Anyone who reads my blog knows that I have repeatedly asserted one fundamental rule. If you are going to attack the basis of the claim against a homeowner, you need to start very early. If you don’t, both of the allegations and the implied allegations will become baked into the case. That will give rise to inferences of fact and presumptions of law that can kill any later defense.
One of the areas in which this is true is the current practice in many states where some sort of declaration or verification is required. This requirement was put in place to address concerns that false claims were being filed and pursued. It was like that by requiring verification under oath, any such false claims would at least be reduced.
Any legal practitioner who has seen these verifications and declarations knows that they actually say nothing at all. It is invariably “signed” by a Robosigner representing a company that has been designated as a “servicer”. I have not seen a single verification or declaration in which the signatory asserts personal knowledge about the existence and status of a loan account receivable on the books of the entity named as the plaintiff and judicial state or beneficiary and nonjudicial states.
The mistake here is accepting the false label of “servicer.” Unless there is a reference and attachment of a document constituting a servicing agreement, any acceptance of any document under the letterhead or name of the company designated as a servicer constitutes an admission of fact that nearly always leads to the defeat of the defensive narrative for the homeowner.
So any reference to a “servicer” is basically hearsay and not admissible and not a proper foundation for a declaration or verification. You should insist that if the complaint is going to be verified, the verification must come from an officer of the actual designated and named plaintiff in the judicial foreclosure. The same logic applies in nonjudicial foreclosure.
Bottom line is that current practice is allowing fictional declarations and verifications to be filed. Judges who are tempted to simply see that a document entitled “verification” has been filed, rarely scrutinize the document to see if the complaint has been verified by the alleged complainant.
While it is possible for a representative to provide such verification, this is something that should not be allowed. But if it is going to be allowed, then Foreclosure Defense lawyers should immediately attack the verification as being insufficient to comply with the rule.
In my view, the failure to provide foundation information on personal knowledge regarding the authority to provide such verification and the A motion to dismiss the complaint of the information (i.e. the default) is fatally deficient.
A motion to dismiss the complaint should include an attack on the verification as being legally insufficient to provide verification. A non-judicial state early action against the substitution of a trustee on a deed of trust that precedes every foreclosure should assert that the designated named beneficiary is not the owner of the loan account receivable and therefore is not a beneficiary.
Only an officer or records custodian that maintains the alleged loan account receivable due from the homeowner to that entity or company can testify that they are the owner and that they have not received payment.
Only that debt owner can declare a default or give orders to a outsource vendor to declare it. But current practices in securitization rely on plausible deniability.
By delegating ALL trustee functions to a servicer or impliedly to a subservicer (neither of whom performs any servicing functions) the fictional “principal” can claim mistake or inadvertence by a third party if caught in the fraudulent representation of a claim.
But by accepting the company that has been designated or named as “servicer,” you are tacitly admitting that they are performing servicing functions, that alone account receivable exists, and that they are legally authorized to administer, collect and enforce it.
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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. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
Yes you DO need a lawyer.
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Filed under: foreclosure |
Proof of Claim must be accurate in BK – or BK is invalid. For foreclosure, Neil correctly states – “insist that if the complaint is going to be verified, the verification must come from an officer of the actual designated and named plaintiff in the judicial foreclosure.” But the problem is that the “named plaintiffs’ is NOT distinguished in Courts. “Trustee for BS Trust” is NOT a single entity and/or plaintiff. Separate them into bank and claimed “Trust” – they are NOT one. Once you name the trust alone – courts will toss – as only a trustee has authority. This is major flaw in courts that has been used since courts tossed out servicer representation without authority. “Trustee” is just a division of the bank – NAME THE BANK. DO NOT name — “Bank trustee for BS Trust” – a trap. Don’t accept – NOT EVER. I am not an attorney and this is for educational purposes only.
It’s a Ponzi Shell Game of Fraud. Each one can blame the others as needed until they get enough cover for the clown in the robe to decide in the Trustee for Bullshit Trust favor.
How does this article relate to Bankruptcy. And the Proof of Claim of the UNSECURED Servicer Debt Collectors ??
I think Neil should start to explain this in much more further details in the future postings.