It all starts with the assumptions you make at the beginning of the case, which is actually the declaration of default. There is only going to be one witness designated by one company and proffered by one lawyer who is prosecuting the claim for foreclosure remedies. That one witness is generally a contract labor “employee” who knows absolutely nothing relevant to your transaction.
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I think you should be asking about data that is generated by them. The actual money trail is confusing. Maybe this will help.
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Money is sent by homeowners payable to the name of some company that is designated as a servicer. Let’s call it ABC Inc. Despite sending a payment that appears to be payable to ABC Inc., that company never receives the money and never deposited it into any depository account in any financial institution. FINTECH (e.g.,FiServ) controls every step on behalf of a Wall Street securities brokerage house that calls itself an investment bank. This is accomplished through lockbox contracts and manipulating the control of depository accounts.
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The other actors include BlackKnight, CoreLogic, and other major payment processing entities operating by or through hundreds of “sub- servicers.” Remember that the CFPB has now designated all of these companies as being the source of the actual servicing functions.
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Because FiServ controls every step, it is the first or second party to even know about the receipt of any homeowner payment. As such, it is generating the data rather than receiving it, although the lockbox arrangements might result in automatic transmission of data by a sub servicer FINTECH company. The company that has been designated as being a “servicer” never sees, handles or processes the receipt of payments from homeowners. Therefore, it neither generates nor possesses business records relating to the receipt, processing or disbursement of money received from homeowners.
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In all events, the money is automatically or manually deposited into a disbursement account controlled solely by the investment bank, on its own behalf or through the direction of intermediaries.
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The company that was designated as a servicer has no knowledge of the receipt or disbursement of monies from any depository account arising from payments made by homeowners.
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This is exactly why I have successfully argued that the copies of reports proffered to the courts on behalf of the company that was designated as a servicer are barred from evidence because they are both hearsay and hearsay on hearsay.In addition there is no foundation for the admission of what they are calling “payment history.” Those reports are not business records because they are not records of any business conducted by the company that was designated as being a servicer.If they are not business records, the other questions about whether they were kept in the ordinary course of business or made at or near the time of a transaction conducted by the company become irrelevant.If they are not business records they are not qualified as an exception to the hearsay rule and therefore they are not admissible as evidence.But a common error both before a hearing or trial and during, is the failure to object at the time that the witness starts testifying and proffering documents.In most cases, the failure to object is taken to mean that the homeowner or the lawyer who is representing the homeowner has waived that objection.Having waived the objection, for purposes of the case at bar, the testimony generally must be accepted as being true and the documents must be accepted as being authentic records of business conducted by the company that was designated as being a servicer (despite the fact that they conducted no such business).This is court procedure not court bias.
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And the reason this is so important is that there is no other witness and no other company involved in foreclosure litigation other than the company that was designated as being a servicer.
Once you eliminate their ability to testify, you eliminate their ability to introduce any documents. They won’t have another witness. No officer of the company that was designated as being a creditor will ever execute any affidavit or testify that his employer is the owner of an unpaid loan account receivable.
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You don’t have to prove that the opposition is corrupt or evil. This is why I have been repeatedly admonishing both pro se litigants and attorneys against alleging too much. The more you allege in the way of character assassination of the opposition, the more you have to prove. But the true object of foreclosure defense is to prevent the case from being presented in the first instance.
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Current court doctrine generally bars proactive litigation against the perpetrators of false foreclosure claims. General practice is to prevent such claims from being heard until after the homeowner has won a case in which foreclosure claims were litigated.
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This is made all the more difficult because of the current doctrine that allows the bizarre practice of the court finding that neither the servicer nor the designated creditor as having any right, title interest or any other basis or foundation for making the false claim and at the same time dismissing it without prejudice — thus giving the dep pocket actors the opportunity to simply wear down the homeowner until he or she can’t fight anymore.
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Although there are a number of tactics and strategies that can avoid such results, it is the burden of the homeowner to set up the foundation for the employment of such tactics and strategies.
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One of those strategies is to avoid contesting when or even if anyone had physical possession of the promissory note prior to filing the claim. contesting possession is a highly effective strategy resulting in dismissal without prejudice.
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But if you proceed on the premise that there is no loan account receivable on the books of any creditor company or creditor person, and restrict your strategies and tactics to undercut the ability to corroborate the claim and the ability to establish a foundation for the claim, you can get to a final judgment with prejudice.
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Filed under: foreclosure |
Missing something here — FEES. Totally shifts all – valid or not.
It sure is. The fact that a refinance involved a prior Loan A/R (never paid off and mortgage never assigned to anyone) which was co-mingled with a fraudulent refinance prior to the demise of the opportunist bank produces a bastard child does it not ? Dead creditors are dead are they not ? GOD Bless you Neil. 🙏
Sounds to me like an IRS problem.
Neil, … I am glad to hear you are improving. Stay strong, get well, we all need your words of wisdom, and insight, not to mention your dedication to causing “good trouble” – to borrow a few words from U.S. Representative John Lewis