I wanted to make a point that is critical to the defense narrative.
The Foreclosure mills are getting away with presenting an employee of a company that has been falsely designated as being the “servicer.”
They are referring to this employee as a “representative.” But in all cases this “representative” is merely a paid actor with a script.
He or she has no personal knowledge of any fact or event relating to the origination, current existence, maintenance, or any data entries on the books and records of the designated “creditor.”
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Upon questioning it will be revealed that they only express general familairity about the records or business records of their employer (the designated servicer who is not servicer).
The truth is that neither the company designated as “servicer” nor the company designated as “creditor” possesses any attributes of a servicer or a creditor.
Both pro se litigant and lawyers for homeowners who are defending Foreclosure actions often fail to take issue with the presentation of a “representative.” It is not the use of the word that is objectionable. It is what is meant by it.
To be a proper representative, the person must have knowledge + authority. Both need to be specified. Knowlege of what? Authority to do what?
The usual representative is an employee of a company who is designated as “Servicer,” but the functions normally associated with “servicing” are performed by third parties known as FINTECH servicers under new CFPB rulings.
This representative will only say he is Familiar with the “records” of the company that has been designated as a servicer but is not doing any servicing — so their records are irrelevant (and their authority is irrelevant).
In recent correspondence with a former client I wrote the following:
You don’t want a representative, unless they are responsible for debits and credits on a loan account that exists on the books and records of the named plaintiff.
The plaintiff in your case is US Bank. The fact that it is acting as a trustee does not mean that the plaintiff is “U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BANK OF AMERICA FUNDING CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007.” The trust does not have any authority or power to appear in court in any capacity except through a legal person authorized to act as trustee.
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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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Filed under: foreclosure | Tagged: FINTECH, representative, servicer, US BANK |
dadzrites is correct. To Javagold – that is critical in bankruptcy courts.
What a lot of servicers try to do is present the “representative” as a “Vice-President” of some department within the lending institution, usually a bank or mortgage company. I’ve had several different titles thrown at me, such as “Vice-President” of mortgage loans, “Vice-President” of records, “Vice-President” of lending, etc. The judge usually buys this designation as some type of credible proof of a witness. However, time and again, we challenge them as witnesses and demand interrogatories and depositions, but are always shot -down on both, saying that the documents are business documents as for hearsay exceptions, and are therefore credible. We object like crazy, but the courts have no interest to overturn their own orders, whether on reconsideration or vacate/set aside the foreclosure action, or overturn appeal orders.
US Bank NA Trustee for XYZ Trust. Is NOT a Creditor !!!!!!!!!!