Foreclosure Offense: Notice to Trustee and Alleging Usury

For you Californians or residents of other states who think your transaction is exempted from usury, take another look: (1) the real lender was not a bank and (2) the real transaction was securities transaction in which the borrower was duped into executing documents that consituted the start of the securitization process, so it wasn’t your typical purchase money first mortgage transaction either.

FROM FAQ Page: recent Post

Comment:
> Open question to all. I have not yet received a notice of default but haven’t made a payment to IndyMac or to the HELOC company Wells Fargo since March. I am preparing to file lawsuits against both and a lis pendens. Should I call my fire insurance carrier now and tell them to change the beneficiary from IndyMac to me?

FOR GENERAL INFORMATION PURPOSES ONLY AND NOT TO BE ACTED UPON WITHOUT CONSULTATION WITH LOCAL COUNSEL.

ANSWER: Your insurance carrier will probably notify the “lender” that you have changed the beneficiary, which is a breach of the mortgage obligation. That will give THEM ammunition against you. You could check on that if you know the insurance agent well enough and he has the knowledge to answer the question.

  1. I would suggest that you send a notice to the Trustee similar to the one on the blog that basically says that Indymac sold off the loan, has been replaced by the Trustee of the pooled assets, and that you have recently discovered that there were several undisclosed elements of the original loan transaction, including the real party in interest that made the loan to you, and fees paid for various undisclosed “services” all in violation of the Truth in Lending Act.
  2. Since you have just learned of this, you are NOW exercising your 3-day right of rescission and you wish to rescind the transaction (“I HEREBY RESCIND”), which would also terminate the Trustee’s authority.
  3. Ask him to report to you who the real holder in due course of your note is and that based upon 10k and 8k filings from Indymac prior to its failure and takeover by the FDIC, it would appear that there are multiple investors who own shares in your mortgage and note, all of whom have a clear claim as holders in due course. Thus any direction or instruction he receives from the “lender” is not from a party with an interest in the mortgage or note and is void or meaningless.
  4. Demand that he forward a copy of the letter you send, certified, return receipt requested, to any parties undisclosed in the closing papers, and of course to forward a copy of the letter to his own errors and omissions carrier and to the carrier for the title insurance, since there was a cloud on title created AT CLOSING by the knowledge of the parties that the loan was “sold forward” or already committed to a third parties who were undisclosed real parties in interest and who collectively constitute the real lender.
  5. Hence the party to whom you would address a notice of rescission to was hidden from you and still is. Thus the 3 day rescission period continues to this day.
  6. Also state that based upon the SEC filings, and your consultation with experts in mortgage backed securities, Indymac’s successors entered into agreements wherein your loan payments could be allocated to payments due on notes from OTHER borrowers in whole or in part — as consequence of the cross guarantee agreements between tranches in the SPV and between SPV entities. You demand to know whether this has in fact occurred.
  7. Further, you are informed that in addition to cross guarantee agreements there was overcollateralization of your loan as part of the the overall scheme of your issuance of the note and insurance purchased with the proceeds of sale of the loan to you and investors in which reserve pools and guarantees of payment were created through payments to third parties, none of which was disclosed to you.
    • And lastly, and perhaps most importantly, if you think that your loan was based upon a false appraisal (i.e., the appraisal value was shown by subsequent events to be over market), that this was an undisclosed cost of the loan obtained, in addition to damages suffered by the fraud committed on you, and that neither the Good Faith Estimate nor any other effort was made to disclose that this was the case.
    • This inflated appraisal when added to the the other costs of the loan, created a usurious transaction in which the real lender was in fact a private, undisclosed, unregistered, unchartered, unregulated entity, that had failed to pay taxes and fees to the State of California, in addition to failing to report its activities within the state.
    • This real lender entered into an illegal agreement in which the nominal lender” in fact agreed to “lend its license” to the real lender and was paid a fee of approximately 2.5% as a fee to do it, in addition to points and all other costs and fees of closing the “loan”, and interest paid from inception of the “loan.”
    • Since the transaction constituted usury, you hereby declare the obligation on the note null and void and demand treble damages for the original face value of the note.

    I would suggest that the same type of letter, with some modifications, be sent to Indymac, FDIC, the mortgage broker, the title agent, the appraiser, and the real estate agents at the closing of what you thought was a loan transaction but in fact turned out to be a fraudulent scheme to trick you into issuing a note that turned out to be a negotiable security that was already the subject of a plan and agreement to sell unregistered, unregulated securities to third parties who were the true source of the loan.

    If you file suit or even if you file a petition for emergency temporary injunction I would suggest that you consider filing a lis pendens. You might be met with a demand for bond, but your argument would be that no bond is required since there is no delinquency as yet, no real party in interest present and the Trustee has no equitable or legal interest in the property. The proper party to ask for a bond would be someone who could allege they will be hurt by the filing of the lis pendens.

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