under Federal and State law, it is up to the Lender to tell the truth, i.e., that it is the lender and that it is creating a loan account that can be reviewed by the borrower. BUT the choice of the terms “lender” and “borrower” is a representation that has been almost universally untrue.
Without the truth of the matters asserted or implied, there is no transaction and there are no claims based on the transaction.
But what consumers need to know is that anyone can make any claim, even if it is false. If you don’t defend it, it becomes true in court. If you repeat it, it becomes doubly true, even though it is still false.
Using the terms proffered by the actors and players in securitization and foreclosures is tantamount to an admission of liability for a debt that does not exist. It is not up to the court to ask wherh you meant it or not. Think about that the next time you want to say “my loan.”
As I have repeatedly reported on these pages, the actors and players in the securitization scheme, and the foreclosure scheme have been successfully utilizing fake labels to mislead people into assuming things that are not there, or are not true.
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The use of the word “escrow account” is another way that the banks deflect people from making further inquiries. It is perfectly natural and human to make assumptions based on that assertion. But when you think about it, you will see that the use of that phrase does not convey any useful information.
- what agreement sets forth the duties of the escrow agent, if an escrow agent has been identified?
- How does money get into the escrow account,
- how does money get out of the escrow account
- on whose instructions or funds distributed from the escrow account?
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Asking such questions is a way of flushing out the parties who are the “real players.” Keep in mind that when it comes to transactions with homeowners, the only real players are the ones in control. Do not assume that the players or actors who are controlling the flow of money or the flow of documents are the owners of the money or the documents.
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Someone recently suggested to me that the reason why homeowners are so willing to believe what is patently unbelievable is that they don’t want to admit the mistake they made when they entered into a securities transaction instead of a loan transaction.
My answer is that no mistake was made.
Homeowners are not generally possessed of education licensing , or experience in the creation, issuance, sale and trading of securities. There is no requirement that they should be so endowed. In fact, the Federal Truth in Lending Act (TILA) specifically assumes that property owners do NOT know the intricacies of the transactions that they are signing on for.
So do the securities acts, regulations, and rules. It is up to the “lenders” (not “borrowers”) to determine the viability of the transaction, the accuracy and reliability of the appraisal, and the ability of the homeowner to meet the terms of any proposed loan. The “lender” is also required to disclose all possible compensation or revenue arising from the transaction.
And most of all, under Federal and State law, it is up to the Lender to tell the truth, i.e., that it is the lender and that it is creating a loan account that can be reviewed by the borrower. BUT the choice of the terms “lender” and “borrower” is a representation that has been almost universally untrue.
Homeowners were intentionally deceived by false pretenses regarding the transaction’s nature and the transaction’s outcome.
Despite strict requirements set forth in the Federal Truth in Lending Act regarding revenue, compensation, fees, commissions, and other expenses, nothing was disclosed with respect to the revenue generated from the sale of securities.
That sale of securities, contrary to what you read in mainstream media, was not a sale of any promises made by any homeowner nor any portfolio consisting of any debts, obligations, notes, or mortgages.
That sale to investors was and always has been defined strictly as a loan transaction between an investment bank and the investors. Those investors were not beneficiaries of any trust, nor does any trustee have any authority to represent the interest of the investors, who hold the virtually worthless certificates that they purchased.
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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 14 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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