The bottom line is that the loan account was extinguished contemporaneously with the origination or acquisition of the account. There is no loan account claimed as an asset of any company.
The records of the self-proclaimed servicer are not records of the loan account or the establishment of the loan account on the books of any company. Therefore they are not records of the creditor.
Besides being fabricated those records are irrelevant and inadmissible without foundation testimony and proof that the loan account has been established on the books of some creditor and even then, even that is irrelevant unless that creditor was the named Plaintiff or beneficiary on a deed of trust.
All of this is completely counterintuitive to lawyers and homeowners — but not to investment bankers who continue to profit from each foreclosure without paying one cent to reduce the claimed obligation supposedly due from the homeowner. And they do this all without ever appearing as a party in court.
Nice work if you can get it.
So here is something I drafted recently in response to a memorandum in opposition to the homeowners’ motion to strike the declarations of the “plaintiff”.
Counsel for the named plaintiff is engaging in procedural and substantive strategies of evasion.
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While the action is clearly filed for the benefit of “certificate holders,” counsel continues to refer to the plaintiff as Bank of New York Mellon.
Counsel steadfastly refuses to identify the certificates or the holders.
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In addition, counsel implies a representative capacity on behalf of the “certificate holders” in which the Bank of New York Mellon supposedly has the authority to represent them. As defendant has previously demonstrated to the court, Bank of New York Mellon has consistently rejected any allegation or implication that it served in a representative or fiduciary relationship with certificate holders both in this particular series and in other securitization schemes.
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Counsel for the named plaintiff supposedly appears on the behalf of unidentified holders of unidentified certificates. Or counsel for the named plaintiff is claiming a fictitious representative capacity in which it represents Bank of New York Mellon. But as previously stated by defendant, opposing counsel has no agreement for legal representation between itself and Bank of New York Mellon.
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Instead, it has been retained by a party who is a self-proclaimed “servicer” – Select Portfolio Servicing Inc., and counsel for the named plaintiff asserts that SPS is the “attorney-in-fact” for Bank of New York Mellon.
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However counsel for the named plaintiff has never alleged nor demonstrated that Bank of New York Mellon has ever been party to a transaction in the real world in which it paid value for the underlying debt in exchange for conveyance of ownership of that debt. Accordingly even if SPS is the attorney-in-fact for Bank of New York Mellon, such an assertion is both irrelevant and a distraction from the fact that there is no creditor present in this lawsuit.
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The truth of the matter is that opposing counsel represents neither Bank of New York Mellon nor the certificate holders. Its sole relationship and contact is with SPS, owned by the real player in this action, Credit Suisse — who seeks only profit from the sale of homestead property since the loan account and the underlying debt were retired in the parallel securitization process.
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There is no such debt or loan account and therefore there can be no owner. And if there is no owner of the debt or account then there is no creditor, lender or successor lender. SPS may have some agency with Bank of New York Mellon but that does not create the rights they seek to enforce.
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Counsel for the named plaintiff asserts “the declaration was clearly executed by a person with “personal knowledge” as required by the foreclosure order.” This is not a true statement. Counsel is being disingenuous with the court.
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The declaration was executed by somebody identified as a “document control officer.” The declaration says nothing else about any personal knowledge acquired by the signatory. In fact it does not even define “Document control officer.”
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The declaration itself does not establish the foundation for testimony about the subject loan despite the characterization advanced by opposing counsel. The statement in the declaration is that “SPS holds and maintains all of the business records relating to the servicing of this loan.” There is no statement or allegation or any other evidence in the court file, nor could there be, that the records of SPS include entries that establish the subject debt, note and mortgage as an asset of any entity. That is because no such entity exists and no such loan account presently exists.
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Opposing counsel disingenuously attempts to distract the court by focusing on the familiarity with the record-keeping practices and record-keeping systems of SPS. Such familiarity is irrelevant if the records are not those of the creditor. This is irrelevant if SPS is not an authorized agent of the party who has paid value for the debt in exchange for a conveyance of ownership of the debt. No such allegation or evidence exists except through the use of presumptions related to documents that are not even facially valid.
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Accordingly the opposition filed by opposing counsel is simply another step in the attempt to distract the court from the simple fact that no loan account has ever been established nor has the ownership of such an account been established. Opposing counsel has relied upon innuendo, implication and self-serving inferences to establish facts that do not exist in the real world.
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The declaration of opposing counsel is false. Neither the attorney nor the law firm represents the Bank of New York Mellon. In addition, the attorney falsely alleges “personal knowledge” without specifying how that knowledge was obtained. Like all other documents in this case, the creation of this document is meant to create an illusion based upon a cursory glance at the document rather than an analysis of it.
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The declarations in this case do not survive any credible analysis.
Similarly, the creation and execution of a “limited power of attorney” on March 5, 2020, after the lawsuit was filed and after the motion for summary judgment was filed, is another disingenuous effort to distract the court. The execution of the power of attorney, even if it was valid, is irrelevant if the grantor had nothing to grant. There has yet to be any reference, allegation, exhibit or evidence submitted establishing the identity of any entity that maintains the subject loan account as an asset on its financial statements.
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In conclusion, any reasonable attentive analysis of the documents submitted by opposing counsel reveals the absence of any allegation that counsel represents any party on whose behalf this action was filed, according to the complaint and subsequent filings. Taken individually or collectively, the documents are a smokescreen for the pursuit of profit of a third party (Credit Suisse) rather than restitution for an unpaid debt that no longer exists.
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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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Filed under: boarding process, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, foreclosure mill, investment banking, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, Servicer | Tagged: best evidence, FOUNDATION, hearsay, relevance |
There is more. Check the Advance Receivables Trusts – this is why party names change. Neil is right P&I not advanced, but other costs are. And, if you are in litigation, those costs will rapidly rise. And, it is impossible to get a decent loan mod, or refi with clear title with these advance trusts. .
The courts rarely questions anything. The problem is that the government allows all of it. And, it will get much worse with pandemic forbearance — which they will claim WILL advance P&I to the only real parties that all “holds” any of the claimed “debt” – the U.S. Government.
The biggest problem is what Ian states — “indefensible loans” to start – especially the PLMBS. Frankly, the government cannot and will not fix it. They pulled the wool over the public’s eyes – and they are not going to turn back. .
Yeah I know that Bob- but lousy indefensible loans are all part of the problem. Just thought I’d throw that in to pummel the opponent while they are under attack from all sides. The judges won’t read the settlement anyway, maybe they’ll figure it’s more illegal crap and rule for the homeowner.
Unfortunately, that settlement related to misreps about the quality of the loans; had nothing to do with foreclosure abuses.
The 5.2 billion dollar settlement with Credit Suisse/SPS, overseen by none other than Neil Barofsky, formerly Special Inspector General of the Troubled Asset Relief Program. His scathing indictment of both CS and SPS underscores exactly the points you make in the above post. Thanks,I’ll save this and use it in court if I ever need it-