Livinglies's Weblog

There is a difference between securitization, on the one hand, and securitization of debt, on the other. They are not the same thing. The entire scheme that is currently advertised or represented as securitization of debt is false.

Securitization refers to the creation, issuance, sale and trading of securities. There is no doubt that securities were issued, although I take issue with the notion that those securities were not subject to regulation by the SEC. But anyone on Wall Street will admit that those securities are not mortgage-backed securities, and they are not asset-backed securities, and they are not shares of ownership of any obligation or liability of any homeowner.

Securitization of debt specifically refers to breaking up ownership of obligations and selling shares to investors.

With respect to transactions with homeowners, there can be no doubt that securitization of debt has never occurred since it’s inception in the mid-1990s. But there is also no doubt that almost everyone, including the homeowners and their attorneys, believes that securitization of debt did in fact occur.

This means that the underlying obligation, legal debt, loan account receivable, note and mortgage were never sold individually or as a group. It means that any claim of authority to administer (“service”), collect or enforce any purported liability of the homeowner that is based upon the sale of the laibility from one party to another is false. And that means that none of such parties possess any legal claim to do anything.

I recently received a question regarding notarization. The questioner, “summer chic,” asked why there appears to be no U.S. requirement that a notary public maintain a journal or logbook for notarization when that requirement is enforced practically everywhere else. The simple answer is that there used to be a requirement like that, but there is no such requirement now. And the reason is that the banks have successfully undermined the ability to produce evidence that the notary seal and signature were not affixed by the notary or even in the same geographical area as where the notary resides and works.

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Like the Trustees, “servicers” and everyone else, they are collecting royalties for use of their name, signature and seal. They don’t actually do anything. The person whose signature is being affirmed as being signed by the person named in the instrument does NOT appear in front of any live person and does not produce proof of their identity.

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So this enables the banks, acting through multiple layers of intermediaries including foreclosure lawyers, to fabricate documents that appear to be self-authenticating and valid (presumptively) despite the fact that the document memorializes nonexistent events and nonexistent people in connection with nonexistent transactions. Such documents are completely false, fabricated, forged, and do not survive any test of credibility or authenticity when litigated properly. By doing this the banks were able to sell the illusion of each initial transaction with homeowners to multiple buyers (investors) multiple times  — something that would put them in prison for a long time if they were actually selling the debt.

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This was all changed when the banks started their business plan. All of the basic notions of credible evidence concerning real events and real people needed to be undermined in order for the plan to succeed.

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Having changed the norms, rules and practices of several industries, they have created a presumption of validity for behavior that is patently illegal, if it was disclosed. But because of the presumption, there is a heavy burden on the homeowner to go the extra mile.

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And it requires a clever trial attorney to realize that the object is not to prove a point but rather to simply undermine the ability of the opposition to corroborate their claim. When they fail to answer questions or demands that they are legally required to answer, it is up to the homeowner to aggressively litigate the issue of their failure to respond.

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That litigation changes the case and the narrative from bank versus deadbeat homeowner to judge versus uncooperative foreclosure lawyer. Once you have completed changing the narrative, there is an 85% chance of a favorable judgment for the homeowner.

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Every favorable decision for the homeowner that I have ever received for review or obtained on my own is marked by that characteristic — the refusal or inability of the foreclosure lawyer to comply with rules of court and especially court orders compelling compliance. Very few of those cases have ever been appealed by the banks. This is a nuanced strategy of the banks. By not raising the case to the level of an appeal, they minimize the risk of creating legal precedent against they are full presentation of securitization of debt.

Filed under: foreclosure |