“We all know that the loans were securitized. I mean, that is well established.” That entire statement is wrong even if it is repeated ad nauseum and the homeowners and lawyers who accept the idea that parts of it might not be true are generally successful (65%) in court.
The execution of a document is generally presumed to mean that the signatory is acknowledging all of the factual statements and legal conclusions stated within the document. Left unchallenged, such presumptions become the facts of the case if there is a dispute that is brought to a court for resolution of the dispute.
The problem with the above statement is that the people who make that statement have absolutely no education, training or experience in securitization, finance or investment banking. In a word, they are completely ignorant; but this does not stop them from having an opinion or expressing it.
Regardless of the source, if you look up the definition of securitization of an asset, it only means one thing: the asset is broken up into pro rata shares sold to investors. So the question is whether or not a specific transaction produced a salable asset that was broken up into pro rata shares and sold to investors. And the answer, if you ask anyone who actually knows the process, is that no such scenario has ever occurred in connection with the securitization of transactions with homeowners.
The problem is that the above quote has been repeated so many times in so many places by so many people that it has taken on a life of its own. It is presumed to be true. In fact, it is presumed to be so obviously true that any effort to contradict the statement is regarded as a conspiracy theory and just plain annoying.
But as Bill Paatalo, Dan Edstrom and hundreds of other investigators will attest, there is absolutely no evidence that any transaction with any homeowner produced an asset that was sold to investors. Keep in mind that debt is an asset. An unpaid loan account is an asset. It could be securitized. But it wasn’t securitized.
So the entire premise that loans were sold by MERS or anyone else to investors who will now suffer some financial loss or economic laws arising from the failure or refusal of a homeowner to make a scheduled payment is totally wrong. The simple way of testing that counterintuitive statement is to demand corroboration in court through the use of legal, timely, and proper discovery demands combined with repeated motion practice. That is how these cases are won.
The mistake is compounded through the use of instruments that are entitled “assignment of mortgage.” This is one of the many examples of why people hate lawyers.
The truth is that the assignment of a recorded mortgage instrument in the current marketplace produces only one truthful result. The document has been transferred legally.
But nothing contained in the original mortgage or the assignment is true, to wit: the transaction contemplated by the homeowner has never occurred. When you ask for it, the only thing you will get our excuses why the opposition should not be required to produce it.
The bottom line is that there is a difference between transferring a piece of paper, which may have actually happened, and transferring any legally recognized asset in real life. Most homeowners, lawyers, and judges fail to recognize the distinction unless they are gradually educated in the fiction now called securitization.
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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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