Livinglies's Weblog

If I am right, then why are judges are not buying this? see msnbc discussion of “What’s in the Bag?”> object>

The problem here is becoming increasingly apparent with Judges of many different ideological persuasions. This all looks like a gimmick to them. And they are right. It’s just that the one finessing the gimmick is the pretender lender and not the borrower. That they don’t realize. These Judges have all been lawyers for 20 years or more. They went to law school before securitization was ever discussed in legal circles. So they approach a foreclosure from the standpoint of what they know. Here are their assumptions —

The loan was made properly except for possibly a few technicalities

The lender is the party named as the lender

The beneficiary is the party named as beneficiary

The note is valid and in default

The mortgage is incident to the mortgage and is foreclosure even if the party named on the mortgage is different than the party named on the note

Subsequent transfer of the note, securitization, insurance and federal bailouts are distractions from the real issue: the homeowner took out a loan, can’t pay and now wants to get out of the deal and keep his house.


THIS is why I keep harping on keeping it simple, staying with the basics, and attacking point by point and building your case to the point where it is the Judge who on his/her own comes to the conclusion that there might be something wrong with the DOT or its enforcement. You don’t want to lead with a direct challenge to the assumptions they are making because they are resistant to believing it and the more you talk, the more you lose credibility. You must concentrate on what they do understand and where they will most likely agree with you. And you must do so with facts that are not in dispute — like the fact that you sent a QWR, the date, the requirements of the statute, the equivalent statute under state law, etc. Understanding securitization is important for you as litigators or pro se litigants to know WHY you are doing what you are doing — it isn’t a strategy of opening salvo at a judge who is hearing your “theories”.

Keep in mind that with very few exceptions no judge is trying to be pig-headed about this. They are applying their knowledge or the law and their experience of life as they know it. Your job is to educate them in a way that achieves its purpose. Just because you are right does not mean you win. If that were the case computers could replace lawyers and Judges. The job you have is persausion and that means putting yourself in the shoes of a judge who does not know what you are talking about and is getting a feeling in the pit of his/her stomache that the borrower is simply a deadbeat seeking to avoid the consequences of their own poor judgment.

First start with a QWR and DVL. Then attack them for not answering fully. Demand an answer: who is my real lender and how much do I owe. I want a full accounting of everything EVERYONE has received on this loan transaction not just what you received from the borrower. This right is protected under federal and state statutes. Go to state court if you can and make it that simple. Judge we want to pursue modification, refinance or sale as per federal law and state law but we can’t do that because we don’t know who the lender is and they won’t tell us. We also have claims regarding the origination of the loan but we  don’t know who to serve because they won’t tell us. They will admit the loan was securitized which means that the loan was sold off to hundreds or perhaps thousands of investors through what they call a trust or special purpose vehicle, but they won’t give us names, documents, contact information or anything else.

Simple common sense tells us that if we owe money we are entitled to know to whom we owe it and how much is outstanding. TILA and RESPA state with great clarity that they are required to give us the name of the true lender at the present time along with the name of a person and a telephone number and address. While we have our suspicions as to why they are refusing to comply with federal and state law, we don’t want to make allegations we can’t prove. So we are asking for an emergency mandatory injunction simply requiring that they answer the QWR and DVL and specifically provide us with the parties who claim or possess an ownership or other interest in this loan, along with the name and address of the person whom we can contact at the entity which they say is the lender. We can’t even seek alternative fianncing to pay off this loan because we cannot get a satisfaction of mortgage or release or reconveyance from a party whom we know to be the lender. Any such document is obviously intended to be executed by some other party who will claim some sort of agency authority, which we also want to see.

This is why we are asking for declaratory, injunctive and supplemental relief. The servicer here is (a) by definition not the lender and (b) required by law and common sense to provide us with the information we are seeking. The only argument we have heard against providing this infomration is that if they tell us, the whole financial system will collapse again. Judge, if the system is in danger of collapse if the homeowners know the truth about their loans, then that doesn’t mean the homeowners should be denied their due process and suffer all the consequences of a scheme they didn’t invent or even know about.

After a few rounds of appearing before the Judge with the pretender lender trying to explain why they cannot or will not answer the question, the judge’s aspect will change from incredulity about your position to annoyance with theirs.

Filed under: bubble, CDO, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: bankruptcy, borrower, disclosure, foreclosure defense, foreclosure offense, fraud, Lender Liability, lost note, mortgage meltdown, predatory lending, securitization, TILA audit, trustee |