What the “affidavit” does NOT say is more important than what it does say

This is an example of how the investment banks are responding to me without specifically giving me or my websites oxygen.
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They are now attempting to file affidavits from parties that appear to be the actual claimant and who appear to be The owner of the underlying obligation, the legal debt, the note and the mortgage. In truth, however, none of that is true.
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But the banks clearly believe that they can continue to submit documentation that is false as long as it looks good. So far, especially since 96% of all foreclosures are uncontested, the banks have been correct by employing that strategy.
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The premise behind the strategy is simply that practically nobody ever reads the documentation very carefully. Once that is established, the judge hears only arguments about what the document means rather than focusing on what the document actually says.
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The affidavit supposedly executed by a Mr. McHanan is no different.
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McHanan never states he has personal knowledge of the transaction with the homeowner, or any payments received or any disbursements made to or received by WSFS as creditor or disbursed to some other creditor. His affidavit only attests to his current official position.
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He does not explain why WSFS, which is not a trust, does business under the name of “Christiana Trust {which certainly implies a trust} as owner trustee [Making trust the trustee of another trust] of the Residential Credit Opportunities Trust iii” {another trust, but not really because this is all only part of the fictitious name under which WSFS does business].
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None of the trust names are actually identified as legally existing trusts. And none of them are obviously cited to a jurisdiction in which they were created or organized. And there is no reference anywhere in the affidavit to where the trusts do business. Obviously, they don’t do business because they are just part of a fictitious name under which WSFS does business.
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The obvious purpose here is to bewilder the reader into total confusion and thus reliance on the lawyer who is attempting to utilize a document that is captioned in this matter. When a judge is confused about something he is going to look to the attorneys to explain it to him or her. The judge is not required to do any investigative research into the matter.
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Under normal and customary circumstances, the affidavit would state that he is the authorized officer of an entity that has purchased the underlying obligation for value. This is what is required by article 9 section 203 of the uniform commercial code. Like every other state Florida has adopted that section of the UCC verbatim in Florida statute 679.203.
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It is not just about compliance with a clear statutory mandate for compliance before any effort can be made to enforce a mortgage. It is also about the constitutional imperative included in the U.S. and Florida constitutions that there can be no action if there is no financial loss. There can be no financial loss if the named claimant, plaintiff, or beneficiary doesn’t own the alleged loan account. It’s impossible.
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REAL Affidavits like the one I just described exist in abundance in cases where an actual lender is pursuing an actual borrower and seeking a remedy breach of the borrower’s duty to make scheduled payments. But that was back when they were actually sold on the secondary market. This is no longer true although the Foreclosure Mills imply, but never actually state, that the original transaction with the homeowner was securitized. It wasn’t — or at least the debt wasn’t and that is the ONLY thing that matters in foreclosures.
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But in the world of securitization, nearly everyone forgets that no debt is securitized. It is only the rights to try to enforce the debt that are securitized. To say the least, the transfer of the rights to enforce an alleged debt without transferring the actual debt is problematic at best under the law.
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You should also notice that the gibberish used in the style of the case is identified in the affidavit as the plaintiff — and not the claimant or creditor who owns the underlying obligation, the legal debt, the note and the mortgage.
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The affidavit avoid any assertion of an economic loss that has been caused by any breach by the homeowner. Upon investigation and discovery, one would find that the only economic loss associated with the case would be in the event of a failed foreclosure in which the foreclosure parties would fail to receive their fees. There is no loan account that is waiting for credit from the sale of the house.
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The second paragraph is equally misleading. It says that WSFS maintains records for the loan in conjunction with its servicer, FCI lender services Inc. The normal and customary assertion in such an affidavit would be that WSFS maintains an accounting ledger on which all debits and credits associated with the loan account have been entered by an officer or employee of WSFS.
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Mentioning the accounting ledger would lead to a demand that it be produced, which is something that neither of the Foreclosure Miil nor WSFS could ever do because there is no such accounting ledger and there is no loan account on it — nor could there be since the debt was never sold.
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The affidavit then goes on to say that WSFS and FCI utilize the same loan servicing platform, which is something I have been saying for 16 years. What is not stated is any assertion that the platform that they are sharing is owned, operated or maintained by either of them. As I have previously reported, the platform is owned, operated and maintained by third parties who are essentially unrelated to WSFS or FCI. See Black Knight and CoreLogic for examples.
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The rest of the affidavit appears to be gibberish intended to be confused as technical compliance with the required content of the affidavit. Like everything that I have analyzed above, it says nothing. In my opinion. the affidavit would be subject to a motion to strike. If argued convincingly and using a step-by-step strategy, most judges will probably grant the motion to strike — albeit reluctantly.
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The affidavit contains the magic language that makes the affidavit appear facially valid. But in the absence of any direct assertion clarifying the missing items that I have identified above, the drafters of the affidavit are merely making use of the lay interpretation of “business records,” instead of the legal definition of “business records” as an exception to the hearsay rule.
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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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4 Responses

  1. Could we have a copy of the Affidavit you are writing on, for study purposes? I don’t see it or a link in the article. Thanks!

  2. Ian. Here’s the latest update on their Ponzi. No Surprise!!

    https://www.usnews.com/news/us/articles/2021-07-06/feds-dropping-case-against-former-wilmington-trust-execs

  3. Wilmington is the newest fraudster in my case. I can’t see what article or case that Neil is referring to here. Can someone send a link?
    Thank you all for being tireless in this fight!!!

  4. Neil,
    I have personal knowledge of Christiana Bank and Trust Co, here in PA. They were merged into or acquired by Wilmington Federal of Delaware. Subsequently, and Im not sure if it was coincidental, WF was caught cooking their books, and several of their key people were sent to prison. ( WSJ covered it, and there were a number of investor lawsuits regarding the stock valuation as a result). In the course of one of these suits or criminal charges, it was revealed that either Christiana Trust or Wilmington had “ lost” over 6,000 “loans”. I didn’t see much about the lost loans, but my loan from SN Servicing in Eureka CA was allegedly held in trust by Christiana, and SN Servicing supposedly acquired the loan from American Business Credit ( lender or originator ) in Bala Cynwyd PA. ABC went down in flames and principals of the company were charged with various crimes or indiscretions. The WSJ ran a front page article about ABC after it was found that they were selling notes to individuals which weren’t backed by anything. Anyway, my loan( supposedly) went from one fraudster to another fraudster and was on its way to WF and I guess it was “lost”.
    A good story for a Monday morning-

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