Livinglies's Weblog

While this case could have the effect of barring all those cases that are over 6 years old (NY Statute) where acceleration occurred, it does nothing in those jurisdictions like Florida that have twisted logic to create a virtual deceleration allowing the statute of limitations to continue running.

The logic and precedent cited by this NY court, Appellate Division, is basically what the rule has always been until in recent foreclosure cases, courts in other jurisdictions bent over backward to find ways to allow foreclosures to proceed even though the purported claimant failed to file until after the statute of limitations had run. Such actions were always considered to be time-barred which was supported by several doctrines. Now there is conflict.

The number of cases in which the statute of limitations is an issue has skyrocketed. Why?

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see BONY Loses SOL Case in NY

also article: new york law journal/2019/03/20/mortgage-acceleration-and-statute-of-limitations

I’m one of the few people who, at age 72 and having practiced law for 42+ years, and who previously worked in commercial and investment banking, asks why any institution would wait after a default for 5, 6 even 10 years to file a foreclosure complaint. When I started practicing law any bank officer who failed to bring such a claim would risk termination of employment. That is still true for those banks who were the lender and still are.

After 13 years of research and analysis of this subject I have arrived at the following conclusions:

• Most foreclosures today involve a claim on behalf of a party who will not receive the benefit of winning (and doesn’t care). For reasons unique to foreclosure cases this does not bar the named claimant as having lack of standing. No assertion is made that the claimed “assignee” or the claimed “successor beneficiary” will ever receive the money and they never do.

• If there was an undisputed creditor to whom the debt was owed and that creditor had rights assigned to it under an assignment of mortgage and indorsement of promissory note, then there would be no delays. What creditor would wait 6 years before attempting to collect? Before the era of false claims of securitization, foreclosures were not barred by the statute of limitations because the situation didn’t come up. A bank has a duty to expeditiously enforce its claim for payment. Foreclosure actions that were barred by the statute of limitations were extremely rare birds.
• There are two primary reasons for extended delays in initiating foreclosures in nonjudicial and judicial states:
  • First, the investment banker who started a securitization scheme is allowing its tacit partner, the alleged “Master Servicer”, to accumulate claims of servicer advances until the equity in the property has been used up.  This claim solely arises by labeling payments made to investors as “Servicer Advances” despite the fact that such payments come from the investors’ funds and not from the servicer and are thus not advances. So the proceeds of the sale of foreclosed property go to the so-called “Master Servicer” and not the party named as claimant.
  • Second, knowing that the paperwork in a specific case is already subject to scrutiny for forgery etc., the playbook calls for waiting, to wear the homeowner down, and then introducing new paperwork to correct the obviously defective fake paperwork.
• BONY/Mellon, as in the case that is cited in the link above, is not acting as Trustee of anything, and is not a claimant in its own right. Further it is not going to receive the benefit of any foreclosure. Someone else will receive that benefit and that party will not be a creditor. So in the remote jungles of Wall Street decisions are made by persons who represent parties that will never be disclosed, none of whom are creditors at the time of foreclosure because the debt was previously further distributed amongst dozens of investors who have no direct claim on the debt, note or mortgage. The use of the BONY name is a ruse. They have nothing to do with the loan.
• The implied trusts and investors don’t have a claim, so someone needs to be drafted or appointed to take the position of claimant, even if that is a false representation to a court. Neither the trust nor any holder of a certificate has any ownership interest in the debt, note or mortgage. If they don’t own the debt then they can’t enforce the mortgage. But it is getting harder to get people to signing documents that they know expose the signor to criminal liability, even though nobody except Brown at DOCX has been prosecuted so far.
• So an important reason for such delays is that in cases where the false underbelly of illegal foreclosures can be easily exposed, the banks have chosen to wait it out while they get hundreds of thousands of foreclosure sales by default. This helps to cement the impression that the certificates issued in the name of nonexistent trusts actually have a value, encourages investors to buy more certificates and prevents investors from making claims for fraud, thus collapsing some large portion of the shadow banking market.

Filed under: foreclosure |