Whenever anyone refers to your transaction as a loan, you should be objecting at the earliest possible moment (or else it is waived), and you should be moving to strike the phrase from the court record. But you need to do so properly.
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Up until now and for the foreseeable future, homeowners will continue to lose their cases by either waiting until it is “their turn,” at which point their objections are waived, or by “demanding answers” that nobody is obligated to give them.
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So if you at to do it right, you need to do it in the only that is legally recognizable. All other approaches may sound good but mean nothing in a court of law.
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The proper objection directed at the judge should specify the statements made like, for example, “The homeowner secured a loan from XYZ.” Assuming the homeowner has not already admitted that fact by failure to object or by failure to advance the defense narrative, then proper objections is “Objection” Lack of foundation and predicate, lack of personal knowledge and calls for hearsay. In addition lack of competence.
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“Your honor, the statement is basically a factual conclusion and a legal conclusion based on nothing more than representations of opposing counsel. The use of the word “loan” is highly prejudicial to the homeowner whose defense narrative is predicated on the fact that there is an unpaid loan account receivable due from the homeowner to the party(ies) who counsel has named as interested or authorized in those proceedings.
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“We agree that if, for example, DBNTC maintains ownership and authority over an unpaid loan account receivable due from the homeowner, then the remedy of foreclosure is, in fact, probably available to them.
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But if they don’t maintain that trust account and they don’t own any receivable due from the homeowner, there is no reason (i.e., no standing) to name DBNTC as a claimant.
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If they neither are intended nor expected to receive a single penny paid by the homeowner or from the proceeds of a forced sale, then there is no “justiciable” issue between DBNTC and the homeowner. And that means that the Judge is absolutely required to dismiss any such claim and vacate any action taken under the erroneous impression that DBTC was a real party.
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“Ther is no agreement or waiver from the homeowner. And the homeowner affirmatively asserts that there is no evidence or even allegations present in this litigation by which the court could reasonably conclude that an identified trust account exists in DBNTC — and that in that trust account is a receivable due from the homeowner to DBNTC.
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“We wish to test the presumptions arising out of what appear to be facially valid documents that we firmly believe are fabricated and forged.
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‘We don’t think the trust account exists, we don’t think the unpaid receivable exists, and we don’t believe that any trust has any right, title, or interest to claim, receive or even expect a distribution of funds created by payments, from the homeowner or the forced sale of the homestead.
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“Our belief is based upon the opinion of highly qualified experts who understand securitization and the current claims that debts were securities far better than anyone else in this room.
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“And from that perspective, we also object on relevance — if there is no debt owed by the homeowner to DBNTC, then the citing of a position of trustee, the implied but undescribed status of any trust or holders of certificates issued by or in the name of the trust, is completely irrelevant to any foreclosure which is about seeking restitution for an unpaid debt.
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“If the transaction is found to have not been supported by the required elements of a residential home loan transaction, then the obvious and unavoidable conclusion is that the transaction is something other than a loan, even if the homeowner believed otherwise.
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“To assume that the transaction with the homeowner was ever loan gives rise to the inference that it should still be treated as a loan despite the utter absence of any allegation, exhibit or evidence in which the company named as the creditor is the owner of any underlying obligation due from the homeowner. Calling it a loan would mean that the homeowner received the benefits of the transaction plus the establishment of a loan account with the owner of that account.
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“Opposing counsel has been very careful not to assert the status of a holder in due course, the owner of the underlying obligation, payment of consideration for the note, payment of consideration for the mortgage, or any other purchase and sale transaction.
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“The statement that includes the word “loan,” therefore, is misplaced and highly prejudicial in addition to opening a wide door for moral hazard in which anyone who knows about a transaction could seek to enforce it if they get to the alleged debtor ahead of anyone else.”
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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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Good point Rease – Exactly. One can get a “loan” from a loan shark or your neighbor. Courts do not care about terminology. Powers in charge EXACTLY knew they did not want can of worms exposed.
….very well said Neil, but why in the early stages of this battle in the 2007-8 crash, did the lawyer’s administration place a gag order on the lawyers not to help with the civil foreclosure cases we had to defend? ….and u Der penalties of fines and disbarrment…..could it be that the powers in charge knew the can of worms would be released, all those non judicial states wouldn’t power to proceed without the foreclosure(s) having proper counsel…..I am cwabs 2006-18…..pax…..rew