Guidance for discovery in foreclosure defense

I frequently need to guide homeowners and their attorneys away from generic labels. When the word “creditor” is used, it could mean a servicer without ever corroborating the principal. The company named as servicer may in fact be construed as performing a service and that service might even be tied to the presentation of the named or designated claimant, but it is only human nature that makes the subject of the claim labeled as a  unpaid loan account, much less owned by the “servicer” or “claimant.”
Always take note that no allegation or assertion ever appears stating that the law firm, the servicer or the claimant (plaintiff or beneficiary) is a holder in due course, For a party to even start claiming application of article 3 of the UCC, the purported transfer of “must have occurred before the note was known to be claimed in default by someone possessing the authority to make such a declaration. To claim rights as a holder in due course. Even if the purported transfer of rights under the promissory note occurred before the claimed default occurred, one would also need to assert and prove payment of value in good faith without knowledge of the maker’s defenses. None of these attributes exist because the transaction was disguised as a loan but failed to include the attributes of a loan.
What we ordinarily mean by “creditor” is a party possessing the following attributes:
  1. Not the servicer
  2. Not the law firm
  3. A party who owns the underlying debt, note or obligation by virtue of having paid for it. —Where such payment was received by the owner of the obligation.
  4. The referenced obligation is a legal debt reflecting the outcome of a transaction in the real world that both parties intended to be owed to the payee.
  5. A party who has been receiving payments derived from the tender of payment by the homeowner.
  6. A party who suffered economic loss strictly resulting from the non-receipt of payments due from the maker (homeowner).
  7. A party who has been named in similar actions as a creditor and who typically collects money proceeds from settlement or sale.
Assuming you know the answer concedes the validity of a false claim.

3 Responses

  1. sorry to disagree but we are having great success in fighting these individual foreclosure actions for individuals. Unfortunately we are bound by confidentiality agreements upon settlement which is why you see so few precedents.

  2. ANON me too – loved to hear how far and grand the NMSS really advanced any causes for the homeowners and whose pockets exactly in each state those billions went into still a mystery. The entire circus act is still parading down every street in America; yet no clowns under the ‘tent’ are performing – dormant for 15 years. Wall Street remains a ring master; while USG stills jumps thru hoops of fire. As always ANON excellent queries! And yes I’d like to know how Neil’s doing too – he’s been part of our posse for 15 years!

  3. Hello Lance. Still waiting to hear how Neil is doing. Here is the issue — the government does not care. Every case you research – the judge does not care. Precedent law is horrendous. Once in litigation, you will be blocked from receiving ANY information. So — can’t wait until there is a tragedy, or unexpected circumstances, that might affect status and litigation is started. As you are likely aware, the CFPB has lost new cases due to old (Obama) settlements that established, according to the courts, res judicata that blocked new claims. Yet, the bad practices continue, and no homeowner ever signed any government settlement including the National Mortgage Servicing Settlement. Big risk for individual homeowner to proceed in courts. How about a class action for NMSS violations? I understand individual claims and parties. May need to do multiple class actions for multiple parties and focus on single issue and violation. It is very odd that REITs continue to prosper by Master Servicing Rights that include Advance rights. Those REITS are never a party in court. Very odd. Thanks.

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