“the servicer is in exactly the same position as the supposed attorney. It has no operative relationship with the named plaintiff because the named plaintiff has no claim.“
see https://chicagoagentmagazine.com/2020/09/08/corelogic-foreclosures-could-double-by-2022/
The most common mistake I make in litigation — and I think this is true for all trial lawyers — is assuming something to be true that is so basic that it must be true. One of those issues in foreclosure litigation is the question of how the foreclosure mill attorneys are being retained or used. It turns out that these lawyers are both a shield and a sword.
For example, I’m currently working on a case where the assumption is that Bank of New York Mellon is the plaintiff. After all they were named as the plaintiff in the lawsuit claiming Foreclosure.
When you drill down, it is obvious that it is not Bank of New York Mellon who is the plaintiff in the lawsuit. It is an implied trust that is not registered anywhere.
And in many cases, the caption implies that the plaintiff is neither BONY nor the alleged trust but rather the holders of certificates issued in the name of the trust. And we now know that the certificates are sometimes referred to as “mortgage bonds”, even if they convey no interest in any debt, note or mortgage. So the holders of the certificate are merely unsecured creditors of the trust, if it actually exists, or the investment bank that was doing business as a trust.
And of course there is no identification of the certificates nor any identification of the holders of the certificates. So the complaint is asking for relief for unnamed claimants. And we already know that if they did identify the certificates, or attach a sample to the complaint, the court would easily see that the certificates do not convey any right, title or interest to any debt, note or mortgage, nor any payment or proceeds arising from any loan. Thus no claim could be made for a loss on an investment that does not exist. There is no investment in loans — directly or indirectly.
Once all that is unraveled, we are left with several very basic questions.
First, how does the debtor trustee become a representative of the creditor investors? The obvious answer is that there is no such relationship and Bank of New York Mellon has proven that in litigation against the investors who sued them for losses incurred relating to the sale of securities (certificates/mortgage bonds). And you will never find an allegation or an exhibit in any litigation of this date in which the relationship between the holders of the certificates and the alleged trustee is explained or even referenced.
To put it bluntly, there is no satisfactory answer to this question. There is no representative capacity. Bank of New York Mellon does not represent the interests of investors in the certificates. Accordingly, any lawsuit that introduces bank of New York as part of the name of a plaintiff is misrepresenting facts and misleading the court.
The above style of pleading is basically a multiple-choice initiative. The lawyers for the Foreclosure mill can respond to a challenge by pivoting to one of the other names. But none of the names are true plaintiffs because none of them ever get to see one penny of proceeds from any foreclosure sale — except a distribution of fees for playing their part in a charade.
So the second question that is almost universally overlooked by everyone is, given the above, who is the client of the lawyers who are pursuing Foreclosure? The assumption of course is that they represent the named plaintiff. But as you can see from the above, the multiple-choice options of the true plaintiff only provide a menu of possible claimants, each with diametrically opposing interests, so the lawyer cannot be representing all of them.
As we have seen and as has been reported on multiple sites including this one, there is no retainer agreement between Bank of New York Mellon and the lawyers who are pursuing Foreclosure. In fact, there is no contact of any kind between Bank of New York Mellon and any lawyer in any foreclosure mill relating to the authority to pursue the case or the facts required to stake a claim in court.
And we know that not just because we have seen exchanges and admissions that have been reported in court between the attorney for the Foreclosure mill and the sitting judge. The main reason we know that to be true is that Bank of New York Mellon has no powers of administration, collection or enforcement over any debt, note or mortgage and in fact has no right to even make an inquiry as to the status of any loan.
And since we already know that neither Bank of New York Mellon nor the implied trust have ever paid value for the underlying dead, they could not possibly own the mortgage and therefore could not possibly authorize enforcement. Yes it is that simple.
So the first thing we know is that the Foreclosure mill cannot possibly have been engaged by Bank of New York Mellon to represent Bank of New York Mellon or the alleged trust as the named plaintiff in the foreclosure complaint that was drafted by the foreclosure mill.
So the assumption that bank of New York Mellon is the Client of the Foreclosure mill is erroneous. And that means that the use of the name of Bank of New York Mellon might be authorized in an agreement with an investment bank to use the BONY name as part of a license agreement, but such an agreement violates existing law by naming a party as plaintiff who has no claim. Since that is an agreement to violate the law, the authorization is a legal nullity. And that obviously means that the Foreclosure bill did not have any real authority or any contract under which it was authorized to file a foreclosure complaint that be have a bank of New York Mellon, or any trust or any investors.
And if you ask the question to a lawyer for the Foreclosure mill, as I have done, about the identity of their client, they will often say that their client is a “servicer” who represents Bank of New York Mellon as trustee for the applied trust on behalf of the certificate holders, which we’ve already seen is a meaningless combination of words intended to provide a vehicle for pivoting off of knotty questions.
It may be true that payments to the Foreclosure mill for their services come from a servicer, like Ocwen Loan Servicing in West Palm Beach, Florida. There might even be a retainer agreement between the foreclosure mill and the servicer. But such agreements are only vehicles designed to allow all participants to hide behind the umbrella of litigation immunity possessed by the lawyer who may advocate questionable facts as long as he/she does not absolutely know they are untrue.
In turn, Ocwen (or whoever the servicer is claimed to be) has no contact with the multiple choice plaintiffs, none of whom have paid value for the debt, none of whom own the mortgage or possess any right to enforce and none of whom has satisfied the condition precedent of Article 9 §203 of the UCC as adopted into state law in all U.S. jurisdictions.
So the servicer is in exactly the same position as the supposed attorney. It has no operative relationship with the named plaintiff because the named plaintiff has no claim.
All of this brings us full circle back to a question I raised back in 2006. With whom does the lawyer maintain an attorney client relationship? I think this is an appropriate question to ask because it would affect the extent to which attorney-client privilege could be involved to bar inquiries into communications between the locker room and the foreclosure players.
So it turns out that the assignment of a case to a Foreclosure bill occurs as a result of a desktop application that is run by third parties who are never mentioned in the litigation. For example take a look at this from Wells Fargo:
“As of June 6, 2011, all new referrals will be sent through Desktop instead of VendorScape. Desktop referrals can be identified by the K33 step, REFERRED IN DESKTOP on the FOR3 screen in MSP. You will still have loans that were previously referred through VendorScape that should continue being processed during this time.
Reports
You will receive several daily, weekly, and monthly reports to assist you in effectively monitoring and
processing of your portfolio. The reports will be listed within the appropriate section of the manual. Effective February 15, 2012, for attorneys, the reports will be uploaded to your DTS mailbox. First, refer to your Transmission Confirmation Document. Then, access your Prod URL. Finally, key in your Universal ID/LogonID. For liaisons, the reports will be in the DS_FC_AttorneyRpts folder on the shared drive. Reports are to be
considered either “reference” or “action required.” Reference reports are meant to give a status of the portfolio.
Action required reports alert you of a task that needs to be performed. The following reports are meant to give you a general overview of the status of your portfolio.”
*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.*
FREE REVIEW: Don’t wait, act now.
CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.
*CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*CLICK HERE TO ORDER CASE ANALYSIS
*CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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.
- But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
- Yes you DO need a lawyer.
*Please visit www.lendinglies.com for more information.
Filed under: foreclosure |
Well, this case blows our host’s legal theories, arguments, and his business model all to smithereens:
https://scholar.google.com/scholar_case?case=15208556086417633856&q=holder+in+due+course&hl=en&as_sdt=4,33&as_ylo=2020
Summer…most of your last post is irrelevant and immaterial. The purchase and sale contract between the house seller and house buyer has nothing to do with the lender and mortgagee. I really don’t have time to address the rest of your post because it has already been addressed here previously and, with all due respect, it, too, is irrelevant, immaterial, and mostly nonsensical.
To Bob G.
If we need to get to the very beginning, it worth to remain that we all dealing with CONTRACTS law which require an enforceable Contract at first. How many of us have an enforceable Contract? I think nobody.
If the purchase a loan to finance a house – which is a contract – is based on fraud and lacks one party who is a Lender, all other discussion is irrelevant.
Each standard Mortgage has a provision the the Note or part of the Note can be sold.
Was it actually SOLD? If yes, who is the Seller and where is a release of lien by the Seller to the borrower? Or purported “Sellers” all hold the SAME lien to the seam debt as “buyers” who “purchased it?
If a Holder of the Note (which is forged) presents this document in the Court, we move from Contract law (which invalidates contracts based on fraud immediately) to a Statute of Frauds.
Note may or may not be negotiable instruments, it depends.
But IF somebody purchased a Note, it must be a SELLER of this Note – who received the payment and released the lien to the homeowner.
Notes do not float in the air by itself looking for a new owner.
For instance, I have PennyMac who claims to be “owner” who “purchased” my LOAN (mortgage) thus have right to collect.
But when I ask from WHOM PennyMac purchased my loan – nobody can tell me the name of the seller! Or which Trust holds my debt as security
So, can PennyMac as owner accelerate my Mortgage if they present a forged Note in the Court – without providing a SOURCE where they obtained it?
It just like a thieve who drives your stolen car with forged Title.
You ask the thief where he got your car, and he tells he purchased it – but cannot tell from whom. Is this car still yours or it is his, without any prove of payments?
All after Black Knight kicked PennyMac from their MSP and PennyMac cannot do anything, except lie to customers?
“Use Desktop instead of VendorScape. Desktop referrals can be identified by the K33 step, REFERRED IN DESKTOP on the FOR3 screen in MSP.
Desktop/MSP = Black Knight, then Lenders Processing Services
VendorScape = CoreLogic
CoreLogic + Black Knight are partners actual Servicers and secretive “liasons” for fake Servicers like Ocwen, PennyMac, ect
CoreLogic is a part of First American Title insurance; while BlackKnight/Fidelity owns most of large Title Insurance companies.
CoreLogic and BK both process mortgage applications under glimpse of “Lenders” – but they are never listed in RESPA disclosures.
CoreLogic owns Countrywide’s Appraisals and now dominates about all appraisals market, thus monopoly.
CoreLogic and Black Knight issue Flood Maps on behalf of FEMA and put more burden via bogus Flood Insurances.
CoreLogic secretly sells borrowers information to predatory “lenders” who churn adjustable rate “loans” with huge cashouts.
Black Knight now wants to takeover CoreLogic to keep their secretive secrets in one hands.
Black Knight is collapsing PennyMac as we speak. PennyMac cannot perform even the most simple tasks about loans after Black Knight kicked them from their MSP system in October 2019
This is not a capitalism. Its slavery and a huge monopoly, subject to Sherman Clayton Acts (forgotten by US Government on Banks payroll
Yes Java. No where to turn. Been going on a very long time. BOA only stated “Lender.” They were “servicer” first off for GSE. Originator — that is not stated. But it all comes from there. .
Anon.
I guess you are correct. Freddie Mac should be 1st even before the “originator” BOA NA as well as next to every other named entity I posted below.
As for as whose clock this can be all blamed, I can tell you this chronological order for sure.
Bush. Obama. Obama. Trump.
Java — you don’t have chronological right — starts with GSEs.
Java — always starts with GSEs. But, the potential damages to economy (or darn “investors”) is so great that nothing is ever disclosed or resolved. And the courts keep rolling.
Now – on whose clock can this be blamed?
BOA NA > BAC Home Loans > Specialized Loan Servicer > FreddieMac > Truman Capital > Rushmore Loan Management Servicer > US Bank NA Trustee > Truman Trust SC6 -2016
All In chronological date order. Have you seen enough yet ????
Even though I hear what Neil is saying. And want to believe it. I can’t disagree with Bob G.
As I am living proof of the shell game merry go of names and titles these shysters use and the clown in robes of the courts go right along with. Denials, Objections , questions. and even hard copy proof are meaningless.
I have said this for awhile as to representation. Representation is not up to court discretion, but a court obligation that proper parties be represented.
The “trustee” name is tacked onto the “series trust” name for emphasis to the courts. But emphasis is worthless if it is not real. There is no “trust” trustee involved or represented, Why? These “crisis” trusts, which were never compliant, no longer trade, Hence – the crisis. Let’s get real as to crisis cause. Which means – there is no trustee, and there is no representation. But, back up – there is a trustee involved — it is just not the one stated for the “claimed” trust. That is because the loan was already placed in default before borrower signed on dotted for what they thought was a valid refinance or purchase. The unnamed true trustee – is for OLD securities – prior to the claimed refinance or purchase. And, the “vendor” hired “trustee” is different from what is represented. This applies to crisis loans ONLY. However, the process will only materialize again and escalate as COVID problems continue.
Now — all this “holder” stuff is fine IF the “note” and contract did what it was supposed to do – pay off the prior loan. If it did not – the note is VOID, and not negotiable. There is fraud in the factum and fraud in the inducement.
I agree consideration does not matter. If note was valid – one dollar could be enough. That is not the problem. The problem is the intent of the note procured, and what was represented to the borrower. .
Glad this discussion as to representation is highlighted. . .
I come here to see if I can get useful information on occasion; and on occasion, I do. So what would be useful is to be shown one case–JUST ONE CASE–where such arguments as the one above actually won a case for the homeowner.
It has been my experience over the last ten years, that the court doesn’t give a damn about who is representing the plaintiff, or who is paying the attys, or who the certificateholders are. The only thing that matters is whether the plaintiff–whoever the hell that may be–was in lawful possession of the note and mortgage prior to initiating suit, and proof of default. The original lender paid money for the note and mortgage at the closing. So much for the lack of consideration or failure to pay value argument. And as discussed previously, not paying value for the note just means that the holder is not a holder in due course. The paid for mortgage travels with the note as if it were the note’s shadow. There is ALWAYS a mortgage assignment that states that $X.00 and other good and valuable consideration was paid for the mortgage assignment.
That’s all there is to it. We’re dealing with negotiable instrument law here, not contract law. If somebody can prove me wrong and show me where my arguments above are not true, then please straighten me out. I need every advantage that I can get.