Livinglies's Weblog

Wall Street banks can’t control everything. As the old adage goes “You can fool some of the people some of the time and maybe some of the people all of the time. But you can never fool all of the people all of the time.”

In a global economy, nothing happens in a vacuum. Although Wall Street has been able to maintain control over media and the courts in the U.S., they can’t control everything.

see https://www.lexology.com/library/detail.aspx?g=9ea48ee3-aeae-49ee-88a0-02132aa86005

Like Rip Van Winkle, American regulators are waking up to a reality that they failed to see or regulate. The true nature of securitization has been hidden behind a snowstorm of fabricated, misleading, and just plain lying documents. Active concealment has been practiced to keep regulators asleep and investors perplexed as to how they could have endured losses on “mortgage backed bonds” that were never backed by mortgages and not issued by the trust entity named on them. Homeowners are baffled by the losses too, unaware that there was no lender, there was no loan account and the incentive was to sell a business “opportunity” as though it was a loan.

But Wall Street banks can’t control everything. As the old adage goes “You can fool some of the people some of the time and maybe some of the people all of the time. But you can never fool all of the people all of the time.”

In Ireland the Supreme Court simply stated the obvious — you can’t bar a claim if the claimant didn’t know about the issue (because of concealment by the Defendant). But that is the entire strategy of Wall Street. Run the clock! By hiding from investors and homeowners the true nature of the transaction the banks were selling, they were guaranteed — as long s they kept up the concealment — that the statutes of limitation would run out.

So when investors woke up — partially — and realized that the industry underwriting standards for “loans” were never observed, they were fighting a losing battle even though American law provides for tolling of statutes of limitations based upon concealment. And now they’re realizing that the promise they received about getting scheduled payments was mostly discretionary and could be shut off at any time by the book runner investment bank. But their initial purchase may have been ten years ago or more.   Worse they are realizing that the transactions between Wall Street banks and homeowners were business deals, not loans and that enforcement was at best speculative — thus increasing the possibility that the investment banks would stop making scheduled payments.

And when homeowners woke up —partially — and realized the deal was not what they intended, they were fighting a losing battle even though American law provides for tolling of statutes of limitations based upon concealment. So claims under FDCPA, TILA, RESPA etc were all barred by the time homeowners tried to state the claim, but even when they stated it, they lacked the correct information to state a proper claim.

So now is the time to raise that issue and file the claims, fighting against the statutes of limitation. But remember that if you file it as an affirmative defense, then your claim is NOT barred by the statute of limitations. It is limited to up to the amount of the claim against you, but in proving your claim you will have (a) more leeway in discovery and(b) a higher likelihood of proving your defense narrative in the case in chief (foreclosure). And filing an affirmative defense does not appear to be a bar to also filing a counterclaim for declaratory, injunctive, and supplemental relief.

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Filed under: foreclosure |