Livinglies's Weblog

This may be a case of first impression. The fact pattern alleged in this petition is unique although the application of law is not; however the outcome of applying the law and the facts as presented in this petition contrasts with virtually all forced sales of residential property in which the foundation for the claim lies in false assertions, implications, or allegations of securitization of debt.

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In plain language all such assertions were false and all evidence of default was equally false. Such sales and the orders and judgments that permitted them were and remain void for lack of personal and subject matter jurisdiction. Such court actions are ultra vires.

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These illegal acts do not ripen with time. They are still void. It is the same with any wild deed. The money proceeds from such sales were paid to parties who neither intended nor received the money to reduce any debt owed by the homeowner(s). This was a for profit venture that succeeded by deceit, camouflage, manipulation and fabrication of documents, and false testimony.

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An order requiring an accounting for payments from the proceeds of the foreclosure sale will amply demonstrate and corroborate the assertions made herein.

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The courts have permitted this false securitization venture and false foreclosure venture to continue under the erroneous belief that the proceeds of foreclosure sales would eventually find their way into the hands of someone who had a loss arising from the failure or refusal of homeowners to make scheduled payments in accordance with a promissory note that was executed at the time of the closing of the transaction with the homeowners. This assumption, as set forth in this petition, was and remains completely and utterly false.

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As set forth in this Petition, neither the debt nor the owner of any debt owed by the homeowner existed at the time of the foreclosure. The filing of such foreclosures was a malicious attempt to cover up a fraudulent scheme that was part direct fraud on investors and homeowners, and part Ponzi scheme.

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The goal of foreclosure was (a) to perpetuate the illusion of an existing established loan account receivable on the books and records of a valid legal creditor and (b) to generate funds for the foreclosure players including but not limited to some of the securitization players. In effect, each such foreclosure was a bonus lawsuit — i.e., where the proceeds were used to pay bonuses and other compensation to people and companies who assisted in the scheme.

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Like other institutionalized practices in this country’s history that were eventually revoked and abandoned as abhorrent to simple notions of decency, law, justice and equity, the time has come for the courts to exercise their independence from executive policy and to apply the laws as they have existed for hundreds of years.

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The time has come for the courts to stop foreclosures that are entirely devoted to generating revenue arising from fraud, deceit, and active concealment that exists up to and including the date of the writing of this brief.

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To put it another way, the fact that a homeowner stopped making scheduled payments is not proof or even evidence that the prior history of payments were due or paid to anyone entitled to receive them. Anotehr roder requriing ana ccounting for moneyr eceived and paid by intermediary parties claiming to be servicers will reveal that they entierh received nor had access to any payments from homeowners nor did they forward any money to investors (i.e., the parties whom the courts and most people believe are getting the money from voluntary and involuntary payments from homeowners).

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And the fact that the homeowner received money is not necessarily proof that a loan agreement was created. As described below, the payment of money to the homeowner was in fact intended to be an inducement to the homeowner to become party to a fictional securitizations scheme about which the homeowner knew, and could know, nothing at all.

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The attempt to retrieve the money paid to the homeowner is based upon a plan of reducing the consideration paid the homeowner to less than zero thus nullifying even the quasi contract that might be construed to exist. The homeowner, without knowing it, was paying for the privilege of the securitization players to generate revenue geometrically larger than the amount of the initial payment to the homeowner — while excluding the homeowner from any knoweldge or benefits from the scheme.

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All the benefits of the real transaction flowed to the securitization and foreclosure players while the homeowner lost his home, his lifestyle, peaceful enjoyment of his home, the benefit of the bargain he intended and the loss of his largest investment.

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All assumptions and presumptions to the contrary are completely wrong, although the undersigned counsel concedes that current procedural law requires the homeowner to raise such issue or else waive them — as long as the issues were known or could have been known. But as Alan Greenspan admitted after participating in the analysis of the “securitization scheme” along with over 100 Phd’s from the Federal Reserve, the scheme was impenetrable even to them.

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The homeowner in this action has only learned of the issues raised in this petition within the past few months and arising out of intensive legal analysis and securities analysis that are beyond the scope of knowledge of laymen and beyond the scope of knowledge or understanding of the usual robed individual who sits on the bench. As a whole there is complete agreement that if there is no debt there can be no conveyance of the debt or any right to enforce it.

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Having allowed foreclosure anyway, the court is tasked with the obligation to right the obvious wrong in a court of equity — as all foreclosures are said to be derived.

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Undersigned counsel also concedes that it is possible that the (note) might survive and may even be secured if the transaction were reformed to reflect the true nature of the transaction — a securities scheme that was concealed under the labels and accoutrements of a loan transaction in which there would be no lender nor any loan account receivable nor anyone of substance to answer for violations of lending and securities laws.

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The court must consider the reason why a payment was made to the homeowner and if those reasons were disclosed to the homeowner (bringing into question whether there was a meeting of the minds to form any contract). If no such disclosure was made, the the court must decide whether there exists any enforceable contract . If there is no enforceable contract the court must either rescind or reform the transaction as it played out in the real world.

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The court must consider whether the homeowner is entitled to equitable relief for entering into a contract based upon terms and conditions that were entirely actively concealed and hence unknown to the homeowner for the most part up to and including the date of this petition drafted by one of the few people in the country who understands securitization in general and securitization of debt in particular.

In circumstances where there is a manifest injustice, cruelly applied, it is incumbent upon the court to exercise its rights to avoid the usual restrictions of time and procedure to allow justice to prevail.

Filed under: foreclosure |