Mushy Pleadings Lead to Crushing Results

I help out, edit or draft pleadings for many lawyers and pro se litigants. I recently sent the following commentary to someone who wanted my feed back. I think it is instructive to everyone who drafts pleadings for litigation.

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You must make a decision, and your indecision shows up in your argument which never hits a nail on the head. If you are going to use securitization (or actually the failure of securitization) to formulate your defenses and claims remember that this is a scheme to foreclose on a home in which the claimant has no interest using a mortgage in which it has no interest, which secures a note in which it has no interest for a debt in which no party in their chain is the creditor.

1. Was there a loan of money between the named originator and the named borrower? If not then the only possible theory that is applicable is that the signature of the debtor was obtained through trick and deceit making him a “borrower” on a facially valid instrument that purports to memorialize a monetary transaction that never occurred. If yes, then you need to move your attack to transfers of the loan. A good way of making this determination is to find out whether the next party paid for the loan. If not, you can assume that the loan was never carried on the books of the transferor as an asset — which means it never funded the loan or already sold it to someone else.
2. If there was no loan of money by the named Originator and the named borrower, whose name should have been the named payee on the note and the named beneficiary (or lender) on the mortgage or deed of trust? How will you describe it if you don’t know the actual names (which of course you don’t because the investors names and contact information are guarded by the highest possible security — lest they find out how their money is being used)?
3. If this was a table funded loan, who was the source of funds?
4. Is there a contractual relationship between the originator and source of funds? (In most cases the answer is no — there is a Purchase and Assumption Agreement executed before even the applications for loans were taken in which the parties agreed to violate the statute and public policy — i.e., the creation of table funded loans). The PA&A is NOT between the originator and source of funds but rather another sham conduit.
5. Beware the use of words and ideas. The trap-door here is asserting a table funded loan which might be taken as an admission that the loan between the two parties exists when what you really want to say is that we have a debt owed to the source of funds but no contract. The contract (note and DOT) we signed does not have a debt that merged into the note.
6. Saying it is illegal is a tacit admission that the loan exists between the “borrower” and the pretender lender who served as the originator. It doesn’t.
7. Saying it is unenforceable is a tacit admission that the instrument is otherwise valid. It isn’t.


3 Responses

  1. Good post! Sound my story! Impossible relationships when Wells Fargo just switched my loan to BSI!
    I’ll forward this post

  2. good post – thanks

  3. Excellent information, thanks Neil!

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