According to TILA, Reg Z and the US Supreme Court (Jesinowski decision) the rescission IS effective (by operation of law) the moment it is put in US Mail. The borrower does not have to be right to send it. THAT issue is left to the banks and servicers to allege in a lawsuit to vacate the rescission. And they must do so within 20 days. All issues that are confusing everyone — statute of limitations, purchase money first mortgage, etc. are questions of fact that need to be raised by the other side. They cannot do so after 20 days. We would move to strike those defenses when raised in our lawsuit to enforce rescission.
There are dozens of lawyers across the country that agree with my interpretation of the TILA rescission statutes and who are filing these rescission enforcement actions. In some cases, Ocwen has agreed that the rescission is effective and even agreed that the original payee was not the lender. That is an interesting juxtaposition of theories. Because if there was no funding by the payee on the note (“lender”) then there is no loan contract. If there is no loan contract, there is nothing to rescind. But the rescission under TILA might still apply as to the note and mortgage and the right to obtain disgorgement of money paid by borrower might be partially blocked by the standard statute of limitations governing contract disputes or the statute regarding tort actions.
It sounds weird, I know. But the fact is that Congress specifically decided that the act of the borrower in sending a notice of rescission cancels the loan and Reg Z (Federal Reserve) says that by operation of law that means the note and mortgage become void as of the date of mailing of the notice of rescission. Void means void, not voidable. It means that the the note and mortgage no longer exist and that is final. So even if the “lender” tries to bring a lawsuit to set aside the rescission they would need to establish standing presumably without the note and mortgage which can no longer be used because they are void. Standing could only be established by alleging that the pleading party is suffering actual damages — which is not really possible if they never paid anything for the loan and even if they did, is also not possible since they still could bring a claim against the borrower (unsecured) for the money that is due as the balance of the loan.
Congress specifically provided this method so that the old “lender” could not block the ability of the borrower to get another loan from a different (and presumably real) lender which would have first priority and would enable the borrower to either pay the old lender or not (if the old lender had not complied with TILA as to its duties in the event of rescission).
It was the specific intent to prevent the old “lender” from stonewalling and thus trap the borrower into a deal he or she didn’t want. And THAT is why the rule is that the note and mortgage are VOID by operation of law regardless of whether or not the “lender” returns the cancels note, satisfies the mortgage or pays the money to disgorge all funds paid by borrower starting with the origination fees, cost of closing and all interest and principal paid up to the date of the rescission.
NOTE: THE RESCISSION IS PROBABLY VOID IF THERE IS NO LOAN CONTRACT LEFT IN EXISTENCE WHEN THE NOTICE IS SENT. IF THERE IS NO CONTRACT THEN THERE IS NOTHING TO RESCIND. THUS I CONCLUDE THAT IF THE SALE HAS OCCURRED, THE NOTE AND MORTGAGE DON’T EXIST ANYMORE AND RESCISSION MIGHT NOT BE POSSIBLE. IF JUDGMENT HAS BEEN ENTERED, THE ISSUE IS LESS CLEAR BECAUSE THE RIGHT TO REDEEM STILL EXISTS.
NOTE: THIS IS NOT A LEGAL OPINION ON ANY SPECIFIC CASE. READERS SHOULD CONSULT WITH A QUALIFIED ATTORNEY WHO IS LICENSED IN THEIR JURISDICTION.
Filed under: foreclosure | Tagged: 20 day window, ENFORCEMENT OF RESCISSION, Jesinowski, Reg Z, rescission, TILA |
DB: “SIGN BY MERS AS AGENT FOR DEFUNK GMAC MORTGAGE CORP. ….”
That’s a legal conclusion and one imo not supported by the assignment (or the dot). “Mers” (read servicer employee) does not sign as anyone’s agent nor does it identify itself as an agent. Even if mers were an agent, first of all, agents may not convey the interests of their principals. Only the principal’s att in fact (by way of power of attorney) may do that, and the relationship of one signing for another must be identified at the signature.
Mers identifies itself as the nominee for gmac, which it was. It was the ben in that capacity – aka thee ben. Mers (arg) executes assignments “in its own right”, not in any representative capacity, i.e., as att in fact.
If anyone signs for anyone else as to the anyone else’s interest, at the signature it MUST read something like this:
“abc corporation , attorney in fact for xyz corporation
by Joe Brown, its vice president (VP of abc).
The assignment, in the body, will read that it’s being assigned by XYZ (period). All that stuff about nominee for so and so is distracting because it means nothing. It neither adds nor detracts from mers’ status as ben. In the dot, it’s mol informative to the borrower. Mers IS the nominee-ben for so and so: mers is thee ben as evidenced by the manner in which the assgt is signed. At least that’s the way I see this.
I concede there are a couple things about this (business law) that I don’t know: 1) may a corporation v an individual be apptd a poa? (probably) 2) I’ll keep to myself til I know the answer.
It may be worthwhile to note that as thee ben, mers’ position as thee ben survives the disolution of a gmac, and accordingly, there is no risk of not being able to convey the interest in the collateral agreement by any company’s disolution or bk – no doubt part of their reasoning in this rico-like set up.
**But the shorter argument might be what you say because agency dies with the principal or its bankruptcy as a matter of law.**
I don’t know why NG doesn’t address this stuff. Originally, the dot named the lender as the ben. As I’ve said, they got really stupid or for reasons unknown, decided to skip the orig assgt to ‘mers’, resulting in original bifurcation of the note and dot. Had they stayed the course on the orig assgt to mers, it’s poss there could be reunification for enforcement under that Restatement tenet, but I’m still hard pressed to see how there can be REunifictiton with original split.
lay opinions
YOU STATED THIS,
iwantmynpv, on June 9, 2015 at 11:31 am said:
@ david, the assignment argument is old and tired. Even Judges in judicial states could care less about the mortgage – it is the note that is relevant, and there is a ton of case law already established that has ruled that the mortgagee is not a party to the PSA, and thus has no right to challenge the assignment of mortgage – at any time at all.
The promissory notes also were not conveyed to the trustee or custodian – have to make your case in that window only…
I AGREE, AND THE REASON IS THIS,. I DO HAVE THE ONLY TRUE COPY OF THE ORIGINAL NOTE, SIGN IN 2005. FROM CLOSING ATTORNEY,PLUS FULL CLOSING DOC.
IN THE CLOSING DOCS HE FORGOT TO GET RID OF THE WIRE TRANSFER DOC SHOWING THE TRUE FUNDER ON REFI, NOT ANYONE ON PAPERWORK.
IT ALSO HAD A NOTE ,MY NOTE, SIGN OVER THE SAME DAY, WE SIGN NOTE. SIGN WITHOUT RECOURSE TO THIS BANK THAT FUNDED THE REFI LOAN. AGAIN , NOT ON ANY PAPERWORK.
NOTE WAS SIGN/DATED 8 NOV 2005, PAYED TO THE ORDER TO DAUSHER BANK AND TRUST, AMERICA NY
WITHOUT RESCOURSE
GMAC MOTGAGE CORP,
THIS IS NOT A STAMP, IT IS SIGN WITH SIGNATURE, AND DATED.
FIRST QTESTION, WHO OWN THE NOTE, AS OF CLOSING?
2/ WHO SHOULD BE ON RECORDS AT REGISTRY OF DEEDS AS MORTGAGE HOLDER ?
3/ THE ONLY RECORDED ASSIGNMENT ON RECORD IS FROM
MERS TO TRUST IN 2012. SIGN BY MERS AS AGENT FOR DEFUNK GMAC MORTGAGE CORP. AND BY THE WAY GMAC MORTGAGE CORP, WAS NO LONGER IN BUSINESS , AS A CORPORTION AS OF 2006. SO THE DEAD CORP CAME ALIVE IN 2012 , GAVE MERS THE ATHUORITY TO SIGN THAT ASSIGNMENT IN 2012. OK. AM THE EASTER BUNNY.
NOW THROUGH MANY QWR’S I HAVE ASK FOR OVER THE 5 YRS OF INVESTIGATION, THEY HAVE SENT ME MANY COPYS OF THE NOTE, SOME WITH NO STAMP, NOTHING ON IT, AND I HAVE SOME WITH , A STAMP ON IT SIGN OVER IN BLANK, AGAIN A STAMP, AND NOT DATED.
SO HOW IS A JUDGE GOING TO SEE THIS MESS. TO MANY MORTGAGE NOTES OUT THERE, WHEN THERE WAS ONLY TO BE ONE MORTGAGE NOTE.
THE CLOSING DOC INSTRUTION TELLS CLOSING ATTORNEY TO HAVE 3 CERTIFIED NOTES AND MORTGAGE , ON TOP OF ORIGNIAL NOTE, NOW THERE ARE 4 NOTES FLOATING AROUND SOMEWHERE. RIGHT. AND I HAVE THE COPY OF THE FIRST ONE SIGN OVER WITHOUT RECOURSE TO THE TRUE FUNDER OF THE LOAN. AND IT IS DATED AND SIGN,. NO STAMP.
db’s quote: “PSAs generally state that any transfer after the closing date of the trust is invalid.”
Good thing – that is, if a third party man interject that provision contained in someone else’s contract in his own defense.
“Invalid”? ” not valid: a : being without foundation or force in fact, truth, or law “.
Is this a synonym for ‘void’? If it is, then the trustee can’t accept a late assignment because it’s contractually void (as well as by trust law), so there’s nothing to accept. And this becomes another reason the trust bens couldn’t ratify the trustee’s act of acceptance (the bens, again, can’t ratify an act they couldn’t do themselves, i.e., accept a late assignment – so says the law re: ratification: If I’m Tom’s agent, say, if Tom himself cannot do a thing, he can’t ratify my act as his agent. I can’t do it and he can’t do it for me.
So, for me, the question is: what’s to be done for it? Just say the psa identified carrie’s loan as one being included in the psa and the trust paid for it in accordance with the agreement, but the loan was never delivered by the cut-off date and can’t now accept it. WHO may enforce that loan??
*The default law UCC says a negotiated note may be enforced.
*The note itself says to enforce, it takes transfer and the party must have the right to payments.
*Trust law prohibits late acceptance of loans.
*MERS, thee ben, has maintained its position as thee ben for years, so clearly, there’s been no assignment of the coll instrument.
*The note is the corpus of the deal, but some states prohibit enforcement of the note alone and any attempt at enforcement may if not will cause the obligee to lose his security (“security first”). The banksters, of course, know this, so they want the collateral.
Disregarding momentarily that the transferee is a remic, the note will rule since the UCC is only used to resolves ambiguities in agreements. (Imo there’s no ambiguity in the note about enforcement rights and the assurance made to the borrower.)
If we weren’t dealing with law designed, as NG points out, to allow for preferential tax treatment of specifically, mandatorily passive entities,
a court of equity could find in favor of a party who had paid for a loan and not received it. Among other things, a court would rely on the payment made for the loan and that the payments made and accepted by the loan-buyer evidence the parties intention of a purchase and sale, altho not wholly consumated by delivery.
But that’s not what we’ve got here. We’ve got a party who has been accepting payments on loans paid for but not received and who cannot now receive the loans themselves. Isn’t that what we’ve got?
But, wait. If the psa were a purchase and sale of loans, IS receipt of the documents evidencing the loans actually necessary? Would introduction of the psa stand as evidence of the sale of the loans (to the extent the loans were identified with requisite specificity?) The psa could if not does evidence a bulk sale (where arguments would be resolved by UCC 9, yes?).
Even if that were true, however, imo since MERS is thee ben by design
(for God knows why all), the trusts yet don’t have the collateral instruments**, nor is there a proper chain for them if they go right from mers to the trusts. Whatever mers is or isn’t in relation to its members is found in the merscorp’ agreement with its members, if anywhere. It’s not found in the dot (if mers is an agent, the agency is yet not created in and by the dot. A successor or assign would be compelled to accept that mers is the ben until assignment because it is (unless you believe Erickson and Washington’s point of view which I’m on), but you can’t write up a doc which makes mers, or anyone, anyone else’s agent….A and B may not establish an agency between B and C).
The dot says the lender has nominated mers as its ben. The ‘solely as nominee’ is superfluous fluff. The dot goes on to say mers may do this and that. Well, to the extent a ben may do this or that without benefit of the note, mers may, I suppose (trouble is, “Mers” doesn’t – its members do, in its name, at will) But also imo, this is where they really blew it – when they got really stupid and made mers the original ben or mtgee instead of doing an assignment to mers, as they first did. The borrower has an agreement with two separate and distinct corporations / entities regarding one issue, the loan on her home and ALWAYS has. (I don’t believe an asset-less, employee-less shell corporation is a proper ben / nominee / agent / bottle washer / nominee / agent / ben / or nuthin’ in the first place, of course,and I sure as hey think their rico-esque m.o. is a load of crapinski.) But at any rate, they’ve willfully or otherwise bifurcated the note and dot.
I fail to see how ‘REunification’ is possible when there were no unification to begin with.
By way of example, I have an acquaintance whose family just ganged up on her to take custody of her kid. In order to do this, they had to solicit the aid of his biological father who had never spent ANY time with him – NONE. They pretended to the court that the father and son were going to be REunified by their proposed custodial / parenting plan, as if father and son had had a relationship which had been abated. Not knowing he was more or less being duped himself re: the family’s intentions, he played along (fraud on the court imo) as if he had had a relationship with the boy, when in fact, he had had zero. The court, whose job it is to determine the best interests of the child, thought it was mandating reunification when it fact, it was mandating an entirely new relationship. The father wrongfully avoided all inquiry about why he had had no relationship with his son to date. (The pro se mom didn’t understand the ruse which was being played out.)
You can’t REunify something never unified to begin with and imo, so it is with these notes and coll instruments. But courts probably aren’t going there.
Courts don’t want unenforceable mortgage loans and we’ve seen they’re not going to so adjudicate, at least not without some more and maybe diff arguing. Is there a proper ‘fix’ (if we disregarded the orig bifurcation – for me all but impossible)? Could the psa be introduced to establish at least the sale of the notes to the trusts? If so, why don’t they do it, why aren’t they making that argument, or is it just a matter of time, like now purporting to assign the loans to the trusts whereas they didn’t dare before? I don’t know if I’ve said siccum, but it took me awhile to just try to frame, so i’m hitting send.
Yikes… I would correct or recant part of that statement.
Mortgagee?
@ david, the assignment argument is old and tired. Even Judges in judicial states could care less about the mortgage – it is the note that is relevant, and there is a ton of case law already established that has ruled that the mortgagee is not a party to the PSA, and thus has no right to challenge the assignment of mortgage – at any time at all.
The promissory notes also were not conveyed to the trustee or custodian – have to make your case in that window only…
E-Trolle. … You failed again. It seems to be a bad habit for you.
Perhaps its your attitude?
Try Title Abstract.
“Any guesses why I tout about unmarketable titles?”
I’ll take a shot….
Because you’re a blithering idiot?
ASSIGNMENT of Mortgage good to KNOW!!
A new report by Oppenheim Law reveals “the Black Magic of Securitized Trusts”. The largest key to REMICs is that they are required to be passive
vehicles, meaning that mortgages cannot be transferred in and out of the trust once the closing date has occurred, unless the trust can meet very limited exceptions under the Internal Revenue Code. I.R.C. §860G. The 90 day requirement is imposed by the I.R.C. to ensure that the trust remains a static entity. However, since the mortgage-backed securities trust controlling documents, the Pooling & Servicing Agreement (PSA), requires that the trustee and servicer not do anything to jeopardize the tax-exempt status; PSAs generally state that any transfer after the closing date of the trust is invalid.
What does that mean to the average homeowner in foreclosure? Check the recordation office and look for the “Assignment of Mortgage” on your property – generally found just before the Notice of Foreclosure is filed with the State if your loan was securitized. Looking through hundreds of these beauties there have been few, if any, that were timely assigned to the trusts. How can you quickly tell if the Assignment of Mortgage has failed to make it timely to the trust?
The Assignment of Mortgage [below] shows a 2006 Trust – and a fraudulent assignment in 2009 – 3 years AFTER the Trust had CLOSED! Not only was it too late – but the Trust could not accept it pursuant to the REMIC of RFMSI 2006SA4 PSA and as further defined in the Oppenheim Law report. Assignments of Mortgage are public documents.
What was not known until very recently, in fact Delaware Attorney General Beau Biden brought it out in his case Delaware v. MERS, lenders generally failed to follow the PSA and properly assign the mortgage loans to the Trusts. In the transcripts that AG Biden cited from In re Kemp, 440 B.R. 624, 626 (Bankr. D.N.J. 2010) (No. 08-18700) (Aug. 11, 2009), an employee for Bank of America responsible for servicing the securitized Countrywide mortgage loans testified under oath that Countrywide did not have a practice of delivering original documents such as the note to the Trust and was not in the habit of endorsing notes at the bottom, but favored allonges that they made as they went along. She further testified that allonges are typically prepared in anticipation of foreclosure litigation, rather than at the time the mortgage loans are purportedly securitized. Both of these facts are contrary to the requirements of the PSA that the note be endorsed in blank and delivered to the trustee at the time of securitization. Thanks to foreclosure defense attorney, Bruce H. Levitt, of South Orange, NJ – Bankruptcy Chief Judge JUDITH H. WIZMUR totally got it! See her Opinion here.
Law Professor Adam Levitin, Georgetown University, describes the conflict the following way in the Oppenheim Law report:
ADAM, thank you SOOOO much for your POSTING! HUD are you watching . .
BRING IT….. I am Soooooo READY….BRING IT!!
Oh..and my Favorite….
You can’t convey something you don’t have.
Any guesses why I tout about unmarketable titles?
Sec B exclusions for 2ndary market loans?
Missing unrecorded docs required by state law?
JG… That guy sounds alto like my estate attorney…. Almost word for word. Nice Catch!
Starts at page 78
db@2:50, fwiw, here’s a better link to the material you cited re: securitization
Advanced Standing Issues in Securitized Mortgage Foreclosure
By Charles H. Wallshein
http://www.nysba.org/workarea/DownloadAsset.aspx?id=24193
DwightNJ ,
I agree with the planned July 4th festivities ,, but I want this guy (incredible talent) to sing the anthem…..
You gave them the power over you and they abused it …..
TAKE IT BACK
I on the other hand did not give anyone any authority except to file the Warranty Deeds and allow a Mortgage Lien on our Property.
I got Snookered!
There are only two ways to control the Turkey population.
Roasted and Fried.
I Like Chicken! 🙈
Any reasonable person who wants to terminate a contract and conclude business with the other party……because the party servicing their loan are Criminals!….. Would demand proof of the Original Creditor and the amount due.
That should freeze them in their Tracks
Standoff with a Party with No Standing
You can bet the Piggy Bank if you Bite 1st..I Bite Last!
Some people learn slow…. Right Louise?
If I may say, I wish whomever was linking good stuff from other blogs would take it up again. Some geek here gave this person some smack, but I appreciated it, so I’d say others did, too. (If you do, please remember to only do one link per comment since LL won’t let us post multiple links – and I’m thankful we can do that.) Saves a lot of time to hit a link when we’re interested in the material and not to have to go see if we are.
Sc, I don’t know. It’s an absurd proposition to me that one needn’t know the name of one’s creditor. Maybe I don’t wanna owe that guy any money and would rather refinance than pay HIM or be involved with his and his buds’ bs business practices. And as I’ve said, we are denied any meaningful opportunity to mediate with any real creditor. Alleged servicers tell us this is their domain, but we really have no way to ascertain they have authority to mediate, mitigate, or do jack since they only say so (not to mention untold conflicts of interest).
I just found that this was addressed in Nosek. The court simply said one should know his creditor and courts and borrowers shouldn’t have to go on a hunt to know the identity.
It doesn’t have much precedential value, but here’s what I found:
“It is the creditor’s responsibility to keep a borrower and the Court informed as to who owns the note and mortgage and is servicing the loan, not the borrower’s or the Court’s responsibility to ferret out the truth…
It is worth repeating as a warning to lenders and servicers that the rules of this Court apply to them. Their private agreements and the frenzied trading market for mortgages do not excuse compliance with ….Rules any more than they would justify ignoring the .Bankruptcy Code.”
(In re: Nosek, 406 B.R. 434, 440 (D.Mass 2009) bankruptcy trial court decision)
Well, precedential or not, it’s logical, ethical, and right.
(I came across this in another deal today, but have Nosek somewhere from way back when. WF and FNMA both got fined majorly for not telling the truth about who owned the loan.) Even if not precedential, it should be persuasive: NO one should be in an alleged contract with an unknown party, even by assignment.
re: the tila case I just posted:
“[fn**] This disposition is not appropriate for publication and is not
precedent
except as provided by 9th Cir. R. 36-3.”
JG, what about when the Creditor changes?
“2. The district court did not separately consider plaintiffs’ other TILA
damages claims, which are predicated on separate TILA violations alleged to have occurred in February 2009 — namely, that Country-wide failed to respond to plaintiffs’ rescission notice — and so were timely filed. We reinstate plaintiffs’ TILA damages claims on this theory of liability and remand to the district court for further proceedings.”
MERRITT v. COUNTRYWIDE FINANCIAL CORP., 583 Fed.Appx. 662 (9th Cir. 7-16-2014)
No. 09-17678.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 9, 2012.
Filed July 16, 2014.
This decision is UNpublished.
” Loan Transferred to New Servicer. Your loan servicer is required to notify you in writing at least 15 days BEFORE the servicing of your loan is transferred to a new servicer. The notice must include the following information:
The effective date of the transfer, the date your current servicer will stop accepting payments and the date the new servicer will begin accepting them.
The name, address, and toll-free or collect call telephone number for the new servicer.
Information that tells whether you can continue any optional insurance, such as mortgage life or disability insurance, and what action, if any, you must take to maintain coverage.
A statement that the transfer of servicing does not affect any term or condition of your mortgage documents other than the terms directly related to the servicing of the loan.
Treatment of Payments During Transfer Period. During the 60-day period beginning on the effective date of the transfer, the payment may not be treated as late if you mistakenly send it to the old mortgage servicer instead of the new one.”
http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/rmra/res/rightsmtgesrvcr
I know.. Right Louise?
Hey..Just in case you had not noticed, you have new competition for the Spell Checker position.
“GRINS”
DwightNJ, the posters you named have all been banned from this blog several times except Rock, but I have not seen him post for quite sometime.
david belanger – I would appreciate it if you would contact me asap – tke1232@gmail.com or 407-497-4690. It’s regarding a mutual friend and it’s important.
Thank you.
The banksters are not the only Turkeys on the loose.
DWIN,NJ
AM ALL IN
Oops alright.
Just another one of their numerous mistakes.
Them Turkeys!
Dwight… You should check on your state laws regarding redemption.
And Lay Off the Kool-Aid. …
Did Shadowcat get banned from posting on Bob Hurts board? … Is it true that Rock & Christine have filed numerous complaints about Shadowcat for not attacking the mortgage properly? . …. Meanwhile back at the Supreme Court, homeowners are celebrating the big rescission ruling and have invited the unanimous Supreme Court Justices to all join us for a 4th of July barbeque …Justice Scalia will sing God Bless America and Charles Reed will light the barbeque pit fire with a pile of worthless mortgage notes left over from Washington Mutuals fiasco … David Belanger will sing and tap dance while performing Happy Days Are Here Again …. The fireworks display will spell the word “TILA RESCISSION 20 DAYS” across the sky
Justice Scalia will close the ceremony by dancing an Irish jig on top of a pile of old caselaw that got it wrong …stomping on the cases as the crowd gives a standing ovation … He will be joined by a unanimous Supreme Court and present Neil Garfield with the Citizen of the Year award for all of his hard work in helping to uncover the lies and in helping to reveal the truth about everything .. We The Unanimous Supreme Court do hereby name and honor Neil Garfield as America’s Rescission Citizen of the Year !!! If Bob, Rock, Christine, Shadowcat don’t agree with the award , they have 20 days to hold their breath and stomp their feet about it.
David, Charlie is a hack… doesn’t know his ass from his elbow. i know this from personal knowledge.
DID ONE SQUEAK OUT, BEFORE YOU KNEW IT, WAS COMING.
JUST JOKING, LOVE YOUR STUFF.
OK NEIL, I’LL BITE.
WHAT WAS , OOPS STAND FOR.
NoT, likely he could pay the income taxes on written of debt either.
ANYONE GETTING A 1099 FOR DEBT CHARGE OFF, ITS SIMPLE PEOPLE, THE IRS SAY ANYONE CAN FILE FOR INSOLVENCY, I DID IT ON 2 1099 ON SHORTS SALES TOTALING OVER 250,000 DOLLARS. SO EVERYONE DON’T GET WORRY ABOUT IT. IT DID NOT COST ME A DIME IN ANY TAX. FEDERAL OR STATE, IT EVEN HELPED ME WITH GETTING MORE IN TAXES EACH YR. FUNNY HOW THE SYSTEM WORKS
oops
What pissed me off the most as a non borrower was it was reported publically that I had a Mortgage Loan in my name equal to the value of my husbands note plus the cost of the loan…. Total of all payments..P&I.
Pissed me off!!!!
Your Trust
You deposited your assets
Your Life Estate with a value a heck of a lot more than any note.
Its about Bankrupting the Estate to cover up their ill Gotten
gains.
LOUISE,
I AGREE , AND I KNEW THIS, BECAUSE I DO HAVE IN MY PROCESSION, THE COPY OF THE SIGN MORTGAGE NOTE , I SIGNED AT CLOSING. AND THIS IS A TRUE COPY FROM CLOSING ATTORNEYS OFFICE.
BUT WHAT WAS ON IT , SAYS IT ALL. THE NOTE WAS SIGN OVER TO THE WAREHOUSE LENDER ON SAME DAY AS I SIGN THE MORTGAGE AND NOTE.
IT IS SIGN AND DATED TO SAME DAY…
THIS IS NOT A STAMP SIGNATURE,. IT IS A REAL SIGNATURE, AND DATED AND SIGNED OVER TO THEM BY PRETENDER LENDER, GMAC MORTGAGE CORP.
SIGNED AND DATED WITHOUT RECOURSE.
AND I HAVE THE COPY OF THE WIRE TRANSFER FROM THEM TO CLOSING ATTORNEY, FOR THE REFI LOAN. THEM MEANING WAREHOUSE LENDER.
PLUS WHAT PEOPLE DONT KNOW IS THAT GMAC MORTGAGE CORP, IS NOT THE SAME AS GMACM MORTGAGE TRUST, AND ON BOTTOM OF MY MORTGAGE DOC’S. ,. GMACM IS ALL OVER IT. MEANING IT WAS SOLD TO A TRUST BEFORE WE SIGN IT.
NYSBA NY Business Law Journal | Summer 2012 | Vol. 16 | No. 1
EVERY ONE , PLEASE PUT THE ABOVE REF. IN GOOGLE, AND GET FULL THE FULL JOURNAL,. AND READ THE , ADVANCE STANDING ISSUES IN SECURITIZED MORTGAGE FORECLOSURE,
BY ATTORNEY CHARLES WALLSHEIN..
Endnotes 1. Residential Mortgage Backed Securities.
2. RMBS are securities that were sold in the Over-the-Counter “OTC” stock market as “Pink Slips.”
Charles Wallshein is an attorney admitted in the State of New York. Mr. Wallshein acts as outside counsel to small and mid-cap community and thrift institutions in reviewing loan portfolios with reference to regulatory issues affecting loan valuation. He is a partner of Asset Quality Solutions, a banking consulting and information technologies fi rm that focuses on asset valuation methodologies, policies and procedures governing management information systems. He is a member of the Nassau County and New York State Bar Associations.
I know 2 people who made settlements this month.
What did your BS recession claim get you Dwight?
Oh Right…A Judgment against you.
Personally I prefer to get the Judgments against them.
I am Experienced @ that!!
NYSBA NY Business Law Journal | Summer 2012 | Vol. 16 | No. 1
Charles Wallshein is an attorney admitted in the State of New York. Mr. Wallshein acts as outside counsel to small and mid-cap community and thrift institutions in reviewing loan portfolios with reference to regulatory issues affecting loan valuation. He is a partner of Asset Quality Solutions, a banking consulting and information technologies fi rm that focuses on asset valuation methodologies, policies and procedures governing management information systems. He is a member of the Nassau County and New York State Bar Associations.
And Dwight is a Kool-Aid drinker who wants everything in exchange for nothing.
He didn’t hire lawyer aand he didn’t pay the real estate taxes.
No likely he could pay the income taxes on written of debt either.
I bet he didn’t have a retirement plan either.
Oh Well…I’ve accepted the fact you can’t save those who aren’t willing to step up to the plate and take care of business.
Actions Speak Louder than Words.
Shadow cat is incapable of posting complete thoughts using sentences and paragraphs. Her posts are apparently little add-ons to things she has talked about in years past. lol
The next question to David B., whose money did they loan? I have talked with someone who worked in the industry (loans/mortgages) at Morgan Stanley. They said there were agreements signed and executed BEFORE any loans were made between lenders and bank that made it okay to lend money under warehouse lenders. My point here is that the warehouse lenders were not in the contract, i.e., note and mortgage. He is saying it is okay because of these assumption agreements, and IMHO the agreements violate contract law and do not allow the actual representation of the transaction. Also, IMHO, fraud and not full disclosure under RESPA/TILA.
Take a Bite Out of Crime.. Attack the Contract and recession will not be an issue.
Contract Law 101
In real life if you steal from me..you have 2 choices.
You return what you stole in good marketable condition or pay the damages. Or if you can’t return it…You owe me Value plus interest from the day of closing.
Trust Fail……
Assets returned to depositors.
Did you State Your Claim? Or did the assets escheat?
Taxes my Friends…..
Real Estate and Income
Bites!
You can’t transfer or convey or delegate rights you don’t have.
Imagine being sued because you did just that.
I want those trust agreements and Warranty Deeds!
My Cookie Jars!
Relationship of Bailor and Bailee…..
Not Creditor and Debtor
I Love Lis Pollock!
The assets deposited into trust remain the asset of the depositors.
Settler..Depositor..Grantorr..Trustor
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Who’s Money Did They Loan?
nesaranews.blogspot.com | May 28, 2015
Please read these cases, then open the gif for Title 62 Revised Statutes Chapter 4. Read section 37 real close and ask yourself, Who’s money did they loan?
A national bank cannot lend its credit or become the guarantor of the obligation of another unless it owns or has an interest in the obligation guaranteed especially where it receives no benefits therefrom. Citizens’ Nat. Bank of Cameron v. Good Roads Gravel Co., Tex.Civ.App.1921, 236 S.W. 153, dismissed w.o.j.
A national bank has no power to guarantee the performance of a contract made for the sole benefit of another. First Nat. Bank v. Crespi & Co., Tex.Civ.App.1920, 217 S.W. 705, dismissed w.o.j.
National banks have no power to negotiate loans for others. Pollock v. Lumbermen’s Nat. Bank of Portland , Or.1917, 168 P. 616, 86 Or. 324.
A national bank cannot act as broker in lending its depositors’ money to third persons. Byron v. First Nat. Bank of Roseburg , Or.1915, 146 P. 516, 75 Or. 296.
A national bank is not authorized to act as a broker in loaning the money of others. Grow v. Cockrill, Ark.1897, 39 S.W. 60, 63 Ark. 418. See, also, Keyser v. Hitz, D ist.Col.1883, 2 Mackey, 513.
Officers of national bank in handling its funds are acting in a fiduciary capacity, and cannot make loans and furnish money contrary to law or in such improvident manner as to imperil its funds. First Nat. Bank v. Humphreys, Okla.1917, 168 P. 410, 66 Okla. 186.
Representations made by bank president to proposed surety as to borrower’s assets, in connection with proposed loan by bank, held binding on bank. Young v. Goetting, C.C.A.5 ( Tex. ) 1926, 16 F.2d 248.
Bank is liable for its vice president’s participation in scheme to defraud depositor by facilitating prompt withdrawal of his money. National City Bank v. Carter, C.C.A.6 ( Tenn. ) 1926, 14 F.2d 940.
A national bank receiving the proceeds of a customer’s note and mortgage with authority to pay out the same upon a first mortgage lien upon real estate is acting intra vires and liable for breach of its duty. Brandenburg v. First Nat. Bank of Casselton, N. D .1921, 183 N.W. 643, 48 N. D . 176.
It has been held that the right to discount and negotiate notes, etc., goes no further than to authorize the taking of them in return for a loan of money made on the strength of the promises contained in them, and does not contemplate a purchase in the market. Lazear v. National Union Bank, Md.1879, 52 Md. 78, 36 Am.Rep. 355. See, also, Rochester First Nat. Bank v. Pierson, 1877, 24 Minn. 140, 31 Am.Rep. 341.
National bank is not authorized under national banking laws to lend deposited money on depositor’s behalf. Carr v. Weiser State Bank of Weiser, Idaho 1937, 66 P.2d 1116, 57 Idaho 599.
Under this section, a national bank had no authority to enter into a contract for loaning money of a depositor kept in a deposit account through its cashier authorized by the depositor to draw thereon to make loans. Holmes v. Uvalde Nat. Bank, Tex.Civ.App.1920, 222 S.W. 640, error refused.
A bank has no right to loan the money of other persons. Grow v. Cockrill, Ark.1897, 39 S.W. 60, 63 Ark. 418.
A “deposit for a specified purpose” is one in the making of which a trust fund is constituted with respect to which a special duty as to its application is assumed by the bank. Cooper v. National Bank of Savannah , Ga.App.1917, 94 S.E. 611, 21 Ga.App. 356, certiorari granted 38 S.Ct. 423, 246 U.S. 670, 62 L.Ed. 931, affirmed 40 S.Ct. 58, 251 U.S. 108, 64 L.Ed. 171.
Fund, deposited in bank for special purpose subject to depositor’s check, remains property of depositor. U.S. Shipping Board Emergency Fleet Corporation v. Atlantic Corporation, D .C.Mass.1925, 5 F.2d 529, error dismissed 16 F.2d 27.
‘In the case of a special deposit, the bank assumes merely the charge or custody of property, without authority to use it, and the depositor is entitled to receive back the identical money or thing deposited. In such case, the right of property remains in the depositor, and if the deposit is of money, the bank may not mingle it with its own funds. The relation created is that of bailor and bailee, and not that of debtor and creditor.’ 3 R.C.L. 522. Tuckerman v. Mearns, App. D .C.1919, 262 F. 607, 49 App. D .C. 153.
National banks are liable for the loss of property held by them merely for the accommodation of their customers, without any consideration for the keeping of it except the profit derived from the banking business of such customers. Security Nat. Bank v. Home Nat. Bank, Kan.1920, 187 P. 697, 106 Kan. 303.
IMHO, we need to see some actual instances of the rescission and how it plays out. Also, need to see if any of these servicers actually file a lawsuit against the party sending notice of rescission. Also, IMHO, what are the servicers/banks who actually file a lawsuit within the 20 days going to do about proving up standing and putting forth the documents to prove their standing. Are we going to be inundated with more fraudulent, forged, robo-signed documents? After all, I have two “notes” in my case and three forged, fraudulent robo-signed assignments as well.
its jesinoski, not jesinoWski
Hopefully instead of making homeowners jump thru ever changing hoops and hurdles, TPTB will finally realize the fraud is up and we can all come up with an honest and fair resolution.
Fantastic article neil, not sure when folks are going to pull the head out!! We need to talk soon regarding biz!! Jeff
Sent from my T-Mobile 4G LTE Device
AGAIN PLEASE READ, AND GO READ THE COMPLETE HAND BOOK. IT ALL ABOUT SECURITY LAWS, YOUR MORTGAGE IF SECURITEZED , LIKE MOST WERE, MERS, AND ALL LAWYER SHOULD BE TELLING COURTS , I UNDERSTAND YOUR FRUSTRATION YOUR HONOR, AND YOUR BELIEF, THAT THIS IS A MATTER OF A TRADITION MORTGAGE TRANSACTION. BUT AS MANY HAVE TESTIFIED UNDER OATH, TO CONGRESS ,EVEN THE HEAD OF THE FDIC STATED SHIELA BAIR , THAT ANY LOAN THAT WAS SECURITZED AND BUNDLE TOGETHER WITH HUNDREDS OF OTHER MORTGAGES. AND THEN ALL OF THEM CONVERTED ALL OF THEM INTO SECUIRTY CERTIFICATES,BOND,. THERE IS NO MORTGAGES NOW, OR NOTES. BY TURNING THEM INTO A SECURITY CERTICATES,BOND, THEY ARE NO LONGER A MORTGAGE CONTRACT.
IT IS NOW AND FOREVER WILL BE A STOCK CERTIFICATE,
Banks usually structure asset-backed securities using “grantor trusts,” “owner
trusts,” or other “revolving asset trusts,” each of which customarily issues
different types of securities. In choosing a trust structure, banks seek to ensure
that the transaction insulates the assets from the reach of the issuer’s creditors
and that the issuer, securitization vehicle, and investors receive favorable tax
treatment.
In a grantor trust, the certificate holders (investors) are treated as beneficial
owners of the assets sold. The net income from the trust is taxed on a passthrough
basis as if the certificate holders directly owned the receivables. To
qualify as a grantor trust, the structure of the deal must be passive — that is,
the trust cannot engage in profitable activities for the investors, and there
cannot be “multiple classes” of interest. Grantor trusts are commonly used
when the underlying assets are installment loans whose interest and principal
payments are reasonably predictable and fit the desired security structure.
In an owner trust, the assets are usually subject to a lien of indenture through
which notes are issued. The beneficial ownership of the owner trust’s assets
(subject to the lien) is represented by certificates, which may be sold or
retained by the bank. An owner trust, properly structured, will be treated as a
partnership under the Internal Revenue Code of 1986. A partnership, like a
grantor trust, is effectively a pass-through entity under the Internal Revenue
Code and therefore does not pay federal income tax. Instead, each certificate
holder (including the special-purpose corporation) must separately take into
account its allocated share of income, gains, losses, deductions, and credits of
the trust. Like the grantor trust, the owner trust is expressly limited in its
activities by its charter, although owner trusts are typically used when the
cash flows of the assets must be “managed” to create “bond-like” securities.
Unlike a grantor trust, the owner trust can issue securities in multiple series
with different maturities, interest rates, and cash flow priorities.
Asset Securitization 1 6 Comptroller’s Handbook
Revolving asset trusts may be either stand-alone or master trust structures.
The stand-alone trust is simply a single group of accounts whose receivables
are sold to a trust and used as collateral for a single security, although there
may be several classes within that security. When the issuer intends to issue
another security, it simply designates a new group of accounts and sells their
receivables to a separate trust. As the desire for additional flexibility,
efficiency, and uniformity of collateral performance for various series issued
by the same originator has increased over time, the stand-alone structure
evolved into the master trust structure.
Master trusts allow an issuer to sell a number of securities (and series) at
different times from the same trust. All of the securities rely on the same pool
of receivables as collateral. In a master trust, each certificate of each series
represents an undivided interest in all of the receivables in the trust. This
structure provides the issuer with much more flexibility, since issuing a new
series from a master trust costs less and requires less effort than creating a
new trust for every issue. In addition, credit evaluation of each series in a
master trust is much easier since the pool of receivables will be larger and
less susceptible to seasonal or demographic concentrations. Credit cards,
home equity lines of credit, and other revolving assets are usually best
packaged in these structures. A revolving asset trust is treated as a “security
arrangement” and is ignored for tax purposes. (See following discussion
under “Tax Issues.”)
Legal Issues
When banks are sellers of assets, they have two primary legal concerns. They
seek to ensure that:
• A security interest in the assets securitized is perfected.
• The security is structured so as to preclude the FDIC’s voiding of the
perfected security interest.
By perfecting security interests, a lender protects the trustee’s property rights
from third parties who may have retained rights that impair the timely
payment of debt service on the securities. Typically, a trustee requires a legal
opinion to the effect that the trust has a first-priority perfected security interest
in the pledged receivables. In general, filing Uniform Commercial Code
2 A national bank may not be a “debtor” under the bankruptcy code. See USC 109(b)(2). The
FDIC may act as receiver or conservator of a failed institution, subject to appointment by the
appropriate federal banking agency. See 12 USC 1821.
3 “Statement of Policy regarding Treatment of Security Interests after Appointment of the FDIC as
Conservator or Receiver.” March 31, 1993, 58 FR 16833.
Comptroller’s Handbook 1 7 Asset Securitization
documents (UCC-1) is sufficient for unsecured consumer loan receivables
such as credit cards. For other types of receivables whose collateral is a
reliable fall-back repayment source (such as automobile loans and home
equity lines of credit), additional steps may be required (title amendments,
mortgage liens, etc.) to perfect the trustee’s security interest in the receivables
and the underlying collateral.
If the seller/originator is a bank, the provisions of the U.S. Bankruptcy Code
(11 USC 1 et seq.) do not apply to its insolvency proceedings. In the case of
a bank insolvency, the FDIC would act as receiver or conservator of the
financial institution.2 Although the Federal Deposit Insurance Act does not
contain an automatic stay provision that would stop the payout of securities
(as does the bankruptcy code), the FDIC has the power to ask for a judicial
stay of all payments or the repudiation of any contract. In order to avoid
inhibiting securitization, however, the FDIC has stated3 that it would not seek
to void an otherwise legally enforceable and perfected security interest
provided:
• The agreement was undertaken in the ordinary course of business, not
in contemplation of insolvency, and with no intent to hinder, delay, or
defraud the bank or its creditors;
• The secured obligation represents a bona fide and arm’s length
transaction;
• The secured party or parties are not insiders or affiliates of the bank;
• The grant of the security interest was made for adequate consideration;
and
• The security agreement evidencing the security interest is in writing,
was duly approved by the board of directors of the bank or its loan
committee, and remains an official record of the bank.