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see DOC072215
Can’t help saying I told you so. The banks, servicers, trustees et al can’t come into court claiming a right to collect or foreclose when they can’t prove the transactions by which they say they came into possession of the loan documents. It has long been the successful strategy of banks to hoodwink judges into treating them as Holders in Due Course — even when HDC status is expressly denied by the foreclosing party. For them it is simple: they have the note in their possession and that is all anyone needs to know. WRONG.
Practice Note: Lawyers should use this a case to bolster their claims for discovery. The express wording of this decision clearly makes the case for information that might lead tot he discovery of admissible evidence concerning the accounting for the possession of the note — which means, as this court states, proving the actual transaction, not, “beating around the bush” with instruments that talk about the transaction as though it had occurred.
The Court is getting serious about the right to foreclose based upon false premises and doesn’t like the arguments advanced by US Bank one bit. This also applies importantly to CitiMortgage which heavily relies on the arguments stated in this decision.
“This Court cannot fill in the blanks of an incomplete chain in order to determine that US Bank actually acquired the instrument …. the transferee must account for possession of the unindorsed instrument by proving the transaction through which the [alleged] transferee acquired it…Ultimately the problem with US Bank’s attempt to establish standing to foreclose is that it relies on a “paper trail” that beats around the bush but never axes the tree necessary to establish the legal requirement of standing. We cannot, as advocated by U.S. Bank, presume standing simply because it serviced the loan; Long standing case law prevents us from doing so.”
Lawyers who do not fight on this point are literally snatching defeat from the jaws of victory. The whole point of my work over the past 8 years has been to alert everyone that none of the transactions presumed actually occurred. The false presumption has been that the burden of proof was on the borrower to prove that even though it was the other side who had the only proof. But the burden is not on the borrower. It is on the foreclosing party to at least make a prima facie case for standing and they can’t do that through mere presumptions concerning fabricated instruments that appear to be facially valid.
In the real world of banking there are plenty of tracks that would show such a transaction if it really had occurred. The fact that the banks, servicers, trustees et al are fighting so hard against revealing those tracks is the strongest indication that no such tracks, and therefore no such transactions ever occurred. Any bank who was seriously thinking about buying into such a transaction would insist on seeing the footprints of the transaction and proof of payment. The courts should do nothing less than the banks require of each other and themselves when the transactions are real.
Filed under: foreclosure |
Y’all can check the Florida DCA websites for opinions anytime. This one, out of the 2nd DCA, is found here:
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/July/July%2017,%202015/2D14-2111.pdf
Among the best ways to overcome presumptions is to show their is no evidence supporting the presumptions.
All should read the opinions used in support of this opinion as well.
Thursday 23 July 2015
Trespass…
You have come a long way, Pilgrim…
This is my first post in a few years just to say
cheers to you..
mn
“Ahem! It was the TRUSTEE’S job to make sure the loans got to the trust! This wasn’t the servicer’s duty. And it is the trustee that is on the hook legally, since it provided certifications that everything was hunky dory. Moreover, it is the trustee that selects the custodian ….
** Furthermore, trustees for New York trusts (and New York was overwhelmingly the state law elected for the trusts) are required to SEGREGATE trust assets (as in have the assets for each trust in (a) SEPARATE place)….**
***New York trust law also requires SPECIFIC endorsement (as in a trust is not only NOT permitted to hold bearer paper, such as notes endorsed in blank, ***
but the trust assets must be endorsed IN THE NAME OF THE TRUST, not merely the trustee, which was the lower standard specified in the pooling and servicing agreements).”
http://www.nakedcapitalism.com/2010/11/securitization-trustees-in-the-crosshairs-in-mortgage-mess.html
Here’s another one that cracks me up. Wamu claimed to be the successor in interest by merger to a co. called North American Mtg Company, at one time a big fish. In an instrument I just ran across, Wamu substituted ITSELF as the trustee in the dot! I can only think, besides being total hogwash for an alleged ben to act as the dot trustee, it was tried by them because no one else would take the job (relevant to the alleged ‘interests’ in loans via the “merger”). Plus, gee, must’ve said them a lot of money. I didn’t see the dot itself to know if mers were in the act as the alleged ben, but I bet it was, so just how does WAMU 1) substitute anything and 2) itself?? These guys just SAY ANYTHING THEY WANT.
Anyone who got a loan thru North American Mortgage might want to take a look at ALL the rec’d instruments even if you have to mail for them from the recorder’s office. In some places, this may all be done online, tho they have to mail (email?) the actual docs. (WHO sub’d your trustee? Was it WAMU in its own name and to itself?)
Judges know the law, lawyers don’t, they only know procedure.
Judges do not rule on law they pass it to the supreme court.
They play with who did the best paperwork and cited old case law that they remember whether it is obsolete and superceded or overruled by a later case doesn’t matter much to judges.
Easy money, gavel down, next!
As for the court case, punctuation is key, we play with dotting i’s and crossing t’s but do you know a sentence ended with a period is a complete thought?
How many complete thoughts do you think a judge will read before he makes his decision?
http://www.k12reader.com/term/punctuation/
one of many links if you search period, comma, semi
Re-think how we think, and re-consider what we do.
As for Neil’s post, its interesting to complain on these ‘astards (I’m sure that use of the apostrophe is not how it’s documented).
I complain on these ‘astards and it’s interesting how their employees will come back and restate the complaint in total misrepresentation of fact to see if you accept their response that is intentionally not fact, and not what was in the original complaint.
Example, You stated we stole your home in 2010, you further stated the home was paid in full. You state we are trying to steal your home.
LOL, nope didn’t say you stole it AND trying to steal it at the same time MORON!
That’s a bad example but it is weird how they expect someone to think they are some deity responding to a legitimate federal complaint with nonsense rewords of what was in the initial complaint.
Laughing out loud.
No MORON, you will not change the complaint like you changed the transaction.
You loaned no principal, you demand payment for something you were not owed.
Judges have no immunity when they rule for people who are not supposed to have things because there is no business relationship.
Strangers should not be forced into any settlement where they have never met and never had an initial agreement of offer, acceptance, consideration.
Use the commas, semi-colons, and colons wisely.
Do not let the judge take the first thought and make the case that thought that ended with that period.
They are only changing their minds because when the collapse come, their totally protected retirement will be worthless.
It is by their own hand that they have ruined their retirement.
Everything of value is being sucked into the secret world of MERs, no thing is in any trust they are waging their end of life enjoyment on.
Given enough time, MERs will go private and tell the judges they do not have to reveal anything in their system as they are private with private shareholders, just like the Fed Res already does.
No one can audit their books to see what assets they have.
MERS is the same, it will establish precedent, that it existed ‘how many years beyond any statute of limitations’ and never had to reveal it’s assets, and the legal system supported their business model.
Judges should audit their retirement portfolio and find out how leveraged it really is, nothing leveraged 100 times plus 6% interest is still nothing.
Trespass Unwanted, Creator, Corporeal, Life, People, Free, Independent, State, In Jure Proprio, Jure Divino
Neil paints with broad strokes, true but sometimes separated from the reality. Neil goes by the letter of the law, but the judges don’t know the law as well.
In fact, not at all, nor do they have the time to read your filings. or the plaintiffs. They rule on questions asked and answered on the verbal pleadings, made at a hearing, where the Judge asks the questions, not opposing consul. Have your case ready for a 12 year old to understand. Good Luck!
John Anderson, 8 year survivor of foreclosure.
Love your posts and keep most of them for future endeavors. We are going to have to make a stand. The recent article about Gen. Wesley Clark making statements about Americans who are not loyal Americans and should be put in camps. You gotta be kidding me. Internment camps like they did in WWII. Appalling. BEWARE everybody the Ides of March are the Ides of September. Invest in physical gold and silver now and before August has passed. Be safe.
MK. .have you ever studied Karen Hudes transition model?
Do you know who she is?
Are you aware of international monetary agreements being made by the US without the FEDERAL RESERVE?
@ louise,
Please forgive me. I meant to say, “then you can come, better-armed to the fight”.
@ louise,
The central bank of the US is a fraud and our politicians have allowed it to function that way for over 100 years.
During those years, the fraud has become international and it has spread, like cancer and now manifests as the IMF and Worldbank.
Greece is important because, like Massachusetts, the people have decided they are sick of being pawns for a self-anointed, banking aristocracy; particularly when the game has been stacked against them.
Greece has elected to stand forward from among 27 different states, whereas, Massachusetts elected to stand forward from among 13 different colonies.
The consequences for the banking elites, in each example are damning.
Here, in the US, We The People have squandered our birthright; We abandoned the “Freedoms” provided for US by the sacrifice of others and We allowed ourselves to be deceived into, once-again, shouldering the yoke of international banking deceit for any number of reasons…
not the least because We are intellectually lazy and spoiled.
Presently, the international bankers are insolvent; any clown knows it as the truth… and, they did it to themselves.
The gambit, through which they hope to continue the masquerade, is to collect on over 682 trillion Dollars of highly speculative risky, short sale bets.
This is why they are pursuing fraudclosures although they have also created other risky potentially fatal traps for themselves while betting on futures in things like precious metal for example.
Morons believe one political party or another has placed US into this plight.
Morons also believe We should collect our guns and ammo and wait in our caves, with canned hams like Glenn Beck, for the Dollar to collapse.
Others have decided, like my friend Louise, that they will stand when told to sit.
People such as that are Patriots.
The trick will be to expose the bank insolvency and recapture the narrative. Then, We The People must insist upon a return of the rule of law.
Any politician running for office must be forced to renounce the international banking cartel.
They must be made to explain our central banking system should never have been allowed to enrich PRIVATE POCKETS AT THE EXPENSE OF THE GENERAL PUBLIC.
End the Fed. Return it as a PUBLIC UTILITY THAT ENRICHES PUBLIC COFFERS-NOT PRIVATE POCKETS.
If and when the dollar collapses the alternative viable currency already exists in the form of the “Greenback” created by Abraham Lincoln under much more trying times than these.
Read, The Web of Debt, by Ellen Hodgson Brown; truly, do yourself a favor and then you will come, armed to the fight.
Is that all you think is at stake here…the Judges pension plans?
Its obvious you do not have one of any type and you have no clue about world currencry status. When it hits..you will be awake.
Standing on the Sideline.
Standing and the chain of custody are still the issues after all this time. Too bad the courts are so slow on the uptake. Or is it just slow or maybe its their pension plan.
Here is the link for the source
https://livinglies.files.wordpress.com/2015/07/doc072215.pdf
please provide the Source… link to document would be welcomed. Thanks-
What is the cite?