Documents You Might Not Have Asked For Could be Key to Case

One of the interesting things that nobody is talking about yet is the fact that the “business records” are either not complete or the foreclosing party is producing documents that serve its purpose when it knows that it holds documents that would negate the very proposition they are proffering in court.

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One of the interesting things that nobody is talking about yet is the fact that the “business records” are either not complete or the foreclosing party is producing documents that serve its purpose when it knows that it holds documents that would negate the very proposition they are proffering in court. Certainly a void assignment fills that bill.


Business records that are incomplete are objectionable because they are not complete. It undermines the trustworthiness of the party proffering the use of those so-called business records. It requires much more foundation to admit partial business records. Or at least it should require it. But judges are not likely to be very receptive UNLESS you asked for these documents in discovery. That could tip the other way for you, of course, because you are tipping your hat on your trial strategy. But this might be an opportunity to bar the use of their business records altogether.
So here is something more important, I think. NOBODY ever sells a mortgage loan with just an assignment. Not now, not ever. People are saying that these loans are sold without documentation and that IS the way it looks sometimes. But we all know that the banks are masters of illusion.
They have previously entered into purchase and assumption agreements that provide for the “purchaser” to underwrite a loan before it is made and THEN the “purchaser” will “purchase it” in some scenarios, but in most scenarios there is no purchase because there was no loan from the “assignor” to the maker of the instrument.If there were no purchase and assumption agreements many household name originators wouldn’t exist. Sometimes actual banks served in the role of originators. It is all the same. None of them were on the hook for the risk of loss and THAT is the true test of a real party in interest. Bank regulators were either asleep or paid off to look the other way when they looked at the purchase and sale agreements which were a covenant to violate federal and state lending laws.


The “purchaser” is really a conduit for investor funds that have been laundered six times before they got to the closing table. But regardless of how many items it is laundered it still comes down to the same thing — the Payee on the note never made the loan. Someone else did, using money from an unidentified and perhaps unidentifiable group of investors/victims.


The only REAL reasons why a bank would not demand all the actions, documents, representations and warranties (warrants) is that it already knows what you are getting and you have already performed the due diligence in another transaction cycle. These are things that could be pursued in discovery, but you must assume that what I am saying is true if you are going to fight for them. And you must commit to being very aggressive in fighting for them.


The banks will say “we complied” when they give you nothing. You should have an expert affidavit that says the banking industry doesn’t work that way. They always perform due diligence unless they control the entire transaction cycle — in which case they still have documents to give you showing they controlled the transaction cycle.


Here is the normal track for the sale of a mortgage loan:

Take this quote from one of many websites that “assist” in the sale of mortgage loans:

“If you’re like us, you can’t really start your due diligence until you reference your MLSA (Mortgage Loan Sale Agreement) and check over to see what representations (reps) and warrants are contractually included or not. It’s a given that you must know your note seller as this is absolutely a relationship based business. Remember that collateral comes post closing, so you can’t just trust everyone without some sort of verification. Sure you can have safeguards like a Bailee letter, exceptions reports, Power of Attorney’s (so you can create your own assignments and allonges as opposed to waiting for the note seller to create them), and even escrow accounts, but at the end of the day know who you’re dealing with. It’s also important to know the cure periods and terms with any buyback scenarios or missing collateral. Back in 2007 contracts looked much different than today when there were plenty of reps and warranties. Today it’s mostly buyer beware with few reps and warranties at all. If you are ever in need of document retrieval, I highly recommend trying Orion Financial.”

6 Responses

  1. MLPA is not enough. It is usually just a preliminary agreement with only “an intent” to sell. The MLPA will refer to a “closing schedule” – you need that schedule. The MLPA is also a Repurchase Agreement – you need that schedule, and any other other agreement/schedule that continued long after the “intent to sell” MLPA was initiated.

    Disgusted1 — Check the Federal Register .

  2. We live in a liars paradise…you can fool yourself that you might win…but you wont..this world is full of liars and they run the show here in liars paradise…too many people asleep at the wheel or simply in on the lies..better to walkaway day they will watch as the first become last and the liars will be the very last and will have to live with their despicable greed driven will be between them and the God they turned their back on.

  3. Anybody find Wells Purchase Agreement of Wachovia >

  4. When Congress granted the “guarantee” of GSE MBSs, the GSEs promised that all player/partners in the GSE Business Model (anybody that wants to be a party) must sign a contract stating that they will comply with the reps and warrants. If not, the GSE has the right to have the violator purchase of that mortgage (compliant with state law)at par.This was done to protect the interest of the public citizens who wallet was bet on the success of the Model.

    Write your Congress people and demand that your mortgage be complied with pursuant to the agreement made to Congress.

  5. Fannie Mae Regulations states that they would have it no other way. Purchase and assumption agreements are required.

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