Livinglies's Weblog

Most people really don’t completely understand our premise when we investigate, research, examine and analyze a case or case documents. We have several premises with which we start and check to to see if they apply. While the answer is short the work behind it is long and complicated.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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15 Assumptions we make that show up in all our reports and drafting.

1. Rescission is an event that occurs upon mailing of the notice. It is not a claim for which the borrower must justify before it becomes effective. It is effective on mailing.
2. The trusts are empty. They never took part in any transaction in which any loan was purchased. Therefore referring to the loan as being in a trust is erroneous.
3. The Trusts don’t exist. The use of the Trustee’s name is an accommodation for a fee, and the use of the alleged trust name is the use of a fictitious name of the underwriter for certificates issued in the name of the trust. Hence the certificate owners own nothing (especially since they usually have disclaimed all interest in the debt, note or mortgage.)
4. Since there is no trust in which the subject loan was entrusted to the named trustee, all claims to servicing rights arising from the written trust instrument (PSA) are also fictitious.
5. None of the parties in the named trust have any right, title or interest in ownership or servicing the subject loan.
6. In most cases the named payee on the note was neither a source nor a conduit for funds. All documents, especially mortgage documents, are construed against the drafter of those documents.
7. The naming of a Payee who is not the source of funding prevents merger of the debt with the note, which can only occur when the payee and creditor are the same.
8. In most cases the named Payee is different from the the creditor who funded the loan, intentionally or otherwise.
9. In most cases the recorded mortgage names as creditor (“Lender”) a party (the named payee on the note) who is different from the creditor who funded the loan, intentionally or otherwise.
10. In most cases (nearly all) the originator of the loan named as Payee on the note and “lender” on the mortgage was never in privity with the actual funding source.
11. In nearly all cases referring to a lender or servicer as a lender or servicer is erroneous and admits a fact that is not true.
12. In nearly all cases referring to a trustee as a REMIC Trustee is erroneous and admits a fact that is not true.
13. In nearly all cases referring to a trustee as a DOT Trustee is erroneous and admits a fact that is not true.
14. In virtually no case does equitable or legal ownership of the debt get transferred with documents of transfer.
15. In virtually no case is there a real world transaction in which a loan is purchased and sold. It is the paper that is transferred, not the debt; hence there is no consideration.

Filed under: foreclosure, forms, jurisdiction, legal standing, Mortgage, Motions, originator, Pleading, sham transactions, TILA, TILA rescission, Title, Trail Objections, TRIAL OBJECTIONS, trial strategy |