Livinglies's Weblog

Foreclosures are based on illusion. If the debt is subject to claims of securitization there is no bank — by definition. That’s not an opinion. It is a fact. As soon as you allow use of that word “Bank” you are adding to the illusion that you owe money to a bank. You don’t. Refer instead to “the claimant” or, if you must, to “the trust”.

You should object to the use of the word “bank” in describing the claimant and you should never use it yourself. Using the word “bank” is a tacit admission that you owe money to a bank which is what the foreclosure mills want the judge to think. If you win against “the bank” you are perceived as undermining our institutions.

But if you win against a trust because it doesn’t exist or at least does not own the debt, then you are perceived as just beating up some private group of investors even though none of them have any right, title or interest to collect, process, administer or enforce your debt.

Words matter. If you want the judge to see that you are victim to a fraudulent scheme, stop using the words employed by foreclosure mills — especially the ones that further their narrative.

“The bank” is a phrase that is often used interchangeably with “lender”. It is most often used in attempts to force the sale of residential homes when the debt is subject to claims of securitization. The foreclosure mills use it because it melds the “originator” with the name used as trustee of a trust, which always has a bank name in it. But that bank name has no right, title or interest in your loan and never receives any payments from borrowers, nor proceeds from foreclosures.

The bank name used as the lead descriptor in foreclosures is a ruse to have judges assume that the debt has gone through normal channels.  The judge then sees the case as Bank vs you.

The first rule in taking control of the narrative is to highlight your objections to the judge. For example:

“Objection your honor. Counsel is using the term bank when in fact the claimant, according to them, is a trust.”

The response will be that you are a fool etc. The bank is the trustee of the trust so what is wrong with naming it?

“That’s true your honor, assuming the trust exists and it owns the debt. But is not accurate to say that the bank is the claimant. Normally in litigation the trust is referred to by name not the trustee, even though the trustee is named as the entity representing the claimant.”

Full stop. Your point is made. It doesn’t matter how the judge rules. You have planted the seed of doubt. And you have pushed opposing counsel off balance.

THEN you keep referring to the trust and you refrain from using the word “bank.” Eventually when it comes to discovery and other  issues relating to the scope of duties of the trustee, your demands will more likely be sustained by the judge.

And of course the big question is when did my debt get entrusted to the named trustee? The answer is never. So it isn’t in the trust even if the trust existed. And that means the wrong claimant is making the claim.

Practice note: It will never be the right claimant unless the interests of the investors who bought certificates (value paid) are conjoined with the interests of the underwriter (value paid) and the originator (payee on note and mortgagee on mortgage). That will never happen because it puts the investment bank in the position of undisclosed lender violating TILA, FDCPA etc.

That was the whole point of using an originator — creating a vehicle for unregulated lending. The reason is simple: the one party (investor) who paid value never received ownership of the debt.  

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Filed under: foreclosure |