Fundamentals of Foreclosure

Probably the biggest mistake and most common mistake I ever made as a lawyer was by assuming certain things at the very beginning of a case. No case is more dangerous ground for assumptions than foreclosures.

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When a lawsuit is filed or nonjudicial foreclosure is initiated, the party bringing the claim always has the burden of proving the legal elements of the claim. Such a party must prove that it has the right to make the claim (standing) in addition to establishing the elements of a cause of action. A party only has the right to make a claim (i.e., the court only has jurisdiction) if the the claiming party has been injured in some way by the Defendant or homeowner, in the case of foreclosures. The claiming party must identify itself and allege that it exists and is otherwise sui juris (able to make a claim under state law). In foreclosures, this element is nearly always misrepresented.
In foreclosure cases the claim is always the same — the involuntary sale of the subject property. The elements to be proven by the claimant, in addition to its legal existence, are that it is injured by nonpayment. The claimant can also allege that it is bringing the action on behalf of the party injured if it identifies the [arty with sufficient specificity such that the homeowner can seek to confirm whether the agency relationship exists. Otherwise the right to cross examine witnesses, guaranteed under the 6th Amendment of the U.S. Constitution is violated. In the courts this has been a weak spot for judges who simply assume that the named claimant exists and was injured by the homeowner’s alleged non payment. Aggressive advocacy is required to redirect the court’s attention to basic, fundamental elements of lawsuits and nonjudicial foreclosures.
If the claimant has proved a prima facie case the burden of proof shifts to the homeowner. Without proof that is accepted into evidence by the Judge, the court is merely presuming facts rather than finding them by weight of the evidence. The common practice is for the claimant to invoke legal presumptions arising from the apparent facial validity of an instrument. But the courts go too far in using such presumptions in also presuming that every word on the document is also valid and true. Again aggressive advocacy is required to redirect the court’s attention.
Without the presumptions it is most likely impossible for the claimant to prove a case on its own behalf much less for any third party. Frequently the claimant does not legally exist (REMIC Trust) and thus is not sui juris and has no place being referred to as claimant in either judicial or nonjudicial foreclosures.
The usual pattern is that the name of an entity is asserted and implied to be a trust without stating where it was formed, under what jurisdiction, and whether it still exists, and if so, where it exists. Normally the address would be the same as the Trustee but this is not the case with REMIC Trusts; this is because the rules for domicile of a business entity require its place of business to be where it does business and maintains activities that are administered by the trustee. But if no business activity is conducted by the Trust it is usually because there is nothing that has been entrusted to the named Trustee to actively administer on behalf of the beneficiaries of a trust. If there is nothing in trust then there is no trust and the trust allegation must be ignored.
To avoid the overuse of legal presumptions, homeowners (by and through their counsel) must “prove” a narrative that contradicts the facts that are presumed. The burden of proof however is much lower than proving a case or a defense. It is more akin to a probable cause finding or even less.
The narrative must raise serious and credible issues under which the facts at trial might be found that are inconsistent with the facts that the claimant is presuming. The court would then ignore the legal presumptions and require the claimant to prove their case with facts rather than presumptions.
Documents that contain inconsistencies with each other or even within the same document are the most likely sources of a credible narrative under which the actual facts  found at trial might differ from the facts that the claimant seeks to be presumed. In virtually all foreclosure cases where the claimant is forced to prove the facts rather than being allowed to rely on preemptions, our observation is that the case is settled under seal of confidentiality.

4 Responses

  1. Sent from my Verizon Wireless BlackBerry


    docket and documents in pdf for your reading enjoyment RE: NCUA v Deutsche Bank. should be interesting……

  3. moderation.
    1. Plaintiff, HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET-BACKED SECURITIES 2OO5-2 TRUST, HOME EQUITY ASSET BACKED CERTIFICATES, SERIES 2005-2, c/o Wells Fargo Bank, N.4., Servicer, is a national banking association, organized and existing under the laws of the United States of America, authoized to do business in Wisconsin with one of its principal places of business located at3476 Stateview
    Boulevard, Fort Mill, South Carolina 29715, and is engaged in the business of banking, lending and related activities (hereinafter “Plaintiff’)
    1. Denies Paragraph 1 of the Complaint and affirmatively alleges:
    a. The Plaintiff in this action is Wells Fargo Bank, N.A. (Wells Fargo), as has been the case since the beginning of the litigation initiated February 3, 2009 in Kenosha County Circuit Court Case No. 2009CV000353, (hereinafter the “First Foreclosure Action”) concealing its
    identity behind the name of “HSBC Bank USA, National Association, as Trustee for Wells Fargo Asset Securities Corporation Home Equity Asset-Backed Certificates, Series 2005-2” in the First
    Foreclosure Action.
    b. There is no entity in existence which can be located under the name Wells Fargo Asset Securities Corporation Home Equity Asset-Backed Certificates, Series 2005-2 (hereinafter
    the First False Identity).
    c. The actual entity in which the June 10,2005 Note issued by Roger Rinaldi purports to have been “deposited” is the Wells Fargo Home Equity Asset-Backed Securities 2005-2 Trust (hereinafter, from time to time for ease of reading, the WFHET 2005-2 Trust) of which HSBC
    Bank USA, National Association (HSBC Bank, USA, N.A.) is identified as the Trustee.
    d. The Wells Fargo Home Equity Asset-Backed Securities 2005-2 Trust represented itself as a Real Estate Mortgage Investment Conduit (REMIC) Trust, entitled to tax preference status under 26 U.S.C. sec. 860D.
    e. A REMIC Trust must comply with the REMIC requirements for tax preference status by delivery of assets to the REMIC Trust within 90 days following the startup day, excepted under 26 U.S.C. sec. 860G(d)(2) and by electing REMIC Trust status with the Internal Revenue.
    f. If a REMIC Trust fails to comply with the requirements for the tax preference status allowed under 26 U.S.C. sec. 860D, there is a one hundred percent tax penalty for contribution of
    assets to the REMIC after the startup day under 26 U.S.C. sec. 860G(d)(l), which provides:
    (1) In general
    Except as provided in paragraph (2), if any amount is contributed to a REMIC after the startup day, there is hereby imposed a tax for the taxable year of the REMIC in which the contribution is received equal to 100 percent of the amount of such contribution.
    g. Although 1J1 of the Complaint alleges that the WFHET 2005-2 Trust is a national banking association, the WFHET 2005-2 Trust is NOT a national banking association.
    (Defendant Exhibit 13)[1],
    h. HSBC Bank USA, N.A. is a national banking association chartered under 12 U.S.C. sec. 21 and no where in the powers enumerated under 12 U.S.C. sec. 21 did Congress grant powers to act as a trustee to national banking associations. Rather, the powers of national
    banking associations to act as trustee are governed by 12 U.S.C. sec. 92a, which requires that a national banking association be authorized by the Office of the Comptroller of Currency (OCC)
    to act as a trustee by determination of the factors enumerated at 12 U.S.C. sec. 92a. There is no allegation that the OCC authorized HSBC Bank USA, N.A. to act as a trustee.
    i. The WFHET 2005-2 Trust to be a REMIC Trust, and, contrary to ^[1 is NOT authorized to do business in the State of Wisconsin (Defendant Exhibit 14).
    j. The WFHET 2005-2 Trust was represented to the investing public through filings with
    the Securities and Exchange Commission (SEC) as being comprised of multiple tranches, with
    certificates of beneficial interest issued to investors using different identifiers, known as CUSIPS (Exhibit 13).
    k. CUSIPS reference the certificates issued (Exhibit 14).
    1. Wells Fargo is the alleged Originator, Seller (Depositor), Sponsor, Securities Administrator, Master Servicer, Servicer, Special Servicer, and Custodian for the WFHET 2005-2 Trust, per the Pooling and Servicing Agreement (PSA) for that purported transaction[2].
    See Exhibit A attached to the Answer of Desa Rinaldi (previously filed in Adversary No. 15- 02186 in the United States Bankruptcy Court for the Eastern District of Wisconsin (WIED), electronically filed on even date herewith, retrievable in its entirety at! 340310/000091412105001996/we864727-ex4.txt and
    Exhibit B attached to the Answer of Desa Rinaldi at pages 1 and 7, retrievable in its entirety at https: // Pages 1 and 7 of the September 29, 2005 Prospectus Supplement filed with the SEC for the WFHET Trust 2005-2 are exemplified and produced as this Defendant’s Exhibit 37.
    m. Wells Fargo has sued Roger Rinaldi and his nonobligor spouse, Desa Rinaldi, who answers separately, in two different identities in this Court, the First False Identity, alleged in this Answer at f 1 .b., above as HSBC Bank USA, National Association, as Trustee for Wells Fargo Asset Securities Corporation Home Equity Asset-Backed Certificates, Series 2005-2 and, now, in this present case as HSBC Bank USA, National Association As Trustee for Wells Fargo Home Equity Asset-Backed Securities 2005-2 Trust, Home Equity Asset -Backed Certificates, Series 2005-2 (the Second False Identity).
    n. As stated above, CBIs are not de jure entities and have no standing to sue.
    o. HSBC Bank, N.A., USA, is a nominee TRUSTEE for many Wells Fargo securitizations, and lends its name (for a fee) for use in the undisclosed and unregulated securities acquisition of Roger Rinaldi’s June 10, 2005 Note and many other similar securities
    acquisitions (Defendant Exhibit 18).
    p. The Note made and issued by Roger Rinaldi on June 10, 2005 (attached to the Complaint as Exhibit A, now displaying an endorsement which is alleged to be a forgery, infra)
    was never transferred to the Wells Fargo Home Equity Asset-Backed Securities Series 2005-2 Trust through the special purpose vehicle (SPY) by negotiation required under Wis. Stat. sec.
    403.201 and by delivery required under Wis. Stat. sec. 403.203(1).
    q. Upon information and belief, if the June 10, 2005 Rinaldi Note was transferred at all, it was transferred electronically and the electronic transfer is unenforceable in these proceedings
    under Wis. Stat. sec. 137.12(2)(b).
    r. The WFHET 2005-2 Trust was not funded as required by conveyance of the Collateral Documents according to the terms of Section 2.01 of the PSA (Desa Rinaldi’s Exhibit A, at pages 43-45) because the June 10, 2005 Note (the Rinaldi Note) was not endorsed in blank by an individual with the authority to endorse the Rinaldi Note within 90 days of the “startup date” of the REMIC Trust.
    s. Roger Rinaldi specifically alleges that the endorsement in blank displayed on the Rinaldi Note is a forgery in violation of Wis. Stat. sec. 943.38 because the capacity claimed by the Joan M. Mills endorsement is false. Joan M. Mills was never a Vice President of Wells Fargo Bank, N.A. The endorsement appears to have been made after the First Foreclosure Action was dismissed years after the startup date of the WFHET 2005-2 Trust and, upon information and belief, Joan M. Mills did not endorse the Rinaldi Note. These foregoing grounds
    are not exclusive and the foregoing grounds and other grounds for the allegation that the Joan M. Mills endorsement is a forgery may require further discovery to be conducted in this action to
    assure that clear and convincing evidence of the allegation of endorsement forgery is established to the satisfaction of the Court or any appellate court upon review, despite substantial evidence
    already known.
    t. In order to attempt this second foreclosure of Rinaldis’ Flomestead, Wells Fargo, and their counsel, rely on the uttering of forged documents and other predicate acts constituting in violation of state and federal criminal law to operate the (racketeering) WOCCA ENTERPRISE
    in violation of the Wisconsin Organized Crime Control Act (WOCCA) at Wis. Stat. sec. 946.80, et seq. to injure the Rinaldis property rights by using the Second False Identity claiming to have the right the payment or performance of the security interest on the Rinaldis’ Homestead under Wis. Stat. sec. 409.203(7).
    u. The Rinaldi Note was made payable to Wells Fargo Bank, N.A., as the “lender,” when Deutsche BankTrust Company Americas, N.A. (hereinafter DBTCA) funded the loan through a warehouse line of credit, issued to Wells Fargo Home Mortgage, a division of Wells Fargo. See Defendant’s Exhibit 3.
    v. Wells Fargo acquired Roger Rinaldi’s signature on the Rinaldi Note to originate the securities transaction and, through Wells Fargo Securities Corporation (believed to be a wholly owned subsidiary of Wells Fargo’s parent company, Wells Fargo & Company) purported to
    “deposit” at least TWO NOTES AND MORTGAGES as collateral for TWO DIFFERENT MORTGAGE- BACKED SECURITIES. (Exhibits 4,29)
    w. Defendant’s Exhibit 1 shows that, by searching the SEC records for the alleged delivery of the Rinaldi Note, it was discovered that, in addition to the claim that the WHFET 2005-2 Trust acquired the Rinaldi Note and the June 10, 2005 Mortgage granted as security
    therefor (Exhibit B attached to the Complaint) in the undisclosed securities acquisition, it also appears that the Rinaldi Note and June 10, 2005 Mortgage were claimed to be collateral assets of
    the Norwest Asset Securities Corporation Mortgage Pass-Through Certificate Series 1998-1 Trust. (Norwest Asset Securities Corporation is now believed to be known as Wells Fargo Asset
    Securities Corporation.)
    x. Upon information and belief, the WFHET 2005-2 Trust experienced a trigger event, defined as a default in the payment streams generated from the servicing of the collateral (Notes and Mortgages or Deeds of Trust) to the extent that credit-default swaps, bond insurance proceeds, and other credit enhancements, including potential claims against bond insurers like Triad Guarantee (Exhibit 22), which was forced into rehabilitation proceedings in the State of Illinois
    y. When those re-insurance revenue streams are distributed and exhausted, servicer advances provide funding to make payment to those still holding valid certificates of beneficial interest (Exhibit 14). Wells Fargo, as Master Servicer of the WFHET 2005-2 Trust is liable for making the payments to the investors in the WFHET 2005-2 (unless they have already been paid) under the WFHET 2005-2 Trust Supplemental Prospectus and in accordance with the PSA at page 56.
    z. Upon knowledge and belief, Wells Fargo is using the Second False Identity to proceed before this Court in this action in order to lay claim to the Rinaldis’ Homestead for its own account as Master Servicer of the WFHET 2005-2 in order to recover payment advances made to
    the entity falsely identified as Plaintiff in this action by the Second False Identity.

    And this got me……..GOTZ!

  4. A note from Banking Law 360:
    Deutsche Bank has asked a NY judge to dismiss a lawsuit by a number of credit unions regarding RMBS, saying that it is too late to fix standing issues.

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