This is how you determine if anyone owns loans:
- Does the named entity actually legally exist? Is it registered anywhere?
- Has the entity received a facially valid conveyance of ownership of the mortgage or beneficial interest?
- Did the conveyance (assignment) also assign the debt?
- Did the entity enter into a transaction in which it paid value in exchange for ownership of the debt?
- Did the grantor of the assignment own the debt by reason of having paid for it.
- Did the grantor own the mortgage prior to assignment?
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A conveyance of ownership of a mortgage or beneficial interest without a conveyance of the underlying debt is a legal nullity in all U.S. jurisdictions. Merely recording an assignment without a transaction in which the assignee paid value for the debt is insufficient to convey any interest. This is the case in nearly all cases where a loan is subject to claims of securitization. There is no assignment of the debt because the debt was never purchased for value. Therefore there was no assignment of mortgage or beneficial interest.
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The courts bridge that deficiency by use of legal presumptions. Claims of delivery of the promissory note are taken as true because few homeowners ever challenge that. The endorsements are frequently stamped or signed, undated, by persons unknown who are often the mortgage broker acting with instructions from a third party intermediary.
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The indorsement is facially valid only because it conforms with statute, but it is otherwise invalid because it was neither signed by or on behalf of anyone who actually owned the debt. This is often contemporaneously with the “closing” of the table funded loan (i.e., signed by the mortgage broker — ask the closing agent who probably witnessed that).
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Effectively the courts are using a series of cumulative presumptions to bridge a gap that is a condition precedent to foreclosure of any security instrument — that value be paid for the underlying debt. Article 9 §203 UCC adopted in all U.S. jurisdictions. These presumptions include one or more of the following:
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- The assignment of mortgage must have meant to assign the debt.
- The assignment of mortgage also assigned the debt and therefore the assignee must have paid for it.
- Delivery of the note must have been the result of a transaction in which the underlying debt was purchased.
- Endorsement of the note must have been the result of a transaction in which the underlying debt was purchased.
- Even if the assignee did not own the debt and did not legally own the mortgage and therefore technically could not foreclose, the foreclosure will yield proceeds that will be used to pay down the debt.
- Explanations, representations and assertions by the foreclosure mills must be credible, trustworthy and probably true.
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In the usual case where a loan is subject to claims of securitization, none of the above assumptions is true but if the presumptions are used they yield false results which results in forced sale of homes in which the proceeds are used as revenue and not to pay down any debt.
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Legal presumptions are only supposed to be applied when the source is credible. Given the fact that the servicers and banks have admitted to fabricating millions of documents and have been paying hundreds of billions of dollars in settlements to investors, government agencies and homeowners, it is very difficult to understand why judges are applying such presumptions from such untrustworthy sources. But they do and that is a fact. Some of that is because they want to and some of it is that they need to because homeowners are not properly challenging the availability of the presumptions, not identifying the presumptions and not challenging the presumed facts. And you must deal with it. Attack the presumption or rebut it. That is your choice.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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Filed under: foreclosure |
Another thing:
A “shotgun pleading,” which is defined as a legal complaint which offers an excessive number of facts while lacking any semblance of clear organization, and then asserts those disorganized and abundant facts as the basis for a cause of legal action.
What the hell is that? Pro Se’s are held to the highest standard. These guys…a collage of “presumptions” and the judge affirms their case? Cannot speak for anyone else, but I have been scrutinized, insulted, berated, scolded and threatened for contempt….the list is long. Only once in my abundant filings has a judge took anything I submitted and gave it any merit. Judge James C. Fox, Federal Court, NC. He administratively closed the case to be reopened, by either party, at the close of the New Century bankruptcy in 2016, with a stay of anything New Century, which is exactly the party brought before the court years later, with Ocwen, as attorney-in-fact for New Century, which was bankrupt. Unbelievable…
Every other time, anything these guys said, was taken as fact. Even where the state court had no diversity jurisdiction over the trust.
Disgraceful…an angry homeowner.
I am trying to use this. They say they have rights….okay well, if that’s the case then:
§ 3-302(1), §3-203(b) Holder in Due Course (is different than a “Holder”): the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and The holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section 3-306, and (vi) without notice that any party has a defense or claim in recoupment described in Section 3-305(a). If the Courts have adjudicated the matter and found US Bank the “Holder – Owner”, this makes US Bank directly liable to the plaintiff for any damages paid under the contract. 16 CFR Part 433 FTC Rule, affirmative recovery. Under UCC 3118 “(c) An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.”
I have an affidavit of lost note…then back in 2007, Credit Suisse illegally seized over 27,000 notes, not belonging to them, one of which was mine. Litigation was filed by the Department of Justice, in Delaware, by McMahon…claiming notes were given to those who didn’t own them and they had no right to them.
Is the instrument not stolen (adversely possessed), when in possession of a non-holder-in-due-course and they come to the court looking for “money or your land, claiming they are the “holder-in-due-course”, yet they are only the holder of a debt? A holder is anyone who has possession and the “right to enforce”…they cannot be both. (both elements must be met) When coming with the trust they are claiming “holder in due course” status, when conversely the holder is liable for illegal acts perpetrated on us.
They have no rights and the instrument is not collectible as presented. The mere presentation of these instruments is a fraud on the court.
Non-legal opinion…I am willing to throw everything at the wall, at this point, to see if it sticks. If I am wrong, corrections will need to be done. Wait and see…
And Summer, I agree about the cash cow here, the elephant in the room. The revenue generated by this behavior is being used to maintain a very healthy balance sheet, by the states. Part of the reason we have been left to fend for ourselves. We are the “sacrificial lambs”…all of us are treated with the same disdain and disregard…
We are doomed. Judges only serve banks and corporations- or those who pay judges directly.
Worth to mention, here is NO information (at least I did not find much) about banks’ servant Judge Kenneth Marra.who dismissed this case.
A case levied against Ocwen Financial Corporation (NYSE: OCN) by the Consumer Financial Protection Bureau (CFPB) in 2017 has been dismissed by a federal judge in Florida, though the Bureau has the option to refile the case if it so chooses
Originally filed by the Bureau in early 2017, the lawsuit alleges a host of violations on the part of Ocwen, including illegally foreclosing on 1,000 borrowers, mishandling escrow accounts, enrolling consumers in add-on programs without their consent, and knowingly populating its mortgage-tracking software with incorrect or incomplete information.
The basis for the dismissal by Judge Kenneth Marra rested in a concept known as a “shotgun pleading,” which is defined as a legal complaint which offers an excessive number of facts while lacking any semblance of clear organization, and then asserts those disorganized and abundant facts as the basis for a cause of legal action.
https://reversemortgagedaily.com/2019/09/09/judge-dismisses-cfpb-case-against-ocwen-though-bureau-can-refile/
And if you want to see how difficult “Discovery” is – follow the CFPB/Florida AG own case against Ocwen. It is mind-boggling.
The “people” can do better??? Don’t think so.
This does not address the arguments in courts. Is the trustee the fiduciary trustee as stated by “claimed” securitization, and in courts, or NOT?
If they are not, that is, they do NOT hold the mortgage or note on behalf of “{claimed” certificate investors – then all is not only FALSE, but also misrepresentation. Get to the representation. It is one of few things judges are capable of comprehending. Can’t move forward without it – because even if you WIN on no “consideration” – or bogus documents – you will lose as you do not have the REAL party. That is the way it is.
In North Carolina the state also “stole” the money allotted for homeowners relief and made up the budget short-fall with it. Many states have done the same…just saying.
“Given the fact that the servicers and banks have admitted to fabricating millions of documents and have been paying hundreds of billions of dollars in settlements to investors, government agencies and homeowners, it is very difficult to understand why judges are applying such presumptions from such untrustworthy sources.”
Because Judges are untrustworthy sources themselves.
Bribes to Judges.
Judicial family and financial interests with banks.
Revenue from filing fees to the Courts
Did anyone made calculations how much money our “non-profit” taxpayers funded Courts are making as REVENUE each year from various filing fees?
I did.
Cook County Court has about 2,5 million cases filed each year. Each complaints has about $360.00 filing fee plus about $230.00 Appearance. (these are minimal basics.
2.5 million x x $590.00 = $1,475,000,000 minimal tax free revenue per year + $600 mil from taxpayers
Foreclosures bring a handsome chunk of profits to all Courts and of course Judges do not want to lose it.