Livinglies's Weblog

Deed of trust (11/6/06) naming the beneficiary as XYZ Bank is both facially and substantively valid in my opinion. That transaction was a loan.

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Assignment of mortgage to MERS x/yy/07 was a sham transaction. MERS was a nominee/agent for an undisclosed third party. MERS paid nothing, claimed nothing and received nothing in subsequent transfers. But you can only use that by revealing MERS’s inability or unwillingness to produce any financial transaction records. You can also use the MERS Website that asserts that MERS is strictly a nominee of the principal named and claims no right, title or interest to any payment, debt, note or obligation allegedly due from any homeowner. Transfer of a mortgage without payment gives rise to the inference or presumption (depending upon the court) that the underlying obligation was NOT transferred. That means transfer of the lien is a legal nullity. A purported transfer on paper without the obligation is a legal nullity in all states, partly because of Article 9 §203 UCC which states that value must be paid.

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This was the first step in issuing and selling securities, the proceeds of which went to everyone involved in the scheme and paid them off entirely for their participation plus a handsome profit.

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XYZ in this case most likely DID receive money from someone but it was not MERS. The payor could have acquired the unpaid loan account that XYZ had on its ledger, but didn’t, because it did not want to be considered a lender or successor lender that requried compliance with Federal and state statutes. That payor would have been an intermediary acting for or under the control of an investment bank that was retaining contractual control over the participants without owning anything.

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Hence all  subsequent “assignments” were mere window dressing attempting to launder title — which the courts mostly accept unless aggressively challenged. You can’t prove that there were no transactions — but you can reveal that the opposition cannot or will not produce any corroboration that such transactions occurred. This, in turn can be used to raise the inference or presumption that no such transaction occurred and that the documents presented were merely papering over legal gaps that are fatal to the claim.

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For example, the assignment recorded xx/yy/10  states that MERS assigned to BAC Loan Servicing. As its name suggests it was merely a change of name from Countrywide Home Loan Servicing and was allegedly performing servicing — i.e., collection, processing, accounting, and distribution of money received from homeowners. But those functions were actually performed by third party financial technology (FINTECH) companies that worked for the originating investment bank and not the “servicer.” Those FINTECH companies as of May, 2022 were designated as “Servicers” by the CFPB.

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This complex infrastructure enabled the investment banks to trick homeowners, their lawyers and the courts into thinking that the companies named on the recorded documents were (a) real and (b) really involved in financial transactions. None of that was true.

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In mediation, the question shood be asked about whi the lawyer is representing and whether the current claimant maintains an accounting ledger on which it shows an amount due from you. They will try to use a sleight of hand trick that has been successful up until now except in certain cases.

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They will produce a Payment History that is NOT produced by any of the parties named as claimant or servicers. That is NOT a business record for any of the entities involved because it does not represent a record of any business conducted by them.

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[Many lawyers make the mistake of looking at a document produced by the opposition and receive it without objection to the label of a “record.” It is not a record if the content was produced by a third party who recorded their own activities and not that of the company on whose behalf the “record” was produced. As such it was and remains hearsay and is inadmissible upon a timely and proper objection or motion to strike.]

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All of that means that BAC was never a “beneficiary” under the statutory infrastructure for deeds of trust. A Beneficiary is one who owns the underlying obligation. BAC never owned it and never paid for it. Therefore the first “Subsitution of trustee” recorded on xx/yy/10 side by side with the above “assignment” was facially valid (raising a presumption) but substantively invalid/void (rebutting the presumotion). Thus all subsequent actions undertaken by the “Substituted trustee” were also void by operation of law. This means that the trustee under the original deed of trust was still legally the trustee under the deed of trust.

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That could mean that the original trustee may have had a duty to inquire about the identification of the beneficiary and the basis for any claim to be a beneficiary.

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I have said that the substitution is facially valid but there is a viable basis for challenging that as well as the substantive content of the document. It is signed by BAC, GP LLC by Jorge Valadez as “assistant secretary.” That is an interesting designation. A business entity can be an LLC or a general partnership but not both. Since the entity name ends with “LLC” it may be fairly presumed that it is a limited liability company that is run by a managing member. The role of “assistant secretary” is at best questionable.

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[Inquiry is warranted. The answer that he/she doesn’t work here any more and we don;t know where to find the eprson is oinsufficent. The answer shoudl come from mamangaemetn that affirms the empoyee or officer status of the sigantory and tha they were properly authroized to execute tehd ocuemtn because of agreeements eith ABC company]

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The subsequent assignments all named “assignees” whose name was taken from defunct and bankrupt organization wherein only the name survived. Greentree Servicing is one of those. At the time of the d/ee/13 assignment MERS had absolutely no interest in the “account” even for collection purposes. It had nothing to transfer. Yet the assignment was executed by a human being who was anointed “assistant secretary” by the MERS IT platform upon insertion of login credentials by the person seeking the appointment. This transfer is void, a legal nullity.

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The next  Substitution of trustee is recorded on f/gg/13 executed by Lori Hennesey as “foreclosure Supervisor” implying but not asserting authority to execute the document. The document asserts ti si executed on behalf of GreenTree which (a) was a servicing organization and (b) had no interest or function with respect to ownership, serving, receiving, processing, accounting, or distribution of money from homeowners.

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2 years later, on h/ii/15 a new assignment is recorded that corroborates the laundering quality of this strategy.. It is executed on behalf of Bank fo America, N.A. which is the first time that BOA appears in the chain of little. The document is obviously fabricated, false, facially invalid and substantively invalid. This also purported to assign rights, title or interest to greentree — something that BOA neither possessed nor wanted.

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[Such documenets are frequently robosigned using the brand name BOA to generate the appearance of authenticity. But where the signature like in this case, cannot be traced to an officer of BOA or where BOA is claiming or is implied to be claiming that it possessed a right, title or itnerest that it could transfer, such rights usually arise from a series of transctions involving the “takeover” of Countrywide Home loans” and Countrywide Home Loan Servicing.”

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[That transaction falls under the rubric of a “merger” with Red Oak Merger Corp., which was formed by BOA to acquire the servicing rights that appeared to be outstanding and owned by Countrywide Loan Servicing. The transction was a sham since CW was not operating on behalf of any creditor who owned or maintained an unpaid loan account due from homeowners and did not perform any functions relating to receipt, depositing, processing, accounting, or distribution of money received from homeowners.  But like the Chase-WAMU series  of transactions, it provided cover for the false claim to own all of the underlying transaction benefits originated by the failed predecessor — amounting literally to trillions of dollars between just BOA and Chase. Red Oak changed the CW name  to BAC Home Loan Servicing which did business just as BAC. No warrantites of title exist or were ever executed by any human being or business entity. Just paper. ]

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On j/kk/15  a  new Substitution of trustee is recorded in which a company called DiTech fka Greentree supposedly names National Default Servicing as the new trustee under the deed of trust. Like Greentree, the Ditech name is the only thing that survived bankruptcy of an odler defunct company. It neither conducted any business or financial transaction relating to your transaction (which can no longer be categorized as a loan because there is no unpaid loan account on the ledger of any creditor) nor did it ever have any right, title or interest to the original transaction.

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Both Ditech and Greentree have no relation to companies that did exist prior to bankruptcy. The names are used to create an aura of familiarity since many people remember the DiTech and Green tree commercials on TV and radio. DiTech today is not related in any way to the DiTech of the 2000s during the mortgage meldown.

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Because the “substitution” was both facially and substantively invalid, National Default was not the legal trustee on the deed of trust. Hence the notice of default issued by National Default was a legal nullity (void).

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The affidavit of authority dated “llllllllllll” was curiously and ostensibly notarized (probably robosigned) in Duval County, Florida — i.e Jacksonville) where most FINETCH companies operate for the then orignating investment banks. It is signed (robosigned) in the name of Amy Garbett “Document Execution Representative.” This title does nothing to identify or describe the authority of the supposed signor. The notarization paragraph asserts facts not within the knowledge of the notary.

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The declaration of compliance m/nn/16 identifies DiTech as mortgage servicer — not na owner which is inconcisteiint with assignments naming it as owner.

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The notice of sale o/pp/17 is both substantively facially void for reasons described above. But as previously stated, the courts are in the habit of accepting these documents unless they are challenged. Most lawyers, when consulted about these cases will make the same mistake.

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The fact that you lost the case in Federal court will be used against you. it is not fatal but it will make things more difficult for you.

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In mediation you should ask the following questions:

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1. Who is making their appearance at the mediation and exactly what is their role?
   1. Lawyer — who is their client?
   2. Company
      1. Servicer? Does the company perform functions relating tor receipt, deposit, collection and processing/accounting of payments made by homeowner or does it rely on othrid parties to do that?
      2. Creditor who owns unpaid loan account on their ledger owed by homeowner?
      3. Is there an investor(s)? Are they the creditor? Who represents it/them?
      4. Are there are other intermediaries or companies involved who must approve the settlement reached at mediation?
      5. Does anyone appearing at mediation have the authority to make a binding offer relating to principal, terms, etc.?
      6. Does anyone appearing at mediation have the authority to accept a cash offer?

If you can’t get satisfaction of those questions, you might want to consult with counsel and see if you can bring the matter before the judge seeking a motion for contempt for failure of authorized party to appear.

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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil 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).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

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