If you are not going to follow up on complaints to your attorney general or the CFPB, then you shouldn’t have filed the complaint in the first place. If you are not going to follow up on demand for discovery, don’t bother filing them.
The simple truth is that they never answer the question. They simply use the opportunity to propagate the lie that a loan was securitized when in fact no sale of the loan ever occurred.
Most people and many lawyers fail to recognize a simple legal strategy that is available to them, to whit: that the failure to respond to simple basic questions about The ownership and existence of the underlying obligation open the door for a clear win for the homeowner.
Your opposition is simply following the usual playbook. They are missed directing your question. And you should point that out to the AG office or CFPB after you file the complaint.
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The basic thrust of your question is the identification of the creditor who maintains an account receivable for the underlying obligation, and whether the Obligation still exists.
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Their answer Is that the word salad that they are using to label a virtual creditor (if it exists as a legal entity), is the note holder. You were not asking that. And if you did ask that question you would still be asking the same question — how did they become the “holder.”
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Remember that a holder is someone in possession of the note with the right to enforce it. What everyone seems to forget is to ask the question of how the party in possession of the note received the right to enforce (which can only be granted by the party who owns the obligation or who represents someone who owns the obligation).
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And remember nobody gets to own an obligation just because they say so. In order to own an obligation, a party must have entered into a legally recognizable transaction in which they purchased it for value pursuant to Article 9 §203 UCC as adopted by all 50 states. All states also recognize that a purported conveyance of an interest in a mortgage without a conveyance of ownership in the underlying obligation is a legal nullity.
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Most states allow a rebuttable presumption arising from the possession of the note. The legal fiction adopted in most states is that if you have the note in your possession, or at least if you claim to have a note in your possession, that there must’ve been a delivery of the physical note along with the authority to enforce it.
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Homeowners who fail to rebut this presumption lose their case and their home.
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Homeowners who fail to understand legal procedure do not understand that the inability of the opposition to provide legally required answered to the basic questions about existence and ownership of the underlying obligation can easily be used as the basis to rebut that presumption.
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At the end of that claimed transaction, the purchasing party must claim ownership. If it says it is the owner of the obligation, then it must have entries on its accounting ledgers and banking statements that show payment of value for the underlying debt and the establishment of a loan account receivable.
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It is possible that the entire Wall Street strategy has been based upon the gamble that nobody other than accountants understands double-entry bookkeeping — the only bookkeeping system legally recognized as the starting point of any claim of ownership or transaction about anything.
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Without real transactions and real entries in their ledgers, nobody can claim ownership of the obligation. And nobody can claim authority from the owner of the obligation unless that mysterious virtual creditor has entered into transactions and currently maintains ownership of a loan account receivable.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate 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: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, foreclosure defenses, Pleading, Servicer, sham transactions, trial strategy |
Summer – well put.
Agree with ANON. People are HOSTAGES for Big Banks crimes.
ALL Agencies will either give you non-stop runarounds or fail to respond – and refer you to CFPB.
CFPB will ignore all complaints.
If you will follow up on your Complain, CFPB (read: banks against whom you complaining) will close all further inquiries claiming that “this complaint is about the same issues we already responded”; “your question is overly broad and lacks specifics” (if you ask WHO sold so-called servicer your loan) and so on.
Judges will never allow you to conduct full discovery. Discovery will stop at the convenient to Big Banks point – submitting some print outs of account statements. Period. Ruling for Big Banks.
Biden and Harris WILL COVER for it, probably with another bogus “settlement” Both KNOW about Big Banks fraud and were paid to keep quiet.
BTW, the 2012 Settlement is void ab initio and has no legal effect. It was signed for misdeeds (read: crimes”) by SERVICERS.
SERVICERS had nothing to do with loans which never were pooled in non-existing Trusts.
So, with whom Obama and Biden signed a Settlement if here were wrong respondents (not even defendants) for wrong crimes?
I plan to file a police report for identity theft and racket – but with very timely for Banks COVID is hard to do now.
We need massively sue Agencies for aid and abet, reckless endangerment , negligence and other claims.
The bank will not report to the CFPB. They will “close” the matter on any technicality they can find. And, the CFPB will oblige to close. DOJ/AG will refer you to the CFPB.
And discovery — nope – you can ask to compel until the cows home. Rarely happens. They will object to all. Sometimes will get a wee bit of info, but then try using it. Another technicality will appear.
Great job Elizabeth Warren. Biden back in office — how are you going to clear this up Mr. President? .