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The point here is that there is money owed and the debt exists regardless of whether or not the note and DOT are void. THAT is the last part of the analysis. The remedy is the same as TILA rescission regardless of what the reason is — return the note to the homeowner who is not a “borrower” from anyone in the “securitization chain” , release the encumbrance and give back all the money the borrower ever paid because they were not entitled to collect it in the first place much less enforce it. The obvious fact is that a foreclosure is impossible without the homeowner executing a new DOT to the real “Lender.”
This is where people get confused because it sounds like I am saying that the debt simply disappears. It doesn’t. But it is doubtful that the investors are going to make demand for payment from homeowners directly or even though a new or old “servicer.” In order to do that they would be tacitly admitting “securitization fail” (Adam Levitin) and that the debt is not secured by an encumbrance upon the house.
And that would make many assets of stable managed funds ineligible for retention and reveal the fact that the managers of those funds were asleep relying upon the brand reputation of the largest banks the world has ever seen. So the debt doesn’t disappear but because of the multiple sales of the same loan papers, and the unwillingness of fund managers to admit they failed to do due diligence, the REAL debt might never be claimed or enforced.
Filed under: foreclosure |
http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=157676
from B of A v. Yahn
We first turn to the copy of the note attached to Bank of America’s
complaint. Bank of America alleged in its complaint that it “is the current holder
of [the attached] note,” and it attached to the complaint an uncertified copy of a
note. First, “holder” is a legal term that means, in the foreclosure context, “[t]he
person in possession of a [note] that is payable either to bearer or to an identified
person that is the person in possession.” WIS. STAT. § 401.201(2)(km)1. Whether
an individual is a holder is a legal conclusion, not a factual allegation. Second, the
complaint alleges that attached is “a true copy of the note,” but not that a true copy
of the original note was attached. In addition, the Yahns denied that the attached
copy of the note was a “true copy of the note.”3
¶10 Third, even if the complaint had alleged that the attached note was a
true copy of the original note, the attached copy was not sufficiently authenticated.
In order to be admissible in evidence, a document must be authenticated by
“evidence sufficient to support a finding that the matter in question is what its
proponent claims.” WIS. STAT. § 909.01. The original note, or a certified copy of
the original note, is self-authenticating. See WIS. STAT. § 909.02(9) and (12); see
also WIS. STAT. § 889.08 (addressing certification of copies). However, an
uncertified copy of a note, which may not be a copy of the original note, is not
self-authenticating. See BAC Home Loan Servicing, L.P. v. Williams,
3
Bank of America incorrectly asserts in its brief on appeal that the Yahns’ “answer does
not specifically deny the authenticity of the note or the authority of the signatures on the note.”
No. 2015AP936
6
No. 2010AP2334, unpublished slip op. ¶11 (WI App. Sept. 29, 2011); see
generally WIS. STAT. § 909.02.
¶11 Another means of authenticating a document is through testimony of
a witness “with knowledge that a matter is what it is claimed to be.” WIS. STAT.
§ 909.015(1). However, the copy of the note in this case was not authenticated by
Johnson’s affidavit, which makes no mention of the copy of the note attached to
the complaint being a true and correct copy of the self-authenticating original note.
Johnson avers in his affidavit that he has personal knowledge that the records in
Bank of America’s custody are prepared in the ordinary course of business at or
near the time of the transaction or event by persons with knowledge of the
underlying transaction. Johnson’s affidavit does not, however, contain any
specific averments that the copy of the note is a true and correct copy of the
original note. The fact that Johnson may have been in position to authenticate the
copy of the note does not, standing alone, mean that he has done so. Put another
way, assuming without deciding that a clear statement that the uncertified copy
attached to the complaint is a true and correct copy of the original note would be
sufficient to do so, Johnson’s affidavit makes no reference whatsoever to the copy
attached to the complaint.
¶12 We next turn to Johnson’s affidavit. Johnson avers that Bank of
America or its agent “has possession of the promissory note.” However,
Johnson’s averments are silent as to whether Bank of America is in possession of
the original note. Bank of America argues that the uncertified copy of the note
attached to the complaint is evidence that it possesses the original note. However,
Johnson’s affidavit is silent as to whether the copy of the note attached to the
complaint is a true and correct copy of the original note, there are no admissions
No. 2015AP936
7
on file that the note attached to the complaint is a true copy of the original, and the
Yahns denied that the attached copy is “a true copy of the note.”
¶13 Bank of America makes the additional argument on appeal that its
invitation during discovery to the Yahns for them to inspect the original note and
Bank of America’s attorney’s offer to bring the original note to court were
sufficient, for purposes of summary judgment, to make a prima facie case that it
possesses the original note. Summary judgment is based on the pleadings,
depositions, answers to interrogatories, and admissions on file. See WIS. STAT.
§ 802.08(2). Summary judgment may not be based upon offers by the moving
party to make something available for inspection. If Bank of America wanted to
establish its possession of the note by bringing it into court, it should have done
so, not just offered to do so.
¶14 In summary, neither the copy of the note attached to the complaint,
nor the averments in the affidavits presented by Bank of America, establish that
Bank of America was in possession of the original note. Bank of America has
thus failed to establish that it has the right to enforce the note and to foreclose
based upon any failure on the part of the Yahns to pay according to the terms of
the promissory note.
CONCLUSION
¶15 Accordingly, for the reasons discussed above, we reverse the circuit
court’s summary judgment decision and remand for further proceedings.4
4
The Yahns argue that summary judgment should be granted in their favor because the
“record before [this court] is barren of any evidence of a note and mortgage.” The Yahns are
mistaken. Bank of America presented evidence of the existence of a note and mortgage. What
(continued)
No. 2015AP936
8
By the Court.—Judgment reversed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
Bank of America failed to do on summary judgment is to establish that there is no genuine issue
of material fact as to Bank of America’s possession of the original note. Accordingly, we reject
the Yahns’ argument. The failure of a party to establish the right to summary judgment does not
mean that the other party necessarily prevails on the ultimate issue, only that it is still an issue for
decision by the trier of fact. That the other party may itself establish an entitlement to summary
judgment is only one of the possible outcomes.
so if they are dumb enough to leave the indorsement open, why not just take the promissory note with the incomplete “PAY TO THE ORDER OF” stamp and print on the empty line:
ALL CAPS NAME, Issuer; ACCT: SSN000-00-0000
then indorse it below writing below their stamped indorsement:
For Full Settlement Of All Obligations, nun pro tunc:
ALL CAPS NAME, Issuer; ACCT: SSN000-00-0000
BY: Signature, Without Recourse, All Rights Reserved
and file it in the county recorders office and mail copies to all debt collectors and the court?
Joint tenecy by entirety creates 1 legal entity.
Marital or Community property laws vary by state.
In Martial states to perfect the mortgage lien the non borrowing spouse is asked to sign the mortgage.
A non borrowing spouse as one half of the Entire Estate can rescind the mortgage under common law for fraud on the face of the contract and in the inducement.
Revonveyence Bound
Quiet That!
No Trusts!
I used the Freedom of Information Act to get the information. In the state of Delaware EVERY trust must be registered. Even if it is dissolved it would still be on Delaware’s register. That is straight from The State of Delaware. Go to the SEC and find out witch state your trust is supposed to be registered in.
@ shelleystotalbodyworks & Melissa
Ms. Shelly,
You’ve written:
1) “…we have proven the trust does not statutorily exist.”
1)a) What is the proof that the trust does not exist?
2) “I have declarations from the Secretary of state of Deleware [sic] declaring the trust is not statutorily registered with the secretary of Delaware, where it is suppose to be registered.”
2)a) What was the procedure and how did you acquire such a declaration from the Secretary of state of Deleware [sic]?
Please reply.
Shelleystotalbodyworks,
Your post detailing the register of your trust in The State Of Delaware is interesting to me because I have the same documentation. Deutsch it the trustee , Chase is the Master servicer, SPS is the currant servicer.
Can you please tell me the name of your Trust? I think we maybe able to benefit each other.
Thanks,
…a little more:
The real issues with RMBS Loans Webinar
…alright, let’s try it this way instead:
https://www.ssyoutube.com/watch?v=KON9r5NwLQ4
…and just so everyone knows how to save a YouTube video:
INSERT “SS” after the first DOT — like this [no square brackets]:
https://www.[ss]youtube.com/watch?v=KON9r5NwLQ4
While not a complete analysis on the cloud of the title, the link below provides a good visual breakdown on the securitization of the payment stream:
“The real issues with GSE Loans Webinar”
Good info i can use on my case Shelly thoigh dealing w difft animal. In CA u can challenge standing, perfected title and defense of void note in unlawful detainer case. Bankster didn’t respond and I’m having to challenge city treating them as owners. Bankster/courts trying to ram things through w expedited jury trial on 31st but as non jury trial and done in one day 3 hrs each to make case, present evidence. Looks like I may have to make case for homeowner bill of rights, TILA damages. If not will not be able to bring up in future as i understand, single action? state.
Marital Estate
Tenants in Entirety with Rights of Survivorship only held between a husband and wife.
They foreclose the debtors Estate.
Question…can they foreclose on the non debtors Estate?
Plaintiff…as One Half of the Estate ..
Yes mn, … The party claiming the injury must show “PROOF OF CLAIM”,
Injury .
They have the BURDEN OF PROOF, not you.
Unless you throw everything including the kitchen sink at them, then the Burden of Proof is now yours.
The lender did not respond to the TILA Rescission Notice, in my case. My attorney at the time did not believe in the TILA claim so would not claim it. So I changed attorneys. Jill Smith is now my attorney. Standing issues can be submitted even in Appeal. A void note counterfiet or authentic, which I do not believe there are any authentic notes,
is a standing issue. So is a Void assignment. Stu Hulsan attorney for the Washington Title Association told the senate in Olympia Washington, while I sat in the chair behind him, if you want to sell your home you never will be able to unless you pass this bill, because if you exspect to find the authentic note none of you (meaning the senators) will ever beable to sell your houses you just won’t. The Texas foreclosure task for had a transcript on the web now redacted stating there is no paperwork to foreclose on ninty percent of the mortgages. Florida Bankers Association declaration states the paperwork has been destroyed. And for some reason the lawyers are making perjured declarations of hearsay saying the note is authentic but will not allow forensic chemical testing of the notes. I have declarations from the Secretary of state of Deleware declaring the trust is not statutorily registered with the secretary of Delaware, where it is suppose to be registered. DBNTC claimed to be registered with Delaware also and I have a declaration they are not either, then purported DBNTC alleged lawyer stated it does not matter they don’t have to be so why claim your are? They hold the note undated in ______________, (with a fraudulent assignment. )
Here is Marie McDonnell’s certified audit of Seattle City King County Records for a tool to help everyone.
https://www.scribd.com/doc/281414769/Updated-McDonnell-Analytics-Final-Report-City-of-Seattle-Review-of-Mortgage-Documents-Hosted-by-KingCast-Mortgage-Movies
In my No Standing case that is in the Appeals court. we have proven the trust does not statutorily exist. Only on the SEC list but never finished being registered and was closed period shortly after being filed. Does not exist. Then the alleged trustee’s of the trust DBNTC trustee’s whom I believe are really the debt collector lawyers SPS not DBNTC, claimed they hold the note but only filed a copy of the note and never filed the alleged authentic note with with court. Just waived a piece of paper around at the hearing claiming it was the authentic note. Alleged DBNTC trustee’s now claim it is moot the trust does not exist. They hold the note. It is undated, in ___________________and signed with a robo signer that matches one on top of each other several other notes signed by this robo signer. digitized signature. The assignment states they have authourity to assign due to JPMorgan Chase is successor in interest to WaMu which has been well established never happened. The judge bought it and I am in the Appeals court. My case is TILA also.
In a Ponzi scheme, it is the investors who suffer the loss but the Fed is trying to ease the pain by buying these worthless assets through quantitative easing, ie creating funds out of nothing.
Debt is money and as debt gets liquidated, deflation sets in by an
unstoppable contraction of the money (debt) supply. It is not over yet.
We have only seen the first half of the debt contraction. Stay tuned for the second half of the show, where bankruptcies and foreclosures soar
beyond anything we’ve seen since the 1930’s.
Thursday 17 December 2015
scott:
How to prove anything requires a creative approach in challenging a
trust securitization, especially on a state level, or in a foreclosure
complaint in chancery, [not talking non-judicial, for which I am not
qualified]. However, it seems a challenge would be more plausible in
federal court, especially piggy-backing a rescission situation. As it
seems almost all lenders fail to challenge within the 20 day response
time limit, the right to challenge rescission has then been waived and
having to respond to a different case puts lenders at a disadvantage.
Whenever a lender responds to a rescission, a new case, demand has
to be made, firstly with a motion to strike as the lender has no standing,
at least via the rescinded note/mortgage, and then demanding Art III
proof of financial injury becomes an interesting, if not formidable hurdle
to overcome. It is here where one can state lack of financial proof that
a loan was ever required becomes easier, and mention of immediate
discovery to ascertain the veracity of what securitization entails is not
something a responding lender wants to do.
I see Neil’s function as throwing out the terrain for new defenses, and
it is up to us to figure out a way to forge a path. There are no cookie-
cutter templates, at this juncture. Sometimes a path is provided, but
each situation is different, regardless of the similarities involved.
mn,
I agree with you. Its just that Neil keeps saying the trusts were never funded but never states how to prove it. As we know its not what you know its what you can prove. I know the trusts were never funded because they were never legally registered. Its very easy to prove.
Thursday 17 December 2015
scot:
Keep it simple. He who makes the claim bears the burden of proof. Why
state or claim the trust was never funded? Burden on you. Rather, the
trust claims “my loan was transferred into the trust. The trust offers no proof of claim that my loan was ever funded and transferred into the
trust, and I deny the trustee can offer proof of a true sale, as required,
or even if the trust still even exists.” Or words along that line. Burden on trustee.
dandiener1, You will have to file a quiet title lawsuit INMHO..Not legal advice. Good work. The servicers/banksters will not file satisfactions and I am not sure how you get them to file finalizing docs.
ILCS refs for 1-217 all hit vehicle code
shadow – only got days-old email
something new?
gg
Greg, I’d say “lender” is part of the deception and fraud without getting into legal specifics. In fact I believe promissory notes, deeds are defined as we understand and are led to believe we are dealing with legitimate lender and mortgage. It may even be dangerous to start interpreting what they mean since then you WOULD have meeting of minds in narrow sense. That’s why it’s best to say as little as possible in court as Garfield has recommended. Ignorance could be bliss in this case if you have all their “errors”, garbage and lies in hand.
Oh, yes, I think I’m beyond the 6 year SOL for these types of cases in GA.
My C7 BK listed a Deutche Bank trust’s certificate holders as “unsecured creditors”, along with others. All unsecured debt was discharged in 2011, including that alleged by Fremont, my pretender lender, and that allegedly assigned by MERS to Wells Fargo et. al.
In July of this year (post-Jesinoski ), I sent TILA Rescission Letters to all of the above. None responded within 20 days.
Much later, I received a boilerplate, uncertified letter from Ocwen attempting to bluff me with a pre-Jesinoski common law. rescission explanation “denying my rescission.” Again, no judicial action was attempted by any interested party.
My questions for Neil and others on this forum:
According to TILA, my Note, Security Deed, and any associated assignments are void, and the C7 BK did away with the unsecured debt, including “certificate holders”; the trusts were not funded with Securitized Mortgages; etc.
What next for me? Is my legal debt gone? Are the leins on my property moot? Am I due anything or nothing monetarily?
Please opine.
SC, marital or martial?
DJ, here is a link: http://www.cbsnews.com/news/whistleblower-facing-foreclosure-wins-18-million/ Lynn Szymoniak wins the lawsuit.
DJ, link does not work.re CBS whistleblower facing foreclosure get $18 mil?? Do you have anything else? Thanks,
scot
It is one thing to say the Trusts were never funded. But you have to prove they were not funded. the federal government prove it . dont you remember the
the government join her and they said that no trust ever was funded and all mortgage s never got transfered into the trust. because they were no trust. hence , all the settlements. bail out.
Whistleblower facing foreclosure wins $18 million – CBS News
http://www.cbsnews.com/…/whistleblower-facing-foreclosure-wins-1…
CBS News
Test 1-217
Lawman, did you get the Email ?
Test 1217
Irrevocable Living Martial Estate
SC, Filing bk 7 on unsecured debt and protect the Estate? What terms do you envision the “estate”?
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thank you.
greg, on December 17, 2015 at 2:01 pm said:
djabelanger, on December 17, 2015 at 10:00 am said:
Lender- A person or organization that makes a loan.
WELL WELL… A word is just a word… and “Lender” can be a function or a PRONOUN…
Imagine i loan you 100 bucks to buy a new toaster – i am then functioning as a “Lender”
Now imagine we are actors in a play and i pretend to give you a hundred bucks in front of the audience, as part of the script… the money we used was actually provided by the prop manager. For the purpose of the play (the contract) i “appear” as a “Lender”… but upon conclusion of the play, i have no right to demand a hundred bucks back from you…even though there were 5,000 witnesses!
Now what if we never told anyone it was a play and they all thought it was real? i could sue you and win because you would be the only who realized it was a canard!
The word “Lender” in these mortgage contracts is a PRONOUN for a party who in fact is a commissioned middle deal negotiator and was never a “Lender” in function.
djabelanger, on December 17, 2015 at 12:26 pm said:
BECAUSE IT STRIKES AT THE HEART OF THESE CASES. SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN’T EXIST.
Even if the REMIC Trust exists and the Trustee IS the authorized party to act on its behalf; the REMIC Trust still has no RES (content) and all the Trustee can do is wait until an authorized Grantor puts something in there in accordance with the “Trust Indenture” (in this case the PSA) … then the Trustee would have something to protect…
It is one thing to say the Trusts were never funded. But you have to prove they were not funded. Neil you have never stated how you can prove the Trusts have never been funded.
@ djabelanger
Don’t forget to finish with: case open.
https://supremecourtcase.files.wordpress.com/2015/10/filed-dkt-58-objection-and-demand-091415.pdf
https://supremecourtcase.wordpress.com/2015/11/05/docket-and-record-houston-and-lufkin-division-federal-tax-cases-2/
puff the magic dragon. hahahahaah
There are the cases like Washington Mutual Bank (dead) were the is defunct and because it not in possession and never made a claim to the court before it became defunct.
It not the borrowers fault or plan that the Notes were held as a pawn shop item without the pawn shop able to resale the Notes because the Note debt was never purchased.
WaMu is dead and cannot come back to life and the blank Notes is void in the eyes of the court because it separated from the debt without any possible way of reuniting the two ever!
I might add that the borrower can file bk 7 anytime on the unsecured debt and protect the Estate … When the time comes to settle the non living estate
Or have a kick ass attorney make sure non borrowers have tenancy with R.O.S. !!! God Bless our Estate Attorney!
BECAUSE IT STRIKES AT THE HEART OF THESE CASES. SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN’T EXIST.
Unsecured Debt. No different than a credit card. Should be as simple as that.