Mass Supremes Declare Note and Mortgage Must Be Owned by Same Party

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We disagree that § 14 is unambiguous. The section is one in a set of provisions governing mortgage foreclosures by sale, and that set in turn is one component of a chapter of the General Laws devoted generally to the topic of foreclosure and redemption of mortgages. The term “mortgagee” appears in several of these statutes, and its use reflects a legislative understanding or assumption that the “mortgagee” referred to also is the holder of the mortgage note.

Editor’s Analysis:  Hat tip to And a special hat tip to Fr. Emmanuel Lemelson, who is a Greek orthodox Priest, and author of the article below. I add the editorial comments of the blog site because they are exactly on point.

First, let’s note that the Court tried to limit the effect of its ruling to future foreclosure actions and possibly those already in process. But the attempt fails because of their acknowledgment that foreclosure is not a single event but rather a process in which several elements must be present to conclude the matter. That process includes:

  1. Declaring a default and demanding a payment that is plainly wrong after taking into account the financial transactions of the Master Servicer and thus the one true creditor. As a fraud upon the court, this opens the door to going back retroactively and attacking the notice.
  2. Commencing foreclosure proceedings. Just because you are allowed to initiate a foreclosure by court order (Motion to Lift Stay) or appellate decision, doesn’t make you a creditor who can submit a credit bid at auction.his is the Achilles heal of the 5 million preceding foreclosures and all of the ones planned for the future.
  3. The court clearly states that the statutes and case law allowing the initiation of foreclosure proceedings are restricted by other statutes and legislative assumptions. The requirement of holding both the note and mortgage as owner is phrased in terms of redemption; but the logic also applies to the credit bid submitted in lieu of a cash bid at the sham auction of the property.
  4. A credit bid by definition can only be submitted and accepted if it comes from the secured creditor in the transaction that originated the paperwork giving rise to all the false claims of securitization and assignments. Thus a bid received by a party other than the secured creditor listed on the paperwork is no bid at all. We call that lack of consideration. hence the auctioneer had no choice but to ignore the “credit bid” and move on to cash bids, which is why I tell people to go to their auctions and make a bid. They should also register an objection in writing that the auction is unauthorized and fraudulent, and deny the debt, obligation, note, mortgage, default etc. If there was no cash bid, then the property is still owned by the homeowner, the deed in foreclosure should be set aside, and this new decision might apply to renewal of foreclosure proceedings.
  5. In Bankruptcy the Motion to Lift stay need only be supported by some colorable right to proceed in foreclosure. From now on unless the party can establish that it has possession and ownership of the note, they have no right to get relief from automatic stay because they have no right to submit a credit bid.
  6. The reference to redemption raises interesting issues. While the court waffled and more or less came down on the side of the banks as to prior completed foreclosures, there is still an attack left standing under the old law and the new law. How can you redeem, modify mediate or even litigate where the true creditor’s identity is being intentionally withheld from the borrower and the court? The right of redemption thus becomes a doorway to reopen the title question. If accompanied by valid causes of action for fraudulent and predatory lending, slander of title etc. the redemption price cold be reduced to zero or less — giving the homeowner both the title and possession of his home plus a monetary award.
  7. If the auction was conducted improperly and the deed issued without consideration then it follows that the eviction must be overturned as well.
  8. Hence, CAVEAT EMPTOR to those looking for bargain homes where the home is alleged to be owned as REO property or the property is being subjected to a short sale where the “prior” fraudulent mortgage is paid off to a stranger to the transaction who issues an invalid release and satisfaction.
  9. The main point is that Massachusetts foreclosures are now likely to come to a dead stop, which will have rippling effect throughout the world of mortgages, foreclosure and finance. This in turn will reveal that the assets carried on the books of the mega banks are fictitious. As those facts are revealed, BOA and Citi, as well as other banks are going to take another brutal hit on their credit ratings — enough to finish off BOA and Citi and maybe one or two others.

Watch later for our article on warnings to those purchasing US properties investment or retirement. You might well be the victim of another scam perpetrated by Wall Street.

Henrietta Eaton and the Boston Foreclosure Party

By Fr. Emmanuel Lemelson

To read entire article go to:

Henrietta Eaton and the Boston Foreclosure Party





15 Responses

  1. […] Read more… Posted in Banks, MERS, News Around The Country, States « How Do You Take Your Catastrophe? Um, just a little at a time, please… with two Splendas. PRACTICE LAW, LOSE YOUR LICENSE: WHAT SB 94 MEANS TO YOUR PRACTICE By Alice M. Graham » You can leave a response, or trackback from your own site. […]

  2. Here in good ol’ non judicial GA where the big banks have stolen homes with the blessing of uninterested courts who just want to believe the banks lies so they can move cases off the docket, this ruling (Eaton) may finally focus the court’s attention on the fact that the Note and Security Deed have been separated all along, ever since the fatally flawed, bogus “loan” closing where the true creditor was never disclosed. It’s high time, too. GA courts have habitually been some of the most unfair to homeowners, who’ve been suffering abuse of process and deprived of a fair fight which they could have easily won, on a level playing field. If you haven’t been fraudulently foreclosed on yet, cite Eaton and twenty other cases where the bank’s fraudulent claim to your property was rejected by other courts and dismissed for lack of standing.

  3. In 2010, BOA NA transferred many loans to BAC (subsidiary of BOA) and all the transferred loans had new loan numbers (I still have 2 loans with different numbers). Then BOA NA had all the BAC accounts transferred back to BOA NA. So when you say BAC will go down does that mean the whole BOA and subsidiaries will go down?

  4. @ Ian

    1st quote from the artlcle link Neil provided, about 5th paragraph from bottom and the 2nd quote is from Neil’s commentary, number 6
    I believe.

  5. ian,
    that quote is in the link above (the last line in Neils post)

  6. If we invested in an illegal ponzi that we didn’t know was a ponzi…why is the creator of that ponzi allowed to take our homes? I guess because the creator of the ponzi is our government.
    Have I got that right?


    “…In fact, a new report by the Bank for International Settlements says banks the world over are still taking the same crazy risks they always have. And the main reason banks take these crazy risks is that those mansions and private jets aren’t just going to buy themselves. Bankers get paid big bucks when their big bets pay off, and only slightly less bucks when the bets don’t pay off. Which is why last year, a year when their stock prices and profits tumbled, and just a few years after they caused the worst financial crisis since the Great Depression, the average pay for top U.S. and European bankers rose nearly 12 percent, according to the Financial Times. Did you get a 12 percent raise last year? Obviously you just weren’t losing enough money for your shareholders, or taxpayers…”

  8. With the S & P downgrade, I would think the big banks may fall soon. One of my customers told me she is going to draw her money out and hide it. If she feels this way howmany others do. Then she is doing her business with BECU credit union. Many including me are already at BECU and other credit unions.

  9. las vegas- where did you pull that quote from? please provide link if necessary. Thanks.

  10. Then it has to blow. That’s the only way.

  11. Jamie Dimon would have too much explaining and they secured their investment banking and mortgage operations via Bear Stearns, Wamu EMC. They have no interest in the MS because the chance of another Maiden Lane, LLC getting past the American public while he sits on the Board of the NY FED is unrealistic. GS is the counter-party on many MS swaps and can unwind them slowly through the upping reserve requirements for the synthetic swaps MS sold to hedge the swaps from GS.

    WELLS will assume the assets of BAC right after the FDIC socializes the mortgage losses, just like the did with INDY and AHM.

  12. This is good for us who fight the good fight.

    Here in Las Vegas new homes are selling and short sales are up and foreclosures down. There is so much to know but I am most concerned with is this:

    “It may be relevant that these 9 M folks (who defaulted between 2007 and June 22nd, 2012) probably did not fully understand that they had been paying their monthly mortgage payments (before they defaulted) to a party that had absolutely no interest in the debt they committed to repaying. In other words, their cash was depleted through payments to a stranger to the loan transaction.”

    And what if you agreed to a forbearance agreement, and what if a person made HAMP payments?

    “How can you redeem, modify mediate or even litigate where the true creditor’s identity is being intentionally withheld from the borrower and the court? The right of redemption thus becomes a doorway to reopen the title question. If accompanied by valid causes of action for fraudulent and predatory lending, slander of title etc. the redemption price cold be reduced to zero or less — giving the homeowner both the title and possession of his home plus a monetary award.”

    My spouse wants closure and for me to stop fixating on mortgage. Can I say hey, somewhere down the line we might get title and a monetary award?

  13. @Pie,

    What about Chase…? Wells? And will GS remain?

  14. This would be enough to finish of MS, but over-leverage on sovereign debt has already accomplished such. MS will not finish the year as a stand-alone entity, and will either be wiped through BK or sucked in by GS for pennies on the dollar. Goodbye MS, Goodbye Credit Suisse, Goodbye Citi and finally, good riddance BAC. I hope you are all indicted, your personal assets are frozen through RICO actions, and your families are put on the street.

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