Where’s the Money? Pretenders Relying on Transfers But No Sale of the Loan

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by Neil F Garfield, livinglies.me

Confusion Starts Here: The pretenders are playing a shell game that is intended to strip the homeowners of their claims, their remedies, and their homes. It’s working because hardly anyone is asking where the money went. Instead of looking for cold hard cash, we are trapped in a never ending cycle of cases in which the homeowner, either pro se, or through counsel, has essentially conceded the case away by admitting the debt, admitting the default, admitting the amount owed, and admitting that the opposing side either does or might have the right to foreclose on behalf of nameless third parties who were never disclosed.

At the start of any proceeding you don’t win on the merits. You win on procedure. Homeowners go into court expecting justice when all the court system promises is a fair hearing, not a guarantee of justice.  If you fail to present the issues such that there is an actual issue of fact about which the parties disagree and that fact is material to the outcome of the case, then the Judge, procedurally, has no choice but to provide you with a “fair hearing,” even if he or she thinks you have virtually no chance of winning.

The issue of fact must be credible though, so don’t be using arguments, even if they might be right, that sound like conspiracy theory. The only thing the Judge will actually hear are issues fact that apply to this loan, this debt, this note and this mortgage or deed of trust. The only thing the Judge can hear are questions of fact relating to the debt, who funded it, or bought it, and who stands to lose money because of the alleged default by the homeowner. Note the words “stands to lose money” which is the essence of “standing” as a legal argument.

So can only win on procedure not the merits, which is counter intuitive since it is the merits we want to get to. That means you raise the right issues at the right time so that you get to the next step in litigation. Each time you go to court you seek to remind the judge that the other side are banksters, but you don’t rely on that to move your side of the case forward.

They will play games with appeals too, where the order entered is not “final” and therefore can’t be appealed. The homeowner has posted bond, but the appellate court remands the case and dismisses the appeal because the order was not a final order. Then they file a motion to take the bond posted by the homeowner and in the end the demoralized homeowner is left with no claim pending, no appeal, no bond money, no house, and no remedies. Which is just where the Banks want you. Do they want your underwear too?

Here are some questions that lie at the heart of the procedural and substantive part of the case: Did they pay for this loan, did they fund it and if not did someone else do it that has not been disclosed and if so where is their authority to appear in a representative capacity?

Where is the money — i.e., what was the real transaction or set of transactions. There can’t be a sale if there was no consideration. Any transfer of documents, fabricated, forged or otherwise is void without it being a sale. It is a transfer of convenience in a shell game that seeks to deprive the debtor of a party against whom she can lodge her complaints and with whom she could conceivably settle or modify her loans.

Unless they paid for the loan in a sale of the paper, they have no colorable right to the claim — unless they NOW wish to allege that they are appearing in a representative capacity. If so, they need to say the identity of the creditor, how the debt of that creditor relates to this house, and how they came to represent the creditor, and why they didn’t tell the court any of this before. (That last one is one you want to pound them on, because of its relevance later in the proceeding).

This isn’t hypothetical. The good thing about attacking the whole foreclosure process and eviction process after it is “over” is that by that time the shell game is over — they have committed themselves in writing to who the players are and what transactions they are actually relying upon. The best time, from a lawyer’s perspective, to attack the pretender lenders is after they have completed their scam. It is at the end that they admit now that a pool of investors funded the loan and now claims ownership.

Question: If the investors already owned the debt, then why should a servicer or any other intermediary be able to foreclose and bid in its own name? For that matter if the investors already owned the debt at closing with the homeowner then how can any sale or transfer take place between the conduits or intermediates in the transaction? What effect would any transaction between the intermediaries when the full sale has already taken place between the homeowner and the investors who funded the loan?

The only valid sale would be from the investors. And if the investors funded the loan, then why wasn’t that reflected on the note? If the investors funded the loan, why wasn’t that reflected on the deed of trust (mortgage)? Why do they hold so tightly to the proposition that they are the “holder” of the note when they refuse to allege they are the holder in due course? Whom does that leave to sue for predatory and fraudulent lending practices?

The tactic that is working for the pretender lenders is get you lost in the woods of documentation when you should be looking at the money trail which is why I continually harp on people getting both the COMBO Title and Securitization Analysis AND the Loan Level Analysis. Ideally you should have the Forensic Loan analysis as well in which the requirement of TILA and other sources highlight the necessity of disclosure of the real parties, their real compensation and the real terms of the deal from source to borrower.

23 Responses

  1. Wrote letter to B of A requesting proof of Lehman trust as investor and Aurora as trustee (as purported by servicer but never recorded) in August 2012. Mers assignment to US Bank as new trustee mysteriously recorded in October 2012 for consideration. NOD filed in January. This is after 3 years of runaround. so, is there any relief from this obviously inappropriate assignment in California?

  2. Neil

    No hard money trail in the subprime refinances. Simply not there.

    As to courts, quote — “So can only win on procedure not the merits.”
    If only it were that easy. Not that easy. Have you ever looked at procedure on docket sheets for some of these cases??

    All depends on the judge. Cannot pick and choose. At least, do not think so??????

  3. ALARMS GOING OFF— DOUBLE SPEAK–SETTLEMENTS ALMOST A DONE DEAL!! ROBO-SIGNING CAN NO LONGER BE AN ISSUE

    http://www.huffingtonpost.com/2012/01/27/obama-administration-mortgage-fraud-settlement_n_1236708.html

    AND
    EXCERPT
    Any final agreement will be narrowly focused to release banks from claims related only to documentation errors and other so-called robo-signing conduct, said the person, who declined to be identified because the talks are ongoing.

    http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2012/01/27/bloomberg_articlesLYGVL007SXKX01-LYH04.DTL

  4. Yup. Especially in CA. The courts don’t give a damn about truth or justice…or evidence…yet…just full speed ahead on foreclosures…

  5. Dear Niel

    I did just that-presented the evidence of the fraud and the chain of lenders that was on the record and the judge still would not entertain the evidence by saying that he has the right to make a presumptive evidential ruling on their behalf and gave them their UD judgement since they have shown and sworn the facts with false documents. The local DA will not prosecute.

  6. Would appreciate your ideas…
    Question: Would an IRS Lein stop a foreclosure? Pretender Lender starts the action but then stops it days before sale. (property in GA, non-judicial) noticed the IRS filed a tax lein on the property months before the (fradulent) assignment was filed. I believe mortgages have priority on an IRS tax lein but the Assignment truly stinks – in it, MERS also includes assigning the note and MERS not on note…known robo signer, all that stuff and more. Could it be, they stop sale because the IRS could somehow challenge it and push for priority somehow?

  7. To the Editor

    What good are your documents analyzing the loan and such if the homeowner can’t get them ino evidence?

  8. @johngault

    “if the law hasn’t changed. If 1 + 1 were
    2 in 2004, say, then the ruling should be applied retroactively at least back to 2004 or the date on which the law reads as it does now.
    But what if doing that might cause pandemonium?

    If someone in 2004 said 1+1 did not equal 2 – it was a mistake. Isn’t that what higher courts do essentially by taking cases on appeal?

    The pandemonium is not in the rule of law – it is when laws were not followed. If pandemonium rears its head when a correction is implemented it is sooner the better or left unnattended it will just get worse which is what has been happening for years until some of these cases finally made their way through the courts (before they got “settled” and dismissed).

  9. One of the higher courts on info and belief is contemplating a question which generically is this: if it rules today that 1 + 1 = 2,
    should that ruling have retroactive application?
    My answer is yes, it should, if the law hasn’t changed. If 1 + 1 were
    2 in 2004, say, then the ruling should be applied retroactively at least back to 2004 or the date on which the law reads as it does now.
    But what if doing that might cause pandemonium? Same answer?
    I’m working on something and would very much appreciate any pro or con opinions /arguments. thanks. johnqgault@yahoo.com

  10. Jan van Eck- nice blunt explantion of substitute trustees. Now, what about corrective assignments of mortgage? any case law on that? Can’t find any info anywhere, what was wrong with the last assignment?

  11. @abby – they sure as hell better be sending subpoenas to MERS, otherwise they are still after only co-conspirators. MERS needs some subpoena deuces tecums. Oh, wait. They don’t have anything to produce or bring, being a shell entity with no nothin’ cept a software program and a contract with the club members. They need interrogatories, lots of them.
    I found a lot of cases I had stored on disk today and was reading some old foreclosure cases with “MERS”. In every case I looked at, MERS claimed to be the owner of the note and mortgage. In one case, for instance, it said it was the “sole, true, and lawful owner of the bond/note and mortgage securing the same”.

    TWO of the millions: MERS v Burek, NYS 2004 WL 2250994
    MERS v Rees, CT CVO3081773

    Well, wouldn’t that be a surprise to investors who thought that was their own claim to fame?
    What makes me even angrier about this is that at the same time this was rolling out one side of its face, the other was spewing a totally different story in its litigation against the Nebraska Dept of Banking: MERS at the exact same time was vehemently denying any interest in loans – period (was trying to avoid licensing). Isn’t that a crime? I’ve got a notion to whip off some of those cases where MERS claimed it was the owner blah blah and send them to the very judges in NB who bought MERS’ bullshyt. See how they feel about getting jerked around.
    Actually, the story in NB was the real one. Then send those cases along with MERS arguments to NB to the NB AG and or some of the AG’s in the some of the states where MERS claimed it owned the notes and security instruments. Everyone can do stuff like this……….I’m just saying.

    No money changed hands with those intermediaries, at least not in a timely fashion (IF at all). There just wasn’t time. So they just made entries in MERS’ database (maybe, if that) and pretended that cut it.
    Like I’ve said: it is a crime per all state statues to make false records in private books. This law probably came about regarding money laundering, but regardless of whether or not money laundering is going on, it is still a crime to keep false records. If I say I transferred a note to Helen HellonWheels in my books when I haven’t truly, it is against the law. Transfer of a note is not accomplished by a book
    entry. But I swear, that was the plan.

  12. To answer JOHN GAULT’S question, as to why MERS does an Assignment only after a “default:”

    I suspect the real reason is that an “Assignment” is needed so that the new Assignee will have the paper-trail authority (not the real authority, but a paper authority to satisfy a court looking only at paper) to appoint a “Substitute Trustee.” You see these documents being generated in lock-step. What a new Trustee – what is wrong with the old one? Answer: the “substitute Trustee” is in reality a clone of the servicer/assigned beneficiary and in some cases is even owned by either the servicer or the law firm doing the foreclosure (i.e. Northwest Trustee Services owned by Routh Crabtree Olsen). They need a “substitute Trustee” to do the bidding of the “assigned beneficiary” as the old trustee will not do their cute little fraud.

    Were it otherwise, and the Trustee was a legit entity doing legit work, then there would be no need to substitute him/it. So you get the substitution only to get a front, or pawn straw-man, in there to do the bidding of the phony “beneficiary.”

  13. @Abby,

    Can you do us a favor? Could you limit the capitals for the really important words? Otherwise, reading a whole post in capitals is very, very hard on the eyesight. Thanks in advance.

    @E. Toile,

    How do you manage to bold when you post here? We all resort to capital letters but it’s a real pain for everyone to read. Can you walk us through? Thanks in advance!

  14. DOJ ISSUES 11 SUBPOENAS TODAY–MORE TO COME!!

    http://www.scribd.com/doc/79635033/11-Subpoena-s-Issued-by-DOJ-More-to-Come

  15. BEWARE AND BE CAREFUL IF YOU ARE DOING THE INDEPENDENT FORECLOSURE REVIEW PAPERWORK — REMEMBER THE OCC CONSENT ORDERS WITH THE BIG BANKS? YOU HAVE UNTIL END OF APRIL TO SUBMIT THE PAPERWORK.

    IN EXAMINING MINE, I SEE THAT THE BANK INVOLVED IN MY FORECLOSURE HAS LISTED ITS LOAN NUMBER BUT NOT THE LOAN NUMBER THAT IS ACTUALLY ON MY NOTE AND DEED OF TRUST (MORTGAGE IN SOME STATES).

    IN FACT, THERE IS NO MENTION OF THE REAL LOAN NUMBER ANYWHERE ON THE INDEPENDENT REVIEW FORM.

    AND ON THE LAST PAGE WHERE THEY WANT YOU TO SIGN IT SAYS ‘by signing this document, I certify that all the information is truthful. I understand that knowingly submitting false information may constitute fraud. I affirm that I am the borrower or co-borrower of the mortgage loan on the property noted within this document, and I am authorized by all borrower(s) to have my signature grant permission to proceed with this request for review.”

    IT’S A TRAP. NOT ONLY THE ‘AFFIRMATION’ BUT THEN THEY WANT YOU TO CERTIFY ALL INFORMATION IS TRUTHFUL WHEN THEY DON’T EVEN USE THE LOAN NUMBER CONTAINED WITHIN THE EXECUTED LOAN DOCS, LIKE YOUR DEED OF TRUST OR NOTE.

    BEWARE. I’D CONSULT WITH AN ATTORNEY BEFORE SIGNING SOMETHING LIKE THIS.

    HERE IS LINK TO THE FREE FORECLOSURE REVIEW-OCC

    http://independentforeclosurereview.com/

  16. Neil,
    Quit trying to potray the problem as that of the Homeowners’ actions, when everyone (including you) should know that the problem is with the Judges who think thier Pensions have a vested interest in fraudclosure and resale $$$. Judges should put all of these decisions in the hands of those are not only Constitutionally empowered to decide them but will be FAR more neutral than Judges and also who ALL the cases will inevitably affect the most, JURIES of the PEOPLE’S FELLOW PEERS.

    If it were as simple as pleading a certain way, saying certain things while not saying others, YOU WOULD HAVE DEMONSTRATED FOR US IN ANY GIVEN CASE AND SHOWN THAT IT DID LEAD TO SUCCESS.

    I’m not trying to dis you, but you’re in denial that the people in the cockpit are dive bombing the plane that is our country, and We the People as passengers won’t be doing ourselves any favors as long as we remain buckled into our seats hoping for the best.

    Everyone should have listened to me and my calls for us to all organize LOOOOOONG ago. Could you imagine where we would be right now as we would have contributed greatly to OCCUPY and we would have been able to take direct aim at Fraudclosures at the forefront and beginning of the movement. Now everthing (and everyone) is very scattered and not as unified.

  17. Why does “MERS” execute an assignment of the deed of trust? What has triggered this execution? We know the assignments are really being done to snarf homes,but what is the ostensible or alleged reason? Not a one of these assignments is done until the borrower
    is behind on payments, right? That’s the real triggering event, but
    what is the one we’re supposed to believe? Anybody know?

  18. @neidemeyer – that’s what I heard some companies in CA are already doing. Making deal with homeowners for their rights to wrongful foreclosure – something like that. If people want to be really bold, they can show up at their f/c sales and bid 1k or like that and take pictures while they’re at it. They can do this if no min bid is set. Can do it anyway? got me. The 1k bid will be the only legitimate bid because these guys are making credit bids they’re not entitled to. They aren’t owed the debt. May not be able to get the house then and there, but evidence of your bid may come in handy as courts get a clue, in a word.

  19. @ Enraged

    If it doesn’t appear, perhaps that’s the way they want it. It appears no one in charge wants to answer these questions, no one!

    This entire situation has been manufactured and enabled by Obamaism and just my humble opinion, they are not going to address this other than in settlements, which will not be public.

  20. Neil ,

    I just discovered a case (because it is in my neighborhood and the home was just vacated) that is absolutely RIPE for an appeal …

    This is Florida …

    80% Adjustable 40/30 balloon First and 20% Second with Option One..

    There was no cashout .. this was all purchase.

    In Option One Mortgage Loan Trust 2007-5 with WF as Trustee.

    DocX assignment in 2009 from Option One to AHMSI dated 2007 on a DocX form with a 2009 copyright date. ** AHMSI is 2 seperate companies depending on if it is pre or post 2008 ** A asmt in 2009 effective 2007 is WRONG…

    “Corrective” asmt created/forged by AHMSI with 2 known robosigners each as “assistant secretary” of Sand Canyon Corp … of course we have the Sugimoto deposition ,, Sand Canyon owns nothing..

    Homeowners had representation but apparently he was pretty worthless. he didn’t challenge the asmts and sent them to arbitration ..

    Home is now listed as owned by WF bank , N.A. ,,, the trustee .. bought at approx 35% of original mtg. amount …

    ***************************************************************************

    OK , how do you approach this and grab the property from WF?

    Start by speaking with the (ex?) owners and file a lis pends in their name so WF can’t sell the property?

  21. Wish I could help enraged but I have no idea?

    My first foreclosure I attempted a Mod. The servicer stated throughout the course of the Mod that they would submit the paper work to the “investors”. They told me multiple times that they have to follow “investory” guidelines for mods. However, they bid on the foreclosed property.

    This article is exactly right. The pretenders are playing with words. Throughout the course of my own interactions with the pretender they have claimed that they have the right to service the debt on behalf of the “owner” Deutsche. They never directly answer who is the creditor, they only state Deutsche is the owner. This however is a partial truth (according to the PSA). The PSA reads Deutsche bank trustee is owner on behalf of the shareholders.

    They neglect to acknowledge “on behalf of the shareholders”. They sent me a note with an allonge attached. The allonge states that the servicer is the “agent” of Deutsche the “owner trustee”. They’ve attempted to make everything appear legitamite.

    First, does the note have to be indorsed to the actual trust? The last indorsement is to the Trustee not the Trust. I know I’ve read a lot of times that the notes never made it to the trust. Would 2 copies of the note one indorsed in blank and 1 indorsed from the originator to the depositor to the trustee enought to get to discovery? These are the 2 versions I’ve been given.

    I’m trying to figure out where to go from here. I’ve read the PSA and it reads will be assigned to the trustee but I haven’t seen anywhere that it stipulates the note needs to be indorsed to the trust? Is this a federal law? Does this have to do with the REMIC status?

  22. […] Read More: Where’s the Money? Pretenders Relying on Transfers But No Sale of the Loan […]

  23. Hey, I sent my question about why a foreclosure moratorium hasn’t been declared yet but, for some reason, it doesn’t want to upload.

    Anyone was lucky with that?

    I need to be walked through. Can anyone help me? I’d be ticked if my question doesn’t appear!!!

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