There is no valid cause of action for foreclosure arising from the Uniform Commercial Code. There is a cause of action under common law contract — but nobody has alleged that in claims or defenses.

The only way that enforceability of the homeowner transaction can be preserved is through common law contract, in which UCC presumptions would probably not apply

I recently received a question from a paralegal asking a question I constantly receive — where do I find my loan. Or more specifically how to find out which trust owns my loan. the answer is that (a) you are asking the wrong questions and (b) you are admitting that the loan is actually in a trust. That simply is not true.

Here is my reply:

I appreciate the work you are doing. I think your work would be much easier if you concentrated on a more simple point.

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It seems like you are assuming that the loan is actually in a trust. in order for that to be true, one of two scenarios would have to be true.
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Either the named trustee of a valid trust has purchased the loan for Value in exchange for a conveyance of ownership of the underlying debt, note and mortgage or a trustor or settlor has conveyed ownership of the underlying debt, note and mortgage to the trustee or the trust. I am quite certain that you will find that neither one ever occurred.
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By examining various reports by the investment Banks with the goal of determining which some Trust owns the loan, you are admitting that securitization occurred. The truth is that securitization probably did not occur. For securitization to occur, an asset would need to be sold to multiple investors. No investor ever bought any debt, note or mortgage. Nobody else did either.
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Because you have not gone to law school, you might be missing will you find her, and more important, points in the litigation. Every case I have ever won was based upon the findings and conclusions of law published by a judge stating that the plaintiff or claimant in foreclosure have failed to produce evidence of ownership of the underlying debt.
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Ownership of the underlying debt can only be achieved through payment of value in exchange for a conveyance of ownership of the underlying debt. This is often presumed when the promissory note is issued and subsequently transferred. that presumption can often be easily rebutted both in Discovery and in objections at trial.
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The goal of securitization was to eliminate the role of the lender or creditor so that there would be no lender or creditor and therefore no liability for violations of lending or servicing laws. Without a company that has engaged in a transaction in which it paid value for the loan in exchange for a conveyance of the loan from someone who owns it, there can be no claim under Article 9 § 203 of the Uniform Commercial Code as adopted by all U.S. jurisdictions.

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I have written extensively on the result of this analysis.

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In cases involving false claims of securitization, there simply is no cause of action or foundation for initiating any foreclosure process based on presumptions arising out of the Uniform Commercial Code.
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The only way that enforceability of the homeowner transaction can be preserved is through common law contract, in which those presumptions would probably not apply.
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And the only way that a common law contract could result in enforceability of the obligation of a homeowner is to have the court create one by the process of reformation, using the doctrines of Quasi contract and Quantum Meruit.

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And the only way that the court could have any Authority or jurisdiction to impose a common law contract would be if an interested party filed a lawsuit asking for reformation.

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In the absence of such a request, the obligation of the homeowner is not enforceable under current law, which has existed for centuries. Forfeiture of a homestead cannot occur unless the claimant actually owns the debt and therefore can claim financial injury as a result of the action or inaction of the homeowner.
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In cases where the claimant arrives on the scene by virtue of language arising from claims of securitization, it has always been my opinion that such a Plaintiff or claimant probably doesn’t exist at all as a legal entity and most certainly does not possess any legal claim arising out of the Uniform Commercial Code, Article 3 or Article 9.

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As a result of my opinion that a common law contract would preserve the homeowner obligation (and the securitization infrastructure), I do not believe that final judgments or orders dismissing the Foreclosure or vacating a sale results in extinguishment of the debt, note or mortgage. Therefore I believe that quiet title does not apply.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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3 Responses

  1. Where did my $100,000 hard money deposit go ?..I know Not to the seller !!!

    Also I just found out Truman Capital the alleged buyer of my loan from Freddie Mac, along with both their debt collector lowlife law firms , all got $350,000 in PPP free money, while continuing to fraudclosing on Americans !!!

    Enough is Enough.

  2. Neil and Summer are correct. There is only one reason that no money was paid for any of these private label so-called “trust loans” — and that is that the transaction was NOT a mortgage but just transfer of claimed debt owed. The only way you will find this out is to go the prior transaction as see if anyone was “paid-out” by the borrower’s “contract” to refinance or purchase. The only entity that has all this data is Black Knight.

  3. Under current securitization scheme NO Trust can exist even hypothetically for several reasons

    1. Here is nobody who can establish the Trust
    2. Here are no loans to be placed in Trust
    3. Here are too many players (Big Banks) who trade DATA about the same loan at the same time, on different platforms.

    We need to look at the money trails and read Prospectuses – all information is in plain sight.

    Between 2000 to 2015 the role of “Lenders” was played by smaller companies like Countrywide, Fremont, New Century, ect. who received LINES OF CREDIT from Big Banks like BOA, Goldman Sachs, Citi

    Since 2015 the Originator of 62% of all “loans” is Black Knight/Fidelity National. former Lenders Processing Sservices/DocX who in 2015 received huge lines of credit from the SAME stockbrokers, to cut off from “origination” smaller sham conduits like Caliber and PennyMac and reduce money trails .

    PennyMac of course is not happy to accpet all risks and lose their piece of the pie. This is why PennyMac decided to copy Black Knight system – to facilitate their own trades based on the SAME manipulated data which they secretly transferred from Black Knight.

    None of these so-called “originators” never established any Trusts because here were no loans to put in Trusts.

    NO LOANS WERE SOLD.

    Stockbrokers sell MANIPULATED DATA not loans.

    What happened and happening now – information about “loans” was converted into a financial salsa , labeled as a”security” and organized in various “modules” – which was never placed in any Trust because this salsa was traded by different Stockbrokers in different forms.

    This is why Big Banks needed a central depository – Black Knight who serves in part as a regulator who created modules which every stockbroker can use for various derivatives and hedge contracts without overlapping each other’s “trades”.

    The same apply to foreclosures. Since here were too many players who trades of the SAME borrower’s identity , they need to designate only one party who will foreclose – a sham conduit named “Servicer” (of nothing) whose only role is to be a “spoke person” with borrowers whom “Servicers” can present a payment history – the only document where they have access on LoanSphere.

    Read FHFA v. Goldman Sachs. Citation:
    “Between September 7, 2005 and October 29, 2007, Fannie Mae and Freddie Mac purchased from Goldman Sachs over $11.1 billion in
    residential mortgage-backed securities (the “GSE Certificates”) issued in connection with 40 securitizations for which Goldman served as
    sponsor, depositor, and/or lead underwriter. ”

    Read GS Prospectus. Citation:

    “We may issue from time to time senior or subordinated debt securities. Neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets or property or assets of The Goldman Sachs Group, Inc. or its subsidiaries. Thus, by owning a debt security, you are one of our unsecured creditors.”

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