- The second requirement is usually completely ignored by the homeowner, the lawyers, and the judge. But it is still there. The possessor of the note, once that is established and confirmed by competent evidence, must allege and prove that it is authorized to enforce the note. By legal definition accepted in all jurisdictions, a holder is not a holder in due course even if they satisfy the two aforesaid requirements.
So here is an exchange with a contributor and reader. She says that “they say that Caliber is the holder, not PennyMac.”
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The trick here is using complexity to conceal the truth of the matter asserted, to wit: the matter asserted is that the homeowner owes money to the claimant because the claimant owns an unpaid account receivable due from the homeowner. Further, the matter asserted usually by implication is that the claimant suffered economic damage because the homeowner stopped paying the claimant.
None of that is true, but good lawyers can make it true if the homeowner or the lawyer for the homeowner is not well versed on evidence and the rules of civil procedure.
Again here is why pro se litigants lose even though they are morally and legally right — i.e., that there is no valid claim against them.
- The first is possession —> which is preceded by delivery —> which is preceded by a reason for delivery —> that shows up in the cover letter, email or electronic instructions. Promissory notes don’t appear out of thin air. In nearly all cases, there is no delivery. But you can only show that they can’t prove delivery. You can’t show that there was no delivery. And you should not try. You don’t need to. You only need to demand action from a court because they refused to respond to statutory and civil procedure demands for corroboration. If the court grants permission, there will be no case left against you unless the opposition has another way of proving a case against you.
- The second requirement is usually completely ignored by the homeowner, the lawyers, and the judge. But it is still there. The possessor of the note, once that is established and confirmed by competent evidence, must allege and prove that it is authorized to enforce the note. By legal definition accepted in all jurisdictions, a holder is not a holder in due course even if they satisfy the two aforesaid requirements.
- A holder is NOT someone who can produce evidence they paid for the note, in good faith and without knowledge of the homeowners’ defenses. If the claimant could prove that, the case would be over at the beginning. It would be a holder in due course, not a holder.
- Such a claimant would have ample records, old style, with testimony and affidavits from the records custodian showing that the claimant is carrying an asset — the alleged unpaid account receivable — on its books, reflecting every transaction of every kind from the creation of the account to the present.
- All debits and credits from inception would be shown on that ledger.
- This was always required as a condition precedent to issuing a foreclosure judgment. It changed when Wall Street convinced us that it was entering the lending marketplace when in fact it was not.
- The complexity was an excuse to foreclose on the property with no corroboration of indebtedness owed to the claimant. Most homeowners had no idea what and really happened, but the government did know and decided to provide cover to the investment banks instead of the people who were defrauded.
- So the authority to enforce must come from someone who is legally possessed of the right to grant such authority. That could be another party who has been a holder. But that can only be true if that third party has established the credentials to be a holder. Ultimately the source of all authority is the party who is legally empowered to collect money from the homeowner because the homeowner owes money to them. So the search for authority is virtually the same as the search for the owner of an unpaid obligation due from the homeowner.
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Neil F Garfield, MBA, JD, 76, 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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Filed under: foreclosure |
I agree Poppy. Even if all these fake crisis trusts were valid – you will NEVER see the claimed Master Servicer as claimed owner of Master Servicer Rights (MSR) ever granted assignment – or authority – or granting authority. Yet the FTC approved acquisition of MSR for numerous claimed trusts. Where are these claimed MSR owners hiding? That is all we have. MSR — valid or not.
All the courts care about is the “assignment”..The FTC has remedies for not being the PETE, Holder in Due Course. I have not known anyone who has been successful getting damages or recovery under the FTC Rule.