The main obstacle to homeowner success in the courtroom is the asymmetry of information causing the homeowner to believe that they were part of a loan transaction instead of merely being compensated for a concealed business plan that was completely reliant on the homeowner’s unknowing cooperation. The homeowner did not receive this information for two reasons. First, no reasonable person would accept the deal without significant compensation. Second, no reasonable person would accept the deal at all.
Just to add some clarity and simplicity — none of the paper issued and sold by Wall Street brokerage firms was backed by anything. It is erroneous to assume that any sale of any asset occurred. Securities were sold but none of them represented any ownership, right, title, or interest in any asset.
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Accordingly, it is equally wrong to assume that any investor acquired any right, title, or interest to any scheduled payment from homeowners. They did not. The problem is that most people start with the erroneous assumption that something was securitized. All of the certificates, hedge contracts, derivatives, and insurance products were bets based upon discretionary data coming from the insured — the brokerage firm.
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This became crystal clear when TARP came into existence. First, it was to bail out mortgage losses from homeowner defaults, then it was to bail out losses from owning the certificates that were supposedly backed by loans, then it was simply used to corporate welfare — resulting in the creation of Maiden Lane entities to launder the title creating the illusion of a legal creditor owning a loan account receivable. “workouts” and “modifications” are
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Wall Street’s attempt to have the homeowner agree later to what the securities brokerage firm (aka investment bank) intended when the loan was first originated or acquired. Such agreements substitute a new party as the stated or named creditor. It requires acknowledgment that this new party (usually a “servicer’ who performs no servicing, thanks to SaaS), will be treated as though an obligation payable by the homeowner exists on its ledgers. And it presumes that payment of value for the underlying obligation was made by this new entity. None of this is true.
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PRACTICE NOTE: The reason why any homeowner can win a foreclosure is that none of the parties in the foreclosure team or the securitization team have ever paid for the underlying obligation in exchange for a conveyance of ownership of the debt, note, or mortgage. This produces a failure of condition precedent for enforcement and collection. See Article 9 §203 UCC. This is not “proven” by the homeowner. It is revealed through negative inference against the foreclosure mill team. That inference arises when they fail to produce and even assert that they have made such payment.
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The main obstacle to homeowner success in the courtroom is the asymmetry of information causing the homeowner to believe that they were part of a loan transaction instead of merely being compensated for a concealed business plan that was completely reliant on the homeowner’s unknowing cooperation. The homeowner did not receive this information for two reasons. First, no reasonable person would accept the deal without significant compensation. Second, no reasonable person would accept the deal at all.
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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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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.
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And, insurance “paid out” does NOT count as paid by borrower.
I agree with Legi on the “funding” issue. Courts do not care how “funded.” My issue, however, is distinct. If the mortgage did not do what it was supposed to do – that is – pay of the PRIOR mortgage by the BORROWER himself (or someone on HIS BEHALF), you did not get a mortgage. That means, the mortgage itself (because it did not “fund” to pay prior mortgage) is not a mortgage. If we start lumping all loans into the fraud of the financial crisis “loans” – the real fraud is lost and ignored. And, there was massive financial crisis fraud. I also agree with Legi, that you cannot go into court stating that you don’t have a “loan.” You have something — it is just not what you thought you got. Most want to resolve this issue – fair and square – and keep their home. That is not too much to ask as victims of a massive financial scheme. And, this brings it all down to “unsecured” is what you really got. If you went to a broker, or online application, or loan assumption, or any other means other than a real bank, and have a non-friendly debt collector – you were conned during the financial crisis. One lawyer told me — “you went to the wrong people.” He is correct.
And, it carries over. UNSECURED. Thank you Java.
Summer, you’ve ingested too much of the scammers Kool-Aid. It’s you that “STILL do not understand the REAL nature of your transaction.”
I’ve provided numerous court cases that show your arguments, the ones you’re parroting for the scammers are pure rubbish. This is why so many homeowners lose their homes; they listen to forensic/chain of title/securitization audit scammers, and incompetent attys. These fraudsters have poisoned the minds of people like you, who then become their “useful idiots” & disseminate their nonsense.
You need to stop spreading their lies!!!
WILDER V. OGDEN RAGLAND MORTG., 2016 WL 4440487, at *4-*5 (N.D. Tex. July 29, 2016)(“plaintiff’s claim that the three years period to rescind the loan remains open, because defendants failed to identify the true lender and the loan was never consummated, is nonsensical.”); RAMOS V. U.S. BANK, No.12-CV-1820, 2012 WL 4062499, at *1 n.1 (S.D. Cal. Sept. 14, 2012) (where loan paperwork “plainly identified” a lender, “the loan was consummated regardless” of who the “true lender” was); MBAKU V. BANK OF AM., N.A., No. 12-CV-00190, 2013 WL 425981, at *5 (D. Colo. Feb. 1, 2013) (because the “deed of trust identifies [] the lender[,]” “plaintiffs were obligated on their mortgage to [that lender]” without regard to any third party involvement); SILAS V. ARGENT MORTG. CO., 2017 U.S. Dist. LEXIS 115324, *30 (E.D. Cal. July 24, 2017) (“the use of a third party lender to fund a loan does not preclude the consummation of a valid contract between the named lender and the borrower.”); MARQUEZ V. SELECT PORTFOLIO SERVICING, INC., 2017 U.S. Dist. LEXIS 38239, *7-*8 (N.D. Cal. Mar. 16, 2017) (“[C]courts that have considered arguments identical to Plaintiff’s — that a borrower’s mortgage loan documents allegedly fail to identify the borrower’s `true lender’ and therefore, pursuant to Jackson, the mortgage loan was never consummated — have unanimously rejected it.”); GHALEHTAK V. FNBN I, LLC, 2016 U.S. Dist. LEXIS 61347, *10 (N.D. Cal. May 6, 2016) (“[T]he contract is consummated so long as a lender is identified, even if it is not the ultimate funding source.”); MOHANNA V. BANK OF AM., N.A., 2016 U.S. Dist. LEXIS 58291, *14 (N.D. Cal. May 2, 2016) (“[D]istrict courts have unanimously found that a lender’s use of an undisclosed third party to complete a secured transaction is insufficient to preclude consummation under TILA.”); MAJOR V. IMORTGAGE.COM, INC., 2016 U.S. Dist. LEXIS 15225, *7 (C.D. Cal. Feb. 8, 2016) (dismissing TILA claim despite plaintiff’s argument that “because the true `source of the funds’ has yet to be identified and revealed to plaintiff . . . Plaintiff’s loan transaction has not been consummated.”); SOTANSKI V. HSBC BANK USA, NAT’L ASS’N, 2015 U.S. Dist. LEXIS 106859, *17-*18 (N.D. Cal. Aug. 12, 2015); RAMOS V. U.S. BANK, 2012 U.S. Dist. LEXIS 131564 at *3 n.1 (S.D. Cal. Sept. 14, 2012) (dismissing TILA claim where “a lender was plainly identified . . . and the loan was consummated regardless of how or by whom the lender was ultimately funded.”).
Guys, you STILL do not understand the REAL nature of your transaction.
Here is NO DEBT – secured or unsecured. NONE.
Because those who financed your transaction – some initial undisclosed investors who LENT Wall Street money in exchange of your promise to pay – GOT PAID right away. Maybe not in full but they got the benefit they bargained for.
Here is that happened – and Neil explained it in great details.
1. Borrowers submit an application for a LOAN (any loan, credit card, student loan, car loan, mortgage loan, name it) with someone who called itself a “lender” but who never lend any of its money.
It was ALWAYS other people money.
When you filed an Application for a loan, you created an asset which Wall Street Bank used to BORROW money from someone else.
These money are solely based on your future promise to pay.
Investors buy certificated called “I owe you” (IOU) which they sell to investors to BORROW money to fund your transaction.
When you sing Promissory Note, Big Banks scanned this data and issued another batch of securities – bets on performance of some group of data.
Initial investors who financed your “loan” and whose money were passed to you by Wall Street Banks via sham conduits were REPAID right away.
THOSE INVESTORS WERE YOUR CREDITORS – but they received their money back right away
Thus, here are NO DEBT from the beginning. Secured or unsecured.
But as long as you con yourself about secured or unsecured DEBT – Wall Street Banks will prevail because YOU call it DEBT.
Yes Anon. Fake Assignment of Mortgages & UNSECURED Debt = Invalid Fraudclosures.
So Simple even a lawyer can understand.
The trusts that claim to operate now are not REMICs. They operate as business trusts, not pass-throughs, and unless says “Static” – they buy and sell debt for profit. The bottom line is that the debt is NOT mortgages. When I say “fake loans,” I mean fake “mortgages.” If the “loan” did not pay off prior mortgage (by the borrower himself/herself)– it is fake. Unsecured. Nothing more than an extra large credit card.
How is a “loan” in 2020 allowed to be put in a Trust that closed in 2016 ???
There was a very small percentage of defaults in these claimed “Trusts” prior to exposure of the financial crisis and TARP. Actual defaults came after exposure and houses went underwater with high interest rates owed. Thus, the defaults already, somehow, existed prior to TARP and bailout. You can’t securitize defaults that had no accounting home. Hence – the collapse. It was what was put into the claimed trusts that were fake. That is why they had to bail out — the fake loans had no home to return to.