Weidner: There is no Such Thing As A FREE HOUSE


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There is no Such Thing As A FREE HOUSE and why there are no foreclosure trial appellate decisions.
January 19th, 2012 | Author: Matthew D. Weidner, Esq.
I have had an extraordinary number of my foreclosure cases dismissed in the last year. The number is frankly staggering. The foreclosure mills started dismissing or dropping them in January 2011 and they just keep on dismissing them right up until today. This fact is a recognition of what I’ve been saying all along that their cases are so fatally flawed that dismissal is the only responsible and legally appropriate thing for the to do.

The foreclosure files currently pending in courtrooms all across this state are a mess of improper legal pleadings and sometimes fraudulent and misrepresented facts. The more the banksters try to cover up and avoid their lies and the problems they’ve caused themselves the worse things get. And so the only way out, the only responsible, ethical, proper thing to do is dismiss the cases. Most are doing this, but increasingly some cases are going to trial. Now I recently wrote that there are very few appellate decisions in foreclosure that come from trial and I wondered why this was the case. I recognize now a big part of the reason…..

A “win” for a defendant in a foreclosure trial is not a “win” at all.

That’s right, in yet another example of the absolute unfairness and proof that there are two sets of laws, one for those with money and power and one for all the rest of us, I have discovered that even if we have a trial in a foreclosure case and even if we “win” that foreclosure case, all the Plaintiff has to do is turn around and refile the case the very next day. It’s just maddening and entirely mind boggling and totally frustrating. We can work for months to prove up the banksters and their fraud and the lies and the incompetence and the crimes and all they’ve got to do is shrug their shoulders, dust themselves off and start all over again. I’m afraid part of this analysis will come into play in the Florida Supreme Court’s decision in the pending Pino case.

But back to the “FREE HOUSE” analysis here on the ground. Recently a transcript of a foreclosure trial hit the blogosphere.  No matter what the problems on the bank side, no matter how many errors or flaws or questionable documents or facts, the court just could not fathom finding for the Defendant in the case because the court absolutely could not stomach giving the defendant a ‘FREE HOUSE”.

Well, I have to wonder, how would that judge’s analysis have changed if the defense attorney had merely explained to the judge that there is no free house, that there is no windfall for the consumer, that the banks can get away with whatever they want and then just turn around and call ‘DO OVER’ whenever they want? I should think this would make the judge a whole lot less concerned about issuing a verdict for the defense….after all, there is no real “harm”….harm in the sense that the banks will suffer no real consequence for their improper actions.

This understanding must make it’s way all across this state’s court system. We must all understand that the only way to get chopping through this heavy thicket of a quagmire of a mess of a garbage dump that is most of the pending foreclosures is to chop through all the garbage, throw all the cases into the wood chipper and do them over, correctly.

Read the attached case carefully and think about the larger implications…..I see this as the ultimate response to the “FREE HOUSE” argument, and a very powerful tool for our judges. As much as I hate the opinion and think that it is very wrong, it allows our judges the freedom to execute good judicial discretion without the ‘NUCLEAR’ option of the dreaded, ‘FREE HOUSE’!

Now, the problem with the opinion is it tosses key legal principles of Res Judicata and Double Jeopardy completely out the window, but hey, we’re all well aware that there are a second set of rules for the banks anyway…..right?




101 Responses

  1. Poor Romney–geez–how can anybody keep track of so many investments spread all over–including SWISS BANK ACCOUNTS???
    I wonder “numbered” or “unnumbered”

    Typically people pay the Swiss to hide their money–the real question that shouldv been asked is “what was the return on that swiss account”—-

    “The second truth question involved Romney’s investment in Fannie Mae and Freddie Mac, which Romney said was in a “blind trust” managed without his knowledge by a trustee.

    “What my trustee did is he loaned money to Fannie Mae and Freddie Mac. And they got paid interest,” Romney said. “But what the speaker did was get paid to promote Fannie Mae and Freddie Mac.”

    But, as the Boston Globe reported, the Fannie and Freddie investments were not in the blind trust: “Unlike most of Romney’s financial holdings, which are held in a blind trust that is overseen by a trustee and not known to Romney, this particular investment was among those that would have been known to Romney.”

    Romney adviser Eric Fehrnstrom acknowledged that not all of the Fannie and Freddie investments were managed by a blind trustee. “But,” he wrote in an email, “in both cases the investments are not selected by Gov. Romney and he has no control over them.”

    Fehrnstrom added: “The campaign has produced 85 videos, TV ads and radio spots.” Romney “doesn’t recall every one.”http://www.huffingtonpost.com/2012/01/26/mitt-romney-truth-debate_n_1235573.html?ref=daily-brief?utm_source=DailyBrief&utm_campaign=012712&utm_medium=email&utm_content=NewsEntry&utm_term=Daily%20Brief

  2. DCB, You are absolutely correct? This is what I have been saying. Once the bank deposits the borrowers promissory note the promissory note becomes checkbook money. But the bank never gives the borrower a deposit slip. Why? If they did the borrower would start to ask questions. Why are you giving me a deposit slip. The bank would have to tell the borrower the grand deception the bank has incorporated into the banks standard operating procedure. The bank would have to tell the customer that they could withdraw the funds from this account. They would also have to tell the borrower that the bank did not fund their loan but only made an exchange and that the borrower could asked the bank to offset what they owe the bank with what the bank owes the borrower as evident by the deposit slip the bank gave the borrower when they deposited the borrowers promissory note. Of course this never happens because the bank does not give the alleged borrower the deposit slip.

    This is why Recoupment should be the first counterclaim if you are in foreclosure. Or if you are not in foreclosure you should be filing a claim for recoupment..

    Once you have done this you than need to attack the alleged securitization process. I say alleged because an unregistered promissory note cannot be legally securitized. This is where Neil’s expertise and information comes into play. This being said everyone needs to file a UCC1 filing claiming their promissory note as an asset. This will prove to the courts that you have not abandoned the property. The banks will argue that you abandoned the property because you have not made principal and interest payments, paid the real estate taxes or hazard insurance. The UCC1 filing is puts the Public on notice that you have an interest in your property. In fact once you file the UCC1 filing listing your promissory note as an asset you will become the SENIOR CREDITOR. Yes the senior creditor the pretend lender the plaintiff just became a junior creditor. The only reason this can happen is because the promissory note is an asset to the alleged borrower and a liability to the banks. The banks own book entries prove this. This is why the bank do not give us a deposit slip when we take out an alleged loan. Be it for the purchase of a house, car, student loans.

  3. “According to bank procedure if they endorse the note and deposit it they are required to give you a deposit slip”

    When you deposit a check–a type of UCC instrument.

  4. In the real world I would agree with you. But the bank records it as an asset to the borrower and a liability to the bank. According to bank procedure if they endorse the note and deposit it they are required to give you a deposit slip. They never do this. The promissory note is an asset to the borrower / depositor. The banks do not tell you this nor do they tell you that they created a deposit account in your name. This is where the borrowers promissory note is deposited. Your are the creditor and the bank is the borrower. In order for you to prove your claim a the senior creditor for the note you must first register the note. You accomplish this by filing a UCC1 or UCC3 statement depending on your situation.

    It is also illegal to securitize an unregistered instrument. Promissory notes are not registered. If you are being foreclosed on you need to file counter claim for Recoupment.

  5. When you sign a note you “make” [create] an asset for the payer of funds to you who receives the note in exchange for cash—-and you create a liability for yourself. You do sort of create an asset but –somebody else’s. You pump the apparent assets that exist by signing up for an obligation that you cannot meet.

    I do not think that it is much more complicated than that at the bottom of the pile–now add on CDS etc–and the pile is getting as complex as you suggest.

  6. The promissory note / mortgage note is an asset to the creator, the borrower created the mortgage note.

    If you give a bank a promissory note, they are required to give you a cash receipt. They owe you that money under a recoupment or asset. If you take the receipt back, they should give you some money. They call it an offset in accounting, but in the UCC it is called a recoupment.Unless you do ask or do a defense in recoupment under UCC 3-305, and a claim under 3-306, you have a possessory and property claim against the cash proceeds under the liability side of the ledger. UCC 3-306, there cannot be a holder in due course on a promissory note after they deposit it. They do an off balance sheet entry. This means they take your note after they sell it, instead of showing it on their balance sheet, they move over to some other entities balance sheet. It is no longer on the banks books. This is called off balance sheet bookkeeping. Per FASB accounting guidelines. They are not showing the liability side of the ledger or the accounts payable because it has been moved over to someone else’s balance sheet.

    When you sign a promissory note to create the mortgage with a bank to buy your house, at closing, they have already sold your note to the warehousing institution. The warehousing institution brought money into the bank when they bought the note. At closing, they take the
    money and closes out the account on one side. The bank forgot to tell you that you don’t have a liability on their receivable side any more.

    Why do they keep taking your money? They have become the servicer for the account; they are not paying principal and interest. The payments are profit to the holder of the note. This is not stealing if we knew how to make a claim for recoupment. They are using the note to expand the money supply.

    Under Title 12 USC 1813(L)(1) when you deposit a promissory note, it becomes a cash item. It becomes the equivalent of cash the bank / pretend lender is suppose to give you a cash receipt.

    The bank / pretend lender owes you the money. No one is bringing up recoupment as a defense. You waive the defense and they go to collection on the receivables.

    Under civil rule 13, you fail to bring a mandatory counterclaim, which is based on the same transaction. Under the rules you have waived it because you were ignorant of the rules of procedure.

  7. @SCOT

    Im not sure what books–or what notes—there are really tow types of notes involved—there are homeowner promissory notes which should today be shown as debit balances on the banks books—-and the MBS which are electronic notes payable to investors, backed by the homeowner promissory note pool–these MBS are bank liabilities [credit balance] today–ie collaterlized debt obligations.

    that is how it is under todays FAS166—but used to have these entries wander off balance sheet into REMIC-associations–which became tax partnerships if the securitization details were blown

    nothing about the bookeeping would surprise me though–im seeing duplicated loans–multiple claims same loan???? you have to do discovery with an acctt to sort out the mistakes from concealments –figure out WHY they did what they did–are doing now–

    I think the overcollateralization may relate to claims against insurers including FHA/HUD ——and in case of some like BankUnited, claims against FDIC. Complex—civil discovery is weak because you cant get low level guys to sing by leveraging criminal charges–civil very weak

  8. DCB, thanks for your comments. I agree with what the UCC states. But the banks own ledger entries show that the note is an asset to the borrower and a liability to the the bank. The banks own accounting shows that they owe the borrower the face value of the the note in cash or the note it self. The bank deposited the note as cash in a demand deposit account for the borrower. This being the case the alleged loan is double collateralized. .

  9. @scot
    technically ucc states that you are “maker” of the promissory note—you promise to pay $$$$ over time and if you fail to make the payments then the future “holder” at the time as determined by ucc can elect to sit and harass you to collect or can accelerate the note call it due now and demand payment of the full amount of the note–AND they may elect to seize your home OR proceed against your other assets

    you create a mortgage to assure pmt of the note–sometimes if the note holder has lost the chain of assignments of mortgage–the state law may deem the mortgage to follow the note–the mortgage has no value without the note or proof of ownership of note with a lost note affidavit–this is all ucc stuff—

    changes somewhat state to state at fringes——the real estate law differs broadly state to state–it is dangerous to be up against people who have done hundreds –or more of collection actions–they have a playbook —-pre-packaged motions and forms at the ready–just change the name and address —platforms do it for them –there are networks of attys drawing on common data pools —-its very unbalanced——there was a real need for state AG intervention to balance the scales and they have failed—they were also overwhelmed—thus fall-back to feds but they failed—the bottleneck is drawn by relatively few stalwart researchers of fact and attys who try to figure it out —-and the judges that get so much grief–but who in the end are the reason for the bottleneck by enforcing civil law pressed by civil lawyers where govt has failed

    I am not persuaded by Obama’s speach and the zoom in on Holder that there is anything different coming down the pike.

  10. Question for everyone. The mortgage notes have cash value for the dollar amount listed in the note. We create the note when we sign the note. Our signature monetized the note. The alleged lenders took both our mortgage note and the mortgage. Wouldn’t that mean that the alleged loan was double collateralized. Wouldn’t this mean that if the alleged loan went into default the bank would be entitled to one or the other but not both. I encourage and welcome all insights.

  11. Ian

    Common practice. But, not valid.

  12. Make It Happen,


  13. “WAKE UP PEOPLE, the devil is seriously at the door….it you look through the peep hole, you can see his horns. In yet more proof that the banksters own both the ReThUGlicans and Democrats it is rumored that in 48 hours, the deal with the devil will be inked in blood….” ~Matt Weidner


  14. Anyone who takes the time to figure any of this out from any angle or point of view is a godsend. Us newbies can figure out what works for us and what doesn’t. Things that were considered “theories” four years ago are not “theories” anymore. Creative “solutions” have never been considered by anyone. Tragedy is most don’t get educated about it until they stumble and then start dealing with a mindless engine and start asking questions. It is too late for too many especially if they have to devote time and resources to survival and also cannot afford an attorney.

  15. Wow, DCB,

    You do sound beat! Sorry to read you’re in such a poor shape, physically, mentally, emotionally and financially.

    Now I feel really bad for having given you such hell!

  16. @ER

    Im figuring on being a corpse 1st—no more problems—concerned about my sons though—you have to put up a million to get a residency visa —-so they need my life insurance to escape. complex trust work

  17. @JG–
    Thanks for the links–now I understand-\

    I dont know if this would prevent refiling–i doubt it—what this does is protect unsecured creditors. Its called marshalling–a common law doctrine that says a secured party must 1st grab his security befor going after unsecured assets—otherwise he gets a big leg up on say credit card companies. They cant really go after the secured property –any proceeds 1st must go to the secured party while hes enforcing against bank accounts and paychecks–i suppose to the extent it prevents seizure of pay –its sort of consumer freindly

    better to have the rule than not

    there may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage
    or other lien upon real estate. That action must be in accordance with the provisions of NRS 40.430 to 40.459, inclusive.” (2) In
    other words, the lender generally must complete the foreclosure process, or “exhaust the security before recovering from the
    debtor personally,” before pursuing the borrower for the payment of the debt. Bonicamp v. Vazquez. (3)

  18. I applaud these people–wish I was healthier –but theyv ground on me since they started defaulting in making re tax payments in 2008–Im supposed to make payments while they fail to pay RE elsewhere?

    While being told to “just stop payments for 60 days” to open mod discussions–short sale discussions—basically to talk to a person who could speak english.

    They have broken me–physically and mentally–I was sick to begin with and then they move in with a war of psychological abuse.

    worsened when you stop and say “but the notary said she did not notarize this document bearing her name–and one of the signers is a convicted forger”

    That does not get you any relief—they just move you to a higher level of attention–none of it favorable–high defcon. They dig Deep in their book of tricks and try out the most abusive strategies they can imagine out on you as a guinea pig.

    This is a long drawn out war of attrition–they have a corp of attorneys–iv encountered now over 10 of their attorneys from at least 4 lawfirms—-young people well paif to beat on me–im broke just with mailing costs.

    They make sure that you have no holiday without a hearing or deadline imminent–this past holiday I received a notice of emergency hearing to seal my records on 12/22—-for emergency hearing on 12/29. Made for a fine XMAs

    Last year there was a seize and freeze in early december–on XMAS day i was in my recently vacated home shutting off broken pipes to stop water running across the floor–filling the finished basement like a swimming pool. Between XMAS and New years blowing down pipes and winterizing. Their 800 number was not working. Why? Why would I do this? Because the loss was against MY INSURANCE POLICY.

    I have nothing left but a motley collection of old canes

    I have not even a credit card to buy gasoline.

    And an IRA going to my sons’ college.

    This is life in the United States today—

    Now I am broken, beaten sick –they win–I doubt Ill live to see the year out.

    My objective now is pretty much limited to preventing them getting my life insurance proceeds.

    Probably some day–you will just hear no more from me anywhere–ill be gone.

  19. @DCB,

    So, let’s all become Canadian! And when the s*%t hits the fan there, we can all become something else…

  20. @ Enraged et al

    In respect of the discussion of the spin-off under bankruptcy of “servicing rights” cleansed of duties by bankruptcy to create more valuable “collection rights. As a practical matter that cedes an unbridled right to liquidate the houses–to convert them into cash distributable to the hedge owners’ financial operations syndicate. One person suggested these possible benefits might inur to BankUnited (BkU). It was suggested that a spin-off of collection rights could maximize value by that entity. Those rights now being cleansed of duties. That speculation is reinforced by the interlocking ownership with AHMSI, one of the largest of subprime servicers. Presumably WL Ross and staff have a thorough understanding of the operations under their real control and lend the benefit of their substantial interest in liquidation experience at AHMSI to the operation of BankUnited. How to maximize value from distressed assets-default homes?

    That would be important for a multi-billion dollar portfolio of home-loans managed and owned by BKU. approximately 60% of these homes reportedly were 4-option ARMs. Such loans often include illusory teaser rates, negative amortization, steep adjustment upward payments 3-5 years after origination aka cliffs. Predictable default.

    In 2009, FDIC became involved when the [old] BankUnited went under due to liquidity and financial instability associated with the mortgage operations. It reportedly owed $12 billion, including substantial elderly depositors etc–but had ony supposedly $8 billion assets–presumably decline in value of motgage notes held. A $4 billion gap. FDIC filled the gap with a $2.2 billion up-front cash injection. The syndicate put up $900-950 million. FDIC guaranteed 10 billion on the syndicates portfolio of predatory loans etc. under a proportional formula. Shared losses–what % ?

    In 2009, a syndicate of hedge funds including Blackstone [public] and WL Ross among a few more was formed to buy and presumably reconstruct-dismantle the assets of old BankUnited to realize optimal value.
    Then [new-syndicate] BankUnited acquired the assets and liabilities of [old] BankUnited by upfront payment of $900-950 million augmented by an upfront cash contribution of $2.2 from FDIC. Presumably that was used to pay down bank debt and other working cashflow issues. Eg warehouse lenders.

    [new-syndicate] BankUnited wants to appear be an honest straightforward bank for several reasons.

    It markets ordinary banking services in Florida, It obtains and low interest paying deposits by elderly people. Cheap cash source.

    It wants to provide financial management to these “customers”. The opportunities afforded by this aspect for offshore hedge fund operators could be a game changer for the investment business. Money of ordinary Florida’s elderly going offshore? Not just the $100 million club–but retirees with hundreds of thousands or even a couple million. People who trust entities that have the word “BANK” over the door.

    Unfortunately [old] BankUnited carried along the problematic portfolio of low quality loans in or near default. These are at least partly insured by the FDIC $10 billion–but they present a marketing problem.

    The elderly may be naturally reluctant to put there money into an entity which is closely linked to aggressive collection rights seizures. Bad Karma so to speak–if nothing else.

    Thus BankUnited should spin off the collection rights–the sum of the parts is greater than the single enterprise–typical Gordon Gecko.

    AHMSI is a logical operator of that collection rights organization.
    The question is what affiliate or strawman buyers might the syndicators use to purchase the cherry-picked properties using information obtained as owners of the bank? Without audited investigation, it is difficult to determine where the buyers come from or act for?

    The foreign buyers–eg Canadian Snowbirds– are a likely target–the Toronto Dominion drive-by demonstrates that fact. canadians would more easily cope with a dual life if they had access to a home bank while buying Florida homes and using them.

    Is there anything wrong with this picture? What if the current Florida homeowner could pay the same monthly payments as the Canadian 2nd home guys? DILs should include residual rights of 1st refusal–but what if they cant get approved financing–what if their home-loan related collection agency data was removed?

  21. @DCB,

    That’s my plan but not right now. Remember? Pending lawsuit and attorney representing…? But anyone wanting to take a serious bite into CoreLogic is more then welcome to go right ahead.

    Actually, DCB, and seriously, why don’t you enrol in Marc Dann’s bootcamp? Age has nothing to do with getting involved and becoming part of the solution. Look at Cox, in Maine? He got out of retirement to help homeowners fight foreclosure PRO BONO!!! And in the shuffle, he learned of the big plans for the new and improve MERS, known under MERS II. Check him out on Mandelman Matters. He gave an incredibly enlightening interview.

  22. @ENRAGED

    Well lets go question them?

  23. It would seem easy enough to get them to answer questions—-are you going to depose–serve a subpoena duces tecum?

  24. Fricking plot thickens so much, it’s pure molasse!

  25. @dcb,

    Would you look at this?

    That lawsuit initiated by Marc Dann (but filed by some county represented by I forgot whom, on behalf of all the Ohio counties…)
    actually names MERS, Chase and… CoreLogic!

    I knew it! CoreLogic is to money what MERS is to documents. I rest my case!!!


    Ok, DCB: time to go to Marc Dann’s Bootcamp!

  26. @DCB,


    CoreLogic is a spin off of First American. It’s a publicly traded company.

  27. @DCB,

    This one is for you. It actually talks about you, personally! Especially the last paragraph…


  28. does corelogic have a place of business in ohio?

    maybe do a telephone deposition and just ask them?

    im curious on the role played—who they perform what servives for

  29. @DCB,

    No. I asked CoreLogic originally by regular mail. Ignored. RRR letter followed. Ignored. Tax assessor sent me the ledger for my taxes. Paid by Corelogic. Insurance sent me the ledger: paid by Corelogic. Since I’ve filed suit, I haven’t pressed further but I know there’s something fishy with CoreLogic.

    Still in the discovery phase. It is part of the docs we are demanding from the servicer: the complete ledger of payments made from my escrow account and to whom, along with the instrument. By comparing the dates of payment by CoreLogic with… maybe payments made by servicer, (who knows) we’ll have a much better idea where the money comes from.

    Once again, still the same story: follow the money. ALL of it! Every step of the way! Daunting task but it has to be done…

  30. @ENRAGED
    Now you have my attn–all financial records are on my discovery list. You said;

    “I want to see it. They won’t let me. Pisses me off! CoreLogic is to the accounting what MERS is to the documents”

    What procedure have you used?
    3rd party subpoena?

  31. @ enraged

    I agree down the line–and sounds like we are in the same boat down to the size of the nails that sort of hold it together—leaky though huh

  32. They securitized the cash out receivables…NOT any “funded” loan.

    The security investors are not and never were “creditor/lender/owner”.
    The debt collectors are repossessing homes and destroying lives…based on the lies of “The investor owns your loan”…

    Complete and utter LIES.

  33. @JG re wanna be Romney

    I like Gingrich–I have since 1994 when i worked with his staff–honest people in a dirty town.

    Romney —–He must have a disclosure on his tax return that notes he has control or an interest in a controlled foreign corp of some sort—there is no tax in Caymans but for excises on consumption—

    So if you were a smart financier but dumb presidential aspirant–you would park your trading money there and trade like it was an IRA—no taxes until repatriated–iv heard they want to waive that right—to increase capital for investment in the US.

    It could be just a branch or sub of a US company that is used to dodge state income taxes–rates are high in New York and Mass—best to accrue the state tax and deduct the accrual in computing fed tax? why not?

    It says this guy has a good tax crew but it is unimaginably conflicting–even for a Governor–maybe that piece should be looked at

  34. @JG—the bk ct dumped duties to the trustees–aka MBS investors in part—its new stuff—the thing is the banks sit on both sides of the table–as trustees and as unsecured creditors—-supposedly the secured creditors are the MBS holders thru the trustees but irrespective of equity—practically who is going to complain except class action investor groups–like the teachers etc–that already went down early on and settled–new ones popping up –but they arent chasing the collection agencies which made off with the rights to seize and liquidate——they are after the banks that let it happen—-when really it was Treasury dept, FDIC, Fed reserve—despite their reports and speaches —-distancing themselves from the syndicate that pulled off the BankUnited deal—one has to wonder what we have not yet learned that the syndicate does not want out????

    Its always the coverup that gets them.

  35. @JG
    “I buy some stuff that comes with obligations, like payments to investors. I put it in a subsidiary (or I have my subsidiary buy in the first place) Subsidiary files bk, I buy only the “collection rights” – what does that mean exactly, btw? Does it mean I am able to dump the obligations to the investors? No, can’t be”

    No I am reasonably certain that is exactly what happens.There have been three “patterns of conduct” that i have pieced together by looking at all corners –looking at postings –reading everything on topic that hits internet.
    European skuldugery too–offshore.
    Example: AHM created numerous predatory loans, didnt file loan schedules, got caught holding its own toxics and went under in 2007.
    This entity was integrated. It originated loans through subcontractor-brokers and its own workforce under its trademark. One sub /parent was “investor” in its own-source loans and securitized MBS. One sub originated as named lender [“ACCEPTANCE”], a 2nd was the flimsy intermediary supposed “depositor” into a number of trusts 2004-2007, 3rd was the backend “servicer”[old-AHMSI]; Most members of the group jointly filed bankruptcy.

    The servicer had right to collect monies for a fee, subject to duties to make advances. Advances initially included cost of maintenance, taxes, insurance and limited payments to the MBS investors for missed payments short of default. These advances plus fees for that service was allowed as charges against the pool cash flow from current payers. The net was distributed to MBS holders, in the agregate. One right also was the float on monthly collections of insurance premiums and RE taxes from current payers. This part was typical.

    The NPV of the generous “fees” withheld from investor remittances was thought to be where the value lay. However, the rate of default on the toxic loans was high. Quickly it became important to refine the value of collection rights from defaulted loans-including foreclosures.

    The whole operation collapsed when big banks pulled credit lines necessary for it to originate, The group filed for bankruptcy.

    The bankruptcy court dismantlement at the request of major bank creditors and poor Paula Rush for homeowners as well as a few others–involved the sale of the “COLLECTION RIGHTS” to maximize value–ie sales proceeds to be divided by the big-bank unsecured creditors.
    The cleansed collection rights were sold to WL ROSS –also in the BankUnited syndicate. he placed the assets in the name of new AHMSI–the current incarnation of the operation–there was carryover of personnel.

    Duties were largely left behind to increase value of the cleansed rights.
    The “rights” in respect of default loans took on added value. BankUnited is likely very similar. WAMU also. The several defunct organizations are worth more when the rights are sold and the duties extinguished–not rocket science. This model was worked out in 2007, if not before.

    Generally–without specifying anything about new AHMSI, As one Chase representative told me, the servicers use their advances and fees to offset recovery of proceeds from homes. As a trustee, with as much distance from the collection activities as possible, the trustees as a general matter apparently assume little recovery from most default loans ending in foreclosure. Little if anything to investors–if that is accurate.

    That is why servicers treat themselves as having standing with or without the participation of trustees—and as insureds—-and as real estate tax payers. That last fact tends to put them in better standing with courts as a practical matter–even though they have little positive standing in the local communities.

    Consequently the collection rights gradually morph into rights to proceeds of liquidation of homes to recover the various charges claimed. Any NPV guy will quickly tell you that the value in cash flow relates fundamentally to speed of cash going into the bank on your account–to the hour.

    Insurance claims of all sort fall into this cash flow collection right. As an example in case AHMSI pursued claims for FHA insurance–rebuffed by HUD and a matter in litgation recently in TXS Federal court. Casualty insurance claims as well–perhaps but speculatively, title insurance–other? —-

    This model seemingly could be reproduced at WAMU-BoA, with modifications.

    The BankUnited deal was even more rich–due to the additional cash flow gratuitously brought to the table by FDIC. Sheila Bair? In 2009 she should have known better.

    The BankUnited deal is over the top and lack of action by Federal Reserve to look through the flimsy conversion of common to non-voting in the face of the refusal to disclose by certain of the syndicators suggests the gates are open. BoA has been busy cleaning up its act, OCC etc weak as it may be–while the BankUnited syndicate and others get away with similar conduct–must make for BoA, Chase etc a bitter pill.

    The question of the day is whether the homes in Florida mortgaged in favor of BankUnited are seized by a servicer–that could be related to a syndicate member—could be sold to a relative of the syndicate—whether the FDIC should drive that effort If it does then it bows to the demand for “collection rights”–ie seize and sell those homes. Should either the bankruptcy courts or FDIC or HUD or any other govt payer—pay the collection agency to throw people in the street?? In an election year–no less?

  36. @Johngault,

    Going back to homeowner’s insurance…

    As I was saying, any time your loan was transfered, the loss payee changed accordingly.

    HOWEVER… the payments have always been made by… CORELOGIC!!!

    Hence my recurrent question: why is Corelogic involved and why doesn’t Corelogic want to send me the entire accounting on its payment and where it got the money from. Normally, Servicer would pay insurance and taxes direct from the escrow account. Assuming that CoreLogic manages the escrow account, there would be money passing from the former to the latter, right?

    Maybe CoreLogic doesn’t manage the escrow account by pays the bills and gets reimbursed by servicer, right?

    Either way, there should be money going from one to the other. I want to see it. They won’t let me. Pisses me off!

    CoreLogic is to the accounting what MERS is to the documents.

    Who wants to bet with me that Corelogic was started by some dude from Goldman Sachs? Like many JDB…?

  37. @Johngault,

    Doesn’t that what you describe remind you of the 90s, with the leverages and the tearing down of perfectly good companies? You know, that Pretty-woman-Richard-Gere crook thing? Except that B of A was looking into buying assets and ended up getting a dog?

    Serves them well! Sue the bastards!

  38. @DCB,

    To be honest with you, I know nothing about seize and freeze. It probably does exist but I heard the expression for the first time today and I am even appaled that it could be existing. Since I am not naturally conniving, I can’t imagine such a conduct by anyone, be it a bank or anything else. I believe the subject was raised by someone else.

    You’re right that paying $700 or a little more every month for an attorney crusading on behalf of homeowners might look a little steep for some. We’ve got to the point where we have to choose: pay for a mortgage on a house that may never be ours with MERS and the banks’ shenanigans… or invest that hard earned money into the fight.
    As I mentioned before, most people do away with everything in order to keep the darn house. That’s not right.

    I would advice anyone to get legal help wherever and whenever possible. Easier said than done, I realize it.

    Listen, I am riddled with debts. My kids college, my own dating from when I had a well paying job and… the darn house. I handle debt collectors on my own because I have nothing anyway and I’m self-employed. That house fight, I didn’t want to undertake it alone. But… no shame here! I didn’t create the bubble. I bought it, like everyone else because, against all common sense, homeownership was very much shoved down my throat as the only way to assure my future as a retiree when Social Security has been under attack for so many years.
    In retrospect, we didn’t have a prayer. And I didn’t play by the rules for over 30 years in my adoptive country to see it turn against me and end up screwed. Nope. No shame!

    Lot of rage, though…

  39. @dcb, and in addition to what I hear about MERS et al, Romney admitted HE keeps millions in the Cayman Islands. Maybe HE’s afraid of our monetary policies or that ‘wrong key stroke’ sending the DOW
    down 500 points in one day again. Why don’t we all just go eat, drink, and be merry for tomorrow we will……….a) be serfs? b) be old as well as poor (I’m already there), or c) heck with that, let’s give them the hell they’ve got coming. Those appear to be our choices. We need to decide concretely what ‘hell’ looks like.

  40. @dcb – Here are some links below re: one-action rule. It is entirely possible I got this one all wrong (I’m thinking as I glanced at them), in which case I apologize for a bum steer and also if so, given that it’s Friday, can I have some Jack D with my humble pie? But I would say that for every case listed here which does not support res judicata in regard to a case wherein the court found lack of standing, whatnot, to a particular bankster, if I wanted to spend a day, I could find 2 which state the opposite. Further, courts have held the true noteowner (if discovered) responsible for the acts of pretenders on the basis that the noteowners had the duty to know what was being touted about its note, and issued sanctions to all. Nosek (MA) comes to mind. There are consequences for, for instance, submitting false poc’s and false claims and those consequences once understood by and large can be a big stick against having to argue some more. When I find my material on false claims, I’ll link it here.
    There are times as stated here when the way things go down, the banksters just change their “evidence” (gag) to suit their allegation and come right back at us. I just don’t think we have to sit for this at least under some decisions (obviously not those cited here) or with the sanctions-stick. Most homeowners and their attorneys are so relieved Joe Blow didnt’ get their homes this minute, it’s possible they don’t do what they might to put an end to the ordeal altogether. And by the way, the imposition of certain sanctions is not discretionary. Forget which this minute, of course!





  41. yeah but, yeah but, dcb, you didn’t address the 13 trillion dollar question which is born of this fact: They can only dump the liability /obligation to UNsecured creditors.

  42. ian – you raise interesting points. “The collection rights were bought” from whom, I do so wonder. I don’t know much about trusts being
    disbanded or whatever , but in that case, what becomes of the investors investment? Returned minus a to z ? I’d like to know, if anyone knows.

    These issues regarding “mortagee” on h.o. policy are interesting. And I never thought about the fact that a ‘mere’ servicer is being shown as the creditor on credit reports, giving further (errant) legitimacy to the servicer being the real party in interest or whatnot. Seems to me the creditor, if there is even one these days, should be shown on the c.r., or at least there should be a disclaimer that so and so is only the servicer. Seriously. A credit report is not a public document; nonetheless, anyone who looks at it relies on the servicer as the creditor. When we do a lot of things these days, we authorize our credit to be run. Isn’t this really dissemination of false info? I’m not sure what good it would do to demand the real creditor be shown on our credit reports, but it sure should be.

  43. Nah – I buy some stuff that comes with obligations, like payments to investors. I put it in a subsidiary (or I have my subsidiary buy in the first place) Subsidiary files bk, I buy only the “collection rights” – what does that mean exactly, btw?
    Does it mean I am able to dump the obligations to the investors? No, can’t be, UNLESS those obligations are not really secured. And what the heck is that admitting? Someone must have commented or posted a link here about B of A contemplating bk’ing its CW “division” tho I can’t find it again. The thought of this being legal is making my head swirl. And isn’t this a blanket acknowledgement these deals are not secured at all? Let’s see. I’m a Wallbanger and I own the note, but I’m going to sell you the rights to payments made and I’ll throw in some guarantee at least for a spell (and also to fashion my own illegal remedy if there’s a seasoning requirement on the loans which won’t be met). Since I own the note, I and not you have the right to the collateral, also (as long as I have an assignment of the dot.) You dont’ mind too much that I made you think the money you gave me comes with security, do you? The chances of you getting paid are only as good as the odds of people making their payments, but hey, real estate is booming!

    Am I in left field? If B of A can do this subsidiary thing, then others can do it with or by creating subsidiaries, waiting some requisite amt of time, if any, and having that sub file bk. For all I know, it’s been done 100 times already. Maybe i am in left field?

  44. @ JG
    Dont forget the bail out–im thinking BoA still has govt money [preferred stock?] somewhere–not counting the zero interest loans at Fed

  45. @ JG

    “Can this really be done?”

    Now you have it——look at bankruptcy of old AHM.

    Think about this aspect carefully–thats how “servicing rights” become “collection rights” ———few duties if any, no liability–all cream. Paula Rush could write a book on this.

    if this one does it [BoA]–it will become industry standard practice–rights divorced from responsibilities?/?

  46. Aw geez. If what I described is legal, than B of A knew exactly what it was doing when it bought or w/e CW’s junk. All it had to do was ride out a few suits and some bad press before turning the junk to gold, which is exactly the case if B of A ends up with the goodies thru a bk court.

  47. Census
    Population, 2010
    CA: 37,253,956
    USA: 308,745,538

  48. 1) Do we know that B of A segregated its alleged acquisition of CW’s stuff such that B of A could bk only that “division” (have to be separate entity even if owned by B of A, right?) It’s a sophomoric question I suppose, but I still wonder about it. I mean, at the time B of A made that brilliant decision about CW’s ‘stuff”, maybe they thought the stuff was an asset such that they wanted it on their own books.
    Hey, what a minute. I’m a business and I transfer my big achilles heel to a subsidiary. Then I have the subsidiary file bk where the problems are dumped and I buy back just the goodies at 10 cents on the dollar. Dang. Can this really be done?
    This sounds like what I heard Aurora Loan Services did last year.
    Filed bk and next thing you know, Aurora Bank, its parent, is in your face instead. I’m no expert on that stuff, but is it and if so why are bk courts allowing companies to ditch liabilities and then sell, presumably at day-after-christmas prices their assets (in this case whatever is being called collection rights) to related entities or even others? This has got to be to the detriment of the debtor’s other creditors. The bk trustees are tainted or is it that they have no way to deal with those loans otherwise? But why is the parent company being allowed to buy the goodies at bs prices, especially if the parent created the subsidiary just to do this? No way to stop it? Why don’t bk courts set a bid period for the goodies or can’t they do something like that?

  49. @ JOANN–

    Im curious, what sunami? Foundation shot? is it bldg defect? or damage from earthquake or insured casualty?

  50. I’m in sunny So Cal. not far from the beach. Tsunami already hit – only the damage isn’t fully visible yet. Foundations are shot. Weather report says more to come. No flood zone insurance here and FEMA is in foreclosure.

  51. @ENRAGED

    You are correct–im not at the center of the universe–im where people are ashamed if they are in financial trouble–family secret–and then leave town to avoid besmirching the family honor—i cant give away help

    i tried

    also i have no malpractice insurance and am probably a walking disaster—but i stay active in my own ways

    tell me about seize and freezes wherever you are in ohio

  52. @nancyf – I have always thought that the legal description in a deed controls over the street address which is just for informational purposes. Did the seller encumber YOUR legal description? Is the legal description correct in the seller’s recorded docs , ie., does his legal description identify another property, not yours ? You may be entitled to a correction deed (to correct your street address), as applicable and as necessary. Not sure. You might ask an attorney who practices real estate law. Take all the recorded and closing docs with you.

  53. @ ENRAGED
    “Why do you absolutely want to draw the worst possible picture all the time and for everyone? Oh, never mind! I forget. Paranoid to the core!!!”

    My point was not inconsistent with yours–i said beware of one that has that book–believe me it can happen–it isnt paranoid unless its unreasonable—defense attys especially a couple years ago had a hard time making money to pay their own bills–

    you speak of paying $700/mo to an atty–still a good deal perhaps but hard for a typical family to sort of simply divert house pmts to an atty–im not sure thats the best answer long term–but sadly you are right there is little choice——-

    iv seen a lot of horrible conduct over 40 years of practice—attys running off with retainers in their trust accts–estate money–attys are far from angelic-what they are especially good at is convincing clients to trust them—rightly or wrongly—there are also good and bad car salesmen and doctors—-even insurance guys

  54. @DCB,

    Yeah, I believe you. When I checked, I realized that you’re in the boondocks. Probably no solid attorney there…

    Are you retired? You passed the bar around 72, right? That makes you… well, up there in age. Now is the time to come out of requirement and leave your mark… What do you have to lose?

  55. @JG

    as i have stated im pretty ignorant—dont understand DOT non-judicials—would you pls explain this one action concept? cite?

    in judicials you must plead acceleration of note–then seize property–actually two claims sequentially–but if the property has HAZMAT on site –as you know the boiler plate indenture and PSA MANDATE that no foreclosure occur because the next owner–bank whatever—is liable for cleanup under RECRA and CERCLA etc

    So in such cases the servicer will chase other assets by simply accelerating the note and ignoring the foreclosure part–theyll lien on your vacation cottage in Palm Beach–your yacht –your rolls–probably your life insurance–but have to stress you enough that you commit suicide ???? extreme but its only business

  56. @DCB,

    Define “unqualifiedly correct”…

    Attorneys who try and win cases never have, to my knowledge, 200 of them on the book. I know mine doesn’t. I know Dann doesn’t. Crusaders simply don’t: they’re not in it for the money. They’re in it for the principle. They’re willing to forgo the big monthly income for the results. Know why? “Cuz, in the long run, it is to their advantage to become famous for their wins. And… many of them have serious political aspirations. They want to be part of the solutions.

    Why do you absolutely want to draw the worst possible picture all the time and for everyone? Oh, never mind! I forget. Paranoid to the core!!!

  57. yeah, but jve, what about the one-action rule? I’m stumped. How can a losing lender, by any name, go from one court seeking enforcement of the note via the deed of trust to another now seeking enforcement of the note only?

  58. If you look carefully at JOANN’s post re duplicate accounts–thats what im looking for–also instances of “seize and freeze” in Ohio

  59. @JOANN

    “Or did you just say they want to torch my home and collect the insurance? “Not sure how they would do it in south–suspect torch?””

    I said exactly what I said—–not sure how they would intentionally convert house to cash in south via casualty insurance

    one extreme might be the torch—–another farout might be spray water around inside and let mold grow–i suppose

    i do not know what makes houses go to hell fast in south.???

    My point was IF ypour house burns down while your policy is still in force–dont assume it was an accident. It could be a servicer “property manager” who wants a bonus for employee of month at turning properties into cash…??

    I would not rule out any option.

  60. @DCB,

    What kind of info are you looking for? I’m not sure I understand what you’re after.

    Anyone who has a mortgage can see on his credit report that servicers were listed one after the other as the loan was transferred. That’s why, in addition to Tila, Respa, Fdcpa, I also have a Cspa action.

    Anyone who has a mortgage can also see that the loss payee on his homeowner policy was amended. All he has to do is contact the agent and get the entire copy of his file. What irks me is that, usually, the reporting to the credit bureau (all 3 major ones being MERS members) is done almost right away. The recording to the county isn’t. It can take 6 months… or never be done at all.

  61. DCB
    Was told the mod requires escrow account for taxes and insurance. Not related to this discussion but just don’t like that requirement when it has never been required before and for some reason don’t trust it and I am in enough denial to think I might still be here years from now (not really in denial – scared) but not a lost cause yet to even be able to pay this mortgage going forward only past due and penalties piling on now plus the hidden mill charges make it more and more unlikely….One thing is for sure I am better at paying the taxes and insurance (never missed – always early) than they have proved to have been in some areas.

    What is related though is what you said:

    “but its still your credit/insurance experience ruined”

    Thing is the servicers want you to stop paying your insurance so they can do force placed insurance at 10 times the current premium – not exaggerating – it is in a couple investor lawsuits that question the practice. Or did you just say they want to torch my home and collect the insurance?

    “Not sure how they would do it in south–suspect torch?”

  62. @ enraged

    Sorry —–I havent found any attorneys in my neck of the woods thatll even do foreclosures ——without considerably more than that–and no contingencies–but in the right plae etc i can imagine it

    fed case is tough though–but again if theres volume and similarity then could work for some atty and absolutely best to have one or little real chance–absolutely best–i apologize for any implication not to try–enraged you are unqualifiedly correct

    be careful of a single atty with a “book” of say 200 clients–that would be tough i woud think–unless you are machining out cookie cutter settlements

  63. Sorry dcbreidenbach@aol.com

    send me those insurance stories and duplicated account stories people—who is the servicer????

  64. @ JOANN

    Im extremely interested in this fact pattern–recurrent—one might speculate that if you had access to the trustee records [vs servicer] that you would see one as a forecosure proceeds realized and “closed” and a second one–used for moody’s etc that remains as a performing loan –pumping up the value of the pool

    this could be evidence of a major investor fraud—–if your credit record is damaged by a servicer/trustee or servicer to trustee misrep–then you have been injured by someones deception—-

    question is who is the servicer–does it tie in to the other situations–people cant conceal who is doing this stuff–or else why bother posting?
    email me –dcbreidenbac@aol.com

  65. @Joann,


    The fact that there is an assignment recorded in your county may not be very important. There are laws governing when assignments have to be recorded. For example, in OH, it is 90 days. If the assignment is recorded on the 91st day, it is a breach. It won’t get you off the hook but you already make a dent in the servicer’s standing because, being in breach, he has “unclean hands”. Inother words, he didn’t comply and that is an argument you can already make.

    What you want is look everywhere and start listing everywhere your servicer screwed up. Your statements and the fees charged, the breaches of laws (however small. That piles up), every detail counts. Remember? That where the devil is. That what you want to concentrate on. Actual, verifiable little devils. Forget the big theories. Go for the little devils and gather as many as you can.

    Then, attack!

  66. @Joann,

    You’re absolutely right: the “trustee” never gets reported on your credit report. For eample, you’ll never see Fannie, Freddie or Indy. What you’ll see is the succession of servicers. Likewise, the trustee is never the loss payee on your policy.

    DCB is not completely right about the cost of a good attorney. Many, because it has become a crusade to protect the future of their own kids, are willing to take a monthly payment of, let’s say, $650, $700 or even $850/mo plus 10% of the proceeds. Those that do will fight tooth and nail for you but an attorney is like everything else: you must interview him/her. You must research the cases he/she’s won and in what court.

    Start searching “[your state] homeowners wins in court against [whatever bank]”

    Try that with every single bank. Take note of attorney’s names. You’ll probably see the same ones on either side.

    Do you have access to Justia? That’s the website where you find all the federal cases, including BK. Again, start collecting attorney’s names.

    Then, find their phone number and start calling Monday. You’ve got to start somewhere.

  67. @scot I would like to get in the loop, this is what I have been saying all along, I do not want a free house, never have never will. I want to know where the money should go and not to give the bankers all the power, and I request the principle to be reduced to the ACTUAL value of the home not someone’s interpretation of value to gouge the little man more for greedy profit to run more citizens into ruin. as we assemble and gain more info we will take them down and you have just given us much hope, yes federal is the way to go as this is the top and we can work on the politician later as they are only paid ganstas
    If you would be so kind as to please email me terree@comcast.net and thank you greatly for your information

  68. DCB

    Now another question comes to mind. Anonymous will probably like this one. There are a few refinances with the same “lender”. So for a few years the old lender remained on the credit report and on the old loan and the new loan (and insurance policy).

    When the new “servicer” (pretender lender because the loan was sold – can’t ignore that) came on board not only did the current loan report in the new servicers name, the refinanced years ago loan also changed and got reported in the new servicers name.

    Numbers were added in front of the account numbers on both old and new which always makes it hard when you contact the bureaus to question anything and give the account number (you have to know about the numbers added in front in advance) – disputed it – the servicer explained it just has to do with “internal processing”. Nothing to correct.

    For a while in the switch over, the new mortgage was duplicated using both the real account number and the “internal processing” account number with numbers added in front of it. Interesting credit ratios when it looks like you have two mortgages instead of one. Bureaus would not accept it was a duplicate because it was different numbers. Took many months and many calls and faxes to finally get the servicer to correct it. The altered account numbers stayed the still true to this day actual account numbers got dropped. There is much more I could mention that occurred but perhaps not prudent and perhaps too boring to get into here.

  69. @JOANN

    This is extremely important. The collection agency /maybe a servicer if still owes duties to trust —–should be a co-payee —if your house feezes due to set-up “accident” or “weather-related” incident — or burns because torched—–then the collection agency gets the check ASAP——-but your policy and experience is trashed. More likely this happens if you are not a named policy holder–but under policy you are the named insured and their interest is derivative of and superior to yours–but its still your credit/insurance experience ruined.

    there is an observed commonality in northern states—seize in winter–without winterizing–leaving doors to be easily blown open etc etc—all designed to incur maximum insurance claim ON THE HOMEOWNERs policy——get it–insurance fraud “seize and freeze”

    Not sure how they would do it in south–suspect torch? are you nort or south

  70. Esq. Cox’s memo for UCL Study Committee


  71. correction:

    “clearly shows him paid in full by the certificate investors”

    should read “clearly shows him paid in full by the depositor who was then paid in full by the certificate investors” – this language is absolutely there in the PSA….

  72. DCB

    Long history here of paying many mortgages on time. Same homeowners policy forever. Until foreclosures started happening no one ever knew there was any difference between a servicer and “owner” of a mortgage. Most still don’t. The insurance rep I was talking to did not.

    It isn’t just my policy – Doesn’t every policy show the servicer as mortgagee and that is what is also on credit reports? The trust and or the indentured trustee bank for the trust is never named or identified anywhere until foreclosure and they are never named anywhere in refinances. You never know about the mbs deals involving your mortgage until foreclosure.

    When the original “lender” who became a servicer only after he sold the loan (PSA clearly identifies him as such and clearly shows him paid in full by the certificate investors) went bankrupt and a new bank took over the servicing only (even though they pretend they bought something) – the new servicer’s name goes on the policy which is how it still reflects today.

    It is just that now that there is an actual assignment on record – (pursuant to what they need in order to be able to foreclose and only done for that purpose) to the trust who is the same party that purportedly purchased it years ago – the question becomes – why is this accepted common practice and does it matter?

  73. @IAN–that is why chain of title is important as well as presentation of wet ink note—in fact you have no clue has rights to 1st accelerate note–then seize your house to pay oit down——could be a complete sham claim—–add your State Ag as a defendant and assert the note is lost–ags are supposed to worry about this stuff when financial assets are los–there is no res judicata if another person turns up with the note next year and demands pmt–hell say you were stupid to have paid wrong person

  74. @ian
    who is servicer?

  75. Make it Happen. Check your email for the information you requested.

  76. DCB-thanks, didnt see your post on the main comments section. The servicer is describing themselves as the mortgagee. Legally, they claim to be the servicer, the mortgagee is gone, we only have the holder, holder in due course,beneficiary. Creditor is long gone. A servicer is none of the above. They are claiming that the note holder is a Trust (defunct,in my case.) and that the original lender is assigning mortgage to xxxbig bank, using xxx (also defunct,in my case)as their attorney-in-fact, using an undated,non notarized allonge. When there is plenty of room on the note, no less. Am getting to the bottom of it, but insurance policy is stalling me.

  77. Find a solid foreclosure defense attorney who handles federal actions and go for it. What do you have to lose?

    all true–but goodness up front big money

  78. Encraged,joanne,chas404- thanks for the input, I appreciate it. If I state my puzzlement another way, it would be: When I had a mortgage with a 100+ year old bricks and mortar local bank, they were the lender and the mortgagee. So they were the loss payee on my insurance policy at that time.
    However, now the servicer is the loss payee. Would this be included in the terms of the PSA, along with the servicer’s other duties? The servicer has additionally described themselves as the mortgagee. That CERTAINLY isn’t the case. It gets confusing, because the mortgage is assigned via MERS, and the note has to be negotiated. The note cannot be assigned. I get the feeling that this is the servicer/debt collector admitting that they bought the collection rights, and they are the end of the line, because the Trust is nonexistent, the attorney in fact is defunct, and the investor no longer exists. Not a pretty picture in a courtroom, one would think.
    But I will go on to state again, that if the Trust is nonexistent, then the PSA, and the attendant responsibilities of the servicer, do not exist. No legal right to even collect payments. Anyone making this argument anywhere?

  79. @ JOAN re insurance–this is extremely important–im looking for “patterns of corrupt activity”

    What state are you in ?

    Who is the servicer?


  80. sounds like insurance fraud potential–the homeowner is the primary insured–if she leaves policy lapses after 90 days—-the servicer is preparing to claim post vacate–will destroy the homeowners’ casualty insurance experience/history–like hitting a car does your auto policy

    very suspicious–and not just bad notary practice–this could be outright insurance fraud—intentional damage by preservers —with claim by servicer pretending it was not intentional vandalism—-who are the servicers

  81. @ian

    the mortgagee is usually a named payee and provisions in note and mortgage cover it–they like to get the proceeds–its a quick payout if they can cause a freeze or fire——–watch out for preservers–may be opposite –may be destroyers—casualty insurance is quickest way to liquidate a house

    should be joint payee with you—or else big trouble–beware

  82. @ joann

    each county has a law library-you need to go visit yours

  83. @Enraged:

    “Find a solid foreclosure defense attorney who handles federal actions and go for it. What do you have to lose?”

    Honestly, truly do not have the funds to pay.

  84. @Scot,

    You nailed it. The servicer will systematically advance the “free house”. It is up to us to redirect to the issue at hand: “Your honor, I do owe money. If you look at my paperwork, I originally contracted with XYZ Lander. Has I sold the house the day after the closing, I would have owed XYZ. Since then, though, the mortgage note has been sold (although no one can show that any payment was ever made by the subsequent “buyer”), transferred, assigned, etc. and it was never done by XYZ. If XYZ has an interest, i would be more then happy to negotiate with it but i contacted them and they said that they no longer were involved.

    I have tried to obtain a modification but I don’t know WHO has the legal authority to negotiate with me. What I am looking for is the real party of interest so that I can sit down and crunch humbers that will be workable for bot of us. I never, ever said anywhere that I wanted a free house. i want the possibility to eventually own the house free and clear once it is paid off without worrying that someone will appear out of nowhere and claim an interest in it. Right now, with the multiple transfers and assignments, it is impossible to figure out.”


    The homeowner can easily make the complaint and it is what i keep advocating. I can bet you anything that there are some serious discrepancies in your mortgage account. You’ve been billed fees that were never disclosed ahead of time, even though you may not know it. Irregularities exist in your account like in every one’s.

    That’s why we have Tila, Respa, Fdcpa and other statutes. Those are federal and you can file in federal court on allegations of statutory violations.

    Always go on the attack if you can, preferably in federal court: you control the timing of the complaint (the servicer is taken by surprise), you inflict much more damages than if you tried to file an action in your state court, those statutes may not exist in your state or may not be as advantageous if some do exist, and you already know what the servicer will be forced to produced since you taylor the complaint to your case. Also, federal court judges are more savvy and they want to see the documents.

    Federal court actions are very, very expensive to defend by servicers. They are much more complicated and the servicers end up forced to hire heavy guns. Heavy guns can cost anywhere between $500 to $1.200/hour. If you research federal cases, you’ll notice that they are never given to foreclosure mills to defend. Usually, you’ll see the biggest defense law firm in your state handling them. Expensive for servicers. Find a solid foreclosure defense attorney who handles federal actions and go for it. What do you have to lose?

    @ Ian,

    If your loan was transferred and/or assigned at any time, I don’t know if you’ve noticed that your policy reflects the change of servicer. I noticed that in my own file and I demanded from the insurance company a complete copy of my file, including any and all letters from the new servicer and whatever documentation was produced to obtain the change of name as loss payee. Comme to realize, it was done by simple letter without any documentation attached. The insurer simply went ahead and recorded the change. I don’t know what laws they are following to do so. it is one of the things I’m looking into for my own file.

    Same for the credit bureaux: they’re all MERS members. Every assignment automatically gets recorded under your credit and you’ll see those “paid off” recorded next to the previous servicers.

    PS: if you have a car loan, it can also happen, since nowadays, even car loans are securitized. You need to request that file and study it carefully.

  85. Ian:

    “Re: homeowners’ insurance- would anyone know if it is common practice for the servicer/debt collector to insert their name as the loss payee on a homeowners’ insurance policy? Why not the Trust, or xxx bank as trustee as loss payee? Thanks.”

    So interesting you would ask that. Just yesterday morning I was crunching the numbers on my policy with a customer service rep (not the agent) and was chatty and friendly about – that’s right I am currently a sitting duck for passive non judicial foreclosure that could happen any day now but I intend to pay taxes and insurance on time as long as my name is on the title.

    Exactly what you are saying here occurred to me while we were talking and I mentioned it – it went over her head but she said “you mean the mortgage is owned by someone else? Maybe they just haven’t updated the policy yet”. I said hmmm going to have to run this by people who know about these things.

  86. http://hotair.com/archives/2012/01/20/holder-breuer-connected-to-players-in-foreclosure-fraud/

    For years, the Left has asked why the Obama administration hasn’t pursued prosecutions against lenders who arguably engaged in fraud when foreclosing on mortgages in the wake of the housing-bubble collapse. It turns out that these lenders had friends in high places in the Department of Justice. Reuters reports that both Attorney General Eric Holder and his lieutenant Lanny Breuer, who ran the DoJ’s criminal division, were partners in a law firm that worked on behalf of those very same firms (via JWF’s Just A Grunt):

    U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department’s criminal division, were partners for years at a Washington law firm that represented a Who’s Who of big banks and other companies at the center of alleged foreclosure fraud, a Reuters inquiry shows.

    The firm, Covington & Burling, is one of Washington’s biggest white shoe law firms. Law professors and other federal ethics experts said that federal conflict of interest rules required Holder and Breuer to recuse themselves from any Justice Department decisions relating to law firm clients they personally had done work for.

    Both the Justice Department and Covington declined to say if either official had personally worked on matters for the big mortgage industry clients. Justice Department spokeswoman Tracy Schmaler said Holder and Breuer had complied fully with conflict of interest regulations, but she declined to say if they had recused themselves from any matters related to the former clients.

    Holder and Breuer aren’t alone. Reuters lists a couple more former Covingtom & Burling associates at the DoJ that have since returned to their law practice, including Holder’s deputy chief of staff John Garland and Breuer’s deputy chief of staff Steven Fagell. The law firm itself lists almost two dozen former attorneys now working in the DoJ and another dozen in US Attorney offices around the country. That’s quite an impressive footprint of influence for Covington & Burling, and a valuable one for its clientele.

  87. Joann and Scot,

    Joann, you raise great questions. Scot, Thanks for the information, I would love more info on presentation as well if you don’t mind. I can be emailed at globetrotterz1 at yahoo dot com. Thanks in advance for all your help.

  88. Ian,

    Per insurance I called my agent and made poor lady go back through all the policies and mostly it was the servicer.

    Seemed like dead end.


  89. Joann, what is your email address. I will send you everything you need.

  90. Re: homeowners’ insurance- would anyone know if it is common practice for the servicer/debt collector to insert their name as the loss payee on a homeowners’ insurance policy? Why not the Trust, or xxx bank as trustee as loss payee? Thanks.

  91. Scot


    What if the homeowner is making the compliant? Just boldly asking here. What are the claims- causes of action – harm – remedy? Burden of proof is on the plaintiff. What do you offer as proof enough to compel the further discovery needed? What “request for production” can be filed perhaps simultaneously? What interrogatories do you send to who? Your points are well taken – how do you organize them on the legal paper without insulting a judge’s intelligence, confusing a judge, be perceived as banboozing a judge or overwhelming a judge with what he considers irrelevant detail that is beside the point if you aren’t paying your mortgage and who just wants to take a lunch break? And what are the steps abcdf to get this done? Attorneys even may not wish to do it even if you could afford one. Can an ignorant pro se do this?

  92. You can nip this in the bud in the very beginning. When you answer the complaint the first thing you want to state is, Your Honor we do not dispute the obligation. What we dispute is who the creditor is and submit an extensive QWR asking how the plaintiff obtained the note and mortgage. How much did the pay for the note and or mortgage. Provide copies of the checks both front and back. Ask if the note was securitized. Use Recoupment as a defense. The UCC 3-305 is about recoupment, UCC 3-306 is the claim you must make to apply the set-off from the account ledger. this counterclaim is mandatory.

    1099 OID report

    S3 A registration statement: shows when and where the instrument was sold… they can’t
    claim “lost” note.

    424 B-5 prospectus (security filing)

    RC S & RC B call schedules.

    FASB (Financial Accounting Standards Board) part of GAAP (Generally Accepted Accounting Standards)

    FAS 125, 133, 140, 5, 95. These will direct the auditor to the liability side of the banks’ books and also create the trail of exactly where the money came from and where it went.

    A promissory note falls under UCC Art. 3 because it is a negotiable instrument, once it is securitized, it falls under UCC Art. 8 & 9 as a security. The banks are illegally selling your un-registered instrument. Deeds of trust and mortgage deeds are always registered as evidences of debt… notes are never registered… selling n-registered securities is an automatic right of rescission of the original contract. You possess entitlement rights and possessory rights to your original note… it is negotiable.

    UCC 3-305 is about recoupment, UCC 3-306 is the claim you must make to apply the set-off from the account ledger. this counterclaim is mandatory.

    Title 12 1813 (L)(1) states that when you deposit a promissory note, it becomes a cash item to the bank, you were supposed to get a receipt for it. But you didn’t ask for it. These notes are deposited into a transactional account and the credit goes to the accounts payable side of the ledger (assets) of the bank, but on the liability side, the note has been sold already after it was monetized by your signature. You are, therefore, the first funds transferor and have the right to either your note, or the cash equivalent.

    Under Civil Rule 13, if you fail to bring a counterclaim, you waive your rights to the note. Because you were ignorant of the rules of procedure.

    Ask for all documents in discovery, under Civil rule 36 if they don’t produce them, they are admitted.

    We loaned them the note, we started the process, so we need to show them where to fix the problem. At law, we are presumed to be knowledgeable in banking since we deal in commercial paper every day. FRN’s are nothing more than registered promissory notes,
    that’s why they are recognized as deposits and you receive a receipt from the bank for your deposit. You should register your promissory note on a UCC-1 or UCC-3 to show a public interest in the note itself. This is recognizable in Court. Otherwise, your only
    public interest is shown by your payment to the bank, on the receivable(asset) side of their ledgers.

    The 1099 OID will identify who the principal is from, which capital and interest was taken, and who the recipient or payer of the funds are, and who is holding the account in escrow, un-adjusted.

    I am not an attorney, and this is not to be construed as legal advice. If you have questions about the information contained herein, seek the advice of competent counsel, if that exists.

  93. Carie that is why the Demagogue Obama needs to be voted out. Some argue that another President will do the same.

    At least we are sending a strong message. And if we have to we will remove through recall impeachment etc… the next President Senator Congressperson Governor Attorney General etc….


  94. @ AUTHOR–I quote one piece of the cited decision;

    “(“The doctrine of res judicata has no applicability where there
    was no adjudication on the merits in the first suit and where the relief in the second suit was not the same relief sought in the first suit.”).”

    It seems well understood that the MTD w/o prejudice meant another run –more anguish for the defendant homeowner. If I read this case, then it appears there is also substantial wiggle room on the MTD with prejudice for a refiling. Although Im curious how a foreclosure sale to collect judgement for say 15 back-payments, what happens to the rest of the sale proceeds???? Isnt the homeowner entitled to the remainder? Or is the plaintiff going to attach the remainder –under some other provision in the note? If so is not the foreclosure on some payments fundamentally same as the accelerated full balance?

    @ALL–a new wrinkle added today –Financial Times stated that BoA was contemplating bankruptcy of its COUNTRYWIDE unit. Unless Im mistaken, that means all injured parties must make claims to bankruptcy court for the diminsished countrywide assets. 1st in line Fannie–Freddie—-so this is the way around the OCC stuff and state court challenges ——-

    Another interesting consequence—-in the AHM bankruptcy–the collection rights only were sold out to W.L. Ross’ syndicate. All obligations to securities holders pursuant to PSAs left behind. Interesting question if a mere part of a perhaps initially invalid contractual right allows equitable relief in foreclosure and/or authority
    to seize a DOT???

    In any event–the ploy would cut off all predatory loan issues. And the collection rights then enforced by the most aggressive collection agencies without reflection on poor BoA—–shell game.

  95. Here is something I am stuck on. DCB has explained it. Anonymous has explained it. Now Neil has explained it and I guess Weidner – I have to read the case. Bankruptcy attorneys have explained it. I am dense I guess because I still don’t get it. I do get it now that a person cannot risk looking like they want a free house or that they don’t owe the money. That also means it is foolish, frivolous and useless, to ever try to make a quiet title claim doesn’t it? Quiet title wipes out the lien as if it never existed doesn’t it? But setting that aside…

    The party who is harmed by the non-payment is the secured party and he has a right to be paid and a right to take the home if he is not paid. There is only one party who owns the secured obligation at any given time.

    There is no doubt that there is a secured obligation (unless the so far perceived to be “theories” about money, fractional reserve false manufacturing of money, book entry credit lines and false refinance ect. and fraud and RICO ect. can be explained proven and ultimately accepted by courts – which hasn’t happened yet even if they are 100% true and will one day be shown to be true).

    OK – there is no free house when there is a secured obligation. The obligation must be paid. So when how and who pays the secured obligation, when how and who makes payments that reduce the amount owed on the secured obligation – all must be accounted for. Who owns the secured obligation must be determined without any doubt about who it is. It is only one party at a time.

    Payments that do not reduce the secured obligation must also be accounted for. If there is an unsecured obligation to one or many that arises in addition to the secured obligation or that survives a secured obligation that is paid in full, discharged, released, written off, satisfied, voided for fraud or any other reason – or if there is an unsecured obligation that exceeds the sale of the secured obligation for pennies – or there is a sale to a party who does not have ownership of the secured obligation – doesn’t that mean unequivocally the note is split from the deed that secures the note and is that ok or not? How does the note survive when there is nothing to secure the note anymore?

    The “contract” signed by the maker who encumbered the real property was 100% a secured obligation. It is plain as day on the deed of trust and the note. There is nothing in those documents that describes two debts or two creditors or an unsecured obligation. The maker has equitable and legal title even in so called title theory states because even in those states the trustee has only a bare or “naked” legal title. If the party who holds the “lien” secured by the real property has been satisfied or otherwise paid in full – how does the “lien” or note survive?
    Who has the power of sale? What is owed him? Isn’t that the only consideration needed?

    No one, especially judges can just make up law and bestow benefits on favorites can they or rule based on a personal perception of fairness outside of the law can they? Who gets harmed – the homeowner or an interloper? Why should the homeowner pay an interloper? Neil said the judge who says there is no free house is right. Ok no free house. House means real property that secures an obligation. When paid in full there is no obligation. If not paid in full there is an obligation….what am I missing here?

  96. Having put $30.000 down payment plus New York closing costs, added improvements worth at least $40.000. Paid the taxes & mortgage payments for nine years. On air. I do not have my deed.Got a deed on the wrong house number while the bandits mortgaged my house in the sellers name when I closed. What I do have in my possession is a valid title policy with the correct address. Where do I stand?

  97. http://www.huffingtonpost.com/2012/01/20/eric-holder-banks-lanny-breuer_n_1218452.html?ref=business

    U.S. AG Eric Holder, DoJ Head Lanny Breuer Linked To Banks Accused Of Foreclosure Fraud

    By Scot J. Paltrow

    “…Jan 19 (Reuters) – U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department’s criminal division, were partners for years at a Washington law firm that represented a Who’s Who of big banks and other companies at the center of alleged foreclosure fraud, a Reuters inquiry shows…”

    “…There also is evidence of almost routine manufacturing of false mortgage assignments, documents that transfer ownership of mortgages between banks or to groups of investors. In foreclosure actions in courts mortgage assignments are required to show that a bank has the legal right to foreclose.

    In an interview in late 2011, Raymond Brescia, a visiting professor at Yale Law School who has written about foreclosure practices said, “I think it’s difficult to find a fraud of this size on the U.S. court system in U.S. history.”

    Holder has resisted calls for a criminal investigation since October 2010, when evidence of widespread “robo-signing” first surfaced. That involved mortgage servicer employees falsely signing and swearing to massive numbers of affidavits and other foreclosure documents that they had never read or checked for accuracy.

    Recent calls for a wide-ranging criminal investigation of the mortgage servicing industry have come from members of Congress, including Senator Maria Cantwell, D-Wash., state officials, and county clerks. In recent months clerks from around the country have examined mortgage and foreclosure records filed with them and reported finding high percentages of apparently fraudulent documents.

    On Wednesday, John O’Brien Jr., register of deeds in Salem, Mass., announced that he had sent 31,897 allegedly fraudulent foreclosure-related documents to Holder. O’Brien said he asked for a criminal investigation of servicers and their law firms that had filed the documents because they “show a pattern of fraud,” forgery and false notarizations…”

  98. Good point and I was wondering the same…not enough details , I did not completely read the cases…but if the first attempt was one that was not legal or fraudulent to begin with then how can the second attempt be justified? Sometimes I think that the banks are waiting out to exhaust the defendat…however, perhaps, the situation will turn with the case of the unjudt judge been worn out by the determine woman who wanted justice…in the Bible…that would so be great…except the banks have the tax payers funds to wait it out and make corrections and payments to states while the tax payers have nothing left…

    I marvel at how the laws are being interpreted since this fiasco…and judges not in agreement with each other over those interpretations…

    Also, a thought…when a foreclose is filed, all payments stop and the banks do not send out bills…what made this one different? Did the plaintiff come to some understanding with the first case filed and began to pay again or did the bank simply chose another time in the future after waiting it out and decided to start over with that time?

  99. “…The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage. See deCancino v. Eastern Airlines, Inc., 283 So.2d 97, 98 (Fla.1973) (“[T]he doctrine [of res
    judicata] will not be invoked where it will work an injustice….”). ….”

    This quote, from the “Singleton” Opinion of the Fla. Supr. Ct. in 2004, reciting the Eastern Airlines matter of 1973, foreseeably can cut both ways. Here, the Court is attempting to torture the result to conclude that one foreclosure does not always bar a later attempt by the creditor. I can envision where it would bar an attempt, where in the first instance it was Ruled by the trial court that the “creditor” was not a creditor with a claim upon the Note or mortgage. That aspect was not alleged in the defense to the Singleton claims.

    The distinction from the case that Mr Weidner analyzes is a bit fine. “Singleton” sets forth the proposition that, at the lowest level, the creditor who loses on one default claim can go sue again with a claim for a later-dated default (the opposing argument that the “acceleration clause” being invoked would encompass all continuing money claims being rejected). The creditor can also go “sue on note” rather than “sue on property,” then converting any such Judgment into a judgment lien on the property (and then presumably foreclosing on the lien). Yet that proposition raises the argument that estoppel against the property in a future direct attack is not an “injustice,” as the suit-on-note” route remains as a remedy.

    Why all these tortured reasonings? To speculate, I would suggest it has to do with the Florida Homestead exemptions in the Bankruptcy courts. A direct mortgage is a secured creditor, with potential remedies including stay-relief. A judgment lienor risks being stripped to unsecured status by the mortgage exemption. Is that in the back recesses of the minds of the Florida judges? The unspoken thought? Nobody knows. The Florida Courts are opaque at best.

  100. Like I said…ALL ROADS lead to foreclosure…we are in a never-ending episode of The Twilight Zone…I swear I can even hear Rod Serling in the background…

  101. […] See the original article here: Weidner: There is no Such Thing As A FREE HOUSE […]

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