If you ever saw the movie “My Cousin Vinnie,” you saw his description of how you build a case against someone or a defense against the claim. It is like brickwork. While some lawyers (myself included) have occasionally been successful at getting rid of a case in one fell swell early swoop, it is rare. Each element you described needs to be supported by affidavits and authenticated copies of documents that make your statement of facts likely to be true or even better, impossible to deny. The big stumbling block is that most of the information about the existence and status of any unpaid loan account is solely in the custody of third parties who are not disclosed.
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Keep in mind that GSAMP is an arrogant example of doing something illegal in plain sight. The lie promulgated by Goldman Sachs (GS) is that GSAMP is an acronym for Goldman Sachs Alternative Mortgage Products. Like everything else in the context of false claims of securitization, that is a sham cover story for the truth. The issuance and sale of certificates to investors was NOT the conveyance of any mortgage product. Avoid this premise at your peril.
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And the creation, issuance, sale and trading of those certificates was not a product because no derivative underlying value could be applied to the certificates. The promise that the investors would receive payment came from Goldman Sachs, and it was discretionary and unsecured, and the terms were not in the least bit tied to the terms of any promise, transaction, note or mortgage issued by any homeowner.
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What they were issuing was pure fiction, and the only “value” that could be identified was derived solely from a market that was controlled by the issuing investment banks operating under the name of some alleged REMIC trust. In plain language, investors received payment or were told the payments would be reduced not because someone had made or “missed” a scheduled payment but because the investment bank didn’t want to pay anymore.
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The default claimed by companies who and been named as “servicers” was a false declaration. There is no default just because there is a claimed breach of contract. The two terms are conflated because, until the era of securitization, there was no need to make the distinction. The legal default occurs because someone was financially injured by the alleged breach — something that nobody can claim in any foreclosure that is brought within the context or background of false securitization claims. With no creditor named or existing (without reformation of the contract with the homeowner approved by a court of law), there is no legally recognized financial injury, default or even breach.
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“GS” stands for Goldman Sachs. “AMP” is broken down into “A” For alternative, “M” for master, and “P” for participation. The “M” means that this is not the real entity they will eventually name as the property owner upon successful conclusion of a foreclosure nor the entity that will receive any payment or financial benefit from the sale. It signifies that there will be a distribution of the proceeds of the sale that will NOT include the “M” (i.e., GSAMP 2006, etc.), which is an admission that the creditor if there is one, has not been named in the foreclosure thus nullifying the satisfaction of the condition precedent stated in 9-203 UCC.
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The “P” is a lie to investors and homeowners and thence to the courts and the legal profession. There is no participation by investors who buy certificates that are labeled as “Mortgage-backed securities”. They get paid regardless of whether the homeowners pay until the investment bank (Goldman Sachs in this case) decides otherwise for various reasons- but the only story told by Goldman Sachs is that the investors may not get paid if the scheduled payments from homeowners cannot be recovered. The myth is that the money cannot be recovered if the value of the property is exceeded by the “arrearage.” But the truth is that the money cannot be recovered if the homeowner contests the claim in a timely and proper fashion.
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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).
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“My Cousin Vinnie” – a great movie! “Two Youts.” Loved that dialogue. And famous line – “Imagine you’re a deer. You’re prancing along, you get thirty, you spot a little brook, you put your little deer lips down to the cool clear water…. BAM!!!! How we all trusted the system and got BAM!! Economy so bad – no way government will fix. They did not fix back then, and not fixing now. No one should be battling in court. All should have been fixed. The victims should not have gotten – BAM!!!!!!