Livinglies's Weblog

 Even if a consumer thinks they owe a debt, it is still up to the lawyer who initiates the collection or foreclosure action to prove that they have a client that owns the debt, has the right to file suit, and has enough documentation to prove a debt is owed. They may not be able to successfully produce all required documentation when challenged. When that happens, the judge has no chioce but to deny the claim — even if it was based on a real loss. 

No agent has any power or rights unless it is serving the interests of a principal who legally owns and possesses such rights.

No money is in the bank unless the check register and the bank account demonstrate the existence of the money on deposit.

No collateral account (unpaid loan account due from the homeowner) exists unless the accounting ledger of the creditor and supporting documents show a purchase of the unpaid obligation.

Homeowners need to stop being afraid to ask the right questions. They are not asking the right questions because they are afraid of the answers. There is no answer because there is no claim. Under the laws of due process if they can’t answer they can’t claim. You don’t need to prove anything to win.

*

In recent correspondence with readers and clients, it has become abundantly clear that my assumptions about people having a basic understanding of accounting concepts are wrong. I apologize.

*

This became highlighted when someone sent me a quote saying that one company that somebody had designated had released its “servicing rights” to yet another company designated, possibly by someone else. It was a meaningless sentence, and under the law, the homeowner is not required to give it any weight.

*

If anyone relies on that document to pursue claims for the administration, collection or enforcement of money allegedly due from the homeowner, they do not possess a valid legal claim. And the point here is not to prove the nonexistence of a claim but rather only to prevent the lawyers from putting on a case. The defendant should not care how he or she wins as long as what they do is legal.

*

Agents do not spring into existence except under one circumstance: a principal party who can affirm and warrant title to the rights affected has appointed that agent to act under the circumstances described in specific documents that contain specific powers and restrictions. 

*

The only thing homeowners and their lawyers get are unfounded, self-serving fabricated documents that pretend that the principal has already been involved without any precise definition or identification of the principal. So they receive letters saying that the letters come from the “servicer” (which is untrue) and that the “new servicer” is now servicing the “account.” That is also untrue.

But homeowners and their lawyers are afraid to ask standard open discovery questions because they are afraid of the answer. The only valid answer is that the creditor hereby affirms and warrants title to the underlying obligation, debt, note, and mortgage lien. As such, it appoints a specific agent to act as servicer for administration, collection, and/or enforcement of a loan account that it owns and which is shown on its ledger the same way the ledger was always produced in foreclosures before the era of securitization claims. 

*

The problem with these statements that emanate from unknown sources on behalf of entities that may legally exist but are not creditors is that they are the equivalent of saying that if you hire an employee, someone else can take that employee’s place without your knowledge or consent. It simply does not work that way.

*

Agents do not appoint themselves or create powers for themselves. That is ALL (no exceptions) done by the principal for whom they are acting. Any company claimed to be a “servicer” or who has allegedly participated in a transaction regarding servicing a collateral account (unpaid loan account on the ledger of a creditor) MUST be acting on the express authorization of that creditor.

Filed under: foreclosure |