The Mystery of Servicer Non Stop Advances

Since I entered the fray as the actual attorney for clients, we are getting down to the nitty gritty. Judges are surprised to learn that the foreclosure case in front of them was filed despite the payments actually received by the alleged creditor through third parties. In other words the case in front of them does not actually present a default from the creditor’s point of view even tough the borrower stopped paying.

The primary payment we are focusing on today is servicer advances which come in different flavors — non-stop, limited and none. Most loans (96%) are subject to claims of securitization regardless of what the current servicer or trustee is telling you. And most of those (my guess is around 75%-90%) come with third party obligors, which is why there is so much confusion. Besides servicer advances, the agents for the trust beneficiaries at the investment bank who sold them the bonds received on behalf of the bond holders, insurance payments and other funds from other contracts designed to limit the risk associated with the terms of the bond repayment of interest and principal.

When you do the math, you can easily see how the “lender” could be overpaid by a multiple that averages 3-5 times, even while the borrower is being pursued for yet another payment or else losing a home. The dirty little secret, the mystery behind these payments is that under common law and statutory law there are potential causes of action against the borrower for such payments, but the actual creditor on the loan has been fully satisfied.

Worse yet, those third parties have waived subrogation or any right of action against the borrower to prevent multiple parties from suing the same defendant on the same debt. The insurers are mad as hell. But the servicers are curiously silent — possibly because they are not really paying the servicer advances which are instead coming from the pool of funds held by the investment banker from the original investment of the trust beneficiaries and the receipt of insurance, credit default swaps, guarantors and even sales to the Federal Reserve.

The lender (Trust beneficiaries) have agreed to lend money on the basis of interest only payments at a particular rate that rarely coincides with any of the loans alleged to be in the pool. Since they were sold the bonds first before the loan was made (see “selling forward”), you can assume fairly safely that the actual lender is the trust or trust beneficiaries, regardless of what was put on the loan documents — which is why I say that none of the loan documents are valid enforceable documents and why the investors have sued the real culprits (investment banks) stating the exact same thing.

In one case I have currently pending in Dade County, Florida, US Bank is putting itself through a ringer because servicer advances have been paid in full to the creditor that they acknowledge is the creditor. The Judge instantly recognized that this defeats the allegation of default, if the creditor has received and accepted payment. The attorney for US Bank allegedly as trustee for the trust beneficiaries is pursuing a strategy of getting the assignment of rents enforced. The statutory requirement is that there be a written demand for rents, which nobody ever made. And it turns out that the Trustee was unwilling to go on record demanding assignment of rents because the beneficiaries were paid in full exactly as set forth in the prospectus and pooling and servicing agreement. A call to the servicer confirmed they were not interested in the rents, but curiously, despite PSA restrictions to the contrary, the new “Trustee” US BANK is pursuing the foreclosure.

The Judge, who wants more proof of the advances which we are only too happy to provide, instantly recognized that if the trust beneficiaries were receiving their expected payment, then there can be no default on the principal, which is prerequisite to BOTH foreclosure and the assignment of rents. In this case there were 52 payments received and accepted by the trust beneficiaries after the alleged borrower default. We were able to get this information through drilling down to loan level accounting in our title and securitization reports. If there is money owed it is not owed to the plaintiff in foreclosure and it is not secured by a mortgage. see

We have since done the reports on other properties owned by the same client and found out that the same pattern holds true. In the one case we have already argued, more than $70,000 has been received by the trust beneficiaries from servicer non stop advances. Payment is the ultimate defense for an action to recover money. The fun part comes when the Judge starts asking why these payments were not disclosed by the attorney or his client.

There are other sources of third party payments from co-obligors at the inception of the loan. The mystery comes from the fact that the homeowner who signs loan papers has no idea, because it was never disclosed to him/her/them that the lender is not the payee on the note, not the mortgagee on the mortgage, not the beneficiary on the trust deed, but rather the trust beneficiaries who own bonds issued from the REMIC trust (which as I have already reported was never actually funded and never actually received title to the loan).

In other words, the lender has agreed to one set of terms that were never disclosed to the borrower in violation of the truth in lending act, and the borrower has agreed to an entirely different deal — which means that there is no “meeting of the minds.” Both the lender and borrower wanted a completed contract that would be enforceable and where title was clear, but neither of them got it. The solution is to get rid of the servicer and get rid of the investment banker, get an accounting of all funds, repay the investors and work out a reasonable deal with borrowers, most of whom would be willing to sign a mortgage that was enforceable based upon economic reality.

52 Responses

  1. @justme
    I have done the “Qualified Written Request” However when Bank of New York Mellon said they were not the owner of the Loan or the Note as reported by Bank of America, I have not been happy with the answer. Just as recent as October 2013, Bank of New York Mellon Employee told me BONY Mellon is not the one requesting the loan modification, they have no say in loan modification. She also told me they are not a Investor but Trustee for Investors. The employee stressed to me that Bank of America is the servicer and not to contact BONY Mellon anymore regarding the issue. She said that BONY Mellon is not a Lender and does not provide loans. I have numerous letters from Bank of America attorney’s who say Bank of New York Mellon is the Owner/Holder of the Note with 2 promissory notes having no endorsement and 1 promissory note that has a stamp of Michelle Sjolander. None of the documents have dates or anything. I understand that in Texas a non-judicial state, nobody has to be a lender or holder of anything. If they say the own the mortgage by assignment that is all that is required. I feel doomed. I have fought this for almost 3 years and now I have no fight left in me. My Deed of Trust stated that my lender is America’s Wholesale Lender a Corporation existing under the Laws of New York. I am a Texas Mortgage which slipped under the radar. My Deed of Trust and my Promissory Note both read that America’s Wholesale Lender a Corporation Existing under New York Law has a address of 4500 Park Granada, Calabasas CA and MERS is nominee and beneficiary in a administrative capacity and has no interest in the loan

  2. I am terrified to talk to a attorney. The last one I tried to get help from called me and yelled at me and told me he didn’t have time to take my case and don’t send him any more emails. I didn’t know what he was talking about. I had only sent him the information he had requested. Apparently their was a problem with the email and he kept getting the same emails over and over again. He literally brought me to tears. I can’t handle this right now. I hope this attorney is not rude or ugly to me.

  3. Thank you so much John. What hurts me when I talk to anybody is the fact I quit paying because I do not know who I owe the money too. May not matter to some but it mattered to my mom. She was so mad when she saw that Loan Modification, she said that is not your Lender. I think what upsets me more than anything is it was almost two years of her Social Security money to pay for something that now I am going to have taken from me.

  4. LDean – I hope that attorney helps you. You might talk to him about what you may record (before the f/c sale) to prevent a bona fide purchaser status from further snaring your desire to keep your home. Show him anything and everything you’ve sent or gotten in writing, including (but not only) any docs recorded on your home and particularly those re: foreclosure (notice of default, notice of sale). Also give him copies of any notes you took re: conversations. Maybe he’ll find something for ammo.

  5. NG are you certain the trust has beneficiaries (I think they don’t), or are the MBS investors the recipients of something ELSE? Are these remic’s “TRUSTS-PLUS”? They’re NOT paid the same way the notes pay. Why is that? I guess you think it was so the banksters could siphon and or sell more interests than the notes cover and hide both by another agreement? Or was it because these, our notes, are 15 to 30 year payouts and that’s not attractive?

  6. @Christine

    Thank you so much. I will certainly be in contact to see what he has to say. Thanks 🙂

  7. LDeanTX,

    You need to contact Richard Roman. He is a former state attorney on a mission to help homeowners and he is in TX. I’ve refered several people to him and he is a real crackerjack. Here is an excerpt of a newspaper article I posted a few weeks ago. You can find the entire article on MSFraud or by googling Richard Roman.

    In Texas, attorney Richard Roman has already filed an open records request with the Texas Comptroller demanding information about the settlement funds received by the State of Texas Judicial Fund (referenced below) that was in turn paid or dispersed to El Paso County judicial officers. We will let you know the comptroller’s response if there is one. –

    Also, Bloomberg wrote a very substantive ar6ticle in 2011 about Roman scoring big against banks in foreclosure defense

    Don’t go through it alone. Roman does pro bono and he really helps. The man is on a mission! And just because he’s been written about extensively doesn’t mean that he won’t touch your case or take you to the cleaner. Mine is the exact same way: relentless, committed, a real bulldog. They get the results.

  8. JustMe,
    Procedure is a Legal Question.

  9. LDTX
    I just want all of you to know I have no attorney, All I had to know was that 3 years ago I was going to loose my home and I have fought the battle of my life to hold on to my home. My home is once again here in Texas up for Foreclosure by Recontrust/Bank of America Jan 7, 2014. I stay up night after night looking for ways to save my home and fight my battle. My property is in the Pool of CWABS 2007-2. I have spent more money in Land Records for Public information looking for fraud. I don’t just stay in my county, I look elsewhere hoping to find the names of Attorney-In-Facts used by Bank of America and Recontrust. I look for notary fraud and file complaints with the Secretary of State and get the complaint form notarized so they know someone has issued a complaint about the notary signature to the document. Everything I get from Bank of America it is in writing as I refuse to speak with liars over the telephone. What I have uncovered on my property just by using this blog has helped me tremendously. I still don’t have the money for a high priced lawyer but what I do know is that CWABS 2007-2 holds Account 155397447. I will not call it a loan because I have found no truth and fact that anybody from Bank of America, CWABS 2007-2 trust, Bank of New York Mellon, Mortgage Electronic Registration Systems, Inc, America’s Wholesale Lender, Recontrust all the parties attempting to steal my property have any one document that shows they own or hold the note to the deed of trust. For instance, I have been requesting for over 2-1/2 years for the Blue Ink Copy of the Promissory Note from Bank of America through a Qualified Written Request. You think these fools won’t even put lies in writing? Oh yes they do!! 11-4-2011 Promissory Note sent to me from Employee of Bank of America no endorsement no dates no nothing just my signature on the last page of the note. 5-22-2012 from Bank of America I get another copy of the promissory note because I was not satisfied with the answer that Bank of New York Mellon is the Investor and Holder of the Note. Attorney sends a note with a stamp on the left side of the note crooked like the stamp was on a post it note and shadowed on the copy with Pay to the Order without Recourse By: Michelle Sjolander, CountrywideHomeLoans dba America’s Wholesale Lender. My note does not have Countrywide on it anywhere except above the line which reads after recording return to Countrywide Mortgage……. Again, not satisfied and send a dispute of the note back wondering why it took 4 years and 9 months for the Assignment of Deed of Trust to be filed in the Land Records and then 5-1/2 years for a note to get a stamp on it. As recent as October 13, 2013 just a couple of months ago, I receive another copy of the note from Bank of America attorney and guess what????? You got it no endorsement. Guess the Post it note fell off the damn note. PSA reads MERS® acts solely as a administrative capacity and holds no interest in the mortgage. It also tells the Trustee and Master Servicer what must be done for the note to be properly securitized to the Deed of Trust under New York Trust Law. Countrywide, Bank of America, MERS®, Recontrust, America’s Wholesale Lender and Recontrust Appointment of Substitute Trustee’s did not do anything that they were to do to legally securitize the Mortgage. So I have reached out to certain individuals asking them to help prosecute those they know who are doing wrong in the banking system, Bank of New York Mellon, Bank of America, Recontrust and they refuse to do so. As far as I am concerned, they are just as guilty of the fraud as the bank(s) and they should go down with them. I no longer sympathize with these employees because I have no legal background but I damn sure know fraud when I see it and I see it all over the place. In our appraisal district. Type in Owner name Bank of New York Mellon. You get massive homes come up on the appraisal district that the owner is Bank of New York Mellon. Take the address to Bank of New York Mellon which is located under the owner name and google the address. Guess what folks the properties do not belong to Bank of New York Mellon. Write Bank of New York Mellon @ and tell them you have been told by Bank of America and their attorney’s that they are the Owner/Holder of the Note. You will get a reply back which reads Bank of New York Mellon is not a investor. BONY Mellon is the Trustee for Investors. BONY Mellon does not own the note or the Loan. Please contact your servicer and they will give you the servicer name a contact name and phone number to call. But when you tell the Bank such as Bank of America to put in writing who the Lender/Owner/Holder of note is, they send the letter back telling you the same exact thing. BONY Mellon even wrote to me and said we are not ergo the Lender, we have no say in foreclosures, loan modifications, past due fees, this is the operations of Bank of America. One lie after the other and Judges choose to play a fools game. Well I will say this in a saddened way and that is, I am the idiot who quit paying my mortgage. You can’t tell me who is the Lender, the owner/holder of the promissory note, you are not getting my hard earned money to stick in your pocket or to buy gift cards for your employees to entice them to commit fraud so you can get rich and throw the little guy in jail.
    Sorry this was such a long message but hey some of us are out here fighting like mad and will possibly be on the street after the holiday but let me tell you this much, I can’t make an attorney rich, a bank rich because all in all it is a 100% risk no matter how you go. There is no Texas attorney who has written yet that they won a case in Texas. What they will say is oh no judge is going to accept you haven’t paid your payments to the bank. You don’t stand a chance, you haven’t paid your house payments. Texas attorney’s do your due diligence. Do like this idiot has done and fight for the homeowner and not the banks.

  10. hey. hay. straw. whatever.

  11. I am burnt, hitting the hey for the night, Christine, I will email you.

  12. NG said: “The dirty little secret, the mystery behind these payments is that under common law and statutory law there are potential causes of action against the borrower for such payments, but the actual creditor on the loan has been fully satisfied.”

    NG, you keep saying this, tho I think you’ve at least vacillated here and there. I don’t believe it. I don’t believe there is a cause of action against the borrower for voluntary third party payments. There certainly is none under the note. That leaves a separate and different claim for repayment.
    It’s no different than if Uncle Bob or the guy accross the street makes my payments but I never agreed to repay him. He can’t collect from me. The note itself can never form the basis for the claim of a volunteer or please demonstrate otherwise. FHA, VA, and conventional loans with pmi are easy because the borrower pays the premium for the insurance. An insurance company, or anyone, cant charge for insurance and then come after the insured for its claim payout with very limited exception, like intentional destruction maybe, if the ins co. later found out the destruction was intentional. Insurance is insurance, or used to be until gnma made its to the Issuer and not the alleged loan owner / lender – the Issuer has to become the “lender” on a defaulted loan (buy it / keep MBS holders whole) and then gnma will pay out to the Issuer! This blows my mind since the borrower is made to believe the premium he pays by way of fha mtg insurance or VA funding fee inures to the traditional lender and somehow benefits himself. I haven’t had time to fully digest that business yet fwiw – like does this m.o. negatively impact the borrower? When others, like fnma, guarantee payment, imo they similarly (like an insurance co with no rights of subrogation) have no basis for a claim against the borrower. FNMA has socialized the guarantee, which I think is a crock and a half. The only way fnma didn’t socialize the loss is if fnma created a pool for insurance, like some lenders did on certain loans that were “self-insuring” or if fnma otherwise got insurance on its guarantee with another entity. On ‘self-insuring’ loans, the interest rate was bumped on the (lousy) loans and part of that higher rate went into an insurance pool (probably went bust long ago given the number of lousy loans made but that’s if some other dumb business didn’t underwrite the self-insurance pools).
    When you say this stuff, I sure would appreciate if you made it perfectly clear that even if a party did allege a cause of action against a borrower for a voluntary guarantee (and I say good luck – without meaning it), it wouldn’t be and couldn’t be under the note, and further is an unsecured claim remote from the mortgage loan. That’s probably what you mean when you say “other causes of action”, but you don’t make it clear enough imo that the claim would not and could not be under the note.

    About where the servicer gets the money to make those guarantee payments: First of all, on fnma loans, they are reimbursed by fnma by submitting an invoice. And they could be using hamp, tarp, who- knows gimme funds. But I’ll say what i think is going on at least sometimes. As fnma seller-servicers, banksters must contractually make the guarantee payments (and get reimbursed) and ultimately repurchase the loan from a trust to foreclose, which incidentally is why a trust should never be the foreclosing party on a loan which went thru fnma IMO. The other day we saw a case where I first thought the servicer, saxon, had sold the prop to an reo co. After more thought, it seemed more likely that the servicer sold the loan to the reo company for the reasons I cited. How they affected that sale, got me. Actually, the ‘sale’ out of the trust. I guess just execute a handy MERS’ assignment of the note and dot ? (like I said yesterday, like to see the assignment OUT of the trust to saxon). But say REO co. paid 150k to the servicer for the trust (as if) for a loan with a balance claimed to be owed of 300k. If the servicer gets reimbursed by fnma and also paid by reo, they’d have a lot of dough to keep feeding the trust-kitty for quite awhile. And saxon will foreclose for REO, the alleged new loan owner, ‘keep the change’, a lot of change, and REO also makes out like a bandit because it can make a credit bid up to the full amt alleged to be outstanding on the loan and beat out other bidders, and then resell the house up at its market value (say REO only paid 150k). What we’re missing here is the entire machinations and mechanics for how the trust gets paid (fnma?) off or maybe it just doesn’t. But it wouldn’t surprise me at all if this is being done: get the money from someone else, including using hamp funds, AND fnma.
    The servicer can just take that 150k and keep making payments to the trust as long as necessary. If it also turns in bogus reimbursement claims to fnma, I guess it’s looking good, right? I don’t have the entire formula even as speculation, but who’s to stop them from any of this?
    A few years back in a case involving LaSalle (Lamy?), think it was, a court ruled that if a loan were securitized that the proper party to f/c was the sec trustee. As the facts of fnma’s guarantee, for instance, have unfolded, we see that’s just not necessarily so. And it’s also not so if it’s an fha or va loan unless everyone is waiving
    the gnma ins / guarantee, since to get it, the Issuer must repurchase the loan to foreclose, way I get it. But then we have to, or they have to, get into why would an issuer pay a trust for a loan when that loan was never transferred to a trust?

  13. Justme,

    You just posted something about Respa. Is this where you’re going? That what i won my fed court appeal on. Need help with that?

  14. No question, that IS fucked up !
    Dammit KC I am harmless. Certain users here can verify that if you choose. I have one stinkin question I cannot ask on is not legal, nor is it advise, its simple procedure statewide I cannot find anywhere.

  15. What a fucked up country! Want to know where your tax dollars are going? 25% of the world inmate population is in… American prisons and not one banker in them!

    For profit corporations that charge you for every single empty cell so that you can fully support perfect able bodies deprived of the ability to earn their own keep in the name of corporate bottom line.

    Any question?

  16. KC, I am not stripes. And I do not need advice.
    Make a fake email if you wish.

  17. here is the order of remand in that different case:

  18. here is a mtn to remand in another case:

  19. Here is an order of remand which likely says why so:

  20. “..(the plaintiff) is troubled by the District Court’s application
    of the Iqbal/Twombly to his complaint without ever affording him
    the opportunity to amend the complaint he
    filed in a ….(state) Court pursuant to (that state’s) notice pleading requirements. The Federal Rules support his concerns in two regards. First, FRCP 81(c) states“(1) Applicability: These rules apply to a civil action after it is removed from a state court.” Id.
    (emphasis supplied).
    Since removal jurisdiction was being challenged, (the plaintiff)
    contends application of FRCP to LSI’s motion to dismiss was
    improper. Further, (the plaintiff / homeowner) contends that refusing to allow him to amend his state court complaint after the district court
    improperly removed it was unfair. See FRCP 8(e) (“ Pleadings must
    be construed so as to do justice”)”

    This is an argument from a case linked here last week. Iqbal and Twombly are the bankster’s gold standard bs cases they all without exception cite in support of their mtns to dismiss. The point being made in the instant case is that some states, including the one in the case, subscribed to “notice pleading”. I’m no authority, but I’m pretty sure that means that a plaintiff must simply give the defendant fair notice of what his beef is. I’ll look it up when I have time. If I don’t get to it, I suggest anyone litigating and being subjected to a mtn to dismiss look into it (‘it’ being “notice pleading” and supporting case law) and or discuss with his counsel. In the instant case, the DC granted LSI’s mtn to dismiss LSI as a defendant without ruling on the borrower’s mtn to remand, in which the borrower contended the DC had no jurisdiction to hear the case. If it had no jurisdiction, of course it had no juris to dismiss a defendant from a case belonging in state court. I had thought that frcp (dont’ know state rule off hand) allowed amendment at will one time, but I guess that’s before a responsive pleading has been filed. Then it takes leave of court or stip )the latter which one will never get imo), BUT case law holds that courts are not to unreasonably deny amendment (by denying a mtn to amend). Some courts say this is a turkey and amendment won’t save it when it’s just not a fact in evidence and imo is often or at least sometimes the result of ignorance, bias, or both. So I’d say don’t go gently;
    find case law which support amendment if it’s in fact necessary after proper consideration of “notice pleading” standard regarding one’s complaint as structured.
    Something else occurred to me. If the bankster files a mtn to dismiss, can a borrower (or anyone) yet file a voluntary dismissal? It’s only, on info and belief, a mtn for sj or an answer which precludes vol dismissal. Jan? Anyone? A voluntary dismissal I believe is one without prejudice, is NOT RJ, so the borrower could amend as necessary and re-file. Why not? Pretty much what the banksters do. There would be a ‘time’ problem maybe if the bankster files a mtn to dismiss first, but that mtn might be rendered moot if a borrower files a vol dismissal before the bankster’s mtn to dismiss is adjudicated. I don’t think, but don’t know, that a removal qualifies as a responsive pleading. If not, if the removal action gives enough clues to warrant one’s voluntary dismissal, at that time (to regroup), maybe a plaintiff could file a vol dismissal and hit it again……?

  21. That’s Right Christine! It Depends on What You Want.
    That Determines the Path you take …..

    I’m with Iwantmynpv …
    But another case I am scheduled to testify in .. Mirrors yours and your choice.

  22. Its about the title ..
    Its about the household estate as warrantor/surety ..
    Its about the households right to subornation ….
    Its about the Money … where it went and what it was used for.

    They cant have it both Ways.

    JustMe…. I enjoy my privacy and my safety. Stripes?
    I don’t know how I can help you, I have already explained each case is different and State Laws Vary. You need an Attorney in your State.

  23. When those Brits get pissed, they know how to convey it…

  24. The A man,

    Depends what you are looking to accomplish.

  25. The Genie is out of the bottle.

    Be Strong and Courageous

    Hi Christine. My friends who brought the issue of not being able to afford payments The lenders gave extended teaser rates then and assured them that real estate prices only appreciate in California and you will be able to refinance again. But in Reality it is all about the broken chain of title if you want to win your case in my humble not professional opinion.

    Be Strong and Courageous.

  26. KC – I need to get in touch with you! email me please ASAP

  27. JenninGA,

    It’s all very true and yet completely useless in the case of a homeowner fighting foreclosure for a number of reasons, the most important one being that accusations of fraud go both ways.

    It is not random that banks most used argument has been that “homeowner knew that he was purchasing too much house for his income” or “homeowner knew that his income would never allow him to repay the loan”. And they can show that by pulling the paperwork, initialed by the homeowner himself (among the 125 pages of the closing documents he had to sign on the spot and didn’t have time to read, let alone understand) showing his income as being 3, 4 or even 5 times higher than it really was.

    Can’t claim fraud on the part of the banks if your own hands are unclean and banks know it. they’ve played that card all along. To make matters worse, the burden of proof in any allegation of fraud is way much higher than the burden of proof in a simple breach of contract or tort claim. How do we know? Even the regulators whose job it is to prosecute bank fraud keep shying away from it and that, despite the hundreds of interviews given by such people as Elliot Spitzer, Bill Black, Catherine Austin Fitts and many others.

    If regulators have thus far not been able to sort it out, what makes unprepared and ill-equipped homeowners believe that they have a better chance to succeed?

    Of course fraud and corruption are rampant. This is still the argument least likely to help any homeowner. My advice to anyone is simply to stick to what works and what you can control.

  28. we have a forensic accountant that can testify to the 20 to 1 leverage scenario . putting together quite a group.

  29. @ Louise RE: Ocwen does not answer letters of any kind.

    The research department at Ocwen – they may be more maddening than trying to understand their customer service staff (Ocwen outsources and I can not understand some of the people I talk to due to their accents). I sent a certified QWR to them the month I was transferred to them, telling them I disputed the amount they claim I owed and also disputed the party they claimed to be the beneficiary of my loan. I notice if you send a letter with more than one request – they only answer one – and ignore the rest. I asked for a complete accounting for my loan which “originated” in 2005 and finally after repeated written requests they did write back “We are unable to provide the copy of the transaction history prior to March 2008”!!! They did not have any information for my loan prior to 2008 – then how can they be sure their information is correct if it is not complete? Also it took them 5 months – and many certified request letters to finally get this information!!!

    Most of the time the replies did not even address the question – just some claim that they are correct – and for me “to provide the documentation indicating that the loan has a new owner so this may be addressed as well”.

    I do not think they to care a fig if their paperwork is correct. They had information wrong about an earlier mod I had- they said it was a set -rate and it was a step rate – I don’t know if they ever had a copy of the document?? It was never included in the loan documents they show on the customer site.

    I am in a non-judicial state.

    I am learning a bit about contracts…and fraudulent contracts…and wonder what the duty is for the mortgage servicer is when contracting with a home owner – since they would have more knowledge than the average person so would they be held to a higher standard???

    When I read this (see below) I am not sure how this applies to property /HAMP mods/or my state – but find it interesting!!!


    The term ‘fraud’ is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. [Fraud may also include an omission or intentional failure to state material facts, knowledge of which would be necessary to make other statements not misleading.]

    To make a ‘misrepresentation’ simply means to state as a fact something which is false or untrue. [To make a material ‘omission’ is to omit or withhold the statement of a fact, knowledge of which is necessary to make other statements not misleading.]

    Thus, to constitute fraud, a misrepresentation must be false [or an omission must make other statements misleading], and it must be ‘material’ in the sense that it relates to a matter of some importance or significance rather than a minor or trivial detail.

    To constitute fraud, a misrepresentation [or omission] must also relate to an ‘existing fact.’ Ordinarily, a promise to do something in the future does not relate to an existing fact and cannot be the basis of a claim for fraud unless the person who made the promise did so without any present intent to perform it or with a positive intent not to perform it. Similarly, a mere expression of opinion does not relate to an existing fact and cannot be the basis of a claim of fraud unless the person stating the opinion has exclusive or superior knowledge of existing facts which are inconsistent with such opinion.

    To constitute fraud the misrepresentation [or omission] must be made knowingly and intentionally, not as a result of mistake or accident; that is, that the person either knew or should have known of the falsity of the misrepresentation [or the false effect of the omission], or that he made the misrepresentation [or omission] in negligent disregard of its truth or falsity.

    Finally to constitute fraud, the Plaintiff must prove that the Defendant intended for the Plaintiff to rely upon the misrepresentation [and/or omission]; that the Plaintiff did in fact rely upon the misrepresentation [and/or omission]; and that the Plaintiff suffered injury or damage as a result of the fraud.

    In some cases [depending on the specifics of the case and the law] when it is shown that a Defendant made a material misrepresentation [and/or omission] with the intention that the Plaintiff rely upon it, then, under the law, the Plaintiff may rely upon the truth of the representation, even though its falsity could have been discovered had he made an investigation, unless he knows the representation to be false or its falsity is obvious to him.

    In other cases, when it is shown that a Defendant made a material misrepresentation [and/or omission] with the intention that the Plaintiff rely upon it, the Plaintiff must prove that his reliance was justified. If, in the exercise of reasonable care for the protection of his own interests, the Plaintiff could have learned the truth of the matter by making a reasonable inquiry or investigation under the circumstances presented, but failed to do so, then it cannot be said that he ‘justifiably’ relied upon such misrepresentations [and/or omissions].

    For injury or damage to be the result of fraud, it must be shown that, except for the fraud, the injury or damage would not have occurred.

  30. The Ponzi Scheme ended in 2008,
    We lost the Gentleman Agreement with the World Bank in 2010.
    Other countries abandoning the US dollar
    My own community created CU Bucks 5yrs ago

    The Wind Down of the Federal Reserve …

    Wake Up!

  31. Well Louise, I am glad you are in it and I wish you well!!! I love to see solid evidence or lack thereof, but I cringe when I see that tossed by a Judge. Leaving my end comment to;
    THE A MAN.
    That was a good one, got a good chuckle, I did.

  32. When you do the math, you can easily see how the “investors in 30 day commercial paper were overpaid by a multiple that averages 10 times, Problem is the ponzi came to an end in 2008

  33. What is the difference between a Psychopath and a Judge who does not follow due diligence in any case?

    The judge is a licensed psychopath.

    Remember the same judges who do not follow due dilligence in foreclosure cases has no problem sending innocent people to jail.

    just like a serial psycopath.

  34. “Judges are surprised to learn that the foreclosure case in front of them was filed despite the payments actually received by the alleged creditor through third parties.”

    “… insurance payments and other funds from other contracts designed to limit the risk associated with the terms of the bond repayment of interest and principal.”

    “The insurers are mad as hell.”

    “The Judge, who wants more proof of the advances which we are only too happy to provide, instantly recognized that if the trust beneficiaries were receiving their expected payment, then there can be no default on the principal, …”

    Where is the caselaw proving all of the above? Where are the wins? Repeating over and over the same thing and allegedly approaching the court on it should yield a number of public records, such as transcripts of hearing, depositions, rulings based on it, etc. Where are all those records? Can we have one case? just one?

    By the way, insurers are not known to lay low when they are “mad as hell”. Where are the lawsuits filed by insurers against servicers?

  35. Look go purchase a one year CD for $1,000 at 2 percent . I’ll buy it at $998 . Moron what am I earning …. 4 percent. You can’t service the first and surely cannot service the second until the time of the maturity date called recognition

    But MS, your speaking of a bond here formed in a trust by parties who purchased the deed of trust at a future value off a discount

    Dumb stubborn Morons


  37. forget the fraud gibberish
    File you claim to stop abandonment and adverse possession

  38. Court ordered settlement agreement through mediation. I got a very reasonable monthly payment but they put monster fees on top of that so I am underwater. I knew they would breach the contract, because that is what they are in the business of doing. I sent 3 certified letters asking what is going on & they never answered, I sued them for breach of contract, bad faith, etc. I am in it now. They have produced nothing in discovery. My question is: if you are a servicer servicing my loan, do you not have ANY papers applicable to that? How can that be? Also, nothing in the REg. of Deeds filed for change of servicer, nothing in BS MERS either about change of servicer. Homeward Res. merged with Ocwen and now I am suing Ocwen.

  39. ABC Bank made XYZ mortgagee a commercial loan called a warehouse line of credit. XYZ made the household a purported mortgage. XYZ never sold the mortgage whole loan file. ABC bank sold the warehouse line of credit to off shore private placement registration. Doe’s formed LP 123 to purchase the bank’s asset which is the originators liability. The obligation is sold back to the originator under an installment sale contract. The installment sale contract runs contemporaneously with the mortgage.

    This begs the question of dual consideration and a prohibition on taking twice the value of the mortgage up front. The warehouse line has a life span of 180 days while the mortgage runs over 30 years.

    So the quintessential question is how you take a short lived asset and turn it into a 20 year obligation held to a 30 year mortgage.

    Abandonment, adverse possession and condemnation approved by the Department Of Treasury. Its called a Treas. Reg. 1031 Tax deferred exchange.

  40. What are the causes of action in the complaint

    Is it any wonder that in 2008, the N.Y. legislature redefined what it meant to assert a “claim of right” by adverse possession? Now, a member bank seeking to acquire title by adverse possession had to have a reasonable basis to believe that the property (already) belonged to him or her. It was this potentially confusing amendment that took up much of the discussion in Hogan.

    The banks are foreclosing by adverse possession under a household abandonment claim. Attorneys for the title claim are pursuing a claim for adverse possession. However, they must assert they are acting under a “claim of right,” essentially a claim of ownership. This requirement does not seem significant , especially considering the statutory changes that emerged in the case of Hogan v. Kelly, 927 N.Y.S.2d 157 (App. Div. 2011).

    By operations of law, adverse possession claimant did not need believe that she had somehow acquired actual title to the disputed property or that a title search would show the land to be owned by her rather than by another.

    Therefore, where a claimant has actual knowledge of another party’s ownership ,he may still be allowed to assert a “claim of right.”

    According to National research institute senior attorney, to claim the disputed land as the banks is far more liberal as of 2008 that coincides with the October TARP charge off.

    It is this sense of the “claim of right” that persisted in New York jurisprudence for decades following the state legislature’s codification of the elements of adverse possession in section 501 of the Real Property Actions and Proceedings Law. See id. at 159.

  41. I am also looking for a link to a list of “mortgage servicers” that are known provable junk debt buyers ,, those that bought from Maiden Lane I or II or any other source..


  42. Does anyone have some good links to a list of:

    The trust names paid off by AIG in 2008
    The trust names gifted to Bank of America by the FDIC


  43. Court ordered settlement agreement? Wow, how did that pan out? Was it a take it or leave it kind of thing? Judge not wanting to rule on either party or what?

  44. KC—The term is actually Uh Oh…not Ut Oh…sorry, couldn’t help myself.

  45. justme, unfortunately if you have Ocwen Ln Servicing, they do not answer letters of any kind. I speak from experience, and they breached my contract with the previous servicer who they merged with, Homeward Res. They told me that only a gov’t loan mod is acceptable. I have a court ordered settlement agreement.

  46. FRIENDS – more than not, the ones just entering this mess….This is for youz ~ QWR’S:
    Section 1024.36—Requests for Information
    36(a) Information request
    2. Owner or assignee of a mortgage loan. A servicer complies with § 1024.36(d) by
    responding to an information request for the owner or assignee of a mortgage loan by identifying
    the person on whose behalf the servicer receives payments from the borrower. Although
    investors or guarantors, including among others the Federal National Mortgage Association, the
    Federal Home Loan Mortgage Corporation, or the Government National Mortgage Association,
    may be exposed to risks related to the mortgage loans held by a trust either in connection with an
    investment in securities issued by the trust or the issuance of a guaranty agreement to the trust,
    such investors or guarantors are not the owners or assignees of the mortgage loans solely as a
    result of their roles as such. In certain circumstances, however, a party such as a guarantor may
    assume multiple roles for a securitization transaction. For example, the Federal National
    Mortgage Association may act as trustee, master servicer, and guarantor in connection with a
    securitization transaction in which a trust owns a mortgage loan subject to a request. In this
    example, because the Federal National Mortgage Association is the trustee of the trust that owns
    the mortgage loan, a servicer complies with § 1024.36(d) by responding to a borrower’s request
    for information regarding the owner or assignee of the mortgage loan by providing the name of
    the trust, and the name, address, and appropriate contact information for the Federal National 14

    Mortgage Association as the trustee. The following examples identify the owner or assignee for
    different forms of mortgage loan ownership:
    i. A servicer services a mortgage loan that is owned by the servicer, or an affiliate of the
    servicer, in portfolio. The servicer therefore receives the borrower’s payments on behalf of itself
    or its affiliate. A servicer complies with § 1024.36(d) by responding to a borrower’s request for
    information regarding the owner or assignee of the mortgage loan with the name, address, and
    appropriate contact information for the servicer or the affiliate, as applicable.
    ii. A servicer services a mortgage loan that has been securitized. In general, in a
    securitization transaction, a special purpose vehicle, such as a trust, is the owner or assignee of a
    mortgage loan. Thus, the servicer receives the borrower’s payments on behalf of the trust. If a
    securitization transaction is structured such that a trust is the owner or assignee of a mortgage
    loan and the trust is administered by an appointed trustee, a servicer complies with § 1024.36(d)
    by responding to a borrower’s request for information regarding the owner or assignee of the
    mortgage loan by providing the borrower with the name of the trust and the name, address, and
    appropriate contract information for the trustee. Assume, for example, a mortgage loan is owned
    by Mortgage Loan Trust, Series ABC-1, for which XYZ Trust Company is the trustee. The
    servicer complies with § 1024.36(d) by responding to a borrower’s request for information
    regarding the owner or assignee of the mortgage loan by identifying the owner as Mortgage Loan
    Trust, Series ABC-1, and providing the name, address, and appropriate contact information for
    XYZ Trust Company as the trustee.

  47. Louise, Start with Intent to Commit Fraud.

  48. Good article with some good points but how does one prove these contentions? What are the causes of action in the complaint?

  49. Excellent!

    In other words, the lender has agreed to one set of terms that were never disclosed to the borrower in violation of the truth in lending act, and the borrower has agreed to an entirely different deal — which means that there is no “meeting of the minds.” Both the lender and borrower wanted a completed contract that would be enforceable and where title was clear, but neither of them got it.

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