Who Can Foreclose?

The plain truth of SAP — Securitization in Practice — is that nobody who paid value received ownership of the debt and nobody who received an instrument of ownership of the mortgage paid value. 

Thus SAP — securitization in practice — splits payment of value from ownership of the debt which produces an extra legal situation because all US law requires that transfer of a mortgage or beneficial interest under the deed of trust is a legal nullity unless accompanied by a transfer of the debt. All US law requires that transfer of the debt can only be accomplished by payment for the debt.

The bottom line is only a claimant who paid value in exchange for ownership of the debt can satisfy the condition precedent in Article 9 §203 of the UCC as adopted in all US jurisdictions. Everything else is just an attempt at justification or rationalization for how the claimant has satisfied that condition.

Understanding the above explains completely why all documents after the loan closing are fabricated, false, forged, backdated and supported by  perjurious testimony. Foreclosure mills are bridging a gap created by investment banks through false statements.

So don’t get lost in the weeds. Most courts and therefore most attorneys get irretrievably confused when the discussion turns to possession, holding or rights to enforce a note. And lawyers fail to object when legal presumptions are applied to situations where possession of the note does NOT imply ownership of the note or the debt.

Note that there is huge difference between standing in the pleading and standing in the proof. In pleading the mere allegation of facts is sufficient to establish standing to proceed. But at trial the claimant is required to actually prove standing, not merely assert it. In practice this means the use of presumptions to arrive at the factual conclusion that the claimant paid for the debt when in fact that never happened.

Point #1: In situations where there is a claim of securitization, there is no case (not ever) in which the claimant (trust, trustee, certificates, certificate holder etc.) is ever alleged to be or ever proven to be the holder in due course (HDC). HDC status means that the claimant can avoid nearly all potential defenses of the borrower. Securitization claimants don’t have this status because they did not purchase the debt for value without knowledge of the borrower’s defenses. Very simple. The object of foreclosure mills is to be treated as HDC without asking for it. The defense narrative is to reveal that HDC status does not apply — not  necessarily because they didn’t pay for it but because the foreclosure mill has never asked for HDC status. Thus the court has no business applying HDC rules.

Point #2: The claimant must own the debt as a creditor — i.e., as a party who paid value in exchange for receiving evidence of ownership of the debt. This is the only party who can claim injury from non performance of the obligation and therefore the only party with standing to bring the claim.

Point #3: Standing to seek judgement on a promissory note does not equal standing to foreclose unless the claimant owns the debt. This is the beginning point of where lawyers, judges, borrowers and everyone else gets confused. In the mind of the public debt=note=mortgage. Legally, equitably and morally the debt, note and mortgage are separate and distinct each carrying its own legal rights that are not necessarily consistent. Receipt of money creates a demand debt (liability) unless there is a clear indication of a gift. Execution of a promissory note creates a liability even if there is no debt — hence mere possession or even rights to enforce a note is not necessarily sufficient to establish standing to enforce the debt or mortgage.  The mortgage, regardless of what it says, can only be used to secure payment of a debt, the terms of which might be contained in a promissory note. Since foreclosure is a process of forfeiture the rules allowing for foreclosure are much more stringent than the rules of getting a judgment on the liability created by a note. A holder in due course may get judgment on the note, and a judgment of foreclosure on the debt. Nobody else can do so. If they have not paid value in exchange for ownership of the debt, they are not legally allowed to foreclose.

Point #4: In practice claiming possession of the note is treated as claiming title to the debt and thence incidentally a claim as holder in due course. It may not be logical or legal but there it is. So the presumption arises as though the claimant was a holder in due course which effectively destroys any defense — if not challenged. The borrower should deny that the claimant has any right to foreclose because it has not in fact paid value in exchange for ownership of the debt. Any purported transfer of a mortgage is a legal nullity without transfer of the debt also. Then the borrower should simply ask a contention interrogatory as to whether the claimant contends that is has paid value for the debt in exchange for ownership of the debt. And a request  for production should ask for evidence of such payment. The refusal to answer or respond is sufficient, after the foreclosure mill has been given several chances to respond, to raise an inference in favor of the borrower. That inference defeats the presumption that the claimant has paid value for the debt in exchange for ownership, which means that any paper transfer of the mortgage is void — unless proven otherwise at trial with evidence instead of presumptions. In actuality, all the borrower is doing is forcing the foreclosure mill to stop using legal presumptions and actually prove their standing,  right to collect, ownership and right to enforce the debt. If they had evidence of payment they would do so. But they can’t because nobody who paid value received ownership of the debt and nobody who received an instrument of ownership paid value.

Here are some quotes from a case in Florida that might help:

At trial, a litigation manager for Bayview testified. He was not a records custodian for RCS or for Bayview. He was not familiar with the computer systems that either of the prior servicers, CitiMortgage and RCS, used for compiling information on the loan or how it was inputted into the systems. He had no information as to whether the information on the loans was inputted into the prior servicers’ systems correctly. He could not testify to the truth or accuracy of RCS’s records, just that they were provided to Bayview.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 124 (Fla. Dist. Ct. App. 2015)

He testified that Bayview was the servicer and holder of the note. He believed that Bayview had acquired the note through a purchase agreement with RCS, but he had not seen the agreement, nor did he have a copy of it. His belief that Bayview was the owner of the note under the purchase agreement was based on “a screen shot of our capital assets systems, which has information in regards to the status of the loan with us.” This screen shot was not produced at trial.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 124 (Fla. Dist. Ct. App. 2015)

As to the allonge with the blank endorsement from ABN, he did not know when it was executed or whether the signature on it was a “wet ink” signature or a stamp. He did not know whether the allonge was affixed to the note prior to it being filed in the court file. He did not know if the vice president who signed the allonge on ABN’s behalf was in the employ of ABN in November 2009, when Bayview’s records showed that servicing of the loan had been transferred from ABN to Franklin Bank.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 124 (Fla. Dist. Ct. App. 2015)

we agree that it presented no competent evidence that RCS was the holder of the note at the time it filed suit or that it was a nonholder in possession and entitled to enforce the note. Therefore, Bayview failed to prove standing.

If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement…. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff …

Even in the absence of a valid written assignment, the mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 125 (Fla. Dist. Ct. App. 2015)

“Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be … a nonholder in possession of the note who has the rights of a holder.” Mazine v. M & I Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011).

A “person entitled to enforce” an instrument is: “(1) [t]he holder of the instrument; (2)[a] nonholder in possession of the instrument who has the rights of a holder; or (3)[a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or s [ection] 673.4181(4).” § 673.3011, Fla. Stat. (2013). A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2013). Thus, to be a holder, the instrument must be payable to the person in possession or indorsed in blank. See§ 671.201(5), Fla. Stat. (2013).

Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 125 (Fla. Dist. Ct. App. 2015)

9 Responses

  1. “There needs to be some very big changes made to how this country works when this is all over. Heavily re-regulating Corporations, Banks and Wall Street. Stock buybacks should be outlawed. Glass-Steagal brought back full force, and made an amendment to the constitution so it’s un-repealable. Anti-trust needs to be brought back with a vengeance, including the power to revoke a company’s incorporation, if they do the wrong things. Leveraged buyouts of companies needs to go. Taxing unearned income at the same rates as earned income. A 6% National sales tax on all Wall Street financial instrument transactions including stocks. The banning of derivatives and other systemically risky synthetic financial instruments. Any bailouts of banks, corporations or Wall Street should be done through paying off of ordinary citizen’s debts such as mortgages, car notes, education loans and etc first. It’s time for a serious and comprehensive overhaul of the system that only mainly works for the top few. It’s also time for more than a few of these top few to go to prison for their decades of crimes, on the order of the Nuremberg trials”.

    This was from a blogger today…caught my attention.

  2. That’s exactly why none of them can ever be: Holders in Due Course with rights to enforce, foreclose. “they know what they have in their possession”…and they are liable for it. They do not hold legal title under the auspice of the REMIC, which is what every single filing indicates. 100% wrong judges. The judges are commingling the language…and they know it.

  3. There was no legitimate REMIC during the financial crisis.

  4. No, debt does not appear in UCC. And it differentiates between notes in a legitimate REMIC Trust and holders…e.g. Holder-In-Due-Course vs. Holders of a “negotiable instrument”…judges need to take remedial classes in law and understand, contracts 101. States don’t even have jurisdiction to hear matters from NY State Trust Law, most cannot mitigate citizenry-contracts from another state.

  5. The word “Debt” does not appear in the UCC Index.

  6. Who came to the defense of homeowners who were defrauded? Maybe Neil – but certainly not the government or judges.

    Unless one is affected, they simply don’t care. Some still want to party as the virus threatens our world and country. Eventually, all are affected whether infected or not.

    Summer is correct. The courts do not care. The government does not care. Hey — they can always blame the virus now.

    With all these plans to survive this crisis, has anyone suggested foreclosure moratorium? How can people stay in their homes when foreclosure does not stop — not for anyone or anything!!! With people losing income, foreclosures and evictions will increase. Nothing has been suggested to STOP the practice even temporarily. Nothing.

    Airline bail-out. Every one knows they will be bailed out. Stay in home? What home for many? If you have one, it won’t last long. The foreclosure “practice” may be more infectious than the virus itself. .

  7. This is at the root of the Coronavirus.

  8. p.s. worst of all, Judges will continue to foreclose based on forged documents and support banks’ fraud upon the Court because otherwise Judges need to admit that everything they did last 15 years was illegal and must be reversed.

  9. Don’t be naive, All Courts know about this fraud for at least 10 years.

    Here is no law in America except “one bankster said”

    All judges know that transfer of the debt without payment for the debt is nullity.

    But how many Judges EVER asked for the proof of payment? Probably none.

    Every Judges knows about robo-signing – yet they push forged documents through the Court, as instructed

    They are ALL instructed to (1) close their eyes on banks fraud upon the Court; (2) ignore all laws; (3) launder broken Titles .

    Judges all know that they do.

    Foreclosure mill does not bridge fatally damaged Titles

    It creates MORE fatally damaged Titles when illegally foreclosed homes are sold to new owners whose mortgage is also broken into millions pf pieces.

    Here are NO clean property titles in America

    and here is no law on which we can rely.All is fiction now which only exists on the paper, because it was all stolen from us.

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