Livinglies's Weblog

The musical chairs element of parties and instruments is designed to confuse homeowners and lawyers and suppress challenges. It is part of the Wall Street playbook becasue it works without challenge. 

Contrary to the conception held by most lay people, an assignment of mortgage does not get created, executed, delivered, or recorded out of thin air. This is also contrary to the mythological fairies promoted by virtually all foreclosure mills.

Like everything else, such an assignment is the outcome, not the agreement. There is an agreement that results in the assignment. And that agreement is preceded by some record of communication between the buyer and seller of the asset being assigned.

So when an assignment recites that it is executed because $1, $10 or other value was received, you have a right to ask some questions, like the following:

1. If anything more than the recited dollar amount received was paid in cash why was not more dollars paid?
2. Please provide a copy of the asset purchase agreement and all correspondence leading up to the execution of the asset purchase agreement and the assignment of mortgage.
3. Who were the parties to the asset purchase agreement?
4. Were the parties to the asset purchase agreement and the parties to the assignment the same or different? if different, then why?
5. What was the other valuable consideration?
6. How valuable, in dollar denomination, was the other valuable consideration.
7. Why was not the full consideration recited on the assignment?
8. Who paid the dollars?
9. Who paid the other valuable consideration?
10. Who received the dollars?
11. Who received the other consideration?
12. Was the subject of the transfer of the instrument, the underlying obligation, or both?
13. Is it your contention that this transfer constitutes compliance with Article 9 §203 of the Uniform Commercial Code banning enforcement of a security instrument in the absence of payment of value for the underlying obligation?

You won’t get an answer and that is the point. If you do it right an answer, a truthful answer is mandatory. If you send a QWR under RESPA or a DVL under FDCPA the response is mandatory. When they still fail to answer you can file a lawsuit for violation of statute demanding the answer, damages, and attorney fees.

• A lawsuit gets you into discovery, where once again response is mandatory.
• Once you establish that they didn’t answer you file a motion and schedule a hearing for an order to compel the answer.
• Assuming you get the order and they still don’t answer, you file a motion for sanctions.
• After monetary sanctions have expired (usually a certain amount of money per day until they comply) you file your second motion for sanctions seeking pleading and evidentiary sanctions.
• Pleading sanctions consist of an order from the court striking the pleadings and, more often than not, dismissing the case. The foreclosure mill is generally granted one last chance to comply before the order becomes effective.
• Evidentiary sanctions consist of an order in limine (sometimes you need to file a motion in limine) in which the foreclosure mill is barred from proffering evidence of the truth of the matters asserted — i.e. that there is a debt, it is unpaid, the homeowner owes it and the creditor is the claimant.

It all starts with assuming nothing and testing every single thing that is put forward by the foreclosure mill, including (but not limited to) the existence of the claimant, the claim, and the right to administer, collect or enforce it.

Practice Note: before you assume that the order to mediate is effective, you need to ask yourself whether there is enough in the court record to assume or presume

(a) that the claimant has been properly identified and

(b) that the authority of the company claiming to be a servicer has been established. If not, you waive it unless you bring it to eh court’s attention with a motion to clarify the court’s order and to permit discovery on the authority of the named claimant and the authority of the apparent servicer.

Just going to mediation is a tacit admission that eh fake claimant is a real one and that the fake servicer is actually receiving and disbursing payments on behalf of a creditor who is the named claimant.

Do you want to see what a real asset purchase agreement looks like? Note the recital of actual consideration and warranties of title. see Law_Insider_alliance-mma-inc_asset-purchase-agreement_Filed_04-05-2017_Contract

Here is a general rule that never had to be stated before. If the consideration recited is extremely low or nonspecific then the asset is either nonexistent or nonspecific. The document is window dressing. There is nothing illegal about window dressing. It’s just illegal to use it as though it was doing something real. That is fraud.

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• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Filed under: foreclosure |