You definitely need a licensed trial attorney representing you. I know it is difficult to find, but start looking like your life depended upon it. Right now, from a bird’s eye view, most people would conclude that everything looks right with the chain of title. You need to educate a lawyer and judge so that they take a closer look.
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Keep in mind that any company claiming to be a servicer is not saying what you think they are saying. You will never find a statement from any company — signed or unsigned — that they receive the money paid by homeowners or pay money to creditors (because they don’t). As an aside, I doubt if you ever received a “notice” purportedly from any “servicer” that is signed by any human hand.
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I say purportedly because all evidence points to one simple fact: none of the correspondence or notices received by homeowners were in fact prepared or sent by or even on behalf of any company named as a “Servicer.” Companies like Black Knight and Core Logic do all of that and do it on behalf of the hidden securities firm that calls itself an investment bank or commercial bank. The designation or naming of a “Servicer,” just like the designation or naming of a trustee, trust, or substitute trustee, is an illusion.
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Under the statute, any company from birth of the homeowner transition to conclusion, that participates in any way with the administration, collection or enforcement of claims against the homeowner is considered a servicer — even if they have never been involved in any monetary transaction between the homeowner and any other party. In 99% of all cases the company claiming to be a servicer is not the actual recipient of funds paid by the homeowner and in no case is the company disbursing money to creditors — because it never received them from anyone.
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From a litigation perspective, this is extremely important because if the company is claiming to be a “servicer” under general definitions in the statute, but it is not actually receiving the funds paid by homeowners, then it is not a witness to payment and therefore it cannot produce a “business record” exception to the hearsay rule as to the history of payments.
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The payment history thus fails as evidence. It is not a substitute for the ledger showing the loan account. And the allegation or implied allegation is that the loan account is owned, for example, by U.S. Bank, NA as trustee for the XYZ trust, then the ONLY admissible evidence of the balance due and the history of the account is on the books and records of U.S. Bank as trustee and NOT on any record printed out by some company posing as a servicer.
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The only acceptable foundation for admission of a third party’s records is testimony from a bank officer that the “servicer” keeps the books and records of the bank, which would be illegal under banking regulations.
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This is why I have often made the point that the payment history is not, and never was, the same as the accounting ledger showing all debits and all credits to a loan account that was established by paying cash to or on behalf of a borrower.
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PRACTICE NOTE: Although the payment history is not admissible as evidence it is usually admitted as evidence. This is because all judges have been admitting them for two decades or more. And the reason they have been admitting them is that the homeowners — either pro se or through counsel — have not laid the groundwork for directing a bored judge’s attention to the very basic element of whether the record was created from entries made by the company’s employees at or near the time of the receipt or disbursement by the company.
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That is, the foundation testimony must be that an employee of the company made the deposit into a company account and recorded that deposit as a receipt of payment from the homeowner. All of that is assumed, allowed, and even encouraged by the words “I am familiar” used by robo witnesses. Unless you lay the proper groundwork and then raise timely objections this issue is lost and it does a lot of damage to all defense narratives claiming or relying on the idea that the claim and claimant are false.
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Think about it. Is the report of a mail carrier who delivers checks to an address proper evidence to show payments by the homeowner? Even if the checks are made out to the mail carrier if he turns them over to a third party for deposit and accounting, does that raise his testimony or reports to the level of admissible evidence of payment history? I understand full well that you could argue that, but few judges would accept anything less than the testimony and records of the company who actually received and deposited the funds and made a record of each check and credited it to some account.
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In discovery, you won’t get a single acknowledgment from the REMIC trustee as to the existence of such an accounting ledger for the loan account nor the authority of the company claiming to be the servicer to receive checks on behalf of the bank.
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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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Thank you for your seminar!! From attorney who took it today — “It was the best seminar I have ever attended.” Thank you!!!!
The question is — why are they fake? Because the securitization was fake. Had the securitization been valid, trustee (legal holder) and “servicer” would be valid. But, it is not valid. Further, securitization should be irrelevant to borrowers. None of their business. Yet, because the securitization is fake, they need to make up fake entities . “Trustee” (bank) is never there in court. So, we have fake securitization, fake documents, and fake representation in court. Government does not care, and neither do judges. .
Servicers are fakes, just like Trustees
Title Insurance Companies are bygamists . In one hand they sell you bogus Title Policy via sham conduits to make appearance of a traditional secure transaction. With other hand , they destroy your property Titles helping to fabricate bogus assignments.
Beware!