Getting the RIGHT Report: Rebutting the Presumptions That the Original Note and Transfers Had Any Legal Effect

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Editor’s Comment: The biggest problem to knocking the banks on their ass is the feeling deep down inside the homeowner that the loan is valid and so is the mortgage. So people are thinking in terms of buying time rather than winning the case. Lawyers are saying the same things to themselves even as they take your money to represent you which is why I started — so we would have lawyers who are NOT thinking that way and to get hundreds of other firms to compete with passion in their hearts that the homeowner is the victim.

The current state of affairs is that in most cases, misguided Judges are forcing investors to take bad loans that do not conform with their agreement (e.g. cutoff required under Internal revenue Code and express PSA terms and conditions) in a process that  does not conform to the process of origination and transfer expressly stated in the PSA (as expressed in the prospectus and Pooling and Servicing Agreement), thus enabling the investment bank to throw the loss onto the investor in a newly fabricated (see Congress decision from June 8 in Alabama Appellate Court) — and the kicker is that investor knows nothing about the transaction or litigation and is presumed to have accepted the assignment of a non-existent loan. The borrower is being forced to pay on a non-existent loan or lose his or her house. And still the borrowers persist on thinking they are getting what they deserve, thus leaving the banks with the money while the investors and homeowners get nothing.

Only 2% of the mortgage loans are contested in any meaningful way and 80% go about it in the wrong way. I mean to change that 2% to 75% of the mortgages being contested, and reduce the number of mistakes such that only a small fraction of mortgage contests are done incorrectly.

Have you heard the term “Master Servicer”. Yes, well they are the ones actually orchestrating events on behalf of the investment bank that put up this illusion that we call securitization. They sold the pension funds on what? The pension funds advanced money to the investment banking firm which was placed into a super fund account from which closing money found its way to the closing table with the so-called borrower.

The real reports and accounting are those that are given to the creditor, not the borrower. The reports to the creditor come from the Master Servicer whereas the reports to the borrower come from the subservicer which doesn’t  have access to to creditor’s accounts so it is in no position to report, account or testify through affidavit or in person what the creditor’s ending balance is as of the day of the declaration of default or the day of the testimony. The subservicer’s proffer of testimony should be subject to voir dire in which they admit that there is a master servicer that keep the accounts for the creditor and the subservicer has no knowledge or access tot hat.

This is followed by an objection to the competency of the witness to testify as to anything other than transactions in which it received money from the borrower and transactions (never included) in which it paid out those moneys to the creditor.

Take great care here not to suddenly find yourself carrying the burden of proof on facts that are exclusively within the hands of the pretender or the agents of the pretender. Your motion should be directed at the incompetency of the witness to tesify as to the conclusion that there was a default and the fact that they declared the default without gaining access to the information from the Master Servicer. Hence the objection also to any documents being proffered to the court as evidence, since they clearly do not and cannot by definition establish the default. 

You don’t want to find youself in the position of having the Judge rule that the proffer of that evidence is sufficient for a prima facie case and that if you wish to rebut it you must come forward with proof of other payments. Since THEY are the party seeking affirmative relief, the burden should ALWAYS be on them to produce all relevant accounting and reports nefore they take the home away from a homeowner.

What the borrower and the Courts are getting are simple subservicer reports which amount to no more than a printout from a computer that may or may not have the right data, the right loan or the right starting figures. It may or may not have charges that are permissible or not permissible against the account. But the real information about the account balance is what the creditor is showing on its books and that information comes from the distribution reports and discovery of the accounting records of the Master Servicer and the Tax statements for the creditor.

But here is the kicker. The investment bank (Master Servicer) is NOT reporting the receipt of proceeds from insurance, credit default swaps, and other credit enhancements — not even to the investor. So they are manufacturing (fabricating) a loss that does not exist, at least in part. This is relevant to everything in a foreclosure including the identity of the creditor who is allowed to declare the default, and the identity of the creditor and the amount due so that real creditor can submit a real bid that is called a credit bid because it is the equivalent of the amount due ON THE ACCOUNT.

The magic sleight of hand trick being played is that the subservicer is giving the court an accounting of transactions with the alleged borrower when in fact the creditor is getting a completely different report, many of which show continuing payment from the subservicer or Master Servicer.

The borrower and borrower’s counsel are unaware and in most cases don’t even know enough to ask for these reports. The creditor is entitled to payment on his account — once and only once.  The fact is that insurance and credit default swaps are right there in the pooling and servicing agreements, and so are credit enhancements like overcollateralization and cross collateralization.

That is money that (a) should be reported and paid to the investor creditors and (b) allocated to the loan accounts’ principal reduction as an additional payment. In many cases the creditor’s balance is zero because the creditor has been paid off in total, settled or traded the bogus mortgage bonds for something else of value — which is to say that the “pool” or “trust” proffered by the attorney fro the pretender lender does not even exist anymore.

All this money came from “players” who knew the Wall Street game and were gambling with pension money, depositors money etc, contrary to law and common sense. In no way was any homeowner even mentioned by name much less offered the opportunity to look at the terms offered to the lender, which were substantially different that the terms offered to the homeowner. The homeowners’ signature on “loan papers” was in actuality the issuance of a security that was traded furiously even if it was procured by fraud in the inducement and fraud in the execution.

The result of this frenzy is that through multiple channels including the Federal discount window and the TARP bailout, together with the maiden-lane disposal of toxic waste loans, the creditors were satisfied leaving the homeowner owing nothing to the creditor that loaned him the money. The insurer and the issuer of the credit default swap expressly waived any right to enforce against the homeowner.

AND the homeowner was the innocent bystander who thought he was borrowing money from one party, received it from another and then issued negotiable paper that was filled with misrepresentations. So the pretenders have nothing but dirty hands and the borrowers are clean.

So there is an obligation out there that the homeowner might owe — but the debt that was created at the time of receipt of the funds was never described in any document. In fact, the debt described in the promissory note and mortgage never arose because there was no loan transaction between the homeowner and the originator. This actual debt arising out of an actual transaction in which money was received by or on behalf of the borrower came from a pipeline outside the transactions described in the origination documents and outside the scope of transactions referred to in allonges, assignments and endorsements all fabricated in order to keep the Judge’s eye on the wrong ball.

The real transaction was NOT subject to, described in or referred to in any deed of trust or mortgage and therefore was not secured. If not secured, no valid foreclosure could occur without some sort of waiver by the homeowner that was clear and unequivocal or some order of the court based upon a judicial proceeding in which the terms of the loan are established by court order as of a date that the order says it is effective. Every document relied upon by the pretender lenders was a lie. It described transactions that never occurred. Thus every foreclosure based upon such documents was also a lie.

Interrogatories, requests for Admission and especially requests to produce (not just the documents but the financial records showing that consideration was paid by the party or to the party stated in the instrument), Motions to set aside, vacate, recuse, remove counsel, sanctions, discovery, and reconsideration are being filed to (a) obtain relief and (b) allow the record to be created for appellate review. Without a good record on appeal, the appellate court is hamstrung to affirm a decision it thinks was wrong.

Distribution reports are your first clue that they left out an accounting that they had and we didn’t and they refused to give up. Notice that WF is the party reporting and disclaims the accuracy. Then who DOES know what went on, where are they and was the loan balance even computed on the day that the loan was declared in default — i.e., what did the CREDITOR (not the subservicer) show as the balance due? Getting the “accounting” from the subservicer is useless. If you had 10 children and you gave them each $100 with the responsibility to account for the money, why would you only take the accounting from one of them?






21 Responses

  1. […] Read more… Posted in Banks, MERS, News Around The Country, States « Foreclosure Strategists: Special Guest: Michael Trailor Director AZ Dept. Housing Information vs. Evidence: Challenge to Affidavit in Support of Summary Judgment » You can leave a response, or trackback from your own site. […]

  2. @Guest: re subrogation + many other related topics well pleaded by lawyer in Javahari case: also, don’t forget dishonest lawyers & judges are founders of robo-signing. that’s how they split cases among themselves in courts, by robo-signing people, their rights & property away to their criminal counterparts..

  3. Dear Guest:

    Good luck with that one. Please let me know your outcome. I have filed criminal charges with the FBI 3 times, local law many more times and the DA refuses to get involved, SEC on 3 occasions, FTC, CA Dept of Commerce, CA Attorney General, my congressman,senators and the IRS which has not responded yet (still hope here). They all seem tohave turned a blind eye. We were stonewalled in Fed Ct, State Ct and UD Ct and they all refused to enforce the law with the physical evidence of the fraud before them.

  4. Maybe the issue of filing false documents for recording would be a law enforcement issue, since it is a felony to do so. I read or heard somewhere that the degree of felony is determined by the amount of the fraudulent lien. I think we should all find out how to start the process to prosecute this crime. If any servicer has been found to have lack of standing, then the mortgage assignment and the lien was fraudulent. And in the case of MERS mortgages, the assignment sometimes claims to transfer the mortgage “together with the note,” yet no evidence exists that the original lender assigned the note to MERS. Even MERS testified it has no interest in the note. The servicer and foreclosure mill law firm knew that well before filing a false document.

  5. @ Guest. Because you can not find an Attorney to sue another Attorney. Example case of a borrower who closed with an attorney. The Attorney failed to do the title search, … borrower closed the loan on the forclosure property and not one party disclosed the bad title to the borrowers. Not their attorney, not the Title Co they closed at, not the realtor, not the seller bank who supposedly financed it and sold it off to Fannie and the taxpayers. The Lender Bank/Seller (hahaha) and several local attorneys sugessted the borrowers sue their attorney. But when asked … no one would take the case. Yet the borrowers are obligated to pay an unsecured debt (sold several times after my involvement) and never get legal title. The borrowers must hide in the shadows and pray the true lien holders and former owner do not come forward. This has to Stop!

  6. @patrick

    Thanks. The only thing the servicer sent me was a full accounting of what I paid to THEM. Then he said “all applicable payments are remitted to the Trustee…” But, of course, when I asked to see the ledger and balance sheet accounting of the “applicable payments”—he conveniently ignored the request.

  7. @Carrie

    It is not the debt collector/attorney’s job to verify/validate the debt amount its attempting to collect once disputed. It is the creditor’s job and the debt collector/attorney must obtain that written verification directly from the creditor and mail it to you as to evidence that not only does it know the real amount but also who’s balance sheet the liability resides. In-house records of any payment made by you may not be accurate because the debt or a portion can be extinguished by a stranger the transaction and your servicer’s payment history won’t reflect the true economic reality of the obligation.

    And you’re right, since the liability doesn’t reside on a balance sheet, but was rather moved off balance sheet during securitization, there is no creditor the debt collector/attorney can legitimately turn to. Hence, baffle ’em with B.S. and stonewalling. Good luck to you.

  8. Why are not more homeowners fighting the law firm who filed a fraudulent lien against the property? It seems to me that the lawyer who filed or caused to be filed a false document for recording committed a felony, in most states. In all the cases that were dismissed for lack of standing, did any attorney get slammed for this?

  9. @ Patrick

    “Trouble obtaining records from the master servicer calls into question the veracity of the written verification.”

    I tried repeatedly to get that “ledger information” from my servicer—and he repeatedly ignored the questions and requests. Obviously it is because no legitimate ledger/balance sheet from real creditor exists—since they are debt collectors and only debt collectors…and there is no “real creditor”…I have my requests and his lame explanations in writing, signed by him…will definitely be in my lawsuit.

  10. This just occured to me.

    Payment reports the debt collector/attorney uses to validate the debt amount come from the subservicer which doesn’t have access to creditor’s accounts so it is in no position to report or give an accurate accounting of the amount of the liability residing on the creditor’s balance sheet when the amount they say the obligor owes is disputed in writing by the obligor. Without obtaining the outstanding balance in writing from the master servicer that keeps accounts for the creditor, procedurally proper debt validation hasn’t occurred and this is a defense to end foreclosure proceedings until the master servicer coughs up the most current distribution report and accounting records for the particular loan. Without obtaining such a report, the default pleaded in the complaint cannot be established as fact by the debt collector/attorney as they need to show evidence of direct knowledge of the amount the creditor reports as outstanding to declare a default amount and attempt to collect. Moreover, in Florida the complaint is required to be verified in writing under penalty of perjury. Trouble obtaining records from the master servicer calls into question the veracity of the written verification. IMHO, outright failure to obtain the most current distribution report and creditor accounting from the master servicer upon a request to validate the debt amount may be used as grounds for sanctions for filing a frivolous lawsuit.

    Thanks in advance for any comments.

  11. @ Deborah

    Ask that the IRS representative initiate a 1099 complaint. The IRS will sent a letter to the alleged creditor requesting that they submit a corrected form to you within 10 days or so. You will be sent a letter with a Form 4852 and instructions for filling it out. If alleged creditor doesn’t send you a corrected form in time for you to fill out your taxes, you’ll be able to use the Form 4852 instead.

    Because they sent you a 1099A, it is a debt you owe that is unsecured and a collection agency can harass you forever. If you do pay any of the debt, you can file a form 1040-x and recoup any tax liability for your gain. Or you can dispute the debt and the collectors right to collect the amount they say you owe based upon the erroneous1099 information you received from the wrong entity. My 2 cents.

  12. @chaz404

    Sounds good…but seems to me we need to figure out what action the people who were kicked out of their homes BEFORE they found out about the fraud can take…all this talk about what people can do BEFORE they are kicked out doesn’t help those millions who didn’t know what hit them…

  13. Seems like i am “seeing” this more clearly. I wonder where we will be in 2 yrs? seems like we are crawling towards the light.

    Note that in Florida the 5% or less that hire lawyers are staying in their houses a long time. Once the defendant wins a chance at discovery the banks fold up.

    We will see.

  14. @ Patrick, great points.
    @ Neil, and any CPA blogging here, @the garfeild firm- can you pressure the IRS in any way, they are their own “authority” personally i want them to investigate why i got a 1099A, ONE WEST claimed loss of the differece after “legal money” aka credit bid from HSBC, it also states “abandoned property- AKA, either leave or you will come home from a 12 hr day to find yourself locked out. This issue is part of the puzzle, for me. My personal tax cpa says the banks always do this incorrectly, ofcourse i cant expect my cpa to take a class in securitization ect, and a forensic accountants- like attorneys have a big ticket too. Im sitting on this 1099a thing like a mother hen, any comments/knowledge of whether it matters or not would be appreciated.
    TARP money darn does matter, i mind, i really mind about that you know they may as well give it to build another statue of liberty for what good that will do.

  15. […] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: appeals court, appellate court, borrower, Darrell Blomberg, discovery, due process, evidence, evidentiary hearing, homeowner, information, pretender lender, Wells Fargo, Wells Fraudgo Livinglies’s Weblog […]

  16. Quote from article “The homeowners’ signature on “loan papers” was in actuality the issuance of a security that was traded furiously even if it was procured by fraud in the inducement and fraud in the execution.”

    More like, the homeowner’s signature on “loan papers” was in actuality instantly substituted as the capital desperately needed to back securities offerings sold to investors long before the homeowner decided to apply for a “loan”. So, how many offerings does your signature help to capitalize and did you agree to take on to yourself a payment obligation that was already promised and sold to securities investors by an undisclosed third party before you sat down at the closing table?

  17. Great Neil:

    So Carpenter vs Logan has no effect since a mortgage never existed? I say the originator was the lender/mortgagee and everyone after was a mere noteholder as described in my documents since the mortgage was satisfied by the first purchaser of my note.

    This was put before an IRS Aduitor in February and I have not heard a thing. She said it will probably go nowhere.

    The 8 known Banks in my loan were also shown to the IRS.

    They should know that these banks are claiming false deductions and income by the ponsi scheme as well as false insurance claims for the derivatives.

  18. Neil or anyone,

    Please explain how subrogation applies to these loans? I have a quote from a prospectus which says if the loan is liquidated at 180 days after the borrower stopped paying (as was the case with many Countrywide loans), then credit insurance would be paid to cover the realized loss. The section titled Subrogation expressly states that once the insurance payment was received, the right to enforce the underlying security agreement was transferred to the *insurance company.* Since the SEC filings show that a payment *was* made from the insurance company, then, the insurance company (if anyone) should be suing to enforce the note, right?

    Also a confirmation letter shows that the original lender entered into “a binding contract” to sell and deliver the loan to XYZ Home Loans, Inc. However, the alleged note shows the FIRST stamped indorsement (undated) was made to XYZ Bank, NA (not XYZ Home Loans, Inc — as per the binding agreement).

    The original lender indorses and delivers the note to XYZ Bank, NA AND sells and delivers the loan (mortgage and note) as agreed, to XYZ Home Loans, Inc. Obviously two different entities are claiming rights at inception.Would this be proof that the chain of title was broken?

    Also, would not the stamped, undated indorsements be just another level of hearsay, in that they are presented to the court as true and authentic, but without proof?

    I keep reading high court decisions mentioning that the defendants did not deny the authenticity of the note and signatures; which means to me that the defendants SHOULD deny the authenticity of the note with undated, stamped indorsements.

  19. what do you do when the master servicer for the trust is the same as the servicer for the loan? (ie under the same corporate umbrella)

  20. No doubt, Javagold. What about a repurchase from Fannie? Where can we locate cases even if they’re unpublished or sealed?

  21. where did my $100,000 hard cash deposit go ???????

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