How Appellate Courts Get it Wrong

The main reason that Appellate Courts get it wrong when a homeowner appeals a decision is that the homeowner admits the basic legally required components (elements) of a foreclosure action. In arguing the point the typical homeowner fails to address the issue of whether the loan still existed, whether the obligation was unpaid, and who has the “loan” on their books and records. In addition, this is probably a carryover from the labels that were used at trial — loan, lender, and servicer.

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Lawyers are all wordsmiths, some better than others. Good lawyers spot the hairs that need to be split. Great lawyers are those who know how to split the hairs in a persuasive way.

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This is the case in point. I will take you through the analysis.
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Mr. Smith borrowed $934,500 from Washington Mutual bank. The problem here is that this could be true. The great likelihood is that it is false. WMB was a commercial bank taking deposits and making loans. It had the capital and credit to make loans. It is the date that tells the story. By 2005 WMB was acting strictly as an originator — i.e., a seller of financial products described inaccurately as loans and withholding the description of the transaction as the launch point for selling securities to investors.
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NY State and other states tried to criminalize behavior that causes false documents to be presented or recorded. It was never passed into law. Had it become law, the designated claimants would have vanished leaving the originator hanging naked in the wind without any claim to ownership of the underlying obligation and therefore no claim to administer, collect or enforce.
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This was a refinance. Like the issue above, it could be true if the prior transaction was in fact a loan. This is where the definition becomes relevant.
  • So the only way of revealing the truth behind this statement is to ask about events and documents that would exist and transactions that did transpire if the prior transaction was a loan.
  • For example (1) at the completion of the transaction cycle (if there ever was one) did an unpaid loan account exist on the books of any person or company? (2) is that “owner” the claimant? (3) has anyone entered data in their books and records demonstrating a financial loss caused by non-receipt of a scheduled payment (if not the declaration of default is a legal nullity) (4) can the current parties show evidence that corroborates the presumption that the promise to pay was sold in a transaction in which the promise was paid for in legal value?
  • And finally, did any money or value exchange hands on the “refinance” other than money conveyed to the homeowner (if any). Generally speaking, most transactions that were labeled “Refinance” were nothing of the sort. It was simply a new opportunity to get signatures on documents that were merged into more securities sold based on the premise that the certificates represented some attributes of the name unpaid obligation. But that leads to the word “Obligation.” Does it exist if nobody is reporting it as an asset on their books and records?
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Assignment from the FDIC:  No such assignment was ever executed or even intended by the FDIC to be executed.
  1. At no time did the FDIC assert ownership over any WMB loan.
  2. At no time did the FDIC have any equitable or legal interest in any WMB loan
  3. At no time after origination did WMB own any “loan.”

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Chase fabricated an assignment once it was obvious that it had not become the owner of all the promises made by all the WMB homeowners. Without an assignment of mortgage, no such claim could be asserted. Chase fabricated an assignment from the FDIC and then signed as an agent or attorney in fact for the FDIC. Besides the fact that the FDIC cannot delegate such rights to a private company, it simply never happened. It was a forged robosigned document. Allowing Chase to claim ownership and therefore the right to administer, collect and enforce the homeowners’ promises was a trillion-dollar gift from our government to one of the worst players in the marketplace.

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Smith obtained a loan modification from WMB. Any document WMB executed, or which was executed allegedly on behalf of WMB after origination was a legal nullity. This is because the transaction with the homeowner was funded entirely by funds borrowed by JPM Chase or Morgan Stanly from Credit Suisse.
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  • But Chase was not named as the lender, even though it funded the transaction, albeit from borrowed funds.
  • And WMB was named the lender even though it did not fund the transaction.
  • At the conclusion of the transaction cycle, nobody was left holding the proverbial bag — liability, and vulnerability as a lender, successor lender, or servicer. The loan account vanished into thin air making it nearly impossible to prosecute anyone for criminal behavior or for civil liability. The “modification” was actually an attempt to change the name of the lender without actually publicizing it. Most importantly since the certificates were not regulated securities and they had escaped being labeled as a lender, there was no statutory duty of disclosure — or at least so they thought.
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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 COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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.

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