hat tip to http://www.foreclosuredefensenationwide.com
Bill Sloan, Esq., in the 9th Judicial Circuit of Common Pleas in Charleston, South Carolina successfully turned the head of at least one judge, citing the United States Supreme Court case of Carpenter v Longen, 83 U.S. 271, 16 Wall. 271, 21 L. ed. 313 (1872). I might add that in the BP litigation, the Circuit Court of Appeals just issued a ruling on the same topic and said “Absent a loss , a claimant has suffered no injury. Unless a claimant can colorably assert a loss, it lacks standing. See Lujan v. Defenders of Wildlife, 504 U.S., 560 (1992) (noting that an injury is a required element of constitutional standing))… if a claimant has suffered a loss, but has no colorable claim that the loss was caused by the spill, it also lacks standing and cannot state a claim.” IN RE DEEP WATER HORIZON 5TH CIRCUIT COURT OF APPEALS FILED OCTOBER 2, 2013 CASE NO 13-30315.
The point is that in the cloud of overlapping and duplicitous transactions that characterizes the claims of securitization and retreat from allegations of securitization, there remains a series of questions about who lost what, when and why — and that inevitably leads to questions of who owes what, when and why. The banks would have the courts treat these transactions as simple singling out one single event from dozens of related events — namely the point at which the borrower stopped making payments. They seek to misdirect the court away from an inquiry of whether the payment was due, or due to the claimant, or whether there was any loan at the base of the transaction chain.
In this case Attorneys came into court saying they represented Deutsch Bank in the foreclosure — despite a very clear memorandum from Deutsch stating that nobody had authority to bring a foreclosure action in its name. The question of whether Deutsch even knew about the action was apparently never brought up. Instead the case turned on familiar arguments that the Trial Judge dispatched in a 4 page opinion and order.
The simple holding is obvious and so is the reason. Merely having paperwork doesn’t mean you have a legitimate claim. The Court found that the Carpenter case from 130 years ago stated the requirements quite plainly. The Supreme Court decision “clearly supports the notion that the Plaintiff must own the Note and Mortgage at the time the Complaint was filed.” The Court was also obviously disturbed by the fact that MERS was the mortgagee but never mentioned in the note.
Translation: as close as I can get in lay terms the Court is merely stating the obvious. At least it was obvious before the Courts lost their way in the maze of legal arguments and procedures attempted by players in the cloud of false securitization claims.
If your lawsuit is based upon a loan you must allege that the loan was made. If your action is based upon acquisition of the loan you still must allege that the loan was made and that you actually paid for acquisition of the loan. Otherwise the claim is speculative and cannot invoke the jurisdiction of the Court. Without that the second requirement is impossible to meet — that you have suffered damages as a result of the making the loan and the borrower not repaying it. These are not mere empty recitals. Without them, no lawsuit can continue.
The Wall Street cloud has argued that they can correct this during litigation. But this Court correctly said that is impossible. The basis for a trial in which the evidence would be presented would be the Complaint. If the Complaint requires that ownership of a real loan be present at the time the Complaint is filed then the Court’s jurisdiction has never been invoked. The Court has no choice. And the reason for this is that it is very well-settled that you bring a matter to court that must be an actual controversy and a plea for relief that can be legally granted. The fabrication of instruments after the filing of the lawsuit for the express purpose of the lawsuit is not only lacking in credibility it is clothed in impossibility.
The fact that the trial court cited a specific U.S. Supreme Court case from which the Supreme Court has apparently never retreated, means that the trial court was saying that this issue was decided 130 years ago, it is the law of the land and it overrides any state court that would rule otherwise.
This also lends support to those proactive homeowners who are “current” in making payments to a bank other than the originator who purports to be the servicer or the new owner of the loan. If they cannot answer the basic questions above as their response to a qualified written request or debt validation letter, then it is reasonable to assume that they are neither the lender nor the acquirer of the loan despite their representations to the contrary. Saying it doesn’t make it so.
In view of the homeowner’s concern that he know the identity of the creditor, whether his payments are being forwarded to the the actual creditor, and whether there has been an accounting for all receipts and disbursements FROM THE CREDITOR, not the servicer, are all valid questions. in nearly all loans originated since 2001, the note was signed by the homeowner under the mistaken notion that the Payee had loaned him the money. In fact, this was not the case and the Wall Street players are attempting to dance around this with legal arguments instead of plain facts showing who made the loan. They want the facts to be disregarded and in its place a theory to be used to guide the Court’s decision regardless of the facts.
Such proactive homeowners are also questioning the logic and money trail created by the cloud of false securitization claims. On the one hand Wall Street banks want the cloud of players in the securitization chain to be treated as one entity for purposes of enforcement against the borrower; on the other hand, they want the cloud to be treated as merely a collection of individual transactions for which the the borrower has no interest or claims.
But in that cloud there were payments received from third parties outside the cloud. Those are payments that arose in part because of the mere existence of the loan to the homeowner, whether properly documented or not. Those payments were made either as a result of sale to the Federal Reserve, which includes virtually all loans declared in default and many others or because the Master Servicer made the call in its sole discretion to devalue the “tranche” that the loan was declared to be assigned. The declaration of devaluation created insurance and credit default swap payments. The devaluation was of the entire tranche.
Thus payments received should be allocated to all the loan accounts in that tranche. To say otherwise would require a homeowner to default on a loan in order to get the allocation — obviously a result that any sane person would want to avoid. The sole assets of the tranche are the loans according to the Wall Street players and their paperwork. Hence the account receivable for each loan would be allocable to each loan in the pool based upon some reasonable formula and not necessarily pro rata. The bankers take advantage of this complexity and serve themselves a full cup of fees in the “breakage” that results from the allocation of those payments. Then they serve themselves again by not informing the investor that money has been received because the bankers say that the money received was a proprietary trade of the bank.
In short they keep money that should have been allocated to the account receivable of the investor. By not doing that they cheated the investor. But the fact they were so obviously the agent of the investor means that wherever the money landed, it must, from the perspective of the borrower or other outsiders to the cloud, be allocated for purposes of computation of the real unpaid balance of the creditor, after taking into account amounts held by the agent for the investor regardless of whether the agent willingly gives it up.
It’s difficult but not impossible to follow. The bottom line is that most of the money from many of the loans ended up in the pocket of the bankers who were supposed to act merely as intermediaries. And by the sheer power of their influence to declare the insurance and the derivative securities and hedges to be neither insurance nor securities, they are allowed to insure the same asset over and over again, without ever reporting to the investor that the account receivable has been paid down. That is why bank profits are high while investors are reporting losses.
This results in the account payable of the borrower remaining as though no payment had been received. Since the payments received were explicitly not purchases, they can only be accounted for as loss mitigation payments not merely bets by underwriters who were betting against the same securities they were selling to pension funds and other investors like credit unions and other vulnerable institutions.
Thus we find ourselves in a rabbit hole where the courts are largely refusing to see what is front of them even when it is well presented. All we ask is that the Court require compliance with requirements of pleading and proof. The complex facts will be revealed as one layer after another is unveiled through discovery.
Filed under: CORRUPTION, credit unions, expert witness, Fannie MAe, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES | Tagged: 16 Wall. 271, 21 L. ed. 313 (1872), 83 U.S. 271, 9th Judicial Circuit of Common Pleas in Charleston, account payable, account receivable, Bill Sloan, Carpenter v Longen, Jeff Barnes, securitization cloud, www.foreclosuredefensenationwide.com |
I’m sorry more people will lose jobs, but as long as “MERS” is named on a collateral instrument, no one should get a home loan. Or at least refuse to sign a “MERS” mortgage.
MERS has to GO.
If you did not read the case from the post, you missed something quite interesting. When the judge wrote that MERS was not on the note, he added that the note and dot “have been permanently separated”. It was then crossed off and he initialed it! (at least i take it those are his initials)
Bijaya said:
“…unsecured transaction between x&y because Carpenter vs Logan clearly states once a mortgage is satisfied it is no longer secured.”
Good and true point. Whether or not a lender releases a dot, if the debt is paid off, the collateral agreement is toast as a matter of law and so has held many cases since C v L.
Agreed. Good going Neil
i’ve always said they would not overturn hundred and 50 years of property law MERS will be overturn title companies cannot allow it that iis why Lloyd’s of London pulled every dollar out of every bank in Europe in October 2011 don’t know if that is still the case
Because they lost their case against me in federal court but the judge threw it out Carpenter versus Logan was the citation December 2, 2011
What irks me about the South Carolina case is that while the court DID in fact cite Carpenter v. Longan as being the law of the land (which it unquestionably is), it was not to help out a homeowner. This particular case was between Deutsche Bank as Plaintiff and US Bank and Charleston County as Defendants, along with the homeowners. So when it comes to bank vs. bank, judges will apply the very obvious and non-controversial law that the mortgage follows the note and mortgages assigned independently of the note are a nullity.
It is not clear to me from the order why Deutsche Bank sued the homeowners as well as US Bank and Charleston County, but in my view, that is the ONLY reason this judge followed the law.
Guys, we are not Neil’s children that can only get information from him. If you want the orders that he’s writing about but he doesn’t post a link to it, don’t criticize Neil. He’s just making everyone aware of it among the millions of other things he does while also being a practicing attorney.
If you want case law, Stop Foreclosure Fraud posts ONLY case law, with ZERO commentary. This case Neil is referring to in the post above
was posted there over a week ago and made the rounds on Facebook and the email lists, which is where I first saw it: http://stopforeclosurefraud.com/2013/09/23/deutsche-bank-national-trust-company-v-heinrich-south-carolina-court-holds-that-foreclosure-law-of-u-s-supreme-court-trumps-everything-foreclosing-party-must-own-both-the-note-and-the-mortgage-to/
Not only that, Neil DOES link to Foreclosure Defense Nationwide, which wrote about the case and said that one could have a copy of the order upon email request. Please don’t criticize Neil for not being omnipotent and all-providing. He doesn’t post bullshit and he doesn’t make things up. I don’t agree with everything he says, but he is at the tip of the spear fighting this foreclosure fraud, and has been for quite some time.
I have a huge lawsuit read my 60b motion
shrylbeemer@gmail.com it’s going to
Washington dc
I go 2 of 3 default judgments in Federal court There is resjudicat out of the seventh Court of Appeals For wrongful foreclosure for my case and in my case that should’ve been up taken by the federal judge but he refused to do so since I only had one federal cause of action which was wrongful debt collection after bankruptcy seven Claimed it was a state matter wrong The judges refused to see the evidence before them and act upon it The judges are in the back pockets of the banks as could be seen by the settlement by the attorney generals and no one’s getting paid
Sent from my iPhone
>
Jan Van Eck,
Recurrent theme on this site. No real case ever quoted (except for Glaski and we all know that it is just the beginning of a long road for the poor chap who’s already been at it for 3 years but it was still presented as the win of all wins…)
My gripe with the likes of MasterServicer as well. Everyone claims to have all the answers but, when you get down to it, it all comes down to theories. The kind that keeps you in court for 9 years, like Anonymous, heavily quoted here by those who never engaged in any kind of a fight. A lot of smoke blown here. Lacking in results…
What I find discouraging about Neil’s various postings describing some result in the Courts is that the actual Decision is not published, and even the cite to the case is not stated. Thus, in terms of litigation, there is no practical way to place this Decision into case-law cites and build on the result. In practical terms, it is intellectually interesting, but not of any value.
“Thus we find ourselves in a rabbit hole where the courts are largely refusing to see what is front of them even when it is well presented. All we ask is that the Court require compliance with requirements of pleading and proof.”
That is exactly the problem and has been for years. They REFUSE to see. Why? Why? Why? Why? It doesn’t matter if it’s presented in brilliant briefs by astute attorneys or by pugnacious pro se litigants–they refuse see, no matter how good the arguments and evidence. In 40 years (hopefully less) the ABA, the law journals, the courts, the media, etc., will look back on this and say “How could judges ever have ruled this way?” They’ll say “Nobody knew at the time how bad these rulings would be for title in America,” and so forth, despite the fact that all of us have been screaming from the rooftops about it for years, Neil being foremost among the screamers. It’s crazy. It’s crazy-making.
And we may be making progress against this refusal to see, but not fast enough, just not enough…
It is still a debt until paid or adjudicated
In our case BK7 Duestche was declared unsecured and failed to come forward to prove they were the creditor
case closed, but still not made whole since my homestead rights were trampled on by the courts
No discovery necessary.
The loan is a nullity as was state in January of 2008. It is an unsecured transaction between x&y because Carpenter vs Logan clearly states once a mortgage is satisfied it is no longer secured. Every transaction by a loan originator that was sold becomes a nullity as for Security.
As I have said all along the creditor is never known and the note is usually never held for the required 90 days and the mortgagee never signs a recognition of any further transfers.
This fraud makes Madoff look like a saint since most people in his scheme made money.
Christine, I got the same one, except they sent me the machine and instead of blowing smoke up my ass – it simply tore me a new ass and told me to shit more tax dollars out immediately.
That is government’s way of cutting out the middle man during these difficult economic times…
breckingridgelaw@yahoo.com
I cannot get to Max G map ?
I guess Max Gardner has been put back… Odd.
And MS,
Have you gotten your coupon for that machine yet? You know, the one that blows smoke right up your behind.
Are you one of those who “do more than just stand behind you”?
Your prose is still unreadable. And I still can’t find ONE case in which your client prevailed… Odd, isn’t it?
Where did the Max Gardner map go? Did Garfield post it without permission and now, it has been taken down?
Leave a Reply. . . the liens of record were never satisfied as they were represented on the settlement statement . This I will attest to after reviewing hundreds of files. The instances of back dating notices and recorded instruments begs the question of a tax deferred method of capturing the otherwise mundane returns on a mortgage “whole loan” asset as a discounted appreciable asset, i.e. an annuity. The value of the mortgage is the borrowers ability to make good on the demand for payoff that is determined as a markets driver ; the CPR or prepayment speed. In this regard the mortgage is literally prepaid and causes the borrower to act as the reimbursement or guarantor. Therefore the argument for a gratuitous surety and lenders failure to provide a post TARP right to salvage and subrogation are substantive claims to include. registerclaims@live.com
christine I love you post!
Now as far as Neil wanting to go to who was actual funding the loan as if a $1 billion plus asset bank cannot float money, would be unrealistic to think that they could not, instead of having a paper trial back to the Federal Reserve as to what loans they actually up-fronted the monies too.
OK here the way they are funding the loan without admitting it is when the bank floats X amount and closes the loan and next place the loan in the pools and draws against the securities. By doing it this way the investor who does not want to purchase home mortgages because there is a real chance of losing your shirt. The better way to do things is place the risk on the taxpayer by only investing in the loans and as with Ginnie Mae MBS it 100% guaranteed that the principal investment is covered.
Why would you want to first give traceable monies to the banks and be on the hook as a lender, when up got all the up side of out of thin air securities?
Bank are on record with saying they are the owners on something they never purchase and they don’t have any proof of monies exchanging hands, but have recorded assignment as if they were the Note holder but the Notes don’t indicate this at all, and 100% of the Ginnie Mae foreclosed loans after the fact are going to be still blank!
I shall dedicate this to E.ToLLe… 🙂
Friday, October 4, 2013
You’ll never guess what I received today! Guess what I got today?
Just wanted to let you know – – – today I received my Fiscal Cliff
Survival Pack from the White House. It contained a parachute,
an ‘Obama Hope & Change’ bumper sticker, a ‘Bush’s Fault’
yard sign, a ‘Blame Boehner’ poster, a ‘Tax the Rich’ banner,
an application for unemployment, an application for food stamps,
a prayer rug, a letter of assignation of debt to my grandchildren
and if that was not enough, there was a coupon for a machine
that blows smoke up my ass.
Everything was made in “China” and all directions were in Spanish.
Keep an eye out. Yours should arrive soon.
Look I know Neil want to find the source of the original funding, however why in at least 800,000 cases from 2009-2010 you got these government insured loans in the Ginnie Mae pools that applied for the HAMPs modifications but they were not even reviewed because Ginnie Mae held the blank endorsed Notes as required of the Ginnie Mae MBS.
So as I had the OCC make Wells Fargo Bank fax a current copy of the Note 1 1/2yr after the foreclosure and it was as it had to be and that was it was still blank, with first an endorsement to WaMu and from WaMu was the blank endorsement to put the loan in the pool.
Now as it a fact that Ginnie Mae does not purchase any home loan because they cannot (Congress does not authorize it) and they are not a Home Loan lender and are not regulated to lend. So as the pool started out with WaMu servicing the loans and acting as custodian of records, which act to claim the blank Notes actual not physically out the hand of the lender.
However the bank has switch duties and is not acting as the lender but is this “issuer”/custodian/servicer, etc but the Note shows this endorsement and the Ginnie Mae forms show the loan was accepted. On Jul 31, 2006 Wells Fargo step into the picture and because the mortgage servicer only for 1.3 million WaMu government insured loans, and on Sept 25, 2008 WaMu doors are shut forever and its loans and other assets are sold to JPMogan Chase by the FDIC, but it does not involve the 1.3 million loans Wells Fargo is servicing.
As these 1.3 million loans are either titled in WaMu or an originator they (WaMu) purchase the loan from and did not do an assignment of title. However as WaMu is dead MERS step in an assign the security instrument to Wells Fargo as if Wells purchased the debt, which in fact they don’t.
So after presenting this to Wells they in return write me a letter telling me that they were not the lender as the claimed in the Assignment of Deed of Trust, Substitution of Trustee & Notice of Default and that they were working for Ginnie Mae who was the lien holder.
What I been saying all along is that Wells was not the lender and cannot step in the place of another to foreclosed, but Ginnie Mae also come back and said what they printed and that is they do not originate, buy or sell home mortgage loans at all.
There is no debt holder in a single loan that been placed in a Ginnie Mae pool as the don’t purchase the debt, and it is not the claim of any other in court calling a debt due!
My point is in FL there is a large retired military population who would have had there properties foreclosed and also about 50,000 FHA loans foreclosed there, that could not have been foreclosed because the Notes been separated since the loan was pooled!
“….it means more disgruntled bankers….”
YAHOOOOOO!!!!!!!
Open up the window
Out on the ledge
And JUMP you &*$ckers!!!!!
As to Neil’s article, it’s about time that some court ruled with Carpenter v. Longan. Now, when will the rest of the states realize that they cannot ignore this bedrock ruling? MN? AZ?
Thanks for that one Neil. Meanwhile here in Seattle, one block away from my place:
Wednesday, October 2, 2013
KingCast and Mortgage Movies Present Matt Taibbi at Seattle Town Hall….”Lawyers Have to Ban Together!”
http://mortgagemovies.blogspot.com/2013/10/kingcast-and-mortgage-movies-present.html
“… it is the law of the land and it overrides any state court that would rule otherwise. …”
NOT IN UTAH !!!!
Christine, one of the most uplifting pieces I’ve read in a while. Thanks!
Anyone scrambling to deny the obvious is grossly delusional. We are screwed and that’s all there is to it. Or… is the playing field becoming leveled…?
Wall Street Headhunter: “I Haven’t Seen Morale This Bad Since The Titanic”
Submitted by Tyler Durden on 10/03/2013 20:04 -0400
“…New troubles are piling up for U.S. banks as they prepare to release third-quarter results amid warnings of weak trading revenue, a sharp decline in mortgage-refinancing activity and rising legal costs.
Analysts are scrambling to ratchet down earnings estimates ahead of the reports. J.P.Morgan and Wells Fargo are slated to post results on Oct. 11, with Citigroup Inc., Bank of America Corp., Morgan Stanley and Goldman Sachs Group Inc. due to weigh in the following week.
Poor results could prompt additional job cuts and worsen the already downcast mood on Wall Street, bankers and recruiters said…
In previous years there was always at least one product group that was making money. This year: everyone is suffering.
Mr. Stein, the recruiter, said he received 100% more calls in August and September than in the same months in 2012 from disgruntled traders in fixed income, currencies and commodities at big banks looking to switch firms. “There’s no opportunity to make any money right now,” he said. “Nothing is happening.”
Naturally, since everyone wants out and to find a job at a competitor, it is suddenly the biggest buyer’s market out there. It also means axes will be flying in 2013 coming bonus time, or rather, just before.
Some banks have started looking at contingency plans for future layoffs, Mr. Stein said. “Just when you thought they got rid of all their expensive people, they’re going to have to go back and relook at that,” he said. “It’s been brutal,” said Michael Menatian, a mortgage banker in West Hartford, Conn. “We were flat-out busy until May. Once rates went up, things went completely dead.” He said he closed around $4 million in loans every month through June, and about $1.5 million a month since then.
And we are not talking selected surgial layoffs here and there. The mortgage industry: that bread and butter of banking Net Interest Margin-based operations, is about to be nuked from orbit.
J.P. Morgan, Bank of America, Wells Fargo and Citigroup already have cut more than 10,000 mortgage jobs this year, with plans for thousands more to come. J.P. Morgan is accelerating plans to cut as many as 15,000 jobs in its mortgage division by the end of 2014. All told, the number of employees in the industry will likely shrink by 25% to 30% over the next year, estimates Christine Clifford, president of Access Mortgage Research & Consulting, Inc., a Columbia, Md., mortgage research and consulting firm.
Finally, since a dropping bonus check tide will reduce all compensation packages across all levels, it means more disgruntled bankers, less discretionary income for the wealthiest, even less taxes paid into city, state and Federal coffers, less consumption and more saving, and an end to America’s deficit-cutting miracle and certainly and end to the days of barely even stall speed GDP…”
old news baby !!! you know about this very recent case
It looks as though Mr. Dimon is first on the gangway…er, runway.
Java,
For the same reason that nobody (aside from banks…) can get together and accomplish anything in this country: dysfunctional to the core from decades of self-absorption, self-centeredness, self-interest, me, myself and I, poor me, poor me. Sad but true. The single root of this country’s decline.
I still do not understand why the investors and homeowners will not/can not/do not get together and crush the 3rd party middleman shyster who bet against both of them !!!!!!!!
Bout time- I am a Texas Real Estate Broker and if I did what companies like Owcen/American Home Mortgage do all the time I would be either in prison or shot. Still no one indicted?