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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
This case is similar to another case won by Patrick Giunta and myself in Broward County. The gravamen of the case is that AWL is a fictional entity with no standing. it is a nullity. MERS was not proven to have a nexus to the loan or anything else relevant to the case. Unlike some other cases around the country, the court did NOT order the return of all money paid by borrower to parties who had no right to collect or enforce the alleged debt. That might be the subject of a cross appeal if there is an appeal by the Banks.
The underlying issue remains obscured however. The emphasis remains on the paperwork rather than the absence of any real transactions in which the debt was originated or acquired by anyone in the chain relied upon by US Bank as Plaintiff in this action.
The other issue that I have already commented upon is the continued view by many that Quiet title, in and of itself, is a proper strategy to attack the banks. I don’t think it is unless and until the mortgage encumbrance is and has been declared void or has been rendered void by operation of law (rescission under TILA). Decisions in the 11th Circuit in Bankruptcy court along with a number of other decisions around the country make it clear that the lien survives even if it isn’t or can’t be enforced. See this Month’s Florida Bar Journal article on junior lien holders in foreclosure cases.
And my final comment on this is that it isn’t just AWL that is a fictional character. As I stated in sworn testimony when 16 banks took my deposition for 6 straight days, MERS is a fictional character that does not answer to the definition of a beneficiary in non-judicial states and does not answer to the definition of a creditor or holder in judicial states.Some fo you might remember when I said you might just as well have inserted the name of “Donald Duck” in place of MERS or any of the other players who were pretending to have engaged in transactions that either originated or acquired mortgage loans. My observation remains: none of it is true.
In addition the alleged trusts simply do not exist in real life. Since they were never funded and the Trustee is not managing the money in any account where the Trustee has power over it, the proceeds of the alleged sale of mortgage backed securities went elsewhere. The Trust is not even a shell because it has no business and never had any financial statements. The reason for that is that the Trust was simply a ruse by Investment Banks to take money from Pension Funds and other investors. Hence it is impossible for the assignment, regardless of whenever it was created or fabricated, dated or backdated, to be real, to wit: it implies the existence of a transaction in which the Trust bought the loan. If that were true, the banks would say so and would allege the ultimate status under the UCC — Holder in Due Course. And THAT would have eliminated any borrower defenses.
The assumption that somehow the loan IS in the Trust but that it got there in violation of the PSA is, in my view, simply wrong. But paradoxically it seems easier to get judgment for the homeowner by making that false assumption and attacking the paperwork. If any of the transactions were real, the banks would long ago have come to court with proof of payment and transactions that were clearly supportive of their paperwork — and nobody would have lost or destroyed cash equivalent promissory notes.
Significantly, the ruling found that:
- On May 13, 2005, there was a Mortgage recorded in the St. Lucie County, Florida land records in favor of “America’s Wholesale Lender” (“AWL”) which is stated to be a New York Corporation.
- The Note alleges that the Lender is “America’s Wholesale Lender”, which the Court determined did not file this action, did not appear at trial and it didn’t assign any of the interest in the mortgage (how could it, as it is a “fiction”?).
- There was enough evidence on the table to show that AWL was NOT a New York Corporation at the time the Mortgage was recorded and that this entity did NOT have authority to conduct business in the State of Florida.
- MERS again was used to facilitate (as a “cover” for the misdeeds of Countrywide Home Loans, Inc.). This was deemed by the Court NOT to be in statutory compliance with the state’s Uniform Commercial Code!
- As in the Nash case (coming out of Seminole County, Florida), there was no evidence provided by the Plaintiff trust (who we know didn’t get the note and mortgage by the cut-off date) that there was any nexus between AWL, Countrywide d/b/a AWL, Countrywide Bank or Bank of America, N.A.
- The ruling also made mention of Paragraph 22 as to conditions precedent (which is really NOT the whole point of this ruling); however, the Court appears to have gotten it right when it came to the REMIC trust NOT having standing to foreclose.
- The more obvious concern here, is MERS being used to assign a note and mortgage from a “fiction” to a REMIC trust “outside of the parameters and dictates of the PSA”.