How is a foreclosure rescue scam any worse than a foreclosure theft scam? Or the real question — why is one scam punished and the other is rewarded with government help?
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It is difficult to imagine a scenario in which an attorney could be working for a law firm that prosecutes “Foreclosure” cases, and be ignorant of the fact that the named trustee of a named “REMIC” trust was (a) not the client and (b) had no interest in the outcome of the litigation.
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I say this because foreclosure mill attorneys assiduously avoid making an allegation that the named Plaintiff had ever made or purchased a loan owed by the homeowners. And I will say that in confidential communications, several such attorneys have directly admitted to me that they knew the implied “trust” was empty — and further admitted they had no idea who, if anyone, was a creditor of the homeowner.
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And in all cases, their sole justification for pursuing foreclosure in the name of a disinterested party was that it is unfair and against public policy to let homeowners take loans and then not repay them. The assumption being, of course, that the money paid to or on behalf of the homeowner was a loan and not something else — a topic about which none of the lawyers know anything, factually, legally or even theoretically.
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As a licensed lawyer for nearly 45 years, I can say with certainty that if I filed suit on behalf of a party I did not know, did not have any contact with, and who wasn’t paying me or my firm, I would be subject to sanctions by the court and discipline by the Florida bar. Why? Because I had no attorney-client relationship with them.
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Yet every time a foreclosure mill files suit on behalf of, for example, U.S. Bank, as trustee of XYZ Certificates Trust, there has been no contact between U.S. Bank and the attorney who files the suit or otherwise files a notice of appearance, directly or indirectly.
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No such attorney has performed due diligence to provide a reasonable basis for asserting a claim on behalf of U.S Bank, nor any asserted or implied trust. More importantly, no such attorney has ever seen or asked for the accounting ledger, or copy, on which the loan account receivable was established, along with credit and debits as payments were supposedly received and paid out by the trustee or its agents. I mention this because this is basic record keeping and was universally required for a successful foreclosure action until the securitization era began.
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This all apparent when they draft the lawsuit (or name the beneficiary on a deed of trust). They don’t actually give a name. Starting with a first-year law student and ending with a trial lawyer with 60 years of experience, I defy them to answer the simple question “Who is making this claim?”
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Their answer is going to be what they have been told to say and to repeat — or just to refer to it as, for example, U,S, Bank. They give a long answer like “U.S. Bank, as trustee and not on its own behalf, Structured Asset Securities Corp. Trust Series 2006-1a for the registered holders of certificates series Structured Asset Securities Corp. 2006-1a.” But they know, because they have already said it in the pleading, that U.S. Bank is not the claimant. They know they are implying but not actually stating that U.S. Bank is acting in some representative capacity — and then, strictly for purposes of deception and confusion, they split the choices.
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First, the implication is that the U.S. Bank represents the trust, and not on its own behalf. But that assertion is unauthorized because U.S. Bank will never say that it has representative authority over any trust. In fact, it categorically denies any such role, duty or obligation to the trust or the holders of certificates issued in the name of the trust and has repeatedly succeeded in taking that position in court when certificate holders brought suit. U.S. bank wins and investors lose.
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Note also that U.S. Bank not only has no knowledge of the foreclosure claim, it is not even permitted to ask or receive any information about it. Is that your “client”, Esquire?
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Second, the document used to “prove” the trust is not a trust agreement even if it says it is. All events described in the PSA are future events that have not yet occurred and so neither has the trust. Have you ever read the documents you say support the case you filed, Esquire?
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Third, no transaction has occurred in which U.S. Bank or the trust has paid value for the underlying obligation, note or mortgage. Any claim of ownership of the loan account receivable is therefore completely unfounded. After litigating but a few of these cases every lawyer working for a foreclosure mill knows these things to be true. Esquire, have you ever inquired or read any information about payment for the underlying obligation, note or mortgage as required by Article 9 §203 UCC, as adopted verbatim in all U.S. jurisdictions?
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Fourth, no stable managed or other restricted fund investor has ever become a beneficiary of any REMIC trust nor the owner, directly or indirectly, of any payment, obligation, debt, note or mortgage. So when the complaint or naming of a beneficiary on a deed of trust says “on behalf of the registered holders or certificates” the lawyers know full well they are saying nothing — but they are filling up space on a page where it looks like they are saying something. Who is your client, Esquire?
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So the lawyer knows that he does not even know the identity of the holders of any certificates, he/she knows has no information on the content of such certificates, nor the identity of the “registry”. Esquire, why mention the registry, the unidentified certificates, or the unidentified holders if you don’t present any of them and don’t know anything about them?
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In addition, the lawyer knows that he/she is implying a representative capacity between U.S. Bank “as Trustee”, for example, and the certificate holders. That lawyer is instructed not to affirmatively allege such a relationship because there is no such relationship. That lawyer has been instructed to imply that the action is on behalf of the certificate holders without ever stating it. In other words, the lawyer is instructed to mislead the court. Esquire, are you really unaware that you’re actively misleading the court?
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So the bottom line is that such lawyers are filing claims on behalf of nonexistent entities for nonexistent claims. Further, they do so by implying an attorney-client relationship with the brand name bank that is designated “as trustee” of the “REMIC Trust” that is, in reality, a business name for the investment bank that owns or controls a securities scheme that is definitely and absolutely not tied to ownership of any payment, obligation, debt, note or mortgage.
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But they persist because their employer pays them to do it and the employer is paid to do it under the name of a self-proclaimed servicer that says it has authority because the trustee gave it to them. Even the most naive lawyer recognizes that to be circular reasoning. Esquire, are you familiar with the ethical and disciplinary codes governing an attorney’s conduct?
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All attempts to sue such lawyers have been turned down because of something called “litigation immunity.” But no such doctrine applies when the lawyers is actually part of the scheme to deceive the court and who is participating strictly for fees and not to achieve some legitimate aim. There is no legitimate aim for giving an undecipherable name designated as a “creditor” by some computer program that assigns cases and information from a computer server owned. operated and maintained by concealed parties who are under the control of concealed parties (investment banks) who started the scheme.
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When foreclosure defense lawyers get creative with their defenses of homeowners they get sued, sanctioned and prosecuted for fraudulent foreclosure rescue schemes.
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When foreclosure mills file claims under the deceptive label of “foreclosure” without any legal foundation, they make millions of dollars, are protected by litigation immunity, they are further given disciplinary immunity despite the clear evidence that the people they are dealing with —- I wouldn’t go so far as to call them clients — have already been found guilty in hundreds of administrative proceedings and settlements in all U.S. jurisdictions for allowing the use of their names in connection with using fabricated false documents that are then forged and/or robosigned.
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To be fair, there have been some foreclosure assistance services that schemed and that were scams. And a small number of those scams included licensed lawyers who were justly punished —- if it really was a scam. But how is a foreclosure rescue scam any worse than a foreclosure theft scam? Or the real question — why is one scam punished and the other is rewarded with government help?
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The foreclosure theft scam, which includes nearly all current foreclosures, is a condition precedent to foreclosure rescue scams. If false, unfounded foreclosure process was not being invoked for nonexistent or unowned accounts receivable, there would be no demand for services from people who are desperate to escape the clutches of thieves.
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No StillFighting, its not relevant to whether or not the homeowner breached the contract.
Neil, Legismon, and ANON…
Can you force the Plaintiff’s law firm to prove who is paying their legal fees during the foreclosure case?
I have found it odd that the same law firm stays on the case, despite the fraudulent successors via fake Assignments.
The law firms must be being paid from a slush fund or other means.
Thoughts?
Oh — and under any mortgage loan purchase agreement – all is conveyed to the trustee — not the trust. Mendoza never examined the Purchase Agreement. Whoops.
Legi — have a great weekend!! But. no. The trust certificate holders are only entitled to pass-through of CURRENT cash flows -and never hold legal title. The trust itself also owns nothing. They are NEVER the legal holder/owner of any assets — only the trustee is. Think of it this way — a trust without LEGAL authority is nothing. An empty vase if you may. As far as the crisis securitization – there is a problem via Regulation AB. Regulation AB was a pilot program set up around 2003/2004 for private label securitization. By 2006, the SEC was questioning the validity of crisis private label “issues.” One of the requirements of Regulation AB was that the “ultimate pool” could not be segregated into separate pools and REMICs. There was to be one pool, and one REMIC (perhaps one additional residual REMIC – but that is it. There is good cause and reason for this for information conveyed to investors. But, this did not occur with the crisis private label securitization. There are five or six REMICs from segregated pool, and a single title series name. The pools were segregated into multiple pools ,and the “Title Series” trust name became just a series name with multiple pools and REMICS – in violation of the pilot program and Regulation AB. Hence the collapse. Some of the segregated REMICs were not even offered for securitization, but rather retained by the issuer or sold to a third party. Once questioned on this, among other issues, and instead of correcting registrations, the issuers simply ceased further registration. There can be no trustee to an illegitimate “Trust” or REMIC. But, the point here is that the trustee is the only party that can be named, or be represented in any legal action. And, they are never represented. Thus, while you may have very valid claims to attack the “contracts,” and that is fine and good, there is much more. Thanks.
ANON, when a securitized trust is formed, a bank is typically appointed as trustee. This trustee is the entity given authority to file a lawsuit under both the trust documents and the laws of the particular state in which the suit is brought. However, this doesn’t take away from the fact the trust assets are the notes.
How securitization actually works:
1. Banks and other originators make mortgage loans to homeowners.
2. The mortgage originators sell their loans to a securitizer, which can be a government agency (the Government National Mortgage Association, or Ginnie Mae), a government-sponsored entity (the Federal National Mortgage Association, or Fannie Mae, and the Federal Home Loan Mortgage Corporation, or Freddie Mac), or a private financial company (a “private label” securitizer).
3. The securitizer assembles similar mortgages into pools.
4. The securitizer transfers the mortgage pools to a tax-exempt trust. The trust might be a real estate mortgage investment conduit, (REMIC) or a grantor trust. The trusts are pass-through vehicles that pass mortgage payments along to residential mortgage-backed securities investors without triggering corporate taxes.
5. The trust creates residential mortgage-backed securities and sells them to investors. Each issuance corresponds to pools of residential mortgages with shared characteristics, such as term, yield and credit rating.
6. The trust can sell the mortgage servicing rights to a master servicer that has the overall responsibility to administer the mortgages, collect payments and forward them to the trust.
7. Investors collect monthly principal and interest payments from the trust’s underlying mortgage pools (after any fees are extracted).
This should clarify the question of who owns the notes when it is securitized. The answer is that the trust established by the securitizer owns the notes. The residential mortgage-backed securities investors own the beneficial rights to the notes, but not the note itself. Beneficial rights are the rights to receive principal and interest cash flows from the underlying mortgage pools.
Moreover, as I already pointed out as a matter of law, the PETE can be a trustee, a Servicer, a representative, just about anyone can foreclose whether they own the note or not, they can be the holder, or not, but can still foreclose if they possess the note.
You should read Mendoza v. JPMorgan Chase Bank, N.A., 6 Cal. App. 5th 802, 212 Cal.Rptr.3d 1 (Cal. App. 2016), it kills most of these ridiculous arguments these incompetent attys. and other scammers come up with come up with.
You will also find that the “legal” name of the trust, in prospectus, is often just a “series title” name, and not actually a trust. That is where formation and Regulation AB comes in. There can be no “series” for a trust.
The servicer tacks on the trustee name to the trust name – creating one entity and one representation. But that is false – it is two entities. They need to separate. Legal name of any “trust” does NOT include the trustee. Legal name can be found in prospectus — it never includes the trustee. For example, “U.S. Bank, N.A., trustee, for 2007 ABC trust” is not an entity, and not a legal name. U.S. Bank, N.A. is a bank. Trust legal name is “2007 ABC Trust.” By changing the legal name – there is NO entity as it does not exist. They are two separate entities – which can have the same law firm representing them, but must be represented separately. Of course, the trust cannot act alone, so the trustee bank must be there, but named separately. And, trustee is a division of bank, they are not an entity in itself. Servicer is also usually named, but they always have the same representation. That appears to also be a conflict. Since a trust cannot sue on its own, only the trustee (the bank itself) is a relevant party. But you never see this because they hold nothing. Title insurers only view the trustee bank as the mortgagee/holder — the trust is irrelevant. If one has legal action, never name them as one entity. Separate them. Attorneys will try to put them together — don’t accept. And, don’t say “U.S. Bank, N.A, as trustee.” It should just be “U.S. Bank, N.A.”
ANON, I’m still not getting your point. Why do you say the trustee is “missing” when you see them quite often as the named plaintiff in judicial states?
Legi — not going to address your claims of ownership. But, I will state over and over that the trustee is the LEGAL HOLDER for a legitimate trust. A trust is NEVER the legal holder, and can NEVER act alone. Without the trustee, there is no legal holder for any trust. This is American law. A “trust” has no rights in a court without the trustee – the legal holder. Just still looking to see where that trustee can be found. I have not found it anywhere. Simply missing. Fictitiously attached to a trust name. It is not “ownership” of cash flows that is relevant, but “Legal holder” status that is the law. It is American law. The trustee, however, is never actually represented, and they did not give any authority. Thus, there is no legal standing for a servicer, and, certainly not for a trust to act alone. Legal holder by all law is the trustee. See much case law on this. Including Paloian v. LaSalle Bank – 7th Circuit. Quote: “In American law, a trustee is the legal owner of the trust’s assets.” I can cite to many more circuit court cases and district court cases on this. The only problem is — the trustee is ALWAYS missing in action. You can argue points from there, but let’s get representation straight first. Attorneys have argued your point to me to the hilt, but when they see the actual case law, they change their opinion. Thanks.
Well versed. “Bank, Trustee’s ” lawyer claimed Tax default sale proceeds. Proof of payment of TD and/or a Foreclosure sale are nonexistent. Nor did they make any attenpts to pay propery tax after default judgmend. In fact the last recorded document was a subtitute trustee Stuart Title as signatory. for the same.? The bank had no record of the loan prior to the County tax sale. They were paid by insurance. but none of the funds were paid for a purchase of the “obligation”.
ANON again, that’s not how it works. But to make it simple let me lay out what’s pertinent dealing with who can do what and when.
1st the purpose of posting that case was not to only show that Servicers can and do foreclose, but to also show trusts do own notes, which is contrary to your former claims.
Moreover, FAILURE TO COMPLY WITH MOST PSA REQUIREMENTS IS IRRELEVANT TO THE TRUST’S POWER TO FORECLOSE. It doesn’t matter whether the trust got endorsements or mortgage assignments. However, it must get the notes in order foreclose the corresponding mortgages. If the trust gets the notes before instituting foreclosure, it has the right to foreclose.
Now, for purposes of analysis of residential mortgage-backed securitization, Article 3 is the relevant body of law, dealing with the transfer of notes.
There are two very distinct aspects of a note that can be transferred. The two aspects are (a) the right to enforce the note (often called PETE status, where PETE means the “person entitled to enforce”); and (b) ownership, which refers to the party with the ultimate right to the economic benefits of the note — the proceeds of payment, prepayment, foreclosure, etc. Transferring PETE status is governed by Article 3.
For purposes of mortgage foreclosures, it is PETE status that is relevant. Contrary to what the scammers and “stall” attys would have evryone to believe; PETE STATUS (AND NOT OWNERSHIP PER SE) CONFERS THE RIGHT TO FORECLOSE. It is common for the owner and the PETE to be the same party, but that isn’t necessarily always the case.
If the borrower pays the PETE, the note is discharged.The borrower, on the other hand, has no legitimate interest in who owns the note. That’s a matter for the secondary market parties — transferors, transferees, and servicers — to work out among themselves. The borrower need only be concerned with identifying the PETE.
PETE status is transferred by delivery of the original instrument to the transferee. NO SEPARATE DOCUMENT OF ASSIGNMENT OF THE NOTE IS RELEVANT OR REQUIRED. Hence, it’s confusing to refer to such a transfer as an assignment, since that term seems to suggest a separate piece of paper.
DELIVERY IS THE KEY. The note need not be endorsed, and no allonge is needed. The ultimate question is whether the party trying to enforce the mortgage has possession of the note or not. It is crucial to understand that, FOR PURPOSES OF HAVING THE RIGHT TO FORECLOSE, MORTGAGE ASSIGNMENTS ARE COMPLETELY IRRELEVANT.
You mention REMICS. As far as REMICs are concerned, the REMIC rules are tax rules; if they are not satisfied, the REMIC becomes a taxable entity, with extremely harsh results to the bond-holders (though not as harsh as the nutty argument that the trust can’t enforce the mortgages). Noncompliance with the REMIC rules has no direct relevance at all to the enforceability of the notes or mortgages.
Hope this gets you and others on the right track. If you want the bank and/or its assigns to negotiate on your terms not theirs–ATTACK THE MORTGAGE TRANSACTION aka CONTRACT! Otherwise you’re just handing over your property to them by making the worthless arguments promoted by incompetent hacks and other scammers.
Legi — No not in New York. Good case to point out though. According to the case, by the authority of the Trustee via the PSA, a trustee gives authority to the servicer to act on their behalf. Do not dispute this.
The servicer cannot act on its own behalf. However, the Power of Attorney is not valid if the trustee no longer has fiduciary control. If the loan is in default, it is removed from the “trust” by the trustee (via derivatives) and the trustee authority is gone. What we are missing here is how servicers get authority from a derivative swap holder to act under the authority of the trustee who no longer has authority as the (Current) “pass through” is gone. I see nothing in a PSA (and I have read hundreds of them) that describes this situation. Also, most of the crisis trusts were dissolved due to non-compliance with Rules and Regulations for Regulation AB. Trace this to SEC filed docs by the “issuer” – not the trust itself. REMICs were supposed to be set up for pass-through of current cash flows only. There is no more current pass-through on any of these crisis trusts because the top tranches have all been paid out destroying the waterfall structure. Even if the “trust” ever existed at a point in time, the “trust” is now dissolved by destruction of its structure that was intended. I think it is time for the derivative debt buyer to come out from behind the curtain, and let’s see how the servicer gets authority from them. I suspect that the “Servicer” is the derivative holder themselves. .
Thanks.
ANON, I don’t recall, but aren’t you in NY? If so, this article may clarify some things for you, even if not: https://consumerfsblog.com/2015/06/ny-high-court-confirms-new-york-only-requires-possession-of-note-not-also-mortgage-to-have-standing-to-foreclose
ANON, both the case and the Bar article came after Dodd Frank became law, so its good case law, I could post more to prove the point. Also, you see people still arguing today, albeit their wrong, that the mortgage didn’t get into the trust in time. The trusts can and do hold notes and mortgages; its their res.
From an July 26, 2018 NCLC article: “Defending a Home from Foreclosure: Consumer Debt Advice from NCLC”
“Servicers are allowed to hold a foreclosure sale without a court or other official permission to go forward. They advertise the home for sale, using a legal notice in a newspaper. The servicer sends you a notice of the time and place for the sale. If you want to challenge this type of foreclosure, you must either file for bankruptcy or file a lawsuit and ask the court to stop the sale. With a lawsuit, you may have to file a bond protecting the lender. ” So, Servicers still foreclose!
Legi – with genuine respect to you, this article is from 2011. Shortly thereafter, servicers were not permitted to foreclose, and that is when we started seeing “trustees” (although they are never there). While, in theory, cash flows are conveyed to certificate holders to a trust, a trust and certificate holders can never be the LEGAL HOLDER of a mortgage. They own cash flows only, and if they any beef with this – their only recourse is against the trustee – not the borrower. This was codified by Federal Reserve, by Dodd-Frank law amendment. It can be found at Federal Register Vol. 74, No. 223 November 20, 2009 Rules and Regulations (codified as law a couple of years later). Not going to cite all, but, specifically, under Section by Section analysis it states: (note a “covered person” is a creditor):(my emphasis here)
“To become a “covered person” subject to Section 226.39 a person must become the owner of an existing mortgage loan by acquiring LEGAL TITLE to the debt obligation. Consequently, Section 226.39 does not apply to persons who acquire only a beneficial interest in the loan or a security interest in the loan, such as when the owner of the debt obligation uses the loan, as security to obtain financing and the party providing the financing obtains only a security interest in the loan. Section 226.39 also does not apply to a party that assumes the credit risk without acquiring legal title to the loans. Accordingly, an investor who purchases an interest in pool of loans (such as mortgage-backed securities, pass-through certificates, PARTICIPATION interests, or REAL ESTATE MORTGAGE INVESTMENT CONDUITS) but does not directly acquire legal title in underlying mortgage loan, is not covered by Section 226.39″
So the “Trust” is out — legal holder, if the “Trust” is the trustee. Where is the trustee in any litigation? Missing in action. And the “Participation” interest – is interesting.
ANON respectfully, you’re again just parroting scammer nonsense. Servicers foreclose all of the time, and trusts do own notes. See, In Re Smoak, 461 B.R. 510 (Bankr. S.D. Ohio 2011) https://www.floridabar.org/the-florida-bar-journal/proving-standing-to-foreclose-a-florida-mortgage/
As I’ve explained a thousand times the only verifiable methodology that works is attacking the mortgage transaction contract itself everything else is just wishful thinking and “stall” atty. & scammer foolishness.
Legi — on representation, no one questions it. I am suggesting that they do that first. The law separates a trustee from a trust. In security cases, that is how it is done — the bank is there for the trustee. But this does not happen in consumer cases. The servicer claims to represent the TRUST, with the trustee name tacked on, but the trustee (Bank) is never there. That means there is no legal holder, as a trust itself cannot be a legal holder. The servicer has no authority. Check out Americold Realty Trust v. Conagra (SCOTUS). It is an important issue for diversity jurisdiction. If we do not have true party cannot determine diversity jurisdiction when necessary, or any other issue for that matter. Check representation in numerous cases. Need to turn this around. Servicers have no authority – they are not legal holders. And derivatives are not under trustee fiduciary responsibility. Unless, something happened that we don’t know about that made servicers the legal holder. Or, perhaps there is no legal holder at all. Unless we challenge this, it will not be addressed by courts. I see no one challenging it at this time. There is one (federal court) case in New Hampshire or Maine in which it was challenged. I will have to look for it. The case was settled.
Summer, you’ve obviously drank the scammer Koo-Aid as well. Show me the law that says “ a LENDER used someone else (sic) money to fund loans in exchange of mortgages and Notes, this someone must be disclosed under the law.” Sorry, but you have a big problem, it doesn’t exist.
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.”); 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); SVETLANA TYSHKEVICH v. WELLS FARGO BANK, N.A., (United States District Court, E.D. California. 2016) (“Plaintiff thus rests her entire case upon her allegation that the “true” lender and therefore the other party to the loan was never identified… Under the first, and most likely interpretation of the Complaint, plaintiff is alleging that “America’s Wholesale Lender” is a fictitious name. However, there is nothing in California law that prohibits an entity from doing business under a fictitious business name, or a “dba.” To the contrary, California law specifically provides for this practice. See Cal. Bus. & Prof. Code §§ 17900-30 (“Fictitious Business Names”)…plaintiff pressed the possibility that AWL was actually non-existent, rather than simply a fictional name, by asserting that the Deeds of Trust identify AWL as a New York corporation. This argument misreads the Deeds of Trust. They do not state that “AWL” is a corporation. Rather, they state that the “Lender” is a corporation organized under the laws of New York. While the wording could be clearer, this plain meaning of this is that the “Lender” which plaintiff implicitly acknowledges is Countrywide (dba AWL) is a New York Corporation. It does not assert that AWL — the fictitious name itself is a New York Corporation); 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.”); SOTANSKI V. HSBC BANK USA, NAT’L ASS’N, No. 15-CV-01489-LHK, 2015 WL 4760506, at *6 (N.D. Cal. Aug. 12, 2015) (collecting cases and concluding that a lender’s use of a third party lender does not preclude contract formation).
Furthermore, most of what you consistently post is just the parroting of incompetent bozos and scammers who have no clue what they’re talking about. If I didn’t want to waste anymore of my time that I already spend correcting all of the factually and legally incorrect rhetoric posted here, I could post hundreds of cases proving your comments are nothing more than utter nonsense. Sorry to be so blunt, but somebody needs to correct the misinformation you and others wrongly post.
Two more cents. Don’t start from the end, go to a very beginning.
WHO was the LENDER? Who was the SELLER (original) of LOANS evidenced by mortgages; and was it the same party or not?
Mortgages are not loans. Loans are money, mortgages are evidence that money exchanged hands. Note is a promise to pay back money (loan) evidenced by Mortgage, to a lawful debt holder.
So, how money exchanged hands at the first place? SOMEONE – borrowers usually do not know who – wired money to fund a home purchase. Where these money came from? We assume it came from the company who called themselves “Lenders”.
Does this Lender has an evidence of this wire on their general Ledger? Nobody ever produced it. Was this mortgage and Note recorded as an asset on this Lender’s accounting books as an asset? Nope.
So, that happened next? Under Big Banks’ narrative, “someone” purportedly, original “Lender” SOLD these loans to ??? who created Trusts where this evidence of debt (not LOANS) are pooled and sold as parts to investors – who became beneficiaries of the Trust. Or the Trust was created by the original “Lender”
If most mortgages are “sold” within 30 days (read” dumped by Black Knight to another “Servicer” via password) nobody had TIME to create any Trusts and pool any mortgages into them. All that they did – filed bogus PSAs describing future evens which never came.
So, if the original “lender” “sold” a loan to another party literally right away, a homeowner now does not owe anything to the original “Lender” but suppose to own to someone else who purchased the debt.
Thus, the original “Lender/Seller” MUST provide a lien release that homeowner does not owe this Lender anymore- and write off this “debt” from their records as paid in full, right?
But no one give any lien releases after “sales” -even when asked.
The original Seller of loans evidenced by mortgages is always missing.
If a LENDER used someone else money to fund loans in exchange of mortgages and Notes, this someone must be disclosed under the law.
And if this LENDER sold anything to anyone, it must have money trail.
Find the original creditor and the seller of debt first. All others are irrelevant if here was no sale at the beginning.
Neil is absolutely correct, and 100% accurate.
And the reason why these foreclosure mill lawyers are so brazen and blatantly violate every law and rules of ethics because it is allowed to them by JUDGES.
These are JUDGES who rule in favor of non-existing Trusts and never even ask how non-existing entity “owe” anyone’s debt.
Moreover, 98% of Judges do not even care if the purported “Lender” (100% of them) are not lenders; and some of them never even existed.
Like America’s Wholesale Lender, a fictitious company created by Countrywide mob
Legisman wants proof of judicial corruption? Seriously? Google it first. It is all over the place. Almost every article about foreclosures involves judicial corruption.
I have material proof, with documents, about astounding judicial corruption on all levels of Illinois Courts (hadn’t time to search other States) . Illinois Court has a public nickname “Family and Friends” club – where average people of course do not belong.
Some Judges got their jobs in so corrupt manner, it raise a reasonable question why corruption is still considered a crime? Cronyism, nepotism and bribes masqueraded as “donations” are all over the place.
Just a few examples – Foreclosure Judge Patricia Spratt, wife of Senior Judge of Federal Court of Appeals William Bauer.
Sprat paid $25,000 to convicted in bribes Isaak Carothers for his aunt’s Anita Rivkin Carothers’ judicial seat via Carothers’ non-existing “consulting company” which he operates from his home.
Spratt lost her election in 2014 but was assigned on Judicial seat in 2015 by Supreme Court Justice Mary Jane Theis, whose son Jack clerked for Judge William Bauer.
Rivkin-Carothers, whose term was renewed in 2014 for 6 years, suddenly decided to retire and passed her seat to Spratt.
Spratt received over $150,000 “donations” – mostly from Big Banks and their lawyers.
Spratt has difficulties to navigate in her cases, I personally observed how she did not even recognized which case is presented before her.
Guess in whose favor Spratt rules? For Big Banks, of course.
IL Appeal Justice Sheldon Harris. After he lost his judicial elections and was assigned on top Court seat after his sons “donated” to IL Mafia Princess Lisa Madigan $50,000 for election.
Harris (who started new campaign under his nick name “Shelly Harris” and his housewife “donated” to his campaign nearly $970,000.
$400,000 “donation” came from non-working wife.
It would take about 7 years for Shelly Harris to recover his investments with his $230,000 per year paycheck, presuming he will not spend a cent on any other expenses like food and housing.
Obviously IL Appeal Court Justice Harris knows how make money on the side of his taxpayers funded check; and yes, Harris favorably decide foreclosures for Big Banks.
Need more? I can post here every day how Judges obtained their jobs and who “donated” them money.
Hint: Big Banks and their lawyers.
ANON, what facts do you have to support any of your legal conclusions? Answer, you don’t, because that’s not how things work. Nonetheless, I’ll give you a chance to back up your comments with law.
Jan van Eck, spare me with the judges are corrupt B.S. Just because I only posted a couple of cases doesn’t mean those those specific judges are corrupt; far from it. There are hundreds more I could have posted. And you make the ridiculous comment those cases aren’t “valuable”.You obviously drank the scammer Kool-Aid, and now it appears you’re too far gone to accept the truth.
Legi — talking about representation here first. You don’t really think the trustee (legal holder by all American law) is represented (on behalf of anyone) in a court do you? They are not. Trustees are divisions of banks (a department), they are not attached to any “trust” name (which attorneys do without any right or justification). Trustees are distinct from any trust itself. Fiduciary law is fundamental and it is universal. Once we get false representation into focus, let’s take from there. One step at a time, and representation, I think you agree, is a basic fundamental legal requirement. Then we can address the swaps and derivatives – which are not securities – they are contracts that “Swap-out” of trustee, on behalf of claimed trust certificate holders, control. I think we all agree on this, but representation requirements are not being upheld in courts. Basics first – then we can all agree. I agree that insurance payout does not absolve any liability by borrower, but the borrower needs to know who is their creditor after such insurance pay-out and “Swap-out” that changes any claimed creditor. This is securitization 101. And, they won’t divulge that because the crisis loans were never validly securitized. Without disclosure, the “debt” remains forever, and the borrower is prevented from true negotiation with a true creditor. This is exclusive of whether or not a valid loan existed in the first place, which is highly questionable. But, you can’t get to the end without starting at the beginning – representation. I think we all agree on this. Nothing to dispute on this.
Legisman, I have seen you raise this argument, that a creditor (or claiming creditor) having collected on insurance, does not absolve the homeowner from payments on the Note, and you have recited the very same cases in this column before. And that’s fine, and I grant you that there are judges out there that will craft and create “judge-made law” to suit their own prejudices. But that does not mean that those Opinions are valuable.
Judges bring their own ideas of morality into the Court all day long. Chief among them is that nobody should “get a free house.” Thus, in the minds of those judges, it is better that the homeowner have the house taken away, and handed over free-issue to someone who represents that it is owed the money represented by the Note, than that the Note be declared satisfied (or in the alternative, by the principles of equity, the debt suggested by the Note now belongs to the insurer). There is a case in the Connecticut state court where one particularly poisonous old judge declared to the defendant, himself a banker, “Mister, you might win your Motion for today, but I am going to see to it that you lose that house!” Now, keep in mind that this is before trial, before discovery, all that is before the Court is the “trust’s” bald allegations and the defendant’s denial of those allegations.
What this tells you is that it is always going to be a huge uphill battle. There are lots of old judges sitting on the foreclosure bench, many are “judge trial referees,” old guys who have no personal life and who need emotionally to be able to go into the old courthouse and guffaw with his cronies, swapping trial war stories and drinking coffee. The courts are filled with these old guys – many of whom have been in a mental fog for the past twenty years, and in States where there are no mandatory retirements, they hang on well into their eighties. One old guy, in a mental fog at age 86, died two months after trial. It was painful to watch, but hey, he had his prejudices, including of course “no free house!”
The reason your arguments, and the Court Opinions you cite, are valueless is that they immediately lead to unjust enrichment. If you have a collision with someone and you claim your damages on your collision insurance, and are made whole, then your rights against the other party are done. Your insurer probably has a right of subrogation of claim, as they are out of pocket and are aggrieved, and if that insurer chooses to pursue it, then they can file suit to recover. But you are all done.
I appreciate that you do not want to hear any of this, that you prefer to flow with judge-made law via case opinions that deride the “free house” theory. And that’s fine, I do not intend to debate the issue with you further. But keep in mind that, just as Sears cannot go repossess that refrigerator on the Note of the young marrieds, after Auntie pays it, neither can Deutsche Bank go repossess some house where a third party has paid them. Creditors are not supposed to collect twice (and I grant you that they routinely do, but that is abuse of the court system). ‘Nuff said.
Jan van Eck, Garfield is 100% INaccurate, and you’re conclusions are factually and legally incorrect, undoubtably, because you have bought into the B.S. promoted by legal illiterates and other scammers.
And, do you really believe the “enemy” (bank lawyer) would confess anything to Garfield, and if they did they were playing him. Because anyone claiming that these trusts do not hold assets is either incompetent, or trying to send someone down a rabbit hole:
FLORES V. DEUTSCHE BANK NAT’L TRUST CO., 2010 WL 2719848, at *4 (D. Md. July 7, 2010), the borrower argued that his lender “already recovered for [the borrower’s] default on her mortgage payments, because various ‘credit enhancement policies,'” such as “a credit default swap or default insurance,” “compensated the injured parties in full.” The court rejected the argument, explaining that the fact that a “mortgage may have been combined with many others into a securitized pool on which a credit default swap, or some other insuring-financial product, was purchased, does not absolve [the borrower] of responsibility for the Note.” Id. at *5; see also FOURNESS V. MORTG. ELEC. REGISTRATION SYS., 2010 WL 5071049, at *2 (D. Nev. Dec. 6, 2010) (dismissing claim that borrowers’ obligations were discharged where “the investors of the mortgage backed securities were paid as a result of . . . credit default swaps and/or federal bailout funds); WARREN V. SIERRA PAC. MORTG. SERVS., 2010 WL 4716760, at *3 (D. Ariz. Nov. 15, 2010) (“Plaintiffs’ claims regarding the impact of any possible credit default swap on their obligations under the loan . . . do not provide a basis for a claim for relief”); CONNELLY V. U.S. BANK NAT’L ASS’N (In re Connelly), 487 B.R. 230 (Bankr.Ariz., 2013) (“Plaintiff solely relies on his expert’s assertion… Article 9 applies to the sale of promissory notes.” Garfield Aff. 9:9–12. Even if this opinion testimony by a witness who has not been qualified as an expert could be considered by the Court, it would be rejected because it directly contradicts VEAL…Plaintiff’s argument that only Article 9 applies to the transfer of the Note fails.”); ROSAS V. CARNEGIE MORTGAGE, LLC, No. CV 11-7692 CAS CWX, 2012 WL 1865480, at *8 (C.D. Cal. May 21, 2012) (“[P]laintiffs’ theory that lenders that received funds through loan securitizations or credit default swaps must waive their borrowers’ obligations fails as a matter of law.”).
The above recitation by Neil is 100% accurate. I would add the comment that in effect the foreclosure mills and their attorneys are nothing more than rogue attorneys acting as bandit highwaymen, there to seize houses in which their clients have no interest. At the most charitable, those attorneys are acting as counsel to bill collectors to collect a bill for an entity that does not even own your debt (if you still have or ever had one). And those conditions vacate any claim to litigation immunity.
I would also mention that, in the event that a court finds that you did in fact take out a loan (which is largely inevitable), then if that loan was paid off by a credit-default insurer such as AIG, Ambac, et al, then the debt by definition is discharged. And those “trusts” all carried default insurance policies on a non-subrogation basis, otherwise they could not get AAA rating from Fitch, Moody’s or Standard & Poor, needed to make them purchasable by investors such as insurance companies and pension funds.
It is a bit like the young couple with the spinster aunt; the couple goes out and buys a refrigerator for $1,400 and pays $100 down and so much a month on an installment contract. The aunt does not want the kids to strain, so she goes to Sears and pays off the balance of the contract. Does that allow Sears to repossess the refrigerator, on the grounds that the aunt paid, and the kids (who signed the contract) did not? Of course not: paid is paid, it matters not where the money comes from.
Yet that is exactly what the mill attorneys are attempting: to repo a house where someone not the owner has paid off the principal and the interest, leaving a zero balance.
Could the insurer sue the kids? Maybe – but that does not happen. The real reason is that Wall Street structured those insurance contracts as non-subrogation: the insurer gets to pay the claim but does not get the note and mortgage in return. Rather handy for the investment bankers, to be sure.
The mill attorneys are suing on a paid note – which is conveniently not stamped paid. And to avoid going to jail, that is why those attorneys never, ever, plead that their client bought the debt – only that they are the “holder of the note.”
Why are the courts allowing this? I see the cases — “U.S. Bank, trustee, BS Trust,” (all of them) and judges just accept that U.S. Bank is there because attorneys attach the trustee name to the BS trust name. And, when representation is challenged, it is ignored by the judge. And, where is our government? Is the “employer” really the U.S. Government?