Livinglies's Weblog

If you refer to the company that has been named as the “servicer” for your “loan”, as your servicer or your lender, you are already wrong.

• Regardless of what company is named as “servicer”, it is not receiving any payment that you have ever directed to them or any predecessor company that was designated as “Servicer” (most likely by a FINTECH company operating under license, and acting for an investment bank that does NOT own any indebtedness owed by you to anyone. The big “tell” is that their “Payment History” lacks any reference to disbursements. 
• That means it is not the loan account. it is merely a report based on data received from third parties which makes it inadmissible hearsay. 
• If a company was actually performing the functions of a “servicer” as is commonly understood, it would be receiving checks or electronic deposits into an account it owned and controlled.
  • It would then process the receipt by having its own employees or outside contractors enter data based upon the original event of receiving a check or receiving electronic notice of a deposit into the servicer-owned account. 
  • It would then disburse the funds to the creditor for whom it is working. 
  • Evidence of the balance would show on the accounting ledger of the creditor, not the servicer. The asset receivable on the accounting ledger of the creditor would show all credits (mostly receipts of payments from servicer attributed to that transaction account with the homeowner and all debits consisting of disbursements to investors or to the operating account of the  “successor lender” (the creditor). 
  • The “Payment History” is proffered by a lawyer who purportedly represents a creditor (with whom he or she has most likely never had any contact or contract) and attested to by robowitnesses selected for their lack of knowledge or training.
    • Payment History may be accurate or inaccurate. But it is virtually never admissible evidence because it relies on input by third parties who actually received and processed payments from the homeowner. This usually cannot be proven directly by the homeowner whom I always counsel not to even try. 
    • Unless those third parties are able to testify in court that they were performing their tasks under contract or at the behest and on behalf of the company named as servicer, the data and the report are hearsay and barred from evidence upon proper and timely objection. (It doesn’t happen automatically). 
    • Well-drafted and well-timed discovery and other strategies will quickly reveal that the “servicer” has no authority and does not perform any of the functions that are commonly ascribed to a company that is being called a “servicer” by anyone. 
    • Further inquiry will reveal the Servicing Agreement which is different from the Pooling and Servicing Agreement that only governs the Master Servicer. The same is true with respect to the Trust agreement allegedly governing the actions of the named   Trustee in an apparent REMIC trust. Those agreements are NOT revealed except under exigent circumstances and instead, the lawyers proffer a Pooling and Servicing Agreement which always refers to future events that might happen, rather than any past events that did happen. 
      • This last point is highly important because the PSA is just a mask for the fact that nobody claims to own the alleged underlying obligation(s) from the homeowner (s). In the absence of such claim and proof thereof, nobody can be said to be an agent or servicer from the named creditor. 

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

Please visit www.lendinglies.com for more information.r

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