A better use of your time is not to find the John Does and instead simply attack the names being used to assert the claim. The John Doe investigation can only be successful if conducted by government agencies. It requires a deep dive into securitization which the courts have made clear is not a basis for defense or even claims relating to recorded mortgages.
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When the subject comes up, your response to some obvious and frequent questions that appear to be rhetorical is “Judge, it is not our job to put the securitization house in order. Only the investment bank that started it can do that. We are here because the lawyers are claiming that they represent a claimant who is named in this action and that the claimant owns an unpaid underlying obligation due from the homeowner. Our inability to name the real parties in interest is not a legal basis or foundation for merely presuming that status simply because the lawyer says so.”
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Also consider this: the more you are saying you are looking for a real party in interest the deeper the hole you dig for yourself. By making that inquiry you are tacitly or expressly admitting that there is a real party in interest (whereas in most cases no such party exists because the alleged loan account does not exist). And by admitting that there is a real party in interest, you’re admitting the essential allegation against the homeowner —- that there is a loan account receivable on the books of a creditor. That simply is not true.
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Investment banks are getting away with this nonsense simply because lawyers are not trained in basic accounting skills and principles and laypeople have no idea how companies are required to report and maintain records about financial transactions. It has always been a mystery to me as to why CPAs have not turned this situation into a lucrative expert witness revenue stream.
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The Payment History you receive and the statements are not generally prepared or even known by the “servicer” in whose name those reports are generated. Such “servicers” do not handle money and do not report on their handling of money. But employees or independent contractors are hired for their ignorance — so they can’t make admissions or slip up and accidentally reveal the nature of their knowledge or the business of the “servicer”. Their job is testimony based upon a prearranged script.
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When you make a payment regardless of the named payee and regardless of the apparent address, the payment is routed to either a lockbox for physical checks or an electronic equivalent of a lockbox. And the payments are not deposited to any account owned or controlled by the apparent “servicer.”
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In today’s courtrooms, if it is a foreclosure case, nobody is asking for the definition of a business record. (HINT: It is a record of the business conducted by the company whose name appears on the report). If the “servicer” did not receive a payment it has no legal or accounting basis for reporting that it did.
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So the Payment History is only admissible if there is a proper foundation (testimony from the robowitness) that the “servicer” received the money. Otherwise, any reports generated in the name of the “servicer” are merely second-hand reports based upon hearsay from third parties who actually did receive the money, deposit it into accounts and distribute the money to a creditor or creditors.
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Since the Payment History report is not generated from any data recorded in the general ledger of the “servicer” it is not a business record and therefore cannot be used as evidence of transactions in which it was not a party. To put it in legalese, the Payment HIstory does not qualify for the business record exception to the hearsay rule excluding out-of-court statements.
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And back to the main point nobody is a creditor on an unpaid loan account receivable unless they are recording it as an asset on their accounting ledgers and reports. There is not one case where any “servicer” has ever reported that it owned a loan based upon recording entries on its general ledger. It is all legal argument instead of facts.
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If there is no loan account receivable it is not the burden of the homeowner to explain that absence. If there is no creditor (i.e., someone who has paid value for the underlying obligation and reports the ownership as an asset on their accounting records, it is not the job of the homeowner to figure out if there is a creditor or to identify the alleged creditor.
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All of that is the job of the lawyers who are pressing these false claims. Their job is to entice you into fighting a ground game where you are seeking to prove the claim belongs to someone else, the account exists, and it remains unpaid to someone else. All of that is the prima facie case for supporting the claim. It is ONLY the burden of the claimant. But homeowners and lawyers, out of ignorance and confusion, insist on moving the needle to point back to the homeowner to prove that the claim should not be enforced.
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Your quest for truth only muddies the waters creating confusion as to who has the burden of proof. The more you allege about securitization and the deeper the dive into securitization the more you are placing a burden of proof on the homeowner that can never be satisfied without an admission from lawyers and “Servicers” that this was all a sham.
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In all other types of civil cases, the lawyer comes to court and says that he represents a named claimant and that the claimant possesses a claim for which the lawyer is seeking a remedy.
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The burden does not shift to the defending party. In order to get the desired remedy, the lawyer must prove that the claim exists, answer questions and produce documents that show the claim is real and that his client owns it.
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But if the defending party becomes “proactive” he or she will have fallen into the trap of having accepted the burden of proof that the claim does not exist BEFORE the lawyer for the claimant proves the elements of the prima facie case supporting the alleged claim.
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