Here is the “word problem”
A servicer has sent a notice of default to a homeowner who has not made payments that were scheduled on a promissory note that was signed by the homeowner.
What is the first issue that the homeowner should challenge?
Send answers to neilfgarfield@hotmail.com. The first one to get it right gets a free ticket to the Webinar and can appoint a lawyer to attend as well at no cost.
Filed under: foreclosure |
Ian’s question is correct. We should not quibble over word terminology. It does not matter whether it is called a servicer or debt collector or anything else. The fundamental question is AUTHORITY. And, they cannot or will not provide authority. Assume, for example – a loan is claimed to go BofA to U.S. Bank, trustee to some trust that is now largely dissolved to a “special servicer” to another servicer -etc. etc. Freddie Mac/Fannie/Ginnie are always irrelevant. There must be a legal REMIC trust with a proper chain of assignments for authority to even collect. Debt collection is transferred by assignment – not the note. Whether the “note” ever existed is dependent upon whether any money was ever lent. If some entity takes your 100K deposit, and does NOT pay off the prior loan (by prior owners) on your behalf by a loan for the balance- – that is FRAUD. Notes do NOT survive fraud. And, that is exactly what happened with purchasers and refinances during the crisis — which likely continues today. There is a case — In Re Merritt — Third Circuit, that claims “owner” and “holder” status are different. And, that one does not have to be the “owner”, but rather only the “holder” to enforce the note. They negate Freddie “owner” status – BUT in that case there is no trust. The originator remained holder only by a successor. For a claimed private label trust — according to the law, the trustee is the legal HOLDER, for claimed security investor owners. All the non-bank “originators” are gone. Thus, only the legal holder (Trustee) can give authority to MASTER SERVICER — who then can delegate obligations. There are few Master Servicers left today – New Residential being the largest. Subservicers, and special servicers have no authority. And, ignoring the word “servicer” — negates tracing of claimed authority.
Java is missing a claimed trust — it is the trust that claimed to have HELD prior owners loan — to which Freddie was a claimed investor “owner” Truman was a subsequent trust that operates for profit – buying and selling loans (including any previously reported in default). It is NOT the original REMIC. No one will get rescission. The only way is to attack the validly of the note and get the accounting that occurred — not just at inception of last transaction – but also prior to that. You will find nothing was lent or paid off. Only THEN can we question the authority and terminology of the players. Unfortunately, courts are reluctant to enforce that discovery because the crisis fraud is deeply covered-up.
responding to Javagold: I would argue that Rescission is available at any time, both by Statute (as set forth in Jesinowski) and by common-law right of rescission. Remember that even a Rescission wrongly brought, or brought in error, if not challenged according to statute within the 20-day window proscribed by Congress, becomes a self-executing proper Rescission. If the adverse does nothing for one year, your debt is treated as cancelled, by operation of law.
Now, saying that is not the same as convincing a Judge. At that is a big problem – huge. Judges are enamored of this idea, deeply rooted in Calvinist theology, that nobody gets “a free house.” That the suing plaintiff gets a free house does not seem to occur to them.
I would send the rescission, only by first-class mail, not registered mail (as the Statute only provides for first-class mail), to the Originator and by copy to whomever is the last claimant in the chain of title on the land records. I would dispute that there is an obligation to serve the so-called Servicer or any other debt collector, although case law establishes that doing so is equally effective to serving the Originator (helpful where the Originator is out of business). Then I would Record the Rescission on the County Land Records. You make the Notice acceptable in recordable form by having it Notarized.
By Statute, they have to return that 100K plus all payments of principal and interest. You have to surrender the property or make some new loan with some new lender, to discharge the debt (and not the Note). They have to surrender the Note back to you and file a vacating of mortgage lien on the Land Records. That is what Rescission does: it puts people back to where they were before the mess started. Meanwhile, that is not the end of your remedies. You can and should also sue the parties involved. Lender-liability laws, and consumer protection laws, are well developed and cause lenders to shudder.
Also, by Federal Statute, 12 USC 22, remember that the abbreviation “NA” is not acceptable on legal documents. The Code requires the word “national” to be spelled out in full in all legal documents relating to a national association bank. It is part of their Articles of Incorporation. Who is “NA”? Does Bank of America, N.A. mean Bank of America, Netherlands Antilles? Not up to the Court to try to fathom who the plaintiff is. Watch for that.
JvE.
I put down a large hard money deposit of $100,000. Made payments for up to 9 years. However I do not believe Rescission is still available to me ????…..Please explain if I’m incorrect.
And who does the Rescission go to ??
Originator – BOA NA.
Original Investor – FreddieMac
Alleged New Investor – Truman Trust
Original Plaintiff – Specialized Loan Servicing
Substitute Plaintiff – US Bank NA Trustee for Truman Trust
Current Servicer – Rushmore
That’s some shell Game !!!!!
Not really, Ian. Your answer in response then, at least implicitly, acknowledges that the claiming entity [“Servicer”] actually services loan accounts, and thus is a “servicer,” which it likely is not. The vast majority of so-called “servicers” are nothing more than mere bill collectors, and in some occasions are collecting on bills that they have literally nothing to do with.
Answering questions or Letters from outfits like [for example] “Fay Servicing” is tricky; you cannot let your response pre-suppose anything. Are they a “servicer” by business occupation? Probably not. Dows the owner of the debt retain them to collect monies owed on the debt? Probably not. Does the entity sending you that Letter have any connection to the debt? Probably not. I say “probably” to mean that over 99% of instances, they are strangers to the debt.
Remember that there is a difference between “the debt” and “the Note.” The Note is emphatically not the debt? The Note is at best a memorialization of the debt; some form of Writing to distill the essential terms of the transaction that resulted in a Debt. The Debt occurs when you receive something of value in a transaction, for which you obliged yourself to pay for in money. You pledge the house as security for this Debt (and NOT for the Note, no matter what the foreclosure mills claim). Your payments are for the Debt, and to reduce the ledger balance of the Debt, assuming the Debt is fairly made, without non-disclosure issues, and you have not filed for either Statutory or common-law Rescission of the transaction.
Meanwhile, that Note is nothing more than a memorialization of the terms of the transaction – including who the Lender is, and who the Borrower, or Obligor, is. If the truth is not contained in the Note, for example if the Lender is somebody else,- then the Note does not memorialize the real transaction and is worthless. Admittedly, most Judges in foreclosure court do not grasp this essential truth.
The Note cannot be enforced against the property; the Note allows the proper Note Holder to obtain a cash monies Judgment if you do not pay and the Holder is legitimate, and the Note properly recites the actual transaction, and the Note Holder is the proper party, typically found by Indorsement and delivery. Where the Note Holder also paid value for the debt then most courts will take a judicial Presumption that the Note Holder is also the owner of the debt – but that is a rebuttable presumption.
Typically, a “default letter” which is unsigned is coming from some bill-collector outfit that has no authority to even issue one. The outfit is not tethered to the debt, only to the note, and likely not even that. These outfits are notorious liars, pathologically psychotic in make-up, and Nothing that they set forth can be taken at face value. Personally, my tactic is to sue the outfit and its Officer(s) and start forcing them to pay monies for attorneys out of their own pocket, instead of having an investor pool pay the legal fees (remember, when you get sued in foreclosure, there is no financial pain on the part of the named plaintiff, those legal fees are being paid by investors in a syndicated pool).
Did anyone in the chain of title that is showing up at your county Land Records office actually pay value for the debt? Probably not. Typically, the answer is NO. If you put in a large down payment and made some years of payments, now is a good time to file for Rescission. Get your money back.
Then sue the bums. Sue them all. These bums need to be smothered by hundreds of thousands of lawsuits, that will put an end to the crap.
Answer to the question: “ under whose authority are you servicing the account?”