Livinglies's Weblog

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When money is paid to or on behalf of a Homeowner, a financial transaction has occurred. But the payment of money does not create a loan without a lender and a loan account. In court, the homeowner must take the same micro-steps to establish a history of issues just like the forces arrayed against the homeowner.

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In court, the universal way that foreclosures are commenced and prosecuted against homeowners is by use of a “servicer” who hires robo-witnesses to testify as to the foundation for exhibits. One of those exhibits is a “Payment History.” This is a report, not a picture of the account. It is a report about a loan account and it is used regardless of whether the loan account exists or not.

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When I say that the Payment History is just a report and not the loan account it is because of (a) interviews and research I have conducted and (b) pure logic.

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If the Loan account was produced the way it was always produced in foreclosure before the advent of securitization claims, then it would show the establishment of the loan account receivable on the accounting ledger of the lender or successor. This never happens.

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If the Loan Account was real it would show all credits and all disbursements. That way it would not only state a balance but also provide proof of the balance. The Payment History introduced in court never shows disbursements to creditors. This is where logic (confirmed by my interviews and research) becomes vitally important — even though it leads to a perfectly valid conclusion that is presumed wrong by all government agencies and courts.

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The absence of a report on disbursements can only mean one of two things: Either the disbursements were made and not reported or they were not made and therefore not reported.

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If the disbursements were made to a lender or successor lender (creditor) and not reported it means the report is incomplete and lays an insufficient foundation to establish the balance and therefore the amount due which in turn is the foundation for a declaration of default — without which there is no claim. The declaration of default does not create a default. it is a report of a default. Absent additional evidence establishing the foundation of the Payment History, it is inadmissible as incomplete but this only happens if a proper and timely objection is made. It usually helps if the homeowner has conducted aggressive discovery in advance of trial.

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If the disbursements were not made to a lender or successor lender (creditor) it means that the report is not a report on the loan account it is a report of payments taken from data that we will see is from an unknown and unidentified source. The same absence of foundation for the balance due and the existence of a default are present.

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If the disbursements were not made to a lender or successor lender (creditor) it means that either the “servicer” did not receive the money to disburse or the “servicer” kept the money thus causing the existence of a default experienced by the lender or successor lender (creditor). If the latter was true, it is fair to say that the investment banks would have stepped in like they did when Taylor Bean and Whitaker was stealing money.

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That leaves us with one inescapable conclusion: the “servicer” never received the money paid by the homeowner. If it did not receive the money paid by the consumer then it would have no record of receipt. And with no record of receipt any report it proffers in court would be a report about the report compiled by someone else. And that would explain why it made no disbursement to a lender or successor lender (creditor).

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And THAT means the report tendered as the Payment History is inadmissible hearsay since neither the witness nor the report identifies the source of data. And THAT means that the “servicer” is not performing servicing functions. It is, as it turns out, being claimed by third party FINTECH companies to be performing functions that other companies are performing and only those “other companies”  have legally admissible records of what those companies actually did.

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As it turns out, the “servicer” is merely formed or currently existing under a royalty arrangement in which it consents for its name to be used. And THAT means that it is being paid to allow others to fake it, which means that as a source of any information, it is a source with (a) an interest in the outcome of the litigation (foreclosure) and (b) no persona knowledge of any event relating to the alleged loan account. In turn, THAT means that “records” introduced by the “Servicer” are inadmissible hearsay AND inadmissible to prove the facts of the existence of the document or the contents of the document.

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Even if true copies of originals, those records are not entitled to any legal presumption because they come from a non-independent source and therefore are inherently not credible, particularly in view of the hundreds of billions of dollars paid and promises t made to stop faking documents.

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The failure of the presumptions is intended by law to require the party to introduce the actual evidence through a knowledgeable witness that the loan account exists and that there remains an unpaid balance — not just that the homeowner did not make a scheduled payment. Since the loan account does not ever exist in situations built on a foundation of securitization, the foreclosure fails every time, if and when you get to that point.

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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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