Florida Securities Act Provides Yet another Basis for rescission

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The single transaction “theory” presented here as FACT is simple: an investor put up the money and the borrower received a loan. Everyone else in between took fees, made promises and otherwise was involved in making representations about the loan or the security that the investor bought, all of which were untrue, tainted or misleading.

The point of the single transaction theory, which is supported by UCC and other sources, is that one thing would not have happened without the other thing. No investor buying security, no loan. No loan signed by borrower, no security.

Thus the issuance of the note at the loan closing was a trick to get the borrower to become the issuer in what was an elaborate but obvious securities scheme, which is why the certificates on asset backed securities are being re-purchased for tens of billions of dollars when everyone knows they are worthless.

The issuance of these securities, including the engotiable isnturments (note and mortgage) wer part of the a securities scheme. Here are the Florida rules governing this type of situation and you can bet that most sttes have similar laws and rules:

517.301  Fraudulent transactions; falsification or concealment of facts.

(1)  It is unlawful and a violation of the provisions of this chapter for a person:

(a)  In connection with the rendering of any investment advice or in connection with the offer, sale, or purchase of any investment or security, including any security exempted under the provisions of s. 517.051 and including any security sold in a transaction exempted under the provisions of s. 517.061, directly or indirectly:

1.  To employ any device, scheme, or artifice to defraud;

2.  To obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or

3.  To engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon a person.

(b)  To publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service, communication, or broadcast which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received directly or indirectly from an issuer, underwriter, or dealer, or from an agent or employee of an issuer, underwriter, or dealer, without fully disclosing the receipt, whether past or prospective, of such consideration and the amount of the consideration.

(c)  In any matter within the jurisdiction of the office, to knowingly and willfully falsify, conceal, or cover up, by any trick, scheme, or device, a material fact, make any false, fictitious, or fraudulent statement or representation, or make or use any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry.

(2)  For purposes of ss. 517.311 and 517.312 and this section, the term “investment” means any commitment of money or property principally induced by a representation that an economic benefit may be derived from such commitment, except that the term “investment” does not include a commitment of money or property for:

(a)  The purchase of a business opportunity, business enterprise, or real property through a person licensed under chapter 475 or registered under chapter 498; or

(b)  The purchase of tangible personal property through a person not engaged in telephone solicitation, where said property is offered and sold in accordance with the following conditions:

1.  There are no specific representations or guarantees made by the offeror or seller as to the economic benefit to be derived from the purchase;

2.  The tangible property is delivered to the purchaser within 30 days after sale, except that such 30-day period may be extended by the office if market conditions so warrant; and

3.  The seller has offered the purchaser a full refund policy in writing, exercisable by the purchaser within 10 days of the date of delivery of such tangible personal property, except that the amount of such refund in no event shall exceed the bid price in effect at the time the property is returned to the seller. If the applicable sellers’ market is closed at the time the property is returned to the seller for a refund, the amount of such refund shall be based on the bid price for such property at the next opening of such market.

4 Responses

  1. Mr. Garfield,
    I’ve watched this site for a while and enjoyed all the great information! Here goes… I’m retired living in Florida and in an active foreclosure. I retired thinking I would start a business so I sunk most of my pension into a business so as to be self employed. Little did I know the economy would tank!
    Our mortgage was originally with American Broker Conduit (ABC) on August 7, 2007 just before they went belly up. The mortgage stipulated that MERS was nominee and is serviced by American Home Mortgage Servicing, Inc (AHMSI).
    I had hired an attorney through a law firm that I had on retainer for my business, but in the end he wouldn’t put up a fight for me and all his motions for discovery were pretty much denied by the old time judge who was only interested in the fact that AHMSI produced a color copy of the alleged mortgage and note. On top of that MERS assigned the mortgage to AHSMI twelve (12) days after the Les Pendants (LP) was filed with some officers signatures that were questionable! After my attorney put in for discovery and pointed out the fact that the assignment was issued after the LP MERS assigned the mortgage again this time with other signatures! At this point the judge was only interested in the note and mortgage being produced.
    I tried pointing out the various frauds perpetrated by the foreclosure mills and banks to my attorney as I had researched on this site and others, but to no avail. My attorney also vehemently denied that there was any fraud involved with the way mortgage lenders disclose what they are going to do with the note and mortgage to the buyers. I tried to get my attorney to look into the fact that MERS assigned the mortgage and that this mortgage may still have been securitized (which is what MERS hides best). I have even now found where if the note and mortgage are split they are invalid not to mention that if there is any securitization of any mortgage the terms would have changed without the buyer’s prior knowledge.
    After my attorney told me that I would lose the house unless I could come up with an answer within twenty (20) days I knew he would be of little help. Looking back at Ms Charney’s cases (which is what I wanted my attorney to do) I did a pro se answer for a Motion to Dismiss do to failure to join indispensable parties (Florida Rules of Civil Procedure 1.140(b)(7), 1.130(b) and 1.210((a) and 1.130(a) collectively as the case was AHMSI vs me and as MERS and ABC were on the mortgage, but never on the LP. Okay, now the questions. Where do I go from here?? I would like to find out the following:
    1. How do I find out if my mortgage is in a pool of MBS? This mortgage was an Option ARM.
    2. How do I get a full report from the MIN number from MERS?
    3. How do I bring to light any MERS issues i.e. fraud etc?
    4. I have read various depositions etc. accounting the practices within MERS and the foreclosure mills with respect to assignments so how can I use that to my advantage?
    5. Who bought up all ABC’s mortgages or did they go with the new owner?
    6. What pools did ABC bundle mortgages up in by name when they securitized their other mortgages?
    7. Is there an issue with MERS only listed as nominee on the mortgage, but never named on the note?
    At this time we are awaiting a reply from the foreclosure mill (now going on a month) to see what the judge will do.
    Prior to this I had sent a QWR / VALIDATION letter to AHMSI. They sent some stuff back and said that I’d have to write ABC for the rest which I did even though they are defunked. Of course ABC never responded although the certified mail didn’t come back… I have since started on an administrative remedy to see what I can do.
    Our house and land has dropped in value greatly from what a BPO agent told me from 550K to 170K, but it is our home and I’m willing to take it to the next level. Your reflections on this matter would be greatly appreciated…
    Thanks and god bless

  2. We must continue to stress that a Note, when treated as a deposit by a lender bank, becomes “money”.

    Thus, any representation made to a borrower that induces them to issue a note (negotiable instrument) payable to the bank making the inducement would qualify.

  3. I can be reached at BeMoved@AOL.com.

  4. Hmmmm, as compelling as this piece is as a basis for rescission, are you sure this works, or would work?

    If, for instance, I reinstated a mortgage in 2005 and it was later assigned by Washington Mutual to Structured Asset Securities Corp. and made part of SASCO Series 2005-RF5 FHA/VA Reperforming Mortgage Deal, how can I avail myself of rescission?

    The main thrust of my attack on my Miami foreclosure will be that my late mother was incompetent, bedridden, diagnosed with Alzheimer’s and dementia sometime back in 1992, her work history falsified by the mortgage broker and realtor (claiming she at 84 was owner of a thriving hair salon), her signature in 2000 forged and falsely witnessed by corrupt notaries public, etc..

    Seek a Miami or South Florida attorney who is consumer oriented, is commited to social justice, and who can get the title insurance company on board to quiet title, and indemnify me for legal and all related expenses.

    RSVP

    Thanks!
    Allan

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