose market-to-market loan-to-value rations exceed 115%.

Thus, the program is likely targeted towards the lower and middle class borrower who are upside down. This program clearly discriminates against the middle class borrower who purchased homes in the $250,001.00 to $417,000 loan limit range insured by the FHFA. Where is their relief? Many of these borrowers were offered homes based on inflated appraisal values.

Under the proposed rules, the FHFA said that approximately 33,000 borrowers are potentially eligible for the “final crisis-era modification program.”  The reality is that the number of eligible borrowers is actually less than that.
A new report, published Monday by the FHFA, states that the FHFA now estimates that more than 30,000 borrowers will be eligible nationwide – the number is 30,761 to be exact.  The FHFA report, states that the reduced number of eligible loans can be attributed to “the fact that the housing market is continuously evolving and may have improved in some areas.” Great excuse FHFA- by the time the program is done, Lending Lies team members predict that less than 12,000 homes will receive principle reductions based on prior results of the FSHA and GSEs.

 
Even more worrisome is attempting to predict how the FHFA and the loan servicers will use this program to ensure a default and foreclosure occurs. We predict that applications will be lost, eligible people will be foreclosed on during negotiations or turned away- and the program will end as soon as the intended public relations blitz creates the illusion that your government genuinely wants to help. We’ve seen how this type of program plays out when you get servicers administering assistance programs- the programs become a tool to engineer a default.

 
Since the program already requires homeowners to be at least 90 days past due on your loan, how many homeowners will be told to simply skip three months of mortgage payments to become eligible? All of a sudden the borrower’s options diminish quickly and the unsuspecting homeowner loses their home.
Don’t be fooled, we’ve been down this road before. Why must a homeowner fall behind 3 months on their mortgage payments? Because it will likely make it almost impossible for most families who have no savings to come up with a lump sum to cure the arrearage to stop a foreclosure sale. This is but another tactic to strip lower-middle class families of their homes and the end result will be a nation of renters who can never build any true wealth.

 
Back to the story. Where will these eligible borrowers be located? According to the FHFA report, eligible borrowers “tend to be concentrated in communities across the country that have not yet fully recovered from the foreclosure crisis, especially in states with long foreclosure timelines.”
The latest FHFA report actually sheds more light on that, showing the top ten states where the eligible borrowers are.

 
According to the FHFA report, the top ten states with the most potentially eligible borrowers are located in:
Florida – 6,260 potentially eligible borrowers
New Jersey – 6,257 potentially eligible borrowers
New York – 2,823 potentially eligible borrowers
Illinois – 2,434 potentially eligible borrowers
Ohio – 1,214 potentially eligible borrowers
Pennsylvania – 1,109 potentially eligible borrowers
Nevada – 1,032 potentially eligible borrowers
Maryland – 726 potentially eligible borrowers
Connecticut – 703 potentially eligible borrowers
Massachusetts – 682 potentially eligible borrowers

 
The FHFA report also provides more detail on the delinquency status, loan balances, and loan-to-value ratios of the eligible borrowers.

 
In Florida, for example, the 6,260 potentially eligible borrowers have an average loan balance of $156,719, an average LTV of 158%, and are an average of 1,590 days delinquent, which is nearly 4.5 years.

 
In New Jersey, the 6,257 potentially eligible borrowers have an average loan balance of $171,403, an average LTV of 163%, and are an average of 1,791 days delinquent, which is almost 5 years.
According to the FHFA, the principal reduction modification terms include capitalization of outstanding arrearages, an interest rate reduction down to the current market rate, an extension of the loan term to 40 years, and forbearance of principal and/or arrearages up to a certain amount to be converted later to forgiveness. This sounds like a pretty good option for those borrowers who are likely to lose their home.

 
However, when the government offers a plan that appears too good to be true- it usually is. Most modifications we have examined in the last year are not a good deal for the homeowner, and in the majority of cases the homeowner would be better off letting the home go back to the servicer. Typically, the homeowner will end up paying all arrearages, their payment will go up, and at the end of the 40 year term there will be a balloon payment required.

 
The process of capitalizing outstanding arrearages typically makes it impossible to modify the principal value of the home. The FHA admits that the average home in Florida is 4.5 years delinquent. The arrearage on a 200k home would be around $48,000 and with late penalties probably another $10k or more. The program doesn’t make sense because the homeowner is still going to end up in a loan where the own more than the property is worth.
This may be the reason behind the program for the FHFA. If they can get borrowers to sign new loan documents (even if they can’t afford the payments), they can “fix” all of the loans that have major title issues including robosigned and fabricated documents. This program could create the illusion that the homes that were in the home reduction program convey clear title (when they don’t and never can).

 
In theory, the federal government benefits in these ways from the home reduction program:

 
1. They create more defaults by telling people to fall behind 90 days or lost their applications. Thus creating larger arrearages that can’t be cured (or even forcing a homeowner over the $250k limit by delaying if the numbers are close).
2. They can use the program to create new loan documents to ‘fix’ title issues.
3. They can collect some of the payments before the home once again falls into default (which is likely since the borrower will have larger payments and balances amortized over 40 years).
4. With the continuing cooling real estate market, the homeowner will be underwater.
I won’t get into how the FHFA and servicers will issue reduction programs on loans they don’t own- but apparently the federal government housing agencies create the rules as they go.
At Lending Lies, we are gearing up for more calls from homeowner who lost their home while being considered for a loan reduction plan. Next year we will field calls for homeowners who accepted reduction programs that were unaffordable and resulted in the loss of their home. We hate to be skeptics, but the HAMP program actually caused more suffering and resulted in more home losses than it saved. This program, just like HAMP, sounds great on paper- but the numbers and strategy only work in a land of make-believe.

 
Eligible borrowers should expect a letter from their mortgage servicer about a principal reduction no later than Oct. 15, 2016, the FHFA said.  Caveat Emptor.

Mortgages: Weapons of Middle-Class Mass Destruction

PITCHFORK AND HOUSE

By the Lending Lies Team

http://www.zillow.com/research/foreclosures-and-wealth-inequality-12523/

Losing your home by foreclosure to a bank that used fabricated documents to foreclose is a tragedy that has tainted the American dream for millions of Americans. The process is unjust, unlawful and dehumanizing. But even years after the former homeowner has moved forward with their lives they sustain another injury they are probably not even aware of- and that is the loss of rebound gains in the market.

Oddly, homes that are foreclosed on tend to gain value back at a higher rate than properties that have not been previously foreclosed according to real estate website Zillow who conducted research on the matter.  Former owners missed out on potential profits generated by the “recovery” and therefore sustained even more financial harm. Instead, the profits went to governmental agencies, GSEs (Fannie/Freddie), hedge funds, investors and flippers who bought these properties for pennies on the dollar.

In the Miami-Dade, Broward and Palm Beach, homes that were foreclosed had a 79 percent increase in price from the market’s lowest point. The research also shows that the homes that were foreclosed upon were the homes of lower-income people and young families.

These families who were illegally foreclosed upon were thrust into an inflated renters market where they likely secured accommodations that were inferior to the living conditions of the home they lost and even less affordable. The prior owner lost their down payment, any equity and any appreciation in home value. Many of these families may never recover from the financial slaughter they suffered.

“You had a ton of appreciation for these foreclosed homes, but the [prior] homeowners weren’t getting the benefits,” said Svenja Gudell, Zillow’s chief economist. “Lower-end and foreclosed homes were bought up by investors who would transform those homes into rental properties. … Had they held onto their home in many markets, homeowners would’ve made back their original investment plus much more.” The foreclosure crisis has contributed to the massive wealth gap that has evolved since the 2008 market crash.

Even more concerning are the actions of the Veteran’s Association that guarantees the loans of United States service members who obtain VA-guaranteed mortgages. The VA is not assisting veterans who served their country to retain their homes when default threatens. In fact, the VA is known to foreclose on the homes of veterans for pennies on the dollar, evict the veteran, hold the property and then sell the property at a large profit.

Recently the Lending Lies team learned of a veteran with health issues caused by Agent Orange exposure. The VA foreclosed on his home that had a remaining balance of 7k. The VA held the property for a year and then sold the home for over 100k. The displaced veteran who had paid on his home for decades did not share in the profits the VA made from the sale of his home.

Homeowners have the potential to be damaged at three different junctions during  their loan: at closing, during default, and post-default. The homeowner is damaged at closing when they receive a table funded loan, there is no disclosure regarding WHO the true creditor is, and they are not told that they are signing a Note that is actually a security and not a mortgage. The homeowner does not receive disclosure that investors will make millions of dollars from the homeowner’s signature and is not told that he/she will carry all of the risk when the game of securitization is put into play.

A homeowner may be damaged during the term of their loan by the loan servicer who is looking for an opportunity to create a default so they can foreclose on the home. The homeowner may be given erroneous information by the servicer or may not receive service to resolve an issue that may occur during the life of the loan. The servicer may create a default by misapplying payments, inflating the balance by applying illegal fees, and other tactics to engineer a default. When a homeowner facing default contacts their loan servicer looking for assistance, the homeowner is not engaging with a servicer who is looking to find a solution.  Instead, the homeowner is dealing with an agent who is trained to find the homeowner’s Achilles heel in which to exploit and create a default.

At this point the homeowner in default will experience the Foreclosure Machine where documents disappear into ether or magically transform, bank presidents have G.E.D’s, and due process means you had your three minutes in front of a judge. The majority of homeowners caught up in this stage of foreclosure will gladly do anything to end their misery. Despite their knowledge that the servicer foreclosing has no standing- the wounded homeowner may prefer to chew off their own arm to escape the clutches of attorneys, motions, and bank intimidation.  This is the stage where the homeowner should refuse to back down and dig in their heels, but the majority flee.

After the homeowner has lost their home to an entity who had no standing to foreclose, the homeowner will suffer further economic decimation. The vultures who made millions off of the economic destruction of the American middle and lower-middle class will become their landlord. While the tenant works to make his monthly rental payment and is not building any equity, the landlord will sit back and collect the passive income while the foreclosed property appreciates at 18% plus a year.

Can there be any doubt that taking out a home mortgage from a mega-bank is not a method of middle-class mass destruction?  Caveat Emptor.

 

Lack of Standing is an Affirmative Defense

Appellant Robert J. Stoltz prevailed against Aurora Loan Servicing and Nationstar Mortgage in Florida’s Second District Court of Appeals. Honorable Judge Daniel R. Monaco reversed the final foreclosure judgment ruling that the plaintiff’s failure to prove standing at the inception of the suit was fatal (see Dickson v. Roseville Props., LLC, 40 Fla. L. Weekly D2520 (Fla. 2d DCA Nov. 6, 2015- quoting, “For better or for worse, it is settled that it is not enough for the plaintiff to prove that it has standing when the case is tried; it must also prove that it had standing when the complaint was filed.”).

 
Nationstar Mortgage had filed suit against homeowner, Robert Stoltz, and a different servicer named Aurora Loan Servicing was substituted as plaintiff prior to the trial. In the lower court the servicer claimed they were the holder of the note, not that they were foreclosing on behalf of a holder. Stoltz raised the question of standing at inception by pleading lack of standing as an affirmative defense in his amended answer.

 
Standing at inception of a lawsuit is required in Florida. The present servicer was required to prove at trial that the original servicer (the one that filed to foreclose) held the note at the time the case was filed (see: Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015)).

 
During the trial, the present servicer attempted to achieve this burden by presenting a note bearing an undated indorsement in blank. An indorsement in blank is considered legally sufficient to prove that the person in possession of the note is a holder and has standing to proceed at trial (see: Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013).

 

However, the indorsement in this case was undated and was not attached to the original complaint, and therefore was insufficient to prove that the original servicer held the note at the inception of the case. Without additional evidence that the original servicer actually possessed the Note at the inception of the case- the case should have been dismissed (see: Sorrell v. U.S. Bank Nat’l Ass’n, 41 Fla. L. Weekly D847 (Fla. 2d DCA Apr. 6, 2016)).

 
The current servicer’s only evidence of standing presented was the testimony of its corporate representative. The testimony of this representative failed to establish that the original servicer held the note when the case was filed. Therefore, the current servicer could not prove standing at inception. The borrower’s motion for involuntary dismissal should have been honored in this case (see Russell, 163 So. 3d at 643; May v. PHH Mortg. Corp., 150 So. 3d 247, 249 (Fla. 2d DCA 2014)).

 
The court took into consideration that the operative complaint attached a copy of an
assignment purporting to transfer both the note and mortgage to the original servicer priorto the date suit was originally filed. That document may have proven that the first
servicer had standing at inception (see: Focht, 124 So. 3d at 310 (“A plaintiff who is not
the original lender may establish standing to foreclose a mortgage loan by submitting a
note with a blank or special endorsement, an assignment of the note, or an affidavit
otherwise proving the plaintiff’s status as the holder of the note.”). However, the current servicer, failed to admit this document into evidence during trial.

 
On Appeal, the servicers did not argue and failed to cite any authority that the assignment was sufficient to support the judgment when standing is contested during trial (see: Beaumont v. Bank of N.Y. Mellon, 81 So. 3d 553, 555 n.2 (Fla. 5th DCA 2012)- a copy of an assignment of a note in the court file was not competent evidence where it was never authenticated and offered into evidence). The final judgment was reversed and the case remanded back to the trial court with directions to enter an order of involuntary dismissal. With Florida’s lack of a statute of limitations on foreclosures, the servicer will likely have ample time to “correct” their deficiencies and errors and attempt to foreclose again ad nauseum.

 

STOLTZ-v-AURORA-LOAN-SERVICES-LLC(1)
Congratulations to attorney Nicole R. Moskowitz of Neustein Law Group, Aventura representing Appellant Robert Stoltz.

How Much Did Banks Pay For The 2008 Financial Crisis? Fines And Settlements Of Over $160 Billion In Past 8 Years

BREAK THE BANKS VAULT2
So for an average of $20 Billion per year, the mega banks received an infinite supply of forever stamps — “forever” in the sense that they committed epic fraud and are still doing it. I believe this will be regarded as the most historic blunder in American history committed by three consecutive and diametrically opposed Presidential Administrations with the legislative branches of government and the judicial branch of government complicit or at least falling into the party line. In the end Clinton, Bush#2, and Obama all made the same mistake — thinking that market forces would keep the country and the world safe from the financial equivalent of thermonuclear war.
–THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.–
In return the Federal Reserve and the US Treasury “bailed out” banks that were “too big to fail” — in a total amount that will probably never be known but which most economist and financial analysts agree is in the neighborhood of over $5 trillion, plus allowing the mega banks to keep more than $10 trillion they stole from investors. The bitter irony is that this plan sucked all the juice out of our economy, household wealth and the ability of consumers to spend — which is responsible for 70% of our Gross Domestic Product.

Even more ironic is that the ‘bailout” was not a bailout.” It was extortionate. The banks had no losses. They were SELLING bonds so they couldn’t have suffered a loss from devaluation of the bonds. They were funding loans with investor money so they couldn’t have had losses from loan defaults. And they were writing mortgage documents for loans that did not exist. What they risked losing was future profits they would make if somehow there was someone  with money (i.e., the U.S. Government) who would shore up the unfortunate patsies who wrote insurance on completely worthless bonds, and who were indirectly insuring against defaults on loans that the mega banks had already planned to fail because they were not funding those loans.

In no instance, as far as I can tell, did any of the major policy decisions emerge from a discussion about what was good for the country, which is to say what is good for the common man, woman and child. Adding insult to injury, the people we elected and their appointees who said they knew what was going on, didn’t have a clue. True enough we don’t elect people who are experts in everything, but we do entrust them with the authority and the mandate to find out what they need to know before they do anything.

Incredibly all three administrations and all the Congresses and state legislatures functioned off of cliff notes and 30 minute meetings that consisted of Wall Street people selling the idea of de-regulation on an industry that had repeatedly proven it was untrustworthy and still allowed to promote themselves as banks you can trust. I count 6 times in American History that banks forced us into depression or deep recessions — all caused by pernicious schemes that were too bad to ever succeed. But it was worth it for the big banks because they made far more money than they ever had to give back.

Even more incredible is that it would appear that the two major candidates for the next administration will not change a thing. And THAT is why the vast majority of the American people don’t think either one of them will be good for the country. As long as they start from the assumption that protecting the banks is the same thing as protecting the financial system, which is the same as protecting the American populace. This assumption is patently wrong. Protecting the banks is enabling them to continue their fraudulent behavior which strikes at the unimportant people — i.e., most of the people who live and work in the United States.

 

 7,000 Community Banks, Savings and Loans, and Credit Unions can weather the storm if the Mega-Banks face consequences for their
crimes against the American people.
The real answer is to start with the proposition that the only correct action is one that is good for the country — which means that all people who live and work here would receive some benefit from the action taken. If that means taking the mega banks down, so be it. There are over 7,000 community banks, savings and loans, and credit unions in this country that all use the exact same IT backbone used by the mega banks.

There is nothing that the mega banks do that cannot be exactly duplicated by all those smaller 7,000 banks. In fact, the smaller banks are geographically closer to borrowers, make better loans and have fewer defaults. As for ATM card access, credit cards etc, any bank can become a co-branded issuer using that existing IT platform and the gateway organizations that control it — if the mega banks were forced to comply with the recent U.S. Supreme Court decision stating that access to the internet is and should be treated as a utility.

Starting with the premise that what is good for the common man/woman/child is good for the country, policy would head toward clawback of trillions of dollars across the globe and being able to pay reparations to the dozens of countries who were virtually destroyed by acts of global financial terrorism. It would also lead to the global recognition that the so-called loans were not loans.

Those transactions fell into a gray unsecured area of finance the law in which the homeowner (erroneously called the borrower) received money that came from a party who did not know that they were being cheated. The liability exists — that the homeowner must pay the that portion of the money that was received from specific “investors” (victims) but there is no loan contract where the party funding the transaction and the person taking the money have no agreement and no knowledge of the existence of the other.

Add to that that none of the intermediaries have any contractual authority to do what they did — directly fund loans out of money from pension funds et al — and you have one thing left on the plate, to wit: an unsecured liability that arises only in the event that the injured party(ies) (investors) make an equitable claim against the homeowner (e.g. unjust enrichment).

The idea that only the homeowner should pay for losses on this scheme is absurd and the idea that the banks can continue to sell their “rights” to servicer advances that were not advanced by the servicer but rather out of the investors’ money is absurd on steroids. If that doesn’t motivate anyone, think about this: I know for a fact that all the top Wall Street bankers are laughing nervously at how stupid we are and restating the old adage “Nobody ever lost money by underestimating the stupidity of the American people.” The only reason they are nervous is that they know that all good things come to an end. Jamie Dimon likes to remind people in the first minute of any conversation that he speaks to the very top of political power in this country. Maybe we should give him someone else to talk to.

“Prejudice” Element of Wrongful Foreclosure

http://www.jdsupra.com/legalnews/court-of-appeal-addresses-prejudice-48045/

By Kevin Brodehl

If a property owner loses their property through a foreclosure sale initiated by someone who did not validly own the debt, has the property owner automatically suffered enough “prejudice” to pursue a claim for wrongful foreclosure?  Or does the property owner also need to show that it would have been able to avoid foreclosure by paying the debt to the true lender?

The California Supreme Court’s recent Yvanova decision (reviewed on Money and Dirt here: California Supreme Court:  Borrowers Have Standing to Allege Wrongful Foreclosure Based on Void Assignment of Note) only partially addressed the “prejudice” issue.  In Yvanova, the Supreme Court discussed prejudice, but only “in the sense of an injury sufficiently concrete and personal to provide standing,” not “as a possible element of the wrongful foreclosure tort.”  The Court held that the plaintiff in that case demonstrated sufficient prejudice — lost ownership of property in an allegedly illegal foreclosure sale — to confer standing to pursue a wrongful foreclosure claim.

A recent opinion by the California Court of Appeal (Fourth District, Division One, in San Diego) — Sciarratta v. U.S. Bank National Association — picks up the “prejudice” analysis where Yvanova left off, and addresses prejudice as an element of a wrongful foreclosure claim.

The facts: a twisted tale of note assignments

In 2005, the property owner obtained a $620,000 loan secured by real property in Riverside County.  The note and deed of trust identified the lender as Washington Mutual (WaMu).

In April 2009, JPMorgan Chase Bank (Chase), as successor in interest to WaMu, assigned the note and deed of trust to Deutsche Bank.  The trustee promptly recorded a Notice of Default, followed by a Notice of Sale.

In November 2009, Chase recorded a document assigning the note and deed of trust to Bank of America (even thought just months earlier, Chase had already assigned the note and deed of trust to Deutsche Bank — oops!).  On the same date as the assignment, Bank of America recorded a Trustee’s Deed, reflecting that Bank of America had acquired the property at a trustee’s sale in exchange for a credit bid.

In December 2009, Chase recorded a “corrective” assignment of the note and deed of trust, suggesting that the April 2009 assignment to Deutsche Bank was a mistake, and was really intended to be an assignment to Bank of America.

The property owner sued the banks and the trustee for wrongful foreclosure.

The trial court’s ruling: no prejudice; case dismissed

The banks filed a demurrer, arguing that the property owner could not allege “prejudice,” which is an essential element of a wrongful foreclosure claim.

The trial court sustained the banks’ demurrer and dismissed the case.

The property owner appealed.

The court of appeal’s opinion

The Court of Appeal reversed, holding that a property owner who loses property to a foreclosure sale initiated by someone purporting to exercise rights under a void assignment suffers enough prejudice to state a claim for wrongful foreclosure.

The court first relied on the Supreme Court’s holding in Yvanova that “only the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt.”  In this case, based on the clear paper trail of assignments, the entity entitled to enforce the debt was Deutsche Bank, but the entity that foreclosed was Bank of America.

Based on the complaint’s allegations, the court noted, the assignment was not merely voidable but void.  The court observed, “Chase, having assigned ‘all beneficial interest’ in [the property owner’s] notes and deed of trust to Deutsche Bank in April 2009, could not assign again the same interests to Bank of America in November 2009.”

The court concluded that a property owner “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.”  The court added:

The critical issue is not the plaintiff’s ability to pay, but rather whether defendant’s conduct resulted in the plaintiff’s harm; i.e., a foreclosure that was wrongful because it was initiated by a person or entity having no legal right to do so; i.e. holding void title.

The court also offered policy grounds supporting its decision.  The court’s ruling would encourage “lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan.”  A contrary ruling, on the other hand, would subject property owners to unfairly losing their property in foreclosure to someone who does not even own the underlying debt, with no court oversight.

Lesson

The Sciarratta decision will make it easier for property owners to assert wrongful foreclosure claims…….

To read more please visit:

http://www.jdsupra.com/legalnews/court-of-appeal-addresses-prejudice-48045/

Discovery: Your BlackKnight in Shining Armor?

http://www.bkfs.com/RealEC/DivisionInformation/SettlementAgents/ClosingInsightSettlementAgents/Pages/default.aspx

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

Maybe it is time to drill down a little deeper into ways to obtain Discovery. The same company that brought us the DOCX line of “original” fabricated documents has created a software platform used by the mega banks to streamline closings. Closing Insight and its predecessors (I think Chase uses its own version of this platform) could provide information on the real facts of each “closing”. Discovery requests should be directed to access the information on the platform which is now owned and operated by LPS/BlackKnight.

 
Note that most loans over the mortgage meltdown period that are still in existence were refi’s and not original loans. Most lawyers and judges presume that the closing paid off the old loan. But this is often not the case. Since the party on the prior “mortgage” and “note” was simply a conduit, they would not have received a penny from the new closing with the “borrower.” The reason for this is simple: they never had a dime of their own money in the loan nor were they in a contractual relationship with anyone who did have money in the deal. Hence they would not have received any money since the source of both deals was a dynamic dark pool of money where “trust” money was commingled in a way that made it impossible or nearly impossible to trace any specific investor to any specific loan deal.

 
Add all that up and you get (1) a satisfaction of mortgage from a non-mortgagee and (2) no consideration for the signing of the loan documents and (3) withholding that information from the “borrower” who in fact borrowed no money from the “refinance” of his prior “loan.” This means to me that the loan documents should never have been signed or delivered much less recorded. It also means that the current loan documents (and possibly the previous loan documents) are VOID and thus subject to an action for a Quiet Title action.

 
None of this means that there is not some liability for repayment of the party(ies) who DID have money in the deal in which they could plead to get repayment of their money. But two things are true: (1) the statute of limitations has probably run on most of those liabilities and (2) the injured party would need to know they are injured. Since the borrower clearly does not know the identity of the injured party, the borrower cannot be said to be guilty of creating a situation where the debt is diminished or nullified. And since the injured party(ies) don’t even know they are injured, much less how or in relation to what deal, they are prevented from stepping forward to claim their due.

 
Once upon a time such schemes would be cleared up by courts very quickly. Back then they understood that foreclosure was a drastic remedy that should not be taken lightly. But today the erroneous presumption that the borrower received money (presumed even by the borrower) leads courts to bend and break laws, rules and regulations such that any claiming bank or servicer will win regardless of whether they are in fact a creditor and regardless of whether or not they have any actual authority to represent the other victims of this scheme — the investors.

 
PRACTICE NOTE: It is necessary to be very aggressive and very well prepared to argue for discovery on these closings. The Judge arrives with the assumption in mind that what happened back then is none of your business and already established. Potentially an affidavit from a forensic analyst or expert witness might assist in discovery litigation. The problem with waiting on the affidavit or declaration until trial is that the expert can only offer an opinion without corroboration. If discovery has been fought and won, the expert’s opinion will be nearly self-evident. If discovery has been fought and lost, it should provide very strong grounds for appeal.

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