Lay People Look at What the Document Says. Lawyers Look for What the Document Does Not Say

I am often sent documents to review. And most of the documents purport to grant authority to some person or entity to do everything (or at least something) necessary to complete the process of foreclosure. In virtually all cases documents that are allowed to appear are merely part of the illusion of authority and not the source of Authority.

In short, the grantor does not say that it owns or has the authority to grant authority to anyone else. This is considered a fatal defect on most documents but it occurs regularly in foreclosure cases.

The interesting thing about documents like this is that they do not use any preamble stating that the company owns any of the loans for which the Authority has been granted.

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It is standard practice in virtually all legal documentation of this sort to start off with a paragraph that starts with the word “whereas”.
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The custom and practice would actually require two such clauses. The first being an affirmation of title or warranty of title. The second being an explanation of why such authority is being spread out over several people rather than a single person who is in charge of the enterprise.
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Many times the document presented is an agreement of some kind. Usually, the agreement is either not signed or digitally signed. It is also usually incomplete, referring to exhibits that are not attached or which conflict with the position taken by the foreclosure mill. Such agreements are only produced for purposes of foreclosure. They are not intended to be used and they are not used for any other purpose by and between the parties to the agreement or related parties.
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No transaction lawyer in the country would have drafted the agreement that people have sent to me if they actually intended for it to be used and enforced. *
The only reason these documents are created is to create the illusion and distraction that arises from a presumption that the company would not have such an agreement if it did not own the underlying obligation, debt, note, or mortgage in connection with active loans.
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Lawyers sometimes overlook these issues. The lazy way is to look at what is there. The appropriate way for a lawyer to review such a document is to consider what is not there and what should be there.
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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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2 Responses

  1. Why won’t attorneys take these cases?

  2. This is all correct, and it goes further. According to the PSA – which is a bunch of BS – ONLY the trustee can grant POA. But you will not always see that. In fact – rarely see it. You will see the “originator” grant authority to claimed servicer “By attorney in fact” – even when that originator is defunct, and there is no authority for “originator” to grant anything by PSA. Some of these originators remain recorded as an “entity” in Delaware – decade after dissolution. Standing – the courts say — no standing to challenge. Really – and OH yeah – where are the defunct but still registered entities located? And, the new thing is — “Trustee to ‘Pooling and Servicing Agreement'” Really? No such thing as a trustee to a “PSA” exists, I mean — are the courts ignorant? Trustees are only legal holder to a valid “Trust” – not a PSA – not a title series name – not a non-REMIC (which is never disclosed as “pools” re segregated in violation of Regulation AB – and not an actual REMIC). Now, I agree with Neil – defense attorneys not the brightest bulb in the chandelier. So – how are you going to get people to trust attorneys and pay them when they don’t know what they are doing??? Big problem. Case law is a joke. CFPB tells me — type in “M” for Mary, “E” for Edward, “R” for Randy and “S” for Sam. I tell them — MERS? I don’t have MERS. And, MERS is nothing – no authority. We have been conned too long. Up to Warren (with CFPB) and Biden to step in to do something – but they won’t . They let it sit and fester further. Biggest scandal ever. Question is — how much do they know – and when did they know it – and why won’t they do anything to fix? Second question is – what attorneys will take these cases when there is no support by the U.S. Government?

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