Legal Death Trap: About Those Letters You Get from the “Servicer”

THIS IS ABOUT MONEY, NOT DOCUMENTS

When a homeowner starts asking questions about the existence, ownership and authority over their debt, note or mortgage, they will at best be misled and probably be the recipient of bald-faced lies. A typical exchange results in the receipt of a letter that is unsigned, with no human name stated, and no title. 

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So first of all the letter is unsigned, which advances plausible deniability. There is no human name, title or signature, electronic or otherwise.

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Second, this might well have been created by some company other than the alleged “servicer” using the easily created “letterhead” you see. Remember that saying you are King of the World does not make it so. ANd saying that you are a “Servicer” implies a large number of facts that are probably all untrue. that is the essence of “misleading” saying something that might be true in order to imply a whole bunch of stuff that is not true.
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No company is the servicer of your loan unless it is receiving and disbursing funds on behalf of a principal (the creditor) who has paid value to someone who owned the underlying obligation in exchange for a document of conveyance transferring the ownership of the underlying obligation.
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Any transfer of a mortgage that fails to be accompanied by a transfer of the underlying debt is a legal nullity. Any assignment of a note that fails to be accompanied by a grant of authority to enforce from someone who has paid value and owns the underlying obligation results in the status of “possessor” without rights to enforce, and not holder or holder in due course.
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Third, the unsigned letter claims that the “servicer,” is also the “owner of the loan.” That could mean several different things thus further advancing plausible deniability. If I have received an assignment, even if it was invalid, and I claim to won the mortgage, can I claim to be the owner of the loan or not? What difference does it make if I make such a claim and it is untrue?
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So first of all do not give such a letter any credence at all and recognize that it will later be used against you if you don’t object right away. It subtly establishes the existence of the “loan”, authority to administer, collect and enforce the “loan” and even provides a foundation for ownership of the “loan.”
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Remember that a loan is not a loan if there is no lender and no loan account receivable. It is even possible for the debt to exist, but not as a loan if you never had a lender. You never had a lender if the party you named as Payee/mortgagee did not pay you money on its own behalf. If it was a broker, you don’t have a loan. You might have debt but it isn’t a loan because the law says so. A lender must comply with disclosure requirements under lending statutes. The broker never complied because it lacked information to make such disclosures. the broker never had any entry on its ledgers of the receipt or disbursement of money for your transaction. there was no “loan” in such circumstances.
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If you want to use the letter you will need to establish the foundation. That means in discovery or testimony someone says the letter was sent by, for example, Ocwen or Rushmore, and that the assertions are true. And they say that the assertions are true because … (whatever they are spinning). In the final analysis, the witness, if your ever you get one, will say that the letter was sent because it was ordered to be sent and that they have no idea whether Rushmore, for instance, ever had the authority to send it. Who gave the order. The witness will not say or doesn’t know.
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But the letter can be used if the purpose of using is simply to show that it was received by you and not to prove that the assertions are true or false. For example, if one party is named as the claimant and you get a letter like this saying that someone else owns the “loan” you can say you’re receiving inconsistent information.
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You want to be careful about one thing in particular, though. The reference is to a “loan.” So you might want to write back and ask them what they mean by “loan.” for example, do they mean that they have paid value for the underlying obligation and that they have received a document of conveyance of ownership of that obligation? Or do they just mean that they have documentation?
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They are playing games with you. You should take issue with the verbiage “loan” until they can establish the name of the entity that carries a loan account receivable in your name as an asset entry on their general ledger. It’s always down to the basics. Be relentless. Don’t back down. If you ever had a legal obligation, it was extinguished during securitization. Concentrate on the money trail. But use their paper trail to show any inconsistencies in their claims.
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As for using this in your lawsuit, yes you can do that, but you need to be careful in your set up because the real facts are not obvious from the face of the letter. An impartial judge looking at the letter would ask “What else did you expect them to say?” You need to show how such correspondence is intended to deceive you and wear you out.
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Neil F Garfield, MBA, JD, 74, 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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