Hat tip to “Summer chione”
So it is apparent that the banks are responding to discoveries about how orders are transmitted to lawyers, “servicers”, realtors etc.. While it is all the same playbook, they merely change the name of the characters. So internally the name VendorScape might still be used but externally, to the public, they are showing different names and even showing multiple names for the same “service”.
But is always the same, to wit: a central repository of data that has been robotically entered to support misrepresentations of investment banks that massage the data, control the reports, and initiate administration, collection and enforcement under the letterhead of “subservicers” who have almost nothing to do and are merely being kept alive to throw under the bus when this scheme explodes.
For those familiar with the game of Chess, think of the following entities as all being pawns whose existence is to provide a barrier to the encroachment of government or borrowers in litigation — and who can and will be sacrificed when the game explodes.
- Foreclosure law firms (“mills”)
- “Servicers”
- Trustee of REMIC Trust
- Trustee on Deed of trust
- MERS
- Companies that provide “default services”
- Realtors
- Property Managers
- REMIC trusts: remember that back in early 2000’s, the same trusts that are being named as claimants today were denied as having any existence or relevance. It was only after failure of naming a servicer or MERS that they fell back on naming the non functional trustee of a nonexistent trust as the claimant.
- Every other company that is visible to the investors and homeowners.
And keep in mind that the claims of a “boarding Process” or detailed audit of accounts when the name of one subservicer is changed to something else are totally and completely bogus. There is no transfer much less boarding of accounts. the fabricated accounts are always maintained at the central repository.
The argument over “business records” is sleight of hand distraction. There are no business records. Go do your research. You will see that nothing the banks are producing are qualified business records, muchless exceptions to the hearsay rule.
It is or at least was universal custom and practice that before accepting an engagement, lawyers, servicers and realtors needed to have an agreement in writing with their employer. In the wholly unique area of foreclosures, sales, REO and remittances this practice has been turned on its head.
As I have repeatedly said on these pages, lawyers in a foreclosure mill have no idea who hired them. They don’t know the identity of their client. They will and do say that their client is some “subservicer” (e.g. Ocwen), they file lawsuits and documents proclaiming their representation of some bank (e.g. Deutsche) with whom they have (a) no contact and (b) no retainer Agreement.
This is because all that Deutsche agreed to was the use of its name to give the foreclosure an institutional flavor. It is labelled as a trustee but it possesses zero powers of any party that could be legally described as a trustee. It has no fiduciary duty to any beneficiaries nor any right to even inquire about the business affairs of the trust — which we know now (with certainty) do not even exist.
So there is no reason for the foreclosure mill to have an agreement with Deutsche because (a) Deutsche has not agreed to be a real party in interest and (b) Deutsche has no ownership, right, title or interest in any loan — either on tis own behalf or as representative of either a nonexistent or inchoate (sleeping) trust with no assets or business or the owners of non certificated certificates (i.e., digital only). Indeed the relationship between Deutsche and the holders of certificates is that of creditor (the investors) and debtor (Deutsche acting as the business name only of an investment bank who issued the certificates).
So the lawyers in the foreclosure mill are misrepresenting its authority to represent. In fact it has no authority to represent the “trustee” bank.
So the banks have come up with a circular argument that is still erroneously used and believed in court: that because the subservicer (e.g. Ocwen) is the nominal client — albeit without any contact prior to the electronic instructions received by the foreclosure mill — and because the subservicer claims to be acting for either the trustee, teht rust or the holders of certificates, that eh lawyers can claim to be representing the bank, as trustee. In a word, that is not true.
So the foreclosure mill is falsely claiming that its client is the named “trustee” who has no power for a “trust” which has no assets or business on behalf of certificate holders who own no right, title or interest to any payments, debt, note or mortgage executed by any “borrower.”
Instructions from a third party with no right, title or interest that the lawyer should claim representation rights for yet another party who has no knowledge, right, title or interest is a legal nullity. That means that, in the legal world, (like transfer of mortgage rights without transfer for the underlying debt), there is nothing that any court is legally able to recognize and any attempt to do so would be ultra vires once the facts are known to the court.
The trick is to present it to the court in such a manner that it is unavoidable. And the best way to do that is through aggressive discovery strategies. the second best way is through the use of well planned timely objections at trial.
All of this is done, contrary to law and prior custom and practice to cover up the fact that all such foreclosures are for profit ventures.
That is, the goal is not paydown of any loan account, because no such account exists on the books of any creditor.
And that is hiding the fact that the origination or acquisition of the loan was completed with zero intent for anyone to become a lender or creditor and therefore subject to rules, regulations and laws governing lending and servicing practices.
They didn’t need to be a lender or creditor because they were being paid in full from the sales of securities and thus writing off the homeowner transaction. Bottom Line: There was no lending intent by the originator or acquirer of the loan. When the cycle was complete, the investment bank owned nothing but still controlled everything.
And the way they controlled everything was by hiring intermediaries who would have plausible deniability because they were using images and records that were automatically generated and produced based upon algorithms written by human hands — programs designed to facilitate foreclosure rather than report the truth.
So let’s be clear. Here is the process. The lawyer, realtor or subservicer knows nothing about the loan until it is time to foreclose. All activity that is conducted under its name is initiated by CoreLogic using the VendorScape system.
So when a lawyer, for example, comes to work, he sits down in front of a computer and gets a message that he doesn’t know came from CoreLogic under the direction of Black KNight who is acting under the strict control of the investment banks. There are no paper documents. The message on the screen says initiate foreclosure work on John Jones in the name of Deutsche Bank as trustee for the CWABS Trust 2006-1 on behalf of the certificateholders of CWABS Trust 2006-1 series pass through certificates.
Contrary to the rules of law and ethical and disciplinary rules governing lawyers, the lawyer does no due diligence to discover the nature his agreement with the naemd claimant, no research on whether the claim is valid, and requires no confirmation ledgers showing establishment of ownership of the debt and financial loss arising from cessation of payments. He/she sends notice of delinquency, notice of default and initiates foreclosure without ever seeing or even hearing about a retainer agreement with Deutsche whom he supposedly represents.
He/she has no knowledge regarding the status or ownership of the loan account. ZERO. By not knowing he/she avoids liability for lying to the court. And not knowing also provides at least a weak foundation for invoking litigation privilege for false representations in court, behind which the investment banks, Black Knight, CoreLogic et al hide. The same plausible deniability doctrine is relied upon by CoreLogic and Black Knight. They will all say that they thought the loan account was real.
But they all knew that if the loan accounts were real, the notes would not have been destroyed, the control over the loan accounts would have stayed close to the investment banks and compliance with lending and servicing laws would have been much tighter — starting with disclosure to investors that their money was being used to justify a nonexistent trading profit for the investment bank, and disclosure to homeowners that they were signing on for an inflated appraisal, immediate loss of equity, and likely foreclosure because after the origination, the only real money to be made off the loan was through foreclosure.
And both investors and borrowers were prevented, through the artful practice of deceit and concealment, from bargaining for appropriate incentives and compensation for assuming gargantuan risks they know nothing about.
This is like cancer and it is continuing. Nobody would suggest that we keep selling crops that were infected with ebola or which contained some tar substance that reliably and consistently produced cancer. The argument that a company or industry might collapse would not fly because in the end we value human life more than allowing companies to profit off of death and destruction. And the argument that allowing the judicial creation of virtual creditors who can enforce non existent debt accounts is going to save the financial system is just as pernicious — and erroneous.
Wall Street banks are merely protecting their profits. Don’t blame them for doing that. It is up to government and the public to stop it and arrive at something other than the false binary choice of either forcing people out of their homes or allowing a “windfall” to homeowners against the interest of all other honest people who make their mortgage payments. The real solution lies in reformation by judicial doctrine or through new legislation — but until that is completed, there should be no foreclosures allowed. Until it is determined how much concealed risk was piled on investors and borrowers, they should not be stuck with contracts or agreements that sealed their doom through concealment of material facts.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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Filed under: boarding process, burden of pleading, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Investor, legal standing, MBS TRUSTEE, Pleading, Presumptions, prima facie case, securities fraud, Servicer, sham transactions, TRIAL OBJECTIONS, trial strategy | 3 Comments »
