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As Judges catch up to the reality and disabuse themselves of the assumption that the Banks wouldn’t file foreclosure without a good reason to do so and a legally enforceable right to do so, we get more and more decisions like this one.
BOA like the other banks is in pursuit of foreclosures for many reasons. They have no right to foreclosure and the real creditor is being blocked out of the equation. The so-called investor doesn’t even know the foreclosure was filed. And they are contractually stopped from even inquiring, just as the Trustees of the REMIC Trusts don’t know anything, don’t have anything and are not allowed to do anything or ask anything.
Some time back I had a case in which unknown to the heirs, a deceased homeowner had purchased a life insurance policy that paid BOA directly. BOA took the money, filed a satisfaction of mortgage and then went after the heirs to sign a “modification agreement” on a debt that no longer existed. This was not negligence. A few years later the heirs ran into some financial trouble and BOA filed foreclosure against them and then sought to withdraw their recorded satisfaction of mortgage. The list is endless of cases where banks have foreclosed on nonexistent mortgages — i.e., they NEVER existed. Judges entered judgments, even default judgments without seeing any evidence that the mortgage was real.
So I find it encouraging that more and more judges are taking seriously the strict procedural requirements and substantive requirements for a foreclosure to go forward and awarding damaged borrowers some money to recover from the malfeasance of the bank.
The plain truth is that BOA and other banks are pursuing foreclosures not because they are the lender or a successor to a lender or even an authorized representative of the real creditor. They are actually using the illusion of a default and foreclosure to cover up the fact that they are really suing for themselves — even if they are not the lender, the successor or authorized representatives. They are getting title to homes in which they have no investment. SO THE FREE HOUSE IS GOING TO BOA AND OTHER BANKS, NOT THE BORROWER.
But they do have investment in the “servicer advances” which are neither advances nor paid by the servicer out of its funds. Their problem is that they have no direct claim against the borrower for those advances, and if they reveal it, it will show that the “creditor” has not experienced a default because they have received the payment they expected. The creditor’s books balance and are fully reconciled. The servicer’s books balance and are fully reconciled, even if reported inaccurately.
THEY ARE NOW PACKAGING UP THESE SERVICER ADVANCES THAT THEY CLAIM DO NOT EXIST AND SELLING THEM INTO THE SECONDARY MARKET FOR SALE AS SECURITIZATION PRODUCTS. Here is the rub: The money for “servicer advances” comes from a “reserve” (slush) fund that is actually disclosed in the prospectus. The investors were paid with their own money regardless of whether the borrower paid or not.
SO the Banks are (1) foreclosing without any right, justification or excuse (2) hijacking the process so that they can “recover” servicer advances in which the investor money was used to pay the investors and (3) forcing homeowners into foreclosure so that they can make their endless scheme of fraud work for the banks — not the investors and certainly not for the borrowers.
The old “investor rejected the modification” line doesn’t cut it. They never asked the investor. Look at the PSA and the prospectus. The servicer doesn’t need to ask the investor (according to THEIR contract, which is against public policy) and THAT is because the Banks, although they were intermediaries, posed as the principals in every transaction and every foreclosure. None of it was true — where the loan (96% of all loans) was subject to false claims of securitization.
Filed under: foreclosure |
Reblogged this on boglinwordpresscom.
Listen to me carefully….you need a Good Trust..Estate..Title…Mortgage Attorney !
Ok…so Aman. …..
The Bankster lawyer stated….. If there was another party entitled to the collect on the note….surely they would have made a claim by now…
HELLO?
Also…you can not get discovery in pre foreclosure or pre litigation.
HELLO?
Also…you can get TRO and PRO to stop the “””Likelyhood of Damages and/or further Damages”””” if the pretender were allowed to precede.
This is why you get their position in writing 1st.
They can not have it both ways………
SOL takes a bite out of crime!
The Rat ran up the Clock……
BEMIS v. ESTATE OF BEMIS, 114 Nev. 1021 (1998)
967 P.2d 437, citing Petersen v. Bruen, 792 P.2d 18, 20 (1990)
re: sol and the “discovery rule”:
“We have previously recognized a distinction between the
“discovery rule” and the “general rule” of accrual of a cause
of action for statute of limitations purposes:
The general rule concerning statutes of limitation
is that a cause of action accrues when the wrong
occurs and a party sustains injuries for which relief
could be sought. An exception to the general rule has
been recognized by this court and many others in the
form of the so-called “discovery rule.” Under the
discovery rule, the statutory period of limitations
is tolled until the injured party discovers or
reasonably should have discovered facts supporting a
cause of action.
The rationale behind the discovery rule is that the
policies served by statutes of limitation do not
outweigh the equities reflected in the proposition
that plaintiffs should not be foreclosed from judicial
remedies before they know that they have been injured
and can discover the cause of their injuries.”
Reblogged this on California Freelance Paralegal and commented:
A United States District Court Judge in Florida has ruled that Bank of America damaged a Jacksonville couple by pursuing a nonexistent debt and ordered them to pay $204,000 in damages.
Why the alleged “mers assignment” of the note: maybe because a blank endorsement gives rise to multiple questions, like did the guy trying to enforce obtain his right to enforce by way of an unpaid security interest, in which case, he has no right against the issuer beyond what the guy he loaned money owes him (so this must be ascertained). When notes go to warehouse lenders, say, they go there by and large with blank endorsements and it’s only upon the w/h lender’s borrower’s default that the w/h lender becomes the party with the “right to payment” on the note (as stated in the note as a requisite of enforcement) and even then, he’s limited to what is owed to him by his own borrower. His right to payment is only triggered by that borrower’s default, because he has a blank endorsement. imo.
If a warehouse borrower pays off his loan, he gets his note back and is free to insert his name.
These notes are or have been by and large presented with the final (or one and only) endorsement in blank, and PSA’s, crafted by the servicers or issuers but not the trusts, allowed for them. If they are now inserting the name of a trust in the blank which they should’ve done before, at the time of alleged sale, it’s because they see they can get away with murder, pretty much. If you put a name in there that wasn’t in the blank before, the legitimate questions regarding the true rights of that party are being avoided, and wrongfully so, if that party were a holder of a security interest only, because it impacts his rights against the note issuer / borrower (as in the 500k v 400k example).
So they issue an “assignment” of the note in the handy ‘mers’ name
and hope that the blank endorsement isn’t questioned, which it hasn’t been to my knowledge because of banksters uniformly urging reliance on only a part of article II (and ignoring the language of the note), which is itself only part of the UCC, as if it’s all of it that matters.
lay opinions
I am speechless.
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007609
NEVER AGAIN
david: “my refi was for 350,000. they sold my mortgage maybe 2 3 4 times who know, for 500,000 each time”.
I don’t have any facts or info x pure speculation to support that loans were sold multiple times. Course it wouldn’t surprise me or just about anyone here. But the only reason I can think of for a 350k loan to fetch a 500k price is if the buyer thought he could sell it again himself multiple times. Even then, it’s a stretch…? But even without facts, it isn’t a stretch to see it could be done for lack of recordation, And bad actors seem to do whatever they can as the possibility of ‘whatever’ presents itself.
If a loan were sold 4 times, someones or fours are having to make an awful lot of advances. Can they have been that dumb? To set themselves up for such a disaster? Or maybe they just insured their multiple obligations on advances with AIG et al or what not (or bury the fact there are multiple obligations in CDS’s?). Many foreclosures haven’t been done for years.
Is it because values are better now or are there other reasons (other than the appearance of a slow-down to assuage people loosely called “regulators”? Doubt the other reasons matter, since we’ll probably be long gone before those reasons, if there are some, see the light of day.
What part has Bush dynasty played in the “Financial Crisis”?
Don’t forget to check out the imbedded URLs.
http://www.rationalrevolution.net/war/bush_family_and_the_s.htm
Americans forget so much.
Donald Trump will be a hero if they are able to rewrite history now.
The same thing works all the time. Take someone, make them an underdog, and then choreograph their path to success.
No one remembers anything of the man’s past, or his past affiliations, but they’ve gotten mad that someone said they puffed but didn’t inhale.
Bush was responsible for several bankrupt corporations and got a chance to be president of the biggest corporation of all, and he ran up the bill on that corporation’s budge, but instead of going bankrupt, they just manipulated the numbers and raised the ceiling on spending. A couple times, the corporation’s employees were not going to get paid, and the government corporation shut down, and they fixed the budget without going bankrupt and got it running again.
Donald seems to have the same history, so we might as well give him a shot too, since no one will ever officially file for bankruptcy of the biggest corporation in the world.
There may be a bit of a history lesson waiting for those who still play voter in their political game.
People have no idea how we have been used throughout this entire process to be robbed, pilfered, and etc…
https://www.youtube.com/watch?v=AhrqQmoAEKA
These people plan to make planned communities – water shortage is just the beginning, and then punishing you if the yard is not green due to lack of water is to make you not want to be homeowner.
No one will use the system as designed, there is a remedy but no one wants to use it. No.
They’ll take their chance in court, as if it were a gambling casino and maybe this time the odds are not with the house, or in our case we want the house, so we want those odds.
I’m just a witness.
Witnesses have powers.
Universal witnesses have universal powers.
Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, Independent, In Jure Proprio, Jure Divino
If the Judge has a MERS loan or any of the Judges close family The Judge should have recused him herself. NOT AN ATTORNEY
NEVER AGAIN
Uniform Commercial Code › U.C.C. – ARTICLE 3 – NEGOTIABLE INSTRUMENTS (2002) › PART 2. NEGOTIATION, TRANSFER, AND INDORSEMENT
§ 3-203. TRANSFER OF INSTRUMENT; RIGHTS ACQUIRED BY TRANSFER.
(a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
(b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.
(d) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee.
‹ § 3-202. NEGOTIATION SUBJECT TO RESCISSION.up§ 3-204. INDORSEMENT. ›
so your honor, all i want to know is this, and am sure you would like to know for yourself, as am sure you bought a home, or have kids that have, or maybe grandchildren. right.
so were are all my certified copys of mortgages and notes?? all 4 of them ?? that was supposed to done prior to funding of the loan, and why would they need it. simple right.
because i was told all my life , there is only one mortgage and one note. that way someone cant come down the road and say hey i have a note and mortgage here in my hand, so you owe me this much money.
right your honor???
by what the closing instruction said to do . 3 certified copys of my note and mortgage plus originals. that 4 total right there.
so who owes who money. anyone want to guess
JOHN J-
look my mortgage was sold for the appraisel price, to investors in the securitization process , i have the docs showing that.
my refi was for 350,000. they sold my mortgage maybe 2 3 4 times who know, for 500,000 each time
“the person entitled to enforce the instrument “(jg: here one whose rights arise by way of his security interest) may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument,
does not exceed the amount of the unpaid obligation secured.”
Oh my. There’s another way this is applied,probably the one applied more often ((but not exclusive). If “A” borrowed only 300k using a 500k note for collateral and say a warehouse lender is the lender to A, that’s all the warehouse lender may look for as to the note and its security: The w/h lender(or whomever) with the security interest who has become the party entitled to enforce (as a result of A’s non-payment) may only assert a claim for 300k against the note’s issuer (or the current balance, and as to at least these particular loans, including payments from any source, which ever is less). If we can establish that advances are part and parcel of these deals, it’ll be incumbent on the servicer / party claiming the right to evidence 1) the actual right to reimbursement and 2) that the right accrues under the note (which imo it doesn’t as partially demonstrated by the mechanics of these deals (non-agency) and how the servicer claims and is reimbursed).
If we can establish at the servicer or whomever insured its voluntary obligation* to make advances, then we’ll need answers to questions regarding any insurance proceeds received by the insured, primarily ‘must those proceeds have gone where they were supposed to” because if not, it’s possible the banksters could just keep those funds. But wait. They can’t get, because no one may as a matter of law, a double recovery. So if they got the insurance proceeds and didn’t apply them, they may not also “hit the note” for their advances even if it were found by solid evidence that their rights accrue under the note.
*that an obligation were created by volunteerism shouldn’t change the fact that it’s still a voluntary payment even as a result of a voluntary commitment to make the payment.
“e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument
jg: this might describe the status of anyone who paid for a note but the note was never actually transferred – think it’s pursuant to art 9-203(b) without looking
and (ii) the person obliged to pay the instrument
jg: the borrower / note issuer
has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest,
jg: “the peson who granted the security interest” – not so sure the banksters would’ve granted one per se so much as the law would grant the paying-party one. If a paying-party is the party ‘entitled to enforce the instrument’, then the one who got the money is NOT.
“the person entitled to enforce the instrument “(jg: here one whose rights arise by way of his security interest) may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument,
does not exceed the amount of the unpaid obligation secured.
jg: so if bankster D took someone’s money for a note of 500k and bankster D has now paid the note down to 400k by way of anyone’s payments (the issuer’s, his own, insurance), that’s all the “secured party / person entitled to enforce” may claim against the issuer / home loan borrower.
Not sure I like this. I read it in its entirety to say that if the issuer has a claim in recoupment, a defense, etc. against “D” (as the successor in interest to the original lender), if the person entitled to enforce the instrument has only a security interest, the issuer is facing a hdc as to the 400k, but not the 500k. So the issuers defenses (ones not allowable against a hdc v holder) or claim in recoupment, etc. would have to exceed the 400k or the hdc wouldn’t be subject to them, way i read this. But imo one may never have hdc status as to these loans if for no other reason than because he is never free of, say, claims under TILA. I mean, I can’t believe TILA would carve out an exception for a guy who only had security interests such that his rights would exceed that of the guy to whom there was actually a sale.
But at any rate, if all a group of investor have is security interests v
ownership of notes, banksters sure aren’t fessing up that they are just now (purportedly) forking over the notes to end their advance payments and stick the investors with the losses. But something else happened or showed up to make that gang believe they could assign loans years after the closing date. Or maybe it’s as simple as they threw a few out there, got away with it, and here we are.
If AIG insured the servicers’ advances, and if the servicers received those monies, instead paid more fat bonuses (like apparently from A to Z they all did, including AIG before they got wind of the claims they would face) or overhead, and didn’t apply them to the loans, what does the law say? MUST they? I suppose the stinking answer on that might depend on insurance laws.
Think i got this interpretation of the default law UCC right? I always call the UCC default law. It defines rights which aren’t articulated in any given contract, such as would arise unexpectedly, mol Let’s say “A gives” a warehouse lender security interests in some notes,. When A doesn’t pay the w/h lender for the loan, the warehouse lender, who has a security interest, becomes, by law – imo – the party now entitled to enforce the instrument or at least that’s one of his remedies. The contract between A and the warehouse lender wouldn’t necessarily encompass the ‘if you don’t pay’ imo, other than to say something like if A doesn’t pay by a time certain, the w/h lender may charge him another point on the loan and or a higher rate. o by operation of the default law (not addressed in contract), the w/h lender is the party entitled to enforce against the issuer. Depending on the contract, the w/h lender may also have rights against A if the collateral doesn’t satisfy A’s loan. But secn docs don’t address that since they’re supposed to be true sales, so the UCC should step in. (I think just now from the hip fwiw). This would explain the laches in not foreclosing on some loans for years – waiting for the value of the collateral to go up to diminish “A’s” (really supposed to be a “D”) own liability on the security interests it created by non-performance / non-delivery.
lay opinions
i guess the easiest way to explain , what is going on is this.
you all know the candles that you cant burn out, you blow and blow it still lights right back up. well that is what has been happening for past 8 yrs , with wall street ,. securization mess. congress/states/ have been blowing and blowing and its still just will not go out.
they should off just let wall street fall, all banks fall, let them burn right the fuck out. then we the people would of not been on hook for the 35 trillion they have put out in our name/ kids name grand kids name/ great grand kids name.
if you read the true biege book of congress and what we owe, its more than 150 trillion dollars people.
IN 2008, THEN TRES/SEC/ PAULSON, LIVED IN CHINA FOR MORE THEN 6 MONTHS A YR. SELLING HIS EX COMPANYS SHIT. WALL STREET CRAP.
this is why is went in front of congress with shaky hand begging to get money for bail out. 700 billion remember. well thats not what they needed, at same time as bail out, they got authorisation to do what ever it takes to not let wall street go down in flames.
the 700 figure is just a figure , more then 25 trillion dollars went through back door of aig/ to pay off china big bet on us, the securitazation of mortgages, they baught trillions in it, and aig was the casino, were they took bets. and they lost on all bets.
again. it all bull shit
DONALD TRUMP beat the banksters and now he’s a presidential hopefull. Dont forget the developers got screwed by the banksters.
NEVER AGAIN
neidermeyer (or anyone), why do you suppose aig, an insurer, would completely pay off a note in default (esp since it’s said to have waived subrogation)? I mean, if part of one’s house burns, the insurance co., unless the house is totaled, isn’t going to do anything other than pay to fix the damage. Pmi, for instance, only insures a lender down to a certain percentage. Just say (I’m making this up since i don’t recall real numbers – but it’s nonetheless in the hood) that a borrower had pmi and the loan goes belly up.
100k loan with 97000 balance at default. Pmi is likely to pay 17,000 / down to 80,000, which is 80% of the original balance. But pmi doesn’t pay 97k. It only insures a set percentage of the original loan amt. This actually has made me wonder how many borrowers’ (who had paid for pmi) balances at f/c were alleged to be the 97k, instead of being credited with the pmi payment of 17k. The pmi co actually named “PMI” went bk over its payments on these loans.
Wasn’t it that AIG got bail-out money, even if in the form of a ‘loan’? And isn’t it that it supposedly paid off a lot of that money? Sure like to know how they did that, especially since they waived subrogation, meaning of course that they had no way to recover their outlay.
@ William B. Bennet ,
Please contact me at ** brian.tracy1324 AT gmail.com ** with some proof of your identity. My situation is unique as it involves a relatively small operator not protected by the FED/SEC who bought notes from a failed MBS/Trust prior to the creation of Maiden Lane 2… The purchaser (Wilbur Ross of AHMSI) bought almost $1B in notes KNOWN to have been paid in full with private non-taxpayer funds by AIG in 2007 (AIG paid Bank of America) with the intent of forcing the unwitting borrowers into foreclosure and basically duplicating on a grander scale his existing credit card collection racket, in 2012 he sold the remaining interest to OCWEN as the remaining mortgages were too stable for his interests.
For seven years Bank of America denied interest in the notes but was recently (2014) found in federal court to be the actual underwriter , not “Option One” … There is great collusion here … as in 2011 AHMSI sued LPS over the release of underwriting documents that in 2014 lead to the $650M judgement against Bank of America (Dallas County : AHMSI v. LPS DC-11-10440)
I am currently preparing a TILA Rescission enforcement action against BOA since they are now acknowledged by the Federal bench to be my lender. There is PLENTY of material here to string them all up with RICO. BAC/LPS/AHMSI/OCWEN …. There was also a SEC lawsuit against Option One that EXCLUDED my particular trust because the SEC knew that BAC was the underwriter… https://www.sec.gov/litigation/complaints/2012/comp-pr2012-76.pdf
11 Responses
david belanger (@revolutionnow1), on August 10, 2015 at 10:33 am said:
§ 3-302. HOLDER IN DUE COURSE.
(a) Subject to subsection (c) and Section 3-106(d), “holder in due course” means the holder of an instrument if:
(1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
(2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section 3-306, and (vi) without notice that any party has a defense or claim in recoupment described in Section 3-305(a).
(b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.
(c) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken (i) by legal process or by purchase in an execution, bankruptcy, or creditor’s sale or similar proceeding, (ii) by purchase as part of a bulk transaction not in ordinary course of business of the transferor, or (iii) as the successor in interest to an estate or other organization.
(d) If, under Section 3-303(a)(1), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.
(e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument and (ii) the person obliged to pay the instrument has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.
(f) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.
(g) This section is subject to any law limiting status as a holder in due course in particular classes of transactions.
‹ § 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.up§ 3-303. VALUE AND CONSIDERATION.
david belanger (@revolutionnow1), on August 10, 2015 at 10:30 am said:
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF RHODE ISLAND
– – – – – – – – – – – – – – – – – -x
In re: :
JAIME RODRIGUES and : BK No. 00-11297
MARIA RODRIGUES Chapter 7
Debtors :
JAIME RODRIGUES and :
MARIA RODRIGUES
Plaintiffs :
v. : A.P. No. 00-1123
U.S. BANK :
Defendant
– – – – – – – – – – – – – – – – – -x
TITLE: Rodrigues v. U.S. Bank (In re Rodrigues)
CITATION:
DECISION AND ORDER
APPEARANCES:
Christopher M. Lefebvre, Esq.
Attorney for Debtors/Plaintiffs
P.O. Box 479
Pawtucket, Rhode Island 02862
E. Martin Stutchfield, Esq.
Attorney for Defendant
WINOGRAD, SHINE & ZACKS
123 Dyer Street
Providence, Rhode Island 02903
B. U.S. Bank as Assignee
U.S. Bank argues that under 15 U.S.C. § 1641, the assignee of
a HOEPA loan is not liable for the mistakes of the assignor. On
the present record, this argument is completely without merit.
Section 1641(d) makes clear that assignees of defective HOEPA loans
have only one defense– that at the time of assignment, the assignee
was without notice that the loan in question was a HOEPA loan.
There is no evidence that U.S. Bank was unaware of the HOEPA status
5 “Notwithstanding any rule of evidence, written acknowledgment of
receipt of any disclosures required under this subchapter by a
person to whom information, forms, and a statement is required to
be given pursuant to this section does no more than create a
rebuttable presumption of delivery thereof.” 15 U.S.C. § 1635(c).
6 An obligor’s right of rescission shall expire three years after
the date of consummation of the transaction or upon the sale of the
property, whichever occurs first, notwithstanding the fact that the
information and forms required under this section or any other
disclosures required under this part have not been delivered to the
obligor…
15 U.S.C. § 1635(f).
here, and it would absolutely be U.S. Bank’s burden to establish
such lack of knowledge. Section 1641(d) states:
Any person who purchases or is otherwise assigned a
mortgage referred to in section 1602(aa) of this title
shall be subject to all claims and defenses with respect
to that mortgage that the consumer could assert against
the creditor of the mortgage, unless the purchaser or
assignee demonstrates, by a preponderance of the
evidence, that a reasonable person exercising ordinary
due diligence, could not determine, based on the
documentation required by this subchapter, the
itemization of the amount financed, and other disclosure
of disbursements that the mortgage was a mortgage
referred to in section 1602(aa) of this title. The
preceding sentence does not affect rights of a consumer
under subsection (a), (b), or (c) of this section or any
other provision of this subchapter.
15 U.S.C. § 1641(d)(1).
The legislative history indicates Congress’s intent to
establish a strict liability standard for assignees of such loans,
as Senator Reigle, the sponsor of the HOEPA Senate amendments, said
in his following explanation of the amendments:
The bill eliminates “holder-in-due-course” protections
for assignees of High Cost Mortgages. Assignees of High
Cost Mortgages are subject to all claims and defenses,
whether under Truth in Lending or other law, that could
be raised against the original lender.
S. Rep. No. 103-169, at 29 (1993). Congress’s intent could not be
clearer: assignees of HOEPA mortgages are precluded from holder in
due course protection, as well as the defense that the violations
were not apparent on the face of the loan documents. The case law
regarding the defenses available to an assignee of a HOEPA loan,
david belanger (@revolutionnow1), on August 10, 2015 at 10:04 am said:
In re Donna McCAUSLAND a/k/a Donna Blank, Debtor.
Donna McCAUSLAND, Plaintiff,
v.
GMAC MORTGAGE CORPORATION OF PENNSYLVANIA, Defendant.
Bankruptcy No. 85-04475G, Adv. No. 86-0266G.
United States Bankruptcy Court, E.D. Pennsylvania.
(3) in the case of any successful action to enforce foregoing liability or in any action in which a person is determined to have a right of rescission under section 1635 of this title, the costs of the action, together with a reasonable attorney’s fee as determined by the court. In determining the amount of award in any class action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor’s failure of compliance was intentional. In connection with the disclosures referred to in section 1637 of this title, a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of section 1635, section 1637(a), or of paragraph (4), (5), (6), (7), (8), (9), or (10) of section 1637(b) of this title or for failing to comply with disclosure requirements under State law for any term or item which the Board has determined to be substantially the same in meaning under section 1610(a)(2) of this title as any of the terms or items referred to in section 1637(a) of this title or any of those paragraphs of section 1637(b) of this title. In connection with the disclosures referred to in section 1638 of this title, a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of section 1635 of this title or of paragraph (2) (insofar as it requires a disclosure of the “amount financed”), (3), (4), (5), (6), or (9) of section 1638(a) of this title, or for failing to comply with disclosure requirements under State law for any term which the Board has determined to be substantially the same in meaning under section 1610(a)(2) of this title as any of the terms referred to in any of those paragraphs of section 1638(a) of this title. With respect to any failure to make disclosures required under this part or part D or E of this subchapter, liability shall be imposed only upon the creditor required to make disclosure, except as provided in section 1641 of this title.
15 U.S.C. § 1640(a).
[3] At the time of the origination of the loan the matter currently found in 1638(a)(9) was found in 15 U.S.C. § 1638(a)(10) (1974):
1638 Sales not under open end credit plans.
(a) Required disclosures by creditor
In connection with each consumer credit sale not under an open end credit plan, the creditor shall disclose each of the following items which is applicable:
* * * * * *
(10) A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.
15 U.S.C. § 1638(a)(10) (1970).
[4] The debtor has advanced other bases on which liability may be predicated, but we need not address them since the debtor cannot receive multiple awards simply because several provisions of the statute were violated. 15 U.S.C. § 1640(g).
JAVAGOLD, THE TRUST IS PAYING ALL TAXES , THEY HAVE TO , BY THERE BINDING CONTRACT OF PAS, STATING THAT THEY WILL PAY INVESTOR,TAXES,INSURANCE , ON PROPERTY EVEN IF HOMEOWNER ISNT PAYING.
GET IT. SO WHEN A TRUST IS TRYING TO FORECLOSE ON YOU OR ANYONE, I WOULD ASK THEM IF AM PARTY TO THIS TRUST/PSA. THEY WILL SAY NO.
I WOULD SAY THEN GET OUT MY LIFE, PROPERTY. I OWE YOU AND THE TRUST NOTHING IF AM NOT PART OF IT.
BUY BUY.
ood morning Neil: This is William Bennett again, the former agent for the US GovCriminal Investigation Division.
WHY ARE YOU NOT DOING SOMETHING. ABOUT IT. HOW ABOUT GOING ON TV,FOX NEWS, ANY NEWS AND EXPLAIN ALL THE FRAUD THE BANKS HAVE BEEN DOING FOR PAST 15 YRS.
HOW ABOUT THAT.
Good morning Neil: This is William Bennett again, the former agent for the US GovCriminal Investigation Division. I see where you stated that judges are now beginning to see the lightand now realize the mistakes they have made in judgments they have awarded banks, causing many home owners to lose their homes due to their wrongful judgments in favor of greedy, criminal bankers. Why should these judgments against home owners stand? Why are we not seeing the cases reversed and our citizens allowed to have their properties returned to them and damage judgments against the banks for their fraudulent, criminal actions? Your articles certainly bring out the violations being committed by the banks, servicing agencies and the lawyers who represent the greedy,criminal bankers. Yes, there are still some lawyers who provide good,legal and honest services, however, not enough of them go up against these deep pocket bankers. The amount of money they could make from percentages of court awards to home owners, would certainlycompensate them if they would present the true facts and show the fictitious, fraudulent and forged documents that have been presented to judges all across our country. The ROBO-SIGNING, and the fraudulent misrepresentations by bank lawyers to the courts are a travesty and have brought our legal and financial system of our country into the mud. As an investigator who is attempting to expose the crimes being committed by the bankers, wall street hoods and the greedy, criminalbank employees and bank lawyers, understands and sees the sufferingcaused by this gigantic Ponzi scheme by the bankers and has beenassisting home owners to over-come the crimes being committed against them, but finds it very difficult when the courts are slow toside with the true facts and rule against the giant Trillion Dollar bankswho appear to have judges and law enforcement agencies in their hip pockets. Keep up the good work Neil and keep informing our citizens of the truth and one of these days, we may have enough citizens with the common sense to object and fight this epidemic brought about by these greedy, criminal, financial thieves. God Bless and keep the faith. Wm Bennett
LDTX
Let’s give a perfect example of this scenario and my situation. My Lender as most of you know on my property is America’s Wholesale Lender (Servicemark name by Bank of America by Merger) Nash vs Bank of America great example. Yet, my alleged loan number is listed under CWABS 2007-2 (155397447). When I inquired to Bank of New York Mellon through a QWR they stated they did not Own Loan or Property are not a lender etc. However Bank of America insist that BONY Mellon is the owner of the loan and the property. I have been fighting this same situation for 5 years now. So of course recently Bank of America and a Foreclosure Mill here in Houston TX got together and managed to foreclose on the property. I find to very big errors with this foreclosure. One being that BONY Mellon has put in writing they are not the Lender, do not own loan or property. Second, if this is so, then after the foreclosure, why did the Deed that was filed show Bank of New York as the Owner with a Bank of America address? If 155397447 is listed in Pool of Loans CWABS 2007-2 Asset Backed Certificates how did it get there legally. Did the Fictitious entity America’s Wholesale Lender have legal standing to place it there? Bank of New York Mellon states they do not own the loan or property yet Bank of America clearly states that Bank of New York Mellon initiated foreclosure. Last but not least did Bank of New York Mellon follow Trust Law? Assignment of Deed of Trust was done over 4 years after pool closed. Who is the Lender? Who foreclosed legally on the property? What are the tax records now saying Owner is Bank of New York Mellon? Why does the address go back to Bank of America? Food for thought!!!
Exactly !!!!
And who is paying all these PROPERTY TAXES each quarter ??????