Payment, Not Magic Satisfies Obligations: Stop Saying You Don’t Owe the Money

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EDITOR’S COMMENT: Stopa’s article runs to the heart of the matter and it’s time WE faced the reality that payment, not magic, discharges what you owe. And the other reality is that if you try to win your entire case in preliminary hearings, you are going to lose the opportunity to educate the Judge and hence lose the case.

There is no Judge, no matter how liberal, who is going to tell you that any defect in the paperwork on an otherwise valid debt is going to give you a free house or even a reduction off the amount demanded by the pretenders. Ultimately this is about MONEY and it is about the collateral for that money.

You can attack the security instrument that uses the home for collateral but you can’t attack the obligation if you received the money from the loan or the benefits of of the loan being funded. You borrow money, you owe it to somebody. Any hint that you are trying to convert the loan into anything other than an obligation will be met with a brick wall and your case will splatter on the windshield of the opposing counsel’s steamroller.

I have been encouraging our analysts and lawyers to emphasize the existence of the obligation since it arises by law with or without documentation. Stop fighting it. Point out the obvious — the investors loaned the money and the borrower took it. Your client has an obligation that arises by operation of law because the money received by or for the benefit of your client is presumed NOT to be a gift and that is a correct presumption. You have started educating the Judge. The deal was between the ivnestors and the the borrower homeowner.

Then start educating the Judge on how many obligees there are because of events subsequent to the initial closing, like payment from the servicer that reduces the amount due to the creditor investor but gives rise to a new and different obligation to the servicer that also arises by operation of law — money due the servicer for advances to the creditor, even if the servicer was a volunteer.

Again, tell the Judge that you don’t owe the servicer because they were a volunteer and you have lost your case and your motion will be presumed dilatory.

Instead show that there are now two creditors each claiming part of the same obligation in an amount that can be  measured easily from the reports on the Loan Level Analysis, showing distribution reports and payments to the creditor by the servicer. But the amount due the servicer is not owed pursuant to a contract that includes both the servicer and the borrower as parties.

So it arises by operation of law. Thus it is not subject to the provisions of the note or mortgage, but rather is simply a claim for restitution or unjust enrichment, that is undocumented and unsecured but nevertheless valid. NOW you have shown the Judge that the obligation has been split  and that at least part of it is unsecured by still owing. You have shown that part of the obligation is still owed the original creditor — the one who loaned the money and part is owed to a third party.

Then you do the same for the Insurance payments, proceeds of credit default swaps and guarantees through commingling funds in the tranches and you have three more creditors for which you are entitled to discovery to determine the amount of the payment and on what terms the borrower might owe each such additional creditor. So now you have 5 or more creditors, possibly including the US Government, Federal Reserve, etc.

Thus you have not tried to dodge the obligation, you have plunged into it, admitting that the obligation is there, but owed to multiple parties only one of which could be secured by the using the home as collateral. It also goes tot he question of whether the “missed payments” from the borrower were due at the time they were declared delinquent or in default if the servicer and others were paying the creditor.

THEN you point out that none of the actual creditors were on the originating paperwork with the borrower which means that either the paperwork can’t be used at all as evidence of the obligation or parole evidence must be allowed to provide a complete picture what happened — which means you get to the next hearing to enforce discovery, you avoid motion for summary judgment or dismissal etc. Just don’t tell the Judge that the end result is or could be a free house. Insist that the case is not about a free house, the case is about an obligation that arose when the borrower accepted the money and what happened after that.

This is the Achilles heal of the pretenders. Once you have the right to trace ALL the money that exchanged hands as receipts or disbursements relating to the borrower’s loan or the pool that claims some rights over the borrower’s loan then you have the right to and potential to show the Judge what they really did. At THAT point your request for modification, settlement or end of the foreclosure case will be seen in a far more credible light.

A “Free House” – That’s Not the Issue, Judge

by Mark Stopa
http://www.stayinmyhome.com/blog/wp-content/uploads/2012/01/Transcript-of-Foreclosure-Trial-Ticktin.pdf

Currently making the rounds among foreclosure defense attorneys is a transcript of a trial in a foreclosure case that recently took place in Miami. I did not participate, as this wasn’t one of my firm’s cases, but I encourage everyone to read the transcript, as there are significant lessons to be learned here for all involved.

Before I share my thoughts, just read. Here are some pertinent portions:

The Court: My feeling about this equitable lawsuit, foreclosure issues, and I want to get this as a jump off.

Defense Counsel: Okay.

The Court: My concern is, did you sign the Note? Did you sign the Mortgage? Did you get the loan? Did you default? Did you owe the money? Is it your signature or is it somebody else’s signature?

In response, defense counsel attempted to explain that the homeowner had an expert who would testify that the securitized trust, the plaintiff in the foreclosure case, did not actually own and hold the Mortgage because it was conveyed into the Trust after the deadline in the Pooling and Servicing Agreement. Unfortunately, the court seemed less concerned about the legitimacy of this legal argument and more concerned about whether that argument, if granted, would give the homeowner a free house:

The Court: Okay. Okay, so why do I care? Shouldn’t I just be concerned about whether or not they’re the holder of the note at the time that I try the case?

Defense Counsel: There are requirements, like any trust, basic trust law. … The trust has certain requirements that say, all the loans have to be transferred into this trust by X date. If they’re not transferred into the trust by X date the trust doesn’t own or hold anything.

The Court: So if I follow your thinking, your client should be able to live in this house forever, free and clear. Is that what you’re suggesting?

Defense counsel: That may be the ultimate outcome.

The Court: Good luck to you, sir.

Defense counsel: Thank you, Judge.

The Court: Good luck to you, sir.

Defense counsel: Thank you.

The Court: Do you think that I am going to sit here after somebody has been lent hundreds of thousands of dollars and you have the standing to complain that the trust documents were not properly obtained, so your client who got — how much was this loan?

Plaintiff’s counsel: $216,000.

The Court: $216,000, I get to live there forever. You think a court of equity which is what I am sitting as is going to allow that to occur?

Defense counsel: If there is a family trust that says, “all of Bob’s property for his family trust needs to be assigned into the trust by January 1, 2010.” If those — if that res is transferred prior to that January 1st, that’s fine. We as Bob’s family trust own that property.

The Court: Right.

Defense Counsel: But, now there’s a subsequent transfer of 2012 and the document comporting a transfer into Bob’s family trust in 2012 when the trust says, it must be transferred by 2010, and the trust is very particular about this. How can the 2012 transfer into the 2010 trust, you don’t have standing.

The Court: Right, but may — by here’s my problem. My problem is it would seem to me under your circumstances that somebody whose trust assets have been affected might have the ability to come in and say, this has effect on me. What standing does your client have to come along and say, somebody down the line got screwed over because they didn’t do what they were supposed to do? Your client received hundreds of thousands of dollars, has been in this house I assume for three or four years not paying a dime. Have you found one judge in this state that has said, ‘You know what? I buy your argument and you client can live there forever, rent free, mortgage free; because they violated the Pooling Agreement.” Have you found one judge that has –

The Court: So and so, they’ll never be able to foreclose on your client?

Defense counsel: Depending on how the case comes of issue, yes. If it’s an issue that would pertain a res judicata and/or collateral estoppel, yes.

The Court: So what you’re suggesting is that your client should be able to stay in this house forever?

Defense counse: That has been the result. And Judge, yes …

The Court: No, no, no, [defense counsel]

The Court: I think this is a very interesting issue. I think the Third District is doing to have to tell us to tell us that under these circumstances we should listen to this testimony and if the testimony proves what you’ve purported to prove that a person who borrowed hundreds of thousands of dollars should never have to repay it and should be able to live in the house for free, forever.

The Court: Because I’m not doing it.

The Court: You getting that down? All my friends in the Third District, you want to reverse this, you go right ahead and do it.

Defense Counsel: Right, but that’s also presuming that they’re able to prove their prima facie case. Judge, I just want to make the record clear.

The Court: Of course. I mean if they put on evidence of something other than this loan and they don’t convince me that they know what the documents are; they know what the loan figures are; they know that there’s been a default; they’ve complied with all conditions precedent, I can’t give them a judgment. But, I would be shocked. I’m putting that on the record. Shocked if the people of the Courts of this State, District Court of Appeal, would say that in situations like this somebody who has borrowed hundreds of thousands of dollars and has lived mortgage free for years should be able to jump in there and say ‘you guys screwed up and you can never throw me out of that house.’ If that’s what they want to write, that’s their job. They’re my judicial superiors. They can do it, but I’m not doing it. Okay.

My thoughts upon reading this exchange:

1. First off, I am very disappointed to see how the judge framed the issue before him. The issue at this foreclosure trial was not whether the homeowner was entitled to a free house. The issue was whether this plaintiff that filed this lawsuit was entitled to a final judgment of foreclosure against this homeowner. That bears repeating:

The issue was whether this plaintiff that filed this lawsuit was entitled to a final judgment of foreclosure against this homeowner.

I’m pleased to say that many of the judges before whom I appear recognize that this is the issue before them. For those who do not, I think it’s imperative that everyone (be it my my friends, colleagues, and pro se litigants), do whatever you can to force the judges before you appear to frame the issue appropriately. Here, for instance, when the judge kept asking this attorney if his client should get a free house, I think the response should have been something like:

“Respectfully, judge, whether my client winds up with a free house is not the issue before you. The issue before you is whether this plaintiff is entitled to a final judgment of foreclosure against this defendant based on the evidence the plaintiff is about to present. And candidly, judge, I’m troubled that you are not framing the issue in that manner, as it seems you have prejudged this case in a manner adverse to my client, which is causing me fear that you cannot adjudicate this case fairly and cannot be neutral and detached.

If that doesn’t make sense, put yourself in a different context – a murder trial. Suppose the state is relying exclusively on evidence that was procured through an illegal search and seizure and that the law requires the evidence be excluded. Allowing a murderer to go free would be inequitable as hell – I can hardly think of anything less equitable. However, if the law says that the evidence must be excluded, then no judge can allow that evidence to be admitted simply because he/she wouldn’t like the result.

Foreclosure cases are no different. The final outcome, no matter how unseemly it may appear to any judge, cannot justify a court to overlook the rules of evidence and rule of law. Candidly, I think most judges before whom I appear would agree with this, and for those who don’t, let’s all remind them of the issue.

Judge, the issue before you is not a “free house,” but whether this plaintiff is entitled to a foreclosure judgment against this defendant based on the evidence before you.

2. It was very apparent, certainly to me, anyway, that the judge prejudged this case. Most troubling in this regard were the judge’s repeated statements that he was not going to give the homeowner a free house, inviting the Third District to reverse if it so chose. What was so bothersome, of course, is that the judge made these comments before the trial had begun.

Respectfully, how could the judge possibly know whether evidence which he had yet to see would be sufficient to justify a foreclosure? How could he possibly know that the Third District would be in a position of reversing his ruling (adverse to the homeowner) when he hadn’t yet seen any evidence? Pretty clearly, at least in my eyes, the judge knew he was ruling against the homeowner before the trial even started.

As I read the transcript, the judge’s dislike of foreclosure defense only seemed to grow the more the concept of a “free house” was discussed. Unfortunately, this entire premise was misplaced. Hopefully, with input from all of us, everyone will realize the issue in foreclosure cases is not whether the homeowner gets a free house, but whether this plaintiff is entitled to a foreclosure judgment against that defendant based on the evidence in that case.

3. On the issue of whether the defendant has standing to complain about the plaintiff’s lack of standing, I follow the judge’s argument, but I disagree. If the plaintiff is a securitized trust, and the mortgage was not conveyed into the trust in a manner required by the Pooling and Servicing Agreement, then the trust doesn’t own the mortgage. And if the trust doesn’t own the mortgage, then it lacks standing to foreclose.

To say a defendant lacks standing to complain about a plaintiff’s lack of standing is, respectfully, silly. If the plaintiff has no legal right to bring suit, then the defendant always has standing to assert as much. To argue otherwise is to say ”the plaintiff might not be the right plaintiff, but shut up, defendant – you’re a bad actor, and it doesn’t matter if this plaintiff has standing – you’re going to pay.”

“But, judge, I don’t owe this Plaintiff any money.”

“Shut up, Defendant – you owe the money and you’re going to pay.”

I realize this seems a bit crass, and obviously the judge didn’t say “shut up,” but can you imagine that argument in other contexts? For instance, imagine a lawsuit against an insurance company where the issue is coverage for a homeowner. Can you imagine any judge saying “Shut up, insurance company. It doesn’t matter if this is a covered item, and it doesn’t matter if you issued an insurance policy to this homeowner. The house burned down, so you’re going to pay.”

Again, I realize that’s not how this judge worded it, but as I read the transcript, that’s how I interpret the position. It doesn’t matter if the plaintiff is the correct plaintiff, it doesn’t matter if the plaintiff has standing, the defendant can’t complain about it. Respectfully, does that even begin to make sense?

It’s ironic, actually. This judge was so concerned about the homeowner getting a windfall – a “free house” – that he was completely overlooking the fact that he was willing to give the plaintiff a windfall. After all, taking the judge’s position to its logical conclusion, it didn’t matter if that plaintiff actually owned the note – the homeowner was going to pay (and, hence, the plaintiff was going to collect). Maybe the judge didn’t intend to come across that way, but you read the transcript, and you tell me – isn’t that how it seems?

My point here, is this. There are laws that all of us dislike. There are outcomes that all of us find inequitable or inappropriate for one reason or another. However, the end does not justify the means. It’s not up to any of us, especially a judge, to say “this is the outcome that I think should happen, and I’m going to rule accordingly.” There are rules of evidence, procedure, and laws that must be followed. If we act otherwise, then the court system is not enforcing a system of laws, but each judge’s version of morality. And if we start going down that path, there can never be uniformity, as what one person finds inequitable, another will find perfectly appropriate.

Our judicial system functions by a uniform system of laws, which our courts must uphold and enforce. That’s why it’s so important to frame the issue appropriately. The issue isn’t whether a ruling would be fair or consistent with some nebulous standard of morality, but whether such a ruling would be fair and appropriate based on the evidence presented in that case.
Mark Stopa Esq.

http://www.stayinmyhome.com

 

26 Responses

  1. What you are all seeming to miss is that, in all probability, you probably do not owe anything on your “Note.” There are a number of reasons for this, so bear with me:

    (1) Your “Note” probably does not describe the Obligation, in part because it does not describe the Transaction. Your “Note” says you borrowed money from “Lender XYZ Mortgage Co.,” but in fact the money came from somewhere else. Who paid the money to escrow? Was there a wire from another entity?

    (2) Getting past that, if your “Note” got securitized, by dumping it into some Pool, then for sure there was a mortgage-insurance policy on it (premium ironically paid for by you at closing, although you do not know that). The reason for the “insurance” was to make the Pool a palatable buy for the end-buyer, perhaps some bank in Iceland buying for some pension fund in Norway. At some point the pool, or your individual Note, is declared by someone to be “in default,” usually on the 91st day after “someone” is not recording payments. At that point the insurance pays off the principal and interest. And remember, that is why AIG went bust so spectacularly.

    (3) At this point you say: “Aha! Now the money is owed to the insurer, at least equitably.” Sorry, nope. That contract was written up and paid for “without subrogation rights,” so the insurer gets to pay, but does not get the Note in return. Note that this is not like an auto insurer, that gets to keep your car for salvage sale after a total loss is paid-off to the owner.

    (4) What is left is a paid-off Note, but the Note is never stamped “Obligation Satisfied.” And that is just too tempting; somebody, typically the “servicer,” sees that Note (or has an electronic scan of it, so they can go manufacture a duplicate), takes it and runs off to some Court and says: “Hey, this guy owes the money, he hasn’t paid, so hand over his house so we can go sell it and put the money into our personal bonus pool.” And, amazingly, the Courts have bought into this charade. You don’t know the difference, because you did not pay (and do not know about the insurer whose premium you did pay); the Pool is bust and paid off (probably in part, in a settlement) by the insurer, so they have no claim; the “investors” either collect “something” from the insurance and eat the loss, or are told that the pool is bust, but since they bought certificates in a pool, and not your Note, they do not claim your Note. Amazingly, the Note becomes an orphan. So whoever is standing around just grabs it. Usually, that is the “servicer.”

    (5) But for the Servicer to pull off their cute little fraud, they first have to get the paperwork in order, so (1) they use the electronic digital version of the “Note” to print out a new one, which masquerades as the real Note, and the machine that does this is capable of generating a “blue ink” signature of yours on it, even when you signed the original in black ink [yep, that surfaced in two cases in Florida (oops)]; (2) they get some processing outfit to generate an Assignment, with a phony signature on it; (3) they get some processing outfit to generate a Substitution of Trustee, [nothing wrong with the original one, but they need a new one who will do their bidding, and in some cases the “substitute” is owned by the law firm that is doing the foreclosing] complete with a phony notary signature, unless they do it in-house with a phony “MERS employee”. And then, it’s off to the Courts!

    End result: your debt was extinguished because somebody else paid it without subrogation rights, in an insurance gamble that you would pay it (even if the Note does not even describe the true lender); the papers shoved at the Court are all dummied up; somebody with no money at risk, a stranger to the transaction, then runs off with your house and puts the sale proceeds into their pockets. And now you know why the “vulture funds” are bidding on these stacks of so-called “Notes” to go process en-masse and close out. And that is also why there are no “modifications;” who wants to “modify” when the big bucks are in the “grab and flip?”

    Theft? Sure is. Fraud? Sure is. Do the courts have a clue? Nope. Actually, a rather cute scam, when you think about it. Except you are taking a shellacking. Sorry about that, chum. Go sleep under a bridge; we need to get rich.

  2. OK I get it and have never tried to say I don’t owe anything, but with that said I have no other way to procede. BofA changed my loan number, they changed the loan terms(30yr fully am refi to 10/20 Interest only) they changed the balance due back to the original loan amount, they changed the payments and this all happened when they changed the servicing to BAC in 2009. Then they wiped all proof of the existence of the original obligation from the BofA database. The same number that is evidenced on the note and DOT. I never agreed to any change,never requested any change and never accepted any change. My payments stopped when the six month window that I gave them to respond to all of the QWR’s that did not get any response and demands for loan accounting that they couldn’t provide. It is set up to go nowhere but This loan isn’t mine and that loan has disappeared and there is no way to show anything. So I guess I should get a free house because of your fricken mistake. BTW it wouldn’t be free after 20+ yrs of making payments as BofA held only a 50% LTV/Interest in the property based on the appraisal.

  3. DCB,

    OH boy. You are getting closer. But, old loan never discharged, by the last refinance. And, that is the HUGE problem.

    No loan schedules are accurate, as there were no valid loan schedules for subprime refinances. NO LOAN ever existed — only collection rights. This is why the market eventually fell apart. Security investors, never the creditor, were investing in the cash flows of fraudulent junk. What was securitized was cash flows to false default debt, by a false refinance, and borrowers — never told. Keep saying, you need to go back before the last refinance. If you start at the last refinance, missing everything. What the last refinance “records” tell you is — NOTHING.

    What a mess.

  4. @USEDCAR…
    that is how i would see it were I a judge a la
    ” stocks and shares whose owners cannot be traced, to a state authority (in the United States). A company is required to file unclaimed property reports with its state annually and, in some jurisdictions, to make a good-faith effort to find the owners of their dormant accounts.”

    If the purported plaintiff is a trustee that purports to represent a trust that has no filed loan schedule–the ownership of the note becomes uncertain. In my humble view, a collection agency engaged in collection activities but uncertain of the trust beneficiary should turn over the collection rights arising from that note–including rights to enforce property liens—to the state. The issue is which state. Typically the state of the possessor without ownership right is entitled to the windfall. Delaware and New York–or the state in which the collection agency is doing business and in which the real estate is situated.

    If the collection agency reflects a new account for a default loan–but the old loan # appears on both books and records of the trustee as a current performing loan–then that is a factual issue which suggests that the trust lost or abanfdoned that note at some time in the past–and the collector must give up the windfall–not simply credit it to its own account. this last is the heart of it.

    When I look in my newspaper and see 6 trusts recorded sequentially as holders over 18 months time–I know they cannot prove ownership of the note. They cannot simply seize property simply because nobody actually knows who is entitled to it as a matter of right. the state wins by default.

    If the janitor sweeps up a note from the floor of a Melville New York warehouse, he cannot indorse it to himself and collect it–that is the closest analogy that I have seen. It was lost–no file–no trust–no record of ownership verifiable by public records.

    If i were in the AGs office in Wisconsin I would balance the state budget by seizing the seized property –and by seizing property before it is seized and working a land contract with the current owner–or a state bond program.

  5. Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.

    In some jurisdictions, escheat can also occur when an entity, typically a bank, credit union or other financial institution, holds money or property which appears to be unclaimed, for instance due to a lack of activity on the account by way of deposits, withdrawals or any other transactions for a lengthy time in a cash account. In many jurisdictions, if the owner cannot be located, such property can be revocably escheated to the state.
    In commerce, it is the process of re-assigning legal title in unclaimed or abandoned payroll checks, or stocks and shares whose owners cannot be traced, to a state authority (in the United States). A company is required to file unclaimed property reports with its state annually and, in some jurisdictions, to make a good-faith effort to find the owners of their dormant accounts. The escheating criteria are set by individual state regulations.

    So David, if I’m in a lien state (Wisconsin), and equitable and legal reside with me as the owner, I’m looking to have my title protected from a false claimant (plaintiff). Forfeiture would be appropriate if I can prove they are not the lender no holder in due course, nor party entitled to enforce.

  6. sounds like counselor Stopa met my judge.

  7. 1st point on the equitable position of the servicer, [but not just the owner of collection rights stripped out of a bkrptcy]

    “like payment from the servicer that reduces the amount due to the creditor investor but gives rise to a new and different obligation to the servicer that also arises by operation of law — money due the servicer for advances to the creditor, even if the servicer was a volunteer. ”

    Never assume the servicer paid anything but taxes and insurance–maybe even not that–never assume the collection agency paid anything

    2nd point—

    I am with the judge on this–it seems to me that you are proving the alleged holder is not or cannot be the holdr–if you can prove why–and the true owner as the judge was alluding–has not come forward–people you have established escheat–that would have been the answer in equity–

    “equity abhors a forfeiture—goodness people its better to try to deal with the state than a predatotry collection agency—or offshore vulture hedge fund.

  8. Mr. Garfield, this is great for Mark Stopa’s case but, as he said before, when the judge prejudiced another case where the judge says “your client is not getting a free house”, Mark Stopa said something like ” your honor, we’re trying what is before you.” You’re assuming our own lawyers or pro sers fighting our cases are Neil Garfields, Mark Stopas or Jeff Barnes. They’re not. Very, very few cases ever get to the Discovery stage out of the 5% of the Contested cases. Even when the judges KNOWINGLY are aware that there are issuses of material fact in the case, they will allow the Summary Judgment in the bank’s favor so that the homeowner will appeal, appeal and appeal to the appellate court where the appellate court will Remand back to the trial court.
    Recently, here in New Jersey, there was an appellate court decision against the homeowner because the attorney chose the wrong issues.Most of the appellate cases have been favorable to the homeowner. It’s the attorneys who didn’t do their homework where good cases have been lost.
    It’s extremely rare that you hear a judge say “your client is not going to get a free house and even more extremely rare that you will a homeowner say ” I want a free house.”
    When you attack(challenge) the mortgage, STANDING, you’re also attacking the obligation(mortgage follows the note)and if you’re lucky, maybe then you will be able to go to Discovery. The mortgage is what is RECORED in the LAND RECORDS.

  9. joann

    I understand.

    Some records destroyed, but most are just not being produced. Called, again, “proprietary” — can you believe it ?? “trade secrets!!!” If you are lucky, you have them yourself, if not, subject to proprietary claim. This is up to the government — these records — are OUR records — and, should not be proprietary.

    Up to the government. Courts will not demand production. Courts do not want to decide — they want the government to decide. And, government — not doing job.

    As, to “out of here” — do not think Neil will ever explain the distinction that I make. Have asked numerous times. Derivatives discussed in above here, are well understood to be contracts, not securities. And, security investors are not the creditor. This also means, subject to regulation by the US Department of Justice and Attorney Generals. (not the SEC — who protects security investors, and for that matter, not by the Federal Reserve — the Federal Reserve has often stated the same.) It is also up to Congress to rewrite deregulation. Dodd-Frank has done nothing to help, and, in fact, continues to be watered down. Look at the quotes of money involved in the above post. Money has been transferred from largely middle-America, the vast majority, to the derivative contract buyers– ie — money made , and transferred to — distressed debt “investors.”

    I think it will take a long time for me — to be out of here.

  10. If you look on the note it says presentment waived. So we can’t request that. Another way they swindled us via their contracts.

  11. @ANONYMOUS

    “And, I am out of here”

    I hope not. And by the way I frequently forget to say “purported” or “ostensibly” or “supposed “when referring to “investor” “beneficiary” “creditor”……. jusd bumble along trying to figure out who the judge thinks any of the above are in the paper money trail and real property law even though not correctly identified,,,, which must be proven……just seeking knowledge…. more on the same page on this site than not in that regard… A person can be right and still be thrown out of court. One thing is what regulators and govt need to investigate and understand and legislate – another thing is how to get an individual case across in court to save a home without giving credence to bankster false utterings and all are discussed here at the same time from different angles.

    “Oh, and make sure you pursue looking into what happened BEFORE the subprime refinance in question. Refinance never paid off prior “loan.”

    Would love to do that (seems the same would apply Alt A and Prime too)….How would you put it to a judge though? What discovery and more importantly how would you get the judge to compel discovery? Maybe you have already answered that. Have many of your posts. What about quiet title on the old loan? Wonder what would happen.

  12. “Delinquency” ‘Default” “Dishonor” – clarify these please ????…

    § 3-502. DISHONOR

    (1) If the note is payable on demand, the note is dishonored if presentment is duly made to the maker and the note is not paid on the day of presentment…..

    § 3-310. EFFECT OF INSTRUMENT ON OBLIGATION FOR WHICH TAKEN.

    (2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid…..

    (4) If the person entitled to enforce the instrument taken for an obligation is a person other than the obligee, the obligee may not enforce the obligation to the extent the obligation is suspended. If the obligee is the person entitled to enforce the instrument but no longer has possession of it because it was lost, stolen, or destroyed, the obligation may not be enforced to the extent of the amount payable on the instrument, and to that extent the obligee’s rights against the obligor are limited to enforcement of the instrument.

    § 3-501. PRESENTMENT

    (2) Upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit the instrument, (ii) give reasonable identification and, if presentment is made on behalf of another person, reasonable evidence of authority to do so, and (iii) sign a receipt on the instrument for any payment made or surrender the instrument if full payment is made.

    (3) Without dishonoring the instrument, the party to whom presentment is made may (i) return the instrument for lack of a necessary indorsement, or (ii) refuse payment or acceptance for failure of the presentment to comply with the terms of the instrument, an agreement of the parties, or other applicable law or rule.

    ????

  13. Ditto, Neil. Now just recognize that security (pass-through) investors are distinct from debt collection “investors.” And, I am out of here – as some would love.

    Oh, and make sure you pursue looking into what happened BEFORE the subprime refinance in question. Refinance never paid off prior “loan.”

  14. @Christopher King

    “We are about to start putting up certified cashier’s checks to BoA on Presentment and demanding the original note and mortgage hahahahaa”

    Wish everyone could do that. Seriously though doesn’t UCC say you can do this anyway without the check? (UCC 3-501(B)(2)(a)).

  15. @Chris,

    Remember: every case is different. Carie’s is not yours. The players are different. The circumstances are different. You’re assisted by an attorney.

    I know you’re nervous. Whatever it is, do it afraid. Next time around, you’ll know that there is no reason to be.

    And one very, very important thing: do not answer anything until and unless you are absolutely sure you understood what was asked. Too many homeowners start answering before the question has been fully asked. if you don’t understand the question, say so. And don’t hesitate to market yourself: you are an honest person. you have never been arrested or convicted for anything other than a traffic ticket. You play by the rules and you always have. The problem is that the rules have been changed since you bought the house and you don’t understand what they are now.

    Your lender was XYZ and you don’t understand why you should be paying ABC without any written assurance that XYZ will not, in the future, come after you. Offer, even : “How about I pay XYZ and, since the alleged transfer was done without my being involved or even asked, XYZ and ABC can work things out amongst themselves?” “I need a modification. Why can’t XYZ give it to me and then, work it out with ABC?” I want to pay the right entity.

    Just common sense questions. You’ll do just fine.

  16. Haven’t read the article. But I will.
    I just want to ask a question before the article gives me it’s distortion.

    If you and I sit across a table for a financial transaction, and I write you a check for $10,000. I owe you the obligation as soon as you cash it in at the financial institution. If I promise to pay you $10,000 and we put it in writing and you gamble the instrument away and come back asking for another promise to pay. I have every right to refuse to write another one. The first one is out there and someone is holding it and may come to collect.
    If you load the instrument into a computer and destroy the original and sell the rights or pieces of the rights to the instrument to many people and they pay you for a piece of the cut..because the $10,000 promise to pay with interest would net you $30,000 and they want some of that above and beyond the piece you sold them. Is it my fault that when you sell the rights, the others come to collect and I tell them I don’t owe them any money? Is it really wrong to tell someone you didn’t promise to pay, that you don’t owe them?

    Now I’ll read the article, but I won’t comment on it’s distortion.
    My opinion is we will get information both sides of the isle and I’d expect nothing less from Neil’s site. Some want you to think it’s our fault and you owe, and others know there was fraud and that you are not burdened with someone else’s deceptive practices.

    There is a maxim here…let me find it.
    # No man ought to be burdened in consequence of another’s act.

    Take my question about that check that got lost or destroyed or gambled away, or that promise to pay where they scanned the original and destroyed it so they could piece-meal it to others for a profit. This maxim suits that situation.

    #The burden of proof lies upon him who affirms, not on him who denies.

    Trespass Unwanted, Corporeal, Life, Free, in jure proprio (in one’s own right), jure divino (by divine right)

  17. Keep it up. Dig this:

    http://mortgagemovies.blogspot.com/2012/01/kingcastmortgage-movies-blast-bank-of.html

    SUNDAY, JANUARY 15, 2012

    KingCast/Mortgage Movies blast Bank of America’s Anne M. Finucane for being a complete liar and full of shit, just like Senator Kelly Ayotte and just like her husband, failed Boston Globe plagiarist Mike Barnicle.

    ……“I can’t tell you how serious this company is about dealing with these issues head-on and doing the right thing, but also fighting where we think we should,” she said last week.

    The problem is, she is full of sh*t, just like Kelly Ayotte on banking (watch the town hall meetings one in which a constituent says she is “full of sh*t” and two, in which she has no response as to why she continues to ignore the forgery of my name to a mortgage). They are in good company with her husband, the ever-plagiarizing Mike Barnicle, who resigned and/or was shown the door from the Boston Globe after not one, not two but three incidents of alleged and probable plagiarism and outright fabrication as noted in a great story “For Mike Barnicle, one controversy too many” by Sinead O’Brien in American Journalism Review.

    Somehow in today’s story not one but two seasoned journos Louise Story and Gretchen Morgenson of the NYTimes missed the Bill Clinton issue and the outright fabrication of the child cancer victims to report only the alleged and more minor pirate issues against George Carlin (RIP). Not only that but the entire tone of the story was more like softball city than knock out punch, as it implied that Bank of America picked up Countrywide out of some sense of integrity when in point of fact many are saying that BoA is just as bad, if not worse then Countrywide. All I can tell you is that we are going to get to the nitty gritty with these fools. We are about to start putting up certified cashier’s checks to BoA on Presentment and demanding the original note and mortgage hahahahaa…… and when it doesn’t appear we have title companies at the ready to convey the property to the rightful owner, you stinking liars. Your whole scam is going to hit you in the face like the proverbial lawn rake. Anyway, how is it that we lose George Carlin but have these dirtbags still blighting our horizon with their fifth, lies and morally repugnant corporate ethos? Nobody said life was fair, I guess…. but anyway I would not trust Anne M. Finucane any further than I could throw her and her lying husband underwater in their backyard pool… or in the cesspool where they belong. Just saying.

  18. @ Enraged

    Got it, thanks…I do have an attorney, not signing his name to the case yet, but helping me with discovery, pleadings and complaints…while I do the research, filings, mailings and contacts. So far, he has been my security blanket. If it gets to expensive, I’m toast, but right now stable. Tomorrow, we have court for the injunction and restraining order to try and stop the sale. After hearing about Carrie, I’m nervous.

  19. @Chris,

    You ask all the right questions. Except that the PSA agreement is where any judge can make you stumble. You’re not an economist, a CPA, an investor, a bank or any financiqal entity with a fiduciary duty. You’re the homeowner. Stick with the appropriate questions about money, title, extinguishing the debt , selling the house and you’ll do just fine. Move on to PSA and you’re damaging your case. That is for an expert to raise and answer. In my humble opinion, of course.

  20. No 1. What proof is there that the money to fund the loan actually came from investors?

    No. 2. What proof is there that the debt is valid? (remember, you’re dealing with liars and thieves with an agenda, here)

    No 3. If the documents are forged and falsified, rather than legitimate proof of holding the original Note being furnished, why doesn’t that trip a half dozen red flags for you and the judge?

    No 4. Where is the proof that the debt was secured?

    No 5. When you know that the terms of the mortgage contract were altered after the fact, why are you still considering it to be a valid contract?

    You are continuing to beat a dead horse.

    You have said yourself, Neil…securitization never happened. What did happen then?

    You, Mr. borrower were duped into thinking you got real money of exchange which was used to purchase your property from the previous owner. That didn’t happen. The bank took the money from investors and pocketed it, while leading the investors to think they funded “loans” to borrowers, so it looked like something as solid as real estate was behind the worthless paper they gave the investors in exchange for real, bankable money.

    They took the Promissory Note you signed and converted it into money that they claimed as their own, but it truly was not theirs, and they used that money that they created to pay the previous owner of the property. They have stolen from everyone involved, and they know it, and they are continuing to do so because you refuse to investigate how they create money out of thin air. You lost the equity to the bank, who got it FOR FREE. The investors lost the money they gave to the bank FOR FREE. Only through an imaginary default, can the bank cover their asses.

    Bury that horse, he’s beginning to stink me out.

    “The purpose of this financial crisis is to take down the U.S. dollar as the stable datum of planetary finance and, in the midst of the resulting confusion, put in its place a Global Monetary Authority [GMA – run directly by international bankers freed of any government control] -a planetary financial control organization”- Bruce Wiseman

  21. I agree with this and in court my contention is: I do owe the money, but to whom is the question. This not about a free house, but rather, how much do I actually owe, clarification regarding amounts due, if I am paying the appropriate party, is my title clear in the event of an eventual sale, does the Plaintiff possess proper authority to sell my property and where are the proceeds going, has the PSA agreement or the Master Service Contract been honored and if not, then we are both in default of our contract with the lender/investor and this must be met with proper discovery, etc…maybe I am way off here, but I, personally am not looking for a free house. I want my 30 year mortgage back they took from me and replaced it with a 5 year ARM and added bank escrows, which pushed my payments beyond what they were and I had an escrow waiver in place, which they ignored, missing from the QWR I asked for. There is more to my story, but the free house, NO!

  22. There can be no default to anyone who is not a beneficiary. There can be no default to anyone who has fraudulently claimed to be a beneficiary when they are not or who has fraudulently assigned beneficial interest when they have none. I am still stuck on – it is a secured obligation. A home was encumbered as collateral for the debt. The owner of the secured obligation gets paid and no other and the owner of the secured obligation receives the house when there has been non-payment of the debt secured by the house. How can there be an unsecured obligation? Not possible by the “mortgage” papers signed.

  23. @Java,

    What it is is: the money is owed, yes. To whom? And payment of that money does not extinguish the debt. that’s where the problem is. Unless the banks go through the trouble of retracing every single cent put up by the investor and matching it to a specific house, the debt cannot be extinguished. And since, apparently, 5 to 10 times the amount of money may have been used to invest into one damn house, which cent is the real one? Which cent is the one owed by the borrower?

  24. From The Final Report of the Congressional Oversight Panel March 16, 2011 Page 94, paragraph 3:

    However, the Panel also found that if future revelations show that documentation problems are pervasive, investors and others will have reason to doubt the legal ownership of pooled mortgages, which could have severe consequences. In this scenario, borrowers may be unable to determine whether they are sending their monthly payments to the right people.

  25. isnt it simply the money is owed but the house is NOT secured , thus the debt continues but you can not be foreclosed and kicked out ….we may never be able to sell the house but we do not have to be made to pay the unsecured debt and can live in the house….ie just like not paying your credit cards)

  26. […] Visit link: Payment, Not Magic Satisfies Obligations: Stop Saying You Don’t Owe the Money […]

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