Livinglies's Weblog

1. The central issue is not whether the homeowner owes a “servicer” any money. The central issue is whether the homeowner owes a creditor money.

As for Fannie Mae, I think you might be oversimplifying the situation.

1. I totally agree that if FNMA is not the creditor — either on its own behalf or on behalf of a legally existing trust as Master Trustee, then any records of FNMA or anyone claiming to enforce a claim for money on behalf of FNMA is irrelevant, and even potentially subject to sanctions.
2. To know whether FNMA is a creditor, a lawyer purportedly representing FNMA must be willing to assert that status based upon a declaration or confirmation from FNMA that the subject homeowner owes FNMA money.
   1. This is one of the places where procedural tricks take the place of substantive allegations or arguments.
   2. The issue under the rules of evidence is whether the declaration from FNMA is truthful, and perhaps just as important whether an officer of FNMA gave such a declaration. This highlights how the banks weaponize the rules of procedure. The outlook is cloudy.
      1. If you do not stay razor sharped focussed on the central issue, you will get (a) an acknowledgment or declaration from a person (probably a contract worker) singing on behalf of a “servicer” (whose function as a servicer is not supported by any evidence) who claims representative rights for litigating on behalf of FNMA.
      2. The central issue is not whether the homeowner owes a “servicer” any money. The central issue is whether the homeowner owes a creditor money.
      3. The FNMA servicing agreement DOES grant such powers to Wells Fargo and other qualified banks.
      4. By focusing the court’s attention on the existence of those powers, the opposition is able to distract the court from the central issue of litigation: whether the homeowner owes money to FNMA.
      5. The liability of the homeowner is initially presumed from any document that looks even close to being facially valid. So the job of the homeowner and homeowner’s counsel is to rebut that presumption or to remove the right to use it. Since the homeowner cannot rebut the presumption without an admission from the opposition, there is only one strategy that has a good chance of success: attacking the right to use the presumption.
   3. Attacking the use of the presumption means either (1) attacking and objecting to the “facial validity” of a document (typically the endorsement of the note or assignment of the mortgage) and/or (2) attacking the right of the opposition to put on any evidence since it has violated the discovery rules contained in the rules of civil procedure. The opposition violates those rules when they fail to answer the question and produce a copy of the unpaid loan account on the books of FNMA.
      1. By failing to provide evidence or information likely to lead to the discovery of admissible evidence relating to the existence and ownership of the presumed underlying obligation, they have waived their right to presume that the underlying obligation exists or is owned by FNMA.
      2. They can still produce such evidence at trial, but only if they have complied with discovery demands and the court’s orders compelling compliance with the discovery rules and with the orders issued by the court.

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The central issue in the litigation is not whether powers are granted between parties but rather whether any of them ever had any relevant powers as the foundation for the claim to collect money from the homeowner.

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Ironically, due to the court doctrine that denies homeowners the right to be proactive in challenging the “servicer” and “creditor” until after the foreclosure is launched, and in many jurisdictions, after the foreclosure is completed, the best time to present this might be by tracking the events after judgment and after the sale.

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It is there that the truth comes out. The judgment, credit bid, or right to sell is often transferred multiple times to conceal the fact that FNMA did not get any money from a forced sale and was never intended to receive it. The paperwork, as always, is vague and confusing. But homeowners do have the right to inquire where the money went and the amount of the loss that was covered on which account or ledger of what party.

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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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