The Strategy of Foreclosure Defense

I recommend against raising an issue that you cannot prove. Specifically, the allegation that there are false claims of securitization of debt broadens the litigation beyond that which the judge is likely to consider.

Further it probably requires an allegation of fraud which increases your burden of proof to clear and convincing from the normal preponderance of the evidence. And it is based on facts accumulated from other cases. The argument as to whether those facts could be applied to your case will sidetrack the litigation and again, the judge is not likely to be very receptive to your arguments.

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 It is much easier to simply reassert the truth of the matter asserted against the homeowner as stated or implied by the foreclosure mill.
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The lawyers for the foreclosure mill do not state those facts. Those facts are asserted or implied within documents that appear to be facially valid. Thus no evidence of the actual transactions is alleged or offered. But this is sufficient for pleading purposes and it may be sufficient for judgment.
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 Therefore, the best strategy and tactics for defense of a foreclosure claim is to test the truth of the matters asserted in the documents.
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Based upon our 16 years of experience in direct litigation, investigation and research I can state with virtual certainty that the documents are fabricated and all the statements contained therein or implied therein are false.
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So the litigator’s job, whether an attorney or a pro se litigant, is to test those statements by legal procedure primarily in the window for discovery. This can also be done at trial, but it is more difficult to achieve satisfactory results if the litigant merely waits until trial.
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 If the window for discovery appears to be close, you can move to extend it, or you can try to issue subpoenas to specific people or to specific officers of the entity that has been designated to be the claimant or plaintiff in the case against the homeowner.

 Speaking from personal experience, all of the cases I have one have been based on the premise that the opposition will not be able to corroborate the truth of the matter asserted in the documents used to create legal presumptions.
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Once they refuse to corroborate those assumptions or presumptions, they are no longer entitled to use the legal presumption. Theoretically, this means they could come up with other basis or facts to assert the claim. But they can’t introduce those facts into the court record without a satisfactory response to timely and proper discovery demands.
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They can be barred from doing so by seeking evidentiary sanctions (in addition to economic sanctions) for failure to comply with the discovery rules and court orders. Or they can be barred from doing so by seeking an order in limine.
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Foreclosure Fraud: Watch Out for Con Artists Who Make Offers They cannot Fulfill. This includes “servicers” offering modifications.

As foreclosure filings and threats spike, so too will the number of fraudulent offerings that guarantee you an outcome, require upfront payment or worse — ask you to deed the property to the kindly person who has “all the answers.” Nobody has all the answers, and nobody can guarantee anything regarding foreclosures, modifications, or settlements. If they say they do have such answers, they are lying.

Least of all — the companies that are designated as “servicers” that perform no servicing functions and are not agents of any creditor that owns your unpaid loan account, even if it existed.

The fact that some apparent or actual agency exists between the designated company (“servicer”) and a bank pretending to be serving as a trustee of an alleged REMIC Trust does NOT mean that the REMIC trust owns any obligation that is allegedly due from you. In fact, it does not mean that any trust exists or that even if it did somehow come into legal existence, it ever owned any right, title, or interest in any unpaid obligation due from you nor any note or mortgage lien.

The fact that some lawyer working for a foreclosure mill claims that you owe money does not mean that your obligation still exists. In fact, as I have repeatedly stated on these pages, the elimination of the obligation is part of the process of what Wall Street is calling securitization of debt.

The purpose of offering you a modification or settlement is to get you to agree that the company that has been designated as a service there is now your creditor. This will be used against you in court later. Such agreements often contain provisions that release and even indemnify the servicer for making false claims.

The fact that a different creditor is named as a party that is claiming that you owe them money, will be overruled by a judge who reads the documents as saying that either the named creditor or the named servicer is a proper claimant – and there is no meaningful difference between them.

As a general rule, usually advise lawyers and pro se litigants to start responding to offers of modification and settlement only after they have received the third “final offer.” The first offers are specifically designed (psychologically) to create the impression that the foreclosure mill has decided that your defenses or claims have no merit. This is designed to undermine your faith in the judicial system, your faith in your attorney, and your faith in your lying eyes having read much about the law on the Internet.

Not everything you read on the Internet is true. And even if it is true, the interpretation that will occur in a courtroom is often very different from what you have read. This is why I am encouraging homeowners to seek the advice of local counsel before acting on any information they have obtained from the Internet, including this blog. Any website, salesman, or other source attempting to sell a “magic bullet” is a scam.

The truth, in virtually every case, is that the foreclosure mills are under specific instructions to litigate to the very end to wear out the energy and finances of the homeowner.

If they lose, they are instructed not to appeal, which is why legal research is virtually useless. Most trial court opinions are not published. So when they are exceedingly negative, such as those that I have obtained from senior judges in trials where I was lead counsel, there is no appeal. Therefore, there is effectively no record for any lawyer to review when performing legal research.

Many of the settlements in which I have been associated start with a minimum offer of “cash for keys.”  I have seen many such cases end with settlements that included vast reductions in claims of principal owed, plus payment of damages and attorneys fees.

Accepting the initial offer is very tempting to most homeowners because they want the ordeal to end. And they don’t want to spend any more money trying to fight against an opponent with bottomless pockets.

The truth is that many such settlements, although they are proposed by people who have no authority even to discuss the existence, ownership collection, or enforcement, are more beneficial to homeowners than winning through litigation, which involves a very high expenditure of time and energy.

But accepting initial offers of settlement on the part of these fakers is probably a mistake. Accepting such offers binds the homeowner to a new contract, which still fails to compensate the homeowner for their role in the securitization scheme.

The fact is that without the homeowner executing certain papers at the “closing,” the securitization scheme would not exist, and the huge revenues and profits that are distributed throughout the industry would also not exist.

When Legal Fictions Simply Go Too Far

I have been saying for years that the continuation of current securitization practices will result in another crash similar to 2008, although perhaps not quite severe. A key indicator is the number of pretender lenders that file for bankruptcy. It is spiking as you can see from the article contained in the link below.

see https://finance.yahoo.com/news/us-mortgage-lenders-starting-bankrupt-191500850.html

Lawmakers and law enforcement are taking some legal fictions too literally and coming up with absurd results — the very thing that a live human judge is intended to scrutinize and prevent.

One of them is that pretender lenders are lenders simply because their name is on the closing papers. In nearly all cases, no originator has ever loaned any money to anyone. Hence any document asserting the transfer of a “loan” from that originator to anyone else is fabricated and false.

The argument behind the lender status for these thinly capitalized fronts for Wall Street securities brokers is that they borrow funds to complete the transaction with the homeowner. And usually, there is a buyback provision that is never enforced but nonetheless creates a liability.

All the revenue generated by the originator consists of fees masked sometimes as profits from the “sale” of the transaction to a third party. That third party never pays any value for the purchase of that which the originator does not own. And the reason for that is that the securities brokerage firm that originated the real scheme —- creation and sale of securities — sent the money for closing through intermediaries to the closing table.

In other words, neither the “lender” to the originator nor the originator itself ever touched the closing funds. Hence the conclusion that neither one is a lender and neither owns an obligation claimed to exist by still other third parties (i.e., the lawyers for a foreclosure mill or the company designated to pose as “servicer”, which in turn does not perform any serving duties).

I know. All of this sounds like crazy conspiratorial thinking. But suppose you test any of the premises in this article in court. In that case, you will always and consistently be met not with proof corroborating the truth of the matter asserted against the homeowner but rather an argument that the lawyer from the foreclosure mill that it is not required to answer you.

The end result is that the court — and you, if you don’t get aggressive in litigation — will conclude the truth of the matter asserted in fabricated and false documentation — all on account of “we said so.”

So the new spike in bankruptcies of these originators simply corroborates everything I have been paying for 16 years. They’re bankrupt because they have no assets, and they’re left with “liabilities” owed to a “lender.” Like the originator, the “lender” has loaned no money. It is a contract intermediary between the Wall Street securities brokerage firm and the originator.

The bankruptcies occur not because of any “loan” defaults but because applications for loans are declining, reducing the fees generated from posing as a lender when they are merely an originator — i.e., a salesman.

You won’t find any assets listed in any of these bankruptcies that include ownership of loans because they all signed a document (originally labeled as an Assignment and Assumption Agreement) that effectively transferred ownership and control to the third-party intermediaries who would serve as fake warehouse lender.” This is what led to hundreds of foreclosures against consumers who never completed their deals after applying for a loan.

So the bankruptcy of these originators is the canary in the coal mine. When loan applications start to drop, then so do sales of the “certificates” that are falsely labeled as mortgage-backed bonds. Lacking the revenue from those sales of certificates, the Wall Street securities brokerage firm can take advantage of various devices to pay their investors less — whom they promised an installment payment that would extend indefinitely in time.

And THAT is how 2008 happened (the great recession).

PRACTICE NOTE: The advantage of having these companies go out of business and declare bankruptcy is that the Wall Street securities brokerage firms behind the false claims of debt securitization can launder title. If you look back into the promotional material for these schemes, they all proclaim that they’re using several layers of “Bankrutpcy remote” vehicles that cannot be penetrated. That means that no creditor of the petitioner (i.e., the originator) in bankruptcy can force the sale of “loans.” But it also means that the petitioner never owned the “loans.”

Subsequently, they file document upon document creating an illusion from which the reader erroneously concludes that a title interest (ownership of the mortgage lien) has been created. Title is never created by a false document. Either the grantor possesses title or it doesn’t.

You will never see an assignment of mortgage or an allonge executed by any US Trustee in bankruptcy or a receiver. The reason is simple: there is nothing to assign.

 

Securitization is a Ponzi Scheme. Homeowners are merely collateral damage.

Ponzi schemes work because of the continuing success of the tactical big lie — i.e., nobody would tell a lie that big because it would discovered and therefore it must be true.

The big lie became deadly on Wall Street when it moved a deformed securitization tactic into the lending marketplace, claiming that loan accounts were being created. In truth, they were being avoided and extinguished.

The obvious answer to most questions is simply that securities brokerage firms are in the business of selling securities, not making loans. None fo them wanted the profit center to be from paymetns on loans nor did they want the risk of loss associated with loans. So they did not accept those risks and they did not pass on those risks tpo investors. Instead they eliminated the risks.

The fact that they figured out a way to satisfy the supposed “loan” balance through the sale of securities and not report it to anyone is testament to their ability to sustain the lie that crashed the US economy in 2008 and now threatens to do so again.

The only loan balance that was ever created andd satsified is the loan that was made, usually by offshore sources, to securities brokerage firms (“investment banks”) who used that money to advance funds to the closing table with homeowners. When they sold the securities, the loan was paid off and satsified. No other loan balance existed.

Homeowners of course believed that they and received what they requested — a loan. But then they found out that there was no company anywhere that maintained an unpaid loan account on their books and records. There was only lawyers who claimed or implied that such an account existed.

And then homeowners learned that the courts were now saying that they MUST owe money to somebody — and why not the party designated by lawyers to be a Plaintiff or beneficiary under a deed of trust.

Those lawyers produced a “payment history” that was asserted to be a business record of a company that has been designated as a “servicer”.

But since no payment had ever been deposited intot eh account of such a designated “servicer” that apayment history did not reflect any business conducted by the alleged “servicer.” Hence the record was not a busienss record and should not have been accepted into evidence as an exception to the hearsay rule. It was a report on the report of third parties who remain undisclosed.

Today those third parties have been identified by the CFPB as FINTECH companies and have been reclassified as “servicers.” (Look it up).

Lawyers should take note: only a witness from the FINTECH companies is competent to testify to the existence of business records of the FINTECH company.

And such witnesses cannot testify as to the records or business practices of the companies designated as “servicers” because the FINTECH companies do not work for the designated “servicer.” Instead, they work for the securities brokerage firm that initiated the securitization scheme.

The “servicer”, like the “REMIC trustee” is a ruse. It is a big lie.

Steven Hoffenberg, Debt Baron Who Ran a Vast Fraud, Dies at 77
https://www.nytimes.com/2022/08/26/business/steven-hoffenberg-dead.html?smid=nytcore-ios-share&referringSource=articleShare

The current 25-year run of “securitization” and “derivatives” is based entirely on a foundation of prior Ponzi schemes. Some of those were running concurrently with the start-up of “securitization “ in 1983 — went the current shadow banking marketplace was ZERO instead of what is now reported as approximately $1..4 quadrillion.

The “vast frauds” created by people like Bernie Madoff and Steven Hoffenberg barely covered a single day’s work for most “investment banks.”

To put that in perspective, the shadow banking market is trading paper that is at least nominally worth around 16 times the total fiat currency in the world. This is important because it is the reason that the power of central bankers has been reduced in controlling currency and inflation.

It was toxic from the beginning. But the toxicity of these weapons of mass financial destruction became fatal when they moved to the lending marketplace. It continues to drain the economy, the federal reserve, and everything. To prop up the economy, we issued new currency in epic proportions. This is the current base of inflation.

Change in our perception is probable and not merely possible. These transactions are based on the thin air of imagination and not any fundamental values as we commonly accept.

Such schemes depend on continued sales of the “Shitty deals” reported in Goldman Sachs correspondence around the time the company was both issuing and betting against certificates falsely labeled as mortgage-backed securities. Any securities issuance plan that depends upon continued sales of new securities to pay off investors is, by definition, a Ponzi scheme.

The IOUs issued in the form of Certificates were a discretionary promise by securities brokerage firms to make payments to investors who were stupid enough to buy the certificates. Those payments could stop at any time. The prospectuses all had a provision for “servicer advances” that were not paid by any servicer.

And they were not an advance since the prospectus disclosed that the money was coming from the proceeds of sales of certificates. That is not an advance. That is a return of money.

They were not securities — something Wall Street firms had achieved with the exemptions created in 1998 and 1999. They were entirely free from regulation. [Registrations with SEC are merely filed to enable uploading documents to sec.gov and then downloading them with the Sec.gov name in the header to create the illusion that it is a government document].

They were not mortgage-backed since the certificates conveyed no interest to the payments, obligations, debts, notes, or mortgages of anyone.

Drafting complaints against the pretender lenders and pretender servicers.

Many people try to draft lawsuits against the “servicers” and other actors who pretend to have credentials and status in connection with the existence, ownership, administration, collection, and enforcement of an implied unpaid loan account. When pro se litigants do it, they do so without knowledge of the normal rules of procedure and normal customs and practices in drafting a complaint.

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They are on the right track in many cases, but the presentation still does not comply with normal customs and practices. It is more than likely that the complaint would be dismissed without prejudice and with leave to amend, along with instructions from the judge to go get a lawyer.

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The typical construction of the complaint develops individual causes of action against each of the actors that you are naming as defendants. You can group them, but only if the cause of action applies to everyone in the group.
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Each type of actor is subject to various restrictions regarding their professed role. So if they say they are a servicer, they are subject to laws and rules governing servicing. People who said they were lenders, even if they were lying, are not subject to the same laws and rules and are, therefore, proper subjects for alleging a cause of action against them for breach of lending laws and rules.
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So for example, if you have sent a qualified written request under RESPA or a debt validation letter under the FDCPA, you would have a separate count for violation of those statutes against the defendant who received the statutory letters. You could expand that to include those who should have been responsive to the statutory letters because notice to one is a notice to all – but you have to say all that.
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The normal practice is establishing the court’s jurisdiction through a very short summary of the causes of action and why the court has jurisdiction, citing statutory authority.
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The next thing is a background statement that summarizes the causes of action that will follow in each count of the complaint.
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Each count of the complaint normally realleges certain paragraphs of the background statement that are applicable to that specific cause of action against that specific defendant or group of defendants. Each count in the complaint is a separate lawsuit.
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This means that you must make it clear how the court has jurisdiction over this particular count,  and make it clear as to the foundation for the cause of action to be stated.
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Each lawsuit (Count) requires a short plain statement of ultimate facts upon which specific relief could be granted. And each lawsuit (count) requires a demand clause  (wherefore) that states the specific relief that is sought. Without that final clause, no relief could be granted, and the action would be dismissed.
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 You must present your case in a manner that the judge is willing to consider. Many pro se litigants and most lawyers have run into that brick wall.

Homeowners! You need to know this! The difference between the possessor of a note, the holder, and the holder in due course.

Uniform Commercial Code preempts principles of common law and equity that are inconsistent with either its provisions or its purposes and policies. 

The one thing most articles miss is that the possessor of the note is not entitled to claim the status of a holder or holder in due course merely because of possession.

By definition, that is a restriction on the ability to claim the remedy of forcing the sale of property for the benefit of someone who does not own the underlying obligation. The proceeds are intended by statute and common law to go to the party who suffered an economic loss to the loan account owned by them by their payment for it.

A possessor is exactly what it sounds like. Someone is in physical possession of the original promissory note. This has nothing to do with the mortgage. When a note is sent from one party to another party via any courier or other delivery service, the delivery person will be committing a crime and civil theft if they attempt to use the promissory note as a basis for filing a lawsuit to obtain a judgment or executing on that judgment for damages. The courier is not entitled to receive anything other than the fee for acting as the courier.

The “holder”, under Article 3 of the UCC, is a term of art prescribed by law. A person may be a “holder” or a person with the rights of the holder if they hold actual or constructive possession of the original note AND they have been granted the right to enforce the note. The grantor of that right must be a person who possesses the right to enforce or the actual creditor. In all events, the grant of authority emanates from the owner of the underlying obligation to whom the debt is legally owed.

The “holder in due course” under Article 3 of the UCC,  is the only status that automatically satisfies the condition precedent stated in UCC 9-203 adopted verbatim in all US jurisdictions. That is because Article 3 holder in due course provisions requires payment like the Article 9 UCC provision §203.

So you can see judgment obtained by your possessor is probably void or voidable and that a judgment obtained by a holder of the promissory note can only be obtained for monetary damages. Without additional evidence of value paid for the underlying obligation, the right to receive money does not trigger the right to forcibly sell the collateral property.

The additional requirement missing from nearly all orders, opinions and discussions is that the possessor must have received a grant of entitlement to enforce the note.  The grantor must be a creditor who has paid value for the underlying obligation or an agent of that creditor. This is what separates a courier from a holder entitled to enforce the note.

The right to sue for enforcement of the note differs from the right or entitlement to judgment. The first is a question of standing, and the second is a question of proof.

In addition, enforcement of the note entitles the successful claimant to a judgment for damages. That judgment does not automatically entitle the successful claimant to the remedy of foreclosure. .

The reason, as cited in the article, is UCC 9 – 203, which is incorporated into the state statutes of every US jurisdiction. A condition precedent specifically and expressly stated in that statute is that the claimant must’ve paid value for the underlying obligation.

And it is for that reason that it is universally held that a written conveyance of the mortgage lien (or beneficial interest under a deed of trust) is NOT a legal transfer of the lien without a concurrent conveyance of the underlying obligation. The language of art used by the courts that such a written document is a “legal nullity.”

What is often missed and what has been weaponized by the banks is that such concurrent conveyance must come from someone who owns the underlying obligation or is the authorized agent of a confirmable owner of the underlying obligation.

Such payment is often presumed by the transfer of the note or by an assignment of the mortgage, but it is rarely true. Unless value was paid for the note or the mortgage, such a  presumption is inapplicable, and the foreclosure action must fail. As you know, I have analyzed the reasons for this defect for 16 years and have successfully defended homeowners hundreds of times in my direct participation and thousands of times indirectly.

The reason for the defect is simply that most loans are subject to false claims of securitization. Securitization occurs, but not in the sense that nearly everyone assumes or presumes.

The fact that securities are issued does not mean that those securities convey any right, title or interest or any ownership or authority over any payment, note or mortgage. Those securities are unregulated and are deemed not to be securities for purposes of regulation pursuant to the abandonment of strict regulations that had been in place up to 1998 and 1999. They are unsecured certificates, meaning they are merely IOUs issued by investment banks operating under the name of a designated trust, which often does not exist at the time of the claim.

Here is a quote from the Code itself as quoted by the Permanent Board for the UCC:

 See id. and Official Comment 2 to UCC § 9-109. 11UCC § 1-103(b). As noted in Official Comment 2 to UCC § 1-103:
The Uniform Commercial Code was drafted against the backdrop of existing bodies of law, including the common law and equity, and relies on those bodies of law to supplement its provisions in many important ways. At the same time, the Uniform Commercial Code is the primary source of commercial law rules in areas that it governs, and its rules represent choices made by its drafters and the enacting legislatures about the appropriate policies to be furthered in the transactions it covers. Therefore, while principles of common law and equity may supplement provisions of the Uniform Commercial Code, they may not be used to supplant its provisions, or the purposes and policies those provisions reflect, unless a specific provision of the Uniform Commercial Code provides otherwise. In the absence of such a provision, the Uniform Commercial Code preempts principles of common law and equity that are inconsistent with either its
provisions or its purposes and policies. 

…The enforcement of real estate mortgages by foreclosure is primarily the province of a state’s real property law, but legal determinations made pursuant to the four sets of UCC rules described in this Report will, in many cases, be central to administration of that law. In such cases, proper application of real
property law requires proper application of the UCC rules discussed in this Report.

How Artificial Intelligence (AI) Is Shaping the Marketplace and the Courts

Most of the “important” “correspondence” and “notices” in alleged claims to administer, collect or enforce alleged obligations due from homeowners is delivered to homeowners via carriers other than the US Post Post Office.

That is because the alleged senders and the actual senders avoid criminal liability for potential mail fraud claims. Mail fraud statutes relate to the use of the USPS and not to FedEx or UPS.

But it isn’t correspondence, a statement or even a notice if it is (a) unsigned and (b) unauthorized by any conscious human decision. The ascent of AI production of documents was largely fueled by the banks, who now use AI regularly to receive, scan and respond to letters, applications, and notices from homeowners.

Even decisions on modification or settlement never reach human minds. They’re mostly created, communicated, and offered by a machine using algorithms that basically guess at what the human response would be. The advantage to the banks is their ability to dissociate themselves from the communication, statement or notice.

The same thing is true for the initiation of foreclosure proceedings. Lawyers at a law firm (frequently described as foreclosure mills) receive an electronic communication generated by a computer which in turn is taking directions from another computer (a server) owned and operated by a group of companies unrelated to the designated servicer or the designated creditor.

This is why the Robo witness at a foreclosure trial will only say that he or she has familiarity with the records of the company that has been designated as the servicer. The courts are allowing this as a poor substitute for the foundation of the claim.

No witness ever testifies that they work for the company designated as the creditor (e.g., US Bank), and they will never testify that they have seen the accounting ledgers, books or records of that designated creditor.

The entire case in which the foreclosure remedy is sought is based on implications and presumptions rather than facts.  In most cases, the lawyer pursuing that remedy has never communicated with the company or entity designated as the creditor/claimant. In addition, the lawyer has never been retained by that entity. U.S. Bank, for example, will defer all questions and challenges to a sub-servicer who actually has no control over any aspect of the transaction with the homeowner.

Artificial intelligence instructs the lawyer regarding the company’s designation as a “servicer” without any information on the company’s functions.

Such companies, in nearly all cases,  perform no function relating to the receipt, depositing, data processing, or distribution of money received from homeowners. All those functions are performed by companies now described as FINTECH, whom the CFPB has categorized as “Servicers”.

But the FINTECH companies never show up at trial, nor are they even referenced — because the homeowner, the lawyer for the homeowner, and the judge have no idea that the FINTECH companies exist or what they do.

The typical reference to the “records” of the “servicer” is a ruse because those “records” were neither prepared for or by the alleged “servicer, and that is because they had no reason to create such records since they did not actually receive any money. Hence they would have no data entries regarding payments and distributions.

It is always easy to point out that the “Payment History” in trials lacks any references to distributions to creditors — an essential part of any ledger proclaiming itself to be a picture of the unpaid loan account.

But the “payment history” — prepared by third parties — is usually accepted into evidence without objection from the homeowner as a record of the payments and as evidence of default even though that report is not a business record and therefore would be barred by the hearsay rule if the objection was raised.

I should add that there is never any evidence that the alleged “default” caused a loss to the party designated as a creditor. The point here is that a default is not a legal default if it is declared by or on behalf of a non-creditor.

Ownership of the implied or alleged loan account is the critical and essential component of alleging or implying that there has been a default that is actionable by the party who is designated as a creditor.

And ownership under the law does not come from the transfer of paper. It comes from a transaction in which the transferee pays value to a transferor who owned the underlying obligation.

All of the securities brokerage firms operating as “investment banks” know that what I have written above is completely true. I also know that their representations to the marketplace and to the courts have been untrue. This is why they have many layers of companies, with frequent changes, whose name communications are sent from a computer without human intervention.

In practice, the value of this knowledge is that if you ask for the source of authority for any document that has been produced in connection with the alleged “servicing” of the “loan account,” you will never get an answer to your question. Homeowners who win do not accept stonewalling. They aggressively pursue their rights under the rules of procedure governing legal discovery and such statutes as the FDCPA and RESPA.

You should never assume that any human being exists that had anything to do with decision-making or authority in connection with any of the functions that have ever been performed in connection with a homeowner transaction. In nearly all cases, that assumption is erroneous.

Letters and communications that and with a reference to “the team,” are actually in violation of the law. Both federal and state law requires such communications to contain the name and contact information of an agent responsible for the alleged loan account.

You will never get such a name or contact information because the loan account does not exist on the ledgers, books or records of any company as an asset consisting of an obligation due from the homeowner to that company.

See https://www.theinformation.com/articles/ai-is-transforming-how-we-bank-and-regulators-need-help-to-keep-up

See https://www.nytimes.com/2022/08/24/technology/ai-technology-progress.html

 

 

 

How “servicer advances” advance the false premise of securitization of loans.

Since the times of ancient Greece and even before that, it has been a commonly used statement that before discussion of an issue each party should precisely define their terms. The obvious conclusion has been that without agreed definitions, it is highly probable that each side is talking about something different and making no point in the debate. Every generation since then has agreed with that premise.

This is exactly what is happening in the world of finance. Wall Street has its own definitions that are never disclosed to the marketplace, consumers, investors, the courts or government regulators.

Each of those entities or people have their own definitions  based upon partial information and mostly blind faith in certain facts that appear to be axiomatically true. even the Federal reserve under the venerated Alan Greenspan made that error.

Wall Street capitalizes on that assymetric information to create a completely illegal place for itself in the economy — that of disguised principal while everyone else thinks they are merely acting in their assigned and proper role as broker.

What I find fascinating is the meaning of securitization of servicing advances. Remember that securitization means, by definition and by law, that an asset or group of assets has been sold for value to multiple investors in exchange for pro rata ownership of those assets. That is the essence of all securitization, including IPOs and existing common stock traded on national or international security exchange services or platforms.

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Analyzing the data published by the firms promoting “securitization,” we see that no “loan” or debt has ever been purchased and sold by a grantor who owned the underlying obligation or a grantee who paid any value. “Securitization” exists — but not for the paper or the money trail (payments and collections). The securities issued are based upon a discretionary unsecured promise to make indefinite payments to buyers of certificates issued by the promisor (securities brokerage firm).
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The terms of payments from securities brokerage firms to investors who purchased certificates have no direct relationship to the terms of payments scheduled from homeowners, who are unaware that the sale of the securities resulting from their signatures greatly exceeds the amount of their transaction, leaving a zero balance due and quite possibly opening the door for a claim for greater compensation as the essential party making the securitization scheme possible. This is discussed at length on my blog.
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The securitization scheme has many subplots. One of them is “servicer advances.” A real servicer advance is one in which the company designated as the servicer receives, processes, accounts, and distributes money to the investors.
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To my knowledge and my proprietary database, there is not one existing scenario that conforms to that description. In plain terms, servicers do not make advances mainly because they do not pay investors — ever. And as I have previously discussed on this blog, they don’t receive payments either.
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So these falsely labeled “servicers” can’t and don’t create data entries reflecting the receipt of payments — but law firms seeking foreclosure argue or imply that they do receive such payments and that their “records” are business records — i.e., records of business conducted by the designated “servicer” who in fact performs no servicing duties.
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The true meaning of a servicer advance under the current schemes of securitization claims is that some of the money paid to investors is labeled as a servicer advance even though the servicer paid nothing and had no duty to pay the investors anything (just like the homeowner had no duty to pay anything because securitization sales had eliminated the debt).
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That duty (to pay investors) was reserved for the promisor, who we will remember is a securities brokerage company that is not a “servicer.” The label “servicer advance” comes from the reports issued (fabricated) by the company designated as “Master Servicer,” showing that some scheduled homeowner payments have not been paid or received. This disregards the obvious premise that there is no payment due.
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The reader should understand that the sole reason investors would be paid regardless of the number or amount of incoming scheduled payments from homeowners is that the securities firm wants to keep selling unregulated securities (certificates). That is the point of the securitization scheme —- to sell securities.
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While incoming payments from homeowners are a partial basis for payments to investors, the promise requires that new securities from new securitization schemes are being sold, producing revenues and the ability to say that certain “tranches” (that contain nothing) are “over-collateralized.”
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The reader should also understand that the fact that homeowners are making payments is the sole factual support — in law and, in fact — that payments are due. In a twisted way, homeowners, through their ignorance of the actual events in which they are key players, are playing an active role in deceiving each other, the government, investors, and the courts.
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The promissory note and mortgage role in this scenario are strictly symbolic. But they do raise the legal presumption that they are valid documents if they are facially valid according to the state statute. Nonetheless, the real reason anyone believes that payments are due when they’re not due is that homeowners make the scheduled payments to anyone who commands them to do so.
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So the fact that the investors received their promised payment from the securities firm that controls the scheme (but does not own anything) is why they call it an “advance. The idea that it came from a “Servicer” is just a fabrication to imply that a third party was involved. But that is enough to raise the facial presumption from the self-serving documentation and claims prepared by the securities firm or on its behalf.
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The prospectus for each securitization plan reveals the plot to claim “servicer advances” by labeling money not paid by homeowners (whether due or not) as a “servicer advance.” The prospectus shows that a fictional reserve account is created by selling certificates containing the investors’ money.
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The prospectus discloses that investors would receive payments from a reserve pool, which is disclosed as a return of the money the investor paid. But that is exactly the money amount used to claim “servicer advances.” The reserve account may actually exist in some securitization schemes. Still, the “reserve account” is completely controlled by the securities brokerage firm that served as the bookrunner underwriter of the securities (certificates offered for sale).
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And the money proceeds of the sale of derivatives (more unregulated securities traded in the shadow banking marketplace) based on the “servicer advances” go to the investment bank, not the servicer. This is yet another way to reduce any hypothetical (fictional) loan account below a zero balance.
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Since the investors have contractually agreed to that arrangement, the fact that it is not an advance and only a return of capital make no legal difference. So they are converting false declarations of homeowner “defaults” into saleable assets, thus creating the foundation for securitization of false claims of “servicer advances.”
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As you can see from the above explanation, the answers to almost every question dealing with securitization of debt are extremely convoluted. In fact, the vice president of asset management for Deutsche Bank described it as “counterintuitive.” The reason that it is counterintuitive is that it doesn’t make any sense, once you break it down into its component pieces.
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The big stumbling block for everyone is the fact that money appears to have been paid to or paid on behalf of the homeowner. It is therefore assumed as axiomatically true that the money reported to have been paid to the homeowner or paid on behalf of the homeowner must have been alone, if for no other reason than the fact that the homeowner executed a note and mortgage and then started paying.
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 But even that apparent reality is not true in most cases. Nearly all existing transactions that have been labeled as mortgage loan transactions are directly or indirectly the product of supplemental securitization schemes.
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That is to say that most of such transactions consist entirely of reports of payments that never occurred. To the extent that such transactions were presented as paying off a previously classified mortgage loan transaction, such reports were entirely untrue in most cases.
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As long as both transactions resulted from a controlled securitization scheme by a common securities brokerage firm acting as the book runner underwriter of certificates offered for sale to investors, there was no need to transfer any money. Our investigation has revealed the absence of any evidence ingesting that any such money was transferred.  This raises a basic defense for homeowners: lack of consideration and breach of the alleged contract.
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 If the homeowner received, for example, $30,000 from the “refinancing” of the property, but signed a note for $500,000, based upon the false premises of a payoff of the previous “mortgage loan,” the consideration for the note and the mortgage is either completely absent or at least mostly absent.
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 What most people do not understand is that the “refinancing” was just an opportunity to start another controlled securitization scheme with the new set of securities being sold without the retirement of the old securitization scheme or those securities.
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PRACTICE NOTE: The presence of servicer advances described in the prospectus and pooling and servicing agreement provides a foundation for the homeowner’s defense based on standing. Since servicer advances have priority in the liquidation of property, the outcome of foreclosure results in payment to the investment bank rather than the designated creditor. Proper discovery and objections at trial are likely to successfully undermine the most basic element of the claim: legal standing.
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There is a false premise implied in “servicer advances” that leads to false conclusions. The false premise is that the money is owed to the “Master Servicer,” and the debt is that of the investors on whose behalf the advances were presumably made. The fact that there were no such advances remains concealed, and the fact that the investors have absolutely no liability to the recipient of the “servicer advances” is also concealed. But this false premise that is always implied if the subject comes up, is usually sufficient to convince a judge that servicer advances are irrelevant. Upon proper scrutiny and analysis, the subject of servicer advances are highly relevant and even dispositive of the entire claim.

Homeowners can demand a satisfaction and release — and get it through court action.

Hat tip to Ralph, who writes

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Once a Lender has been paid, the Lender has been paid.  My point is that paragraph #23 is black & white…  It’s only that Courts and Nincompoops overthink it that makes it ineffectual.  Read in the spirit of “Pain Language”, it says all that needs to be said.

“23.  Lender’s Obligation to Discharge this Security Instrument.  When Lender has been paid all amounts due under the Note and under the Security Instrument, Lender will discharge this Security Instrument by delivering a certificate stating that this Security Instrument has been satisfied…”

It does not say “When the Maker pays the Lender.”  It says “When the Lender has been paid.”  There doesn’t seem to be a lot of argument that the Lenders’ have been paid…..

The question is: Have the Lenders’ non-Creditor successor’s also been paid?  Because the mortgage language seems pretty clear, somebody needs to pay the Lender, so they can move on and make more loans by recycling the same money on the lending merry-go-round.

It says: the Lender must “discharge” when the Lender has been paid all amounts under the note and under the security instrument…  However, as you 8/16 post cites:

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A mortgage is only an incident to a debt, which is the principal thing. It is merely security for the debt. Where there is no debt–no relation of debtor and creditor–there can be no mortgage.

Consequently, keeping it simple…. Once the note is paid for (by anyone or any entity) “there can be no mortgage”.

My response is that I have been thinking about exactly what Ralph is addressing for years.

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You are not the only one to have thought of this. But the affirmative defense or complaint is not as simple as you might think. Since there was no loan account, there is no proof that the loan account was paid off. I know that sounds ridiculous but on the face of it, that’s what it looks like.

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So the allegations would need to be that the parties received payments over the amount transacted with the homeowner arising out of the issuance of the note and mortgage. However, those payments were not credited to any loan account because no loan account existed. Under the terms of the mortgage, the receipt of payment and not the posting of the payment triggers the requirement for satisfaction and release.
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I think you have identified a strategy whose time has come. The simple question in discovery is whether the loan account exists on the books and records of any creditor. If it doesn’t, the presumption arises that there is no debt.
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If there is no debt on the mortgage is securing nothing.
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In plain language, if there is no debt, then the fact that you signed a promissory note is irrelevant and unenforceable except in some very limited circumstances where a claimant alleges that they are a holder in due course under Article 3 of the UCC.
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But that never happens in the foreclosure arena — although the lawyers for the foreclosure mill always argue as if their “client” (who is not their client and with whom they have no contact or relationship) should be treated as a holder in due course.
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In that event, the mortgage may be declared satisfied and released by the court. That judgment can be recorded. Some people have sought expungement of the mortgage, which requires a much higher burden of proof. I don’t recommend it.

USE COMMON SENSE: Why would anyone do that? Most consumers are in a new class of disabled Americans.

I have long believed that the reason why Hillary Rodham Clinton became radioactive consisted of two things: first was the popularity of Ronald Reagan who hated a program that started with bipartisan consensus in 1971. It was called the Legal Services Corporation. The LSC was an obviously needed program to provide access to legal services to those who would otherwise be unable to receive it. That was when Republicans like Nixon and Democrats like Kennedy all believed in the same basic premise: the role of government was to keep the playing field level and mitigate the inevitable tilting of the playing field in favor of successful people.

The general premise behind it was the same as the necessity of providing criminal defendants with a defense attorney. Reagan’s hatred of this program was buttressed by his political popularity, which in turn was supported by the business community, who viewed economically disadvantaged people as food. And they didn’t want anything to interfere with their food supply.

All of that was based upon a simple premise that is generally understood and accepted by all political spectrums: the lower the income and wealth of an individual, the more likely it is that they will spend every penny they can lay their hands on whether in the form of wages, loan, gift, or anything else. This was virtually glorified by the ascent of the payroll advance “lenders.”

Contrary to what everyone thought and believed, the average income of the person who used a payday advance financial product was around $56,000 20 years ago. By most economic metrics, that equates to at least $68,000 now.

These are the people who literally live paycheck to paycheck and still can’t quite make it. So when they are confronted with improper or false claims asserting the right to administer, collect or enforce money they allegedly owe, they are on their own. The LSC was designed to help at least the lower rungs of this class.

Hillary Clinton was a highly effective leader and promoter of the LSC. When the wind was at her back, she increased funding geometrically and provided highly effective representation to people who would otherwise have been unable to obtain legal services. But perhaps more importantly, these are the people who were most likely deprived of sufficient education even to know that they had rights and that those rights were being violated. The political opposition to the LSC and the political opposition to the healthcare reform proposed by Hillary Clinton in the early years of the Bill Clinton administration made her the target of disgust and hatred, mostly by people who have no idea that she had been working effectively for them and not against them.

Congress was all revved by the republican revolution led by Newt Gingrich. They steadfastly sought and passed measures that restricted the ability of the LSC to function, while Democrats were not so steadfast in opposing those efforts. Republicans were able to paint Hillary as ineffective and “entitled”. At the same time, she and her allies failed to defend against that portrayal. They failed to seize the opportunity to paint the Republican opposition as the party opposing rights for the average American, curating the dominance of big businesses that wanted to feed on those Americans.

The second reason is that she remains radioactive because she failed to market her leadership skills effectively. The “scandals” thrown at her by partisans were not why she lost the 2016 election. I’ll concede that the rollout of her plan for healthcare reform was less than appealing. But it was doomed before it started. Americans had been brainwashed that health benefits through an employer were a good thing and were convinced that the loss of those “benefits” would leave them without health care coverage.

The message that health care would have become more accessible and less expensive was completely lost in the PR wars between the financial industry and big Pharma on one hand and a small unfunded and understaffed vocal minority of people seeking reform.

But that was not the end of it. We all know that eventually, Healthcare reform was, in fact, passed in the Affordable Care Act. And various groups have emerged on statewide and local levels to bring affordable and accessible legal services on issues affecting wide swaths of the population. Some of those focus particularly on the class of citizens who are above the poverty line but, as I stated above, were completely unable to defend improper or illegal claims.

These claims were asserted and pursued to terrorize people into making payments to stop the claim, regardless of whether any legal obligation existed. One such group is the successful non-profit Southern Legal Counsel organization (SouthernLegal.org) operating in Florida.

Established in 1977 — the year I was admitted to the Florida Bar association — and supported by donations and grants, this organization has had many victories, large and small, that favored the consumers who consistently entered into “agreements” without knowing the terms or who were victims of breaches of those agreements.  It is also supported by dozens of law firms who pledge pro bono hours to assist in worthy causes.

So to get the point of this article (besides stirring up debate about Hillary and Healthcare), there is no greater challenge or need for consumers on the lower economic scale than protection from dubious financial products that they do not understand — and which lawyers do not understand because they were not schooled in accounting or auditing. Virtually all of these people are “disabled Americans.” They were disabled by education withheld so they could not possibly understand that they were being lured into “contracts” that only imitated consent.

If you want to know why we have so many vacancies in teacher positions (9500 in Florida), it is because we don’t pay enough to enable them to pursue their dream of teaching — and we make them pay for their own supplies. Next, we will make bus drivers buy their own transportation and buy their own fuel. The initial premise of public education is in the process of being buried — to create thinking, knowledgeable citizens who make up their minds based upon all available relevant information.

Go to any law office or courtroom today, and the opinion will be the equivalent of caveat emptor despite specific statutes and case law to the contrary. The idea that the deal isn’t a loan and was never meant to be a loan by the scheme’s promoters is dismissed as absurd. So let me ask a single question:

Virtualy every installment payment offering today contains low or noninterest for years and low or no payments for at least one year. With interest rates still near historic lows, there is no possible way to make money on that deal if you are the source of funds. So here is the question: why would anyone do that?

The answer is obvious: they are making boatloads of money offering “loans” for what appears to be no payments or small payments. The actual collection from consumers is not nearly as important as getting their signature. It is their signature that is being sold and securitized, not any debt. And all such deals are securitized.

What is the harm? Consumers who depend upon market forces correcting unconscionable and stupid deals are counting on a nonexistent option. Incporated into every American contract is the duty of fair dealing and honesty. Incorporated into every American contract that labels itself as a “loan” is the risk of loss to the vendor of that financial product. That is the self-regulating mechanism that is assumed by consumers, lawyers and judges. But since securitization began its ascent in the 1990s, that risk of loss has been missing completely.

There is no free market nor any free market forces. The vendors of these deals have absolutely no risk of loss on the illusory loan account because the underlying debt either does not exist or had been eliminated trhough the sales of unregulated securities — the proceeds of which are not reported as related to the consuemr transaction that produced the sale. .

Instead there is a pot of revenue and profits that are not reported to consumers, the lawyers or the courts and never credited to an unpaid loan account because everyone was paid at the outset. The money they coerce from consumers is merely gravy on a dish that has already served and satsified dozens of appetites.

The point was not just profit but also the elimination of any possibiity of a reported loss on the financial or accounting ledgers of any company. Thisincludes the company that has been designated by third aprties on behalf of fourth parties as “creditor” for purposes of coerced collction and enforcement of nonexistent debt.

All this is done without any acknowledgement or warranty of the existence and status of the underlying claimed obligation by the company whose name is used and abused (with permission, for a license fee) for purposes of collection and enforcement.

Consumers basically have no access to proper legal services because of two factors. First they have been deprived of education, depriving them of the means to function in a complex financial and legal world. And most would say that they have even been brainwashed about the need for legal services since the alleged delinquent payment is due on a legal debt. Second, even if they knew their rights and even if they knew that their rights were being violated, the cost of legal representation makes it impossible for them to properly defend or contest improper or illegal claims.

The financial community, through a variety of misleading financial products, as adopted business plans that target people of lower education, low income, and any other attributes that could be interfering with the ability to understand or question the terms of a transaction. In my view, the lack of education throughout the school curriculum and into college and postgraduate studies, has created a class of disabled consumers.

Those people have no basis or experience even knowing what questions to ask. The existence of laws requiring disclosure to them, a violation of those laws, and the remedies for violating them are completely unknown. It is up to state and local nonprofit legal services organizations to fill this gap. In doing so they will be correcting a marketplace that is essentially closed, dominated, and controlled by three or four banks, whose impact is felt worldwide. Trillions of dollars have been siphoned from the economies of this country and other countries through this scheme. It is time to tilt the playing field back toward “level.”

The recent renewal of efforts by the department of justice to enforce antitrust legislation that has existed for more than 100 years is a helpful step toward creating conditions that will favor a marketplace in which free market forces can operate. But without active litigation on behalf of those on the financial community who cannot defend baseless claims, it will take much longer to bring back equal opportunity and justice.

 

 

 

Stop Assuming the Loan Account exists or that the amount reported as due is correct. It usually is not.

The fact that a homeowner receives SOME money does not mean they received the benefit of the entire balance recited on the promissory note. Most likely they didn’t receive the entire amount and in many cases they received no benefit whatsoever.

Without retiring the old securitization infrastructure that includes false claiams of securization of debt, “refinancing” musually involves merely starting a new securitization infrastructure in addition to (not replacing) the old one.

This provides the oportunities to sell multiple versions of unregulated securities that provides Wall Street with astonishing cash flows representing a syphon on the U.S. economy.

The bad news is that they are still sucking.

Summer chic has once again provided a foundation for common sense and legal analysis of a single question: does the homeowner legally owe any debt – secured or unsecured- to any creditor?

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1. The original transaction with the FIRST  homeowner  (could be in 1998) was funded via borrowed by some Investment Bank money from another investment bank where collateral was prospective sales of securities backed by information about the transaction with the homeowner.

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Thus, it was Investment Banks’ debt to [lenders that were unknown to Homeowners] with whom homeowners had no contractual or monetary relationship at all.

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2. Banks paid homeowners from borrowed money to execute documents called “Mortgage and Note”

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3. Investment bank securitized information about these documents, sold this information 12  times more than paid to homeowner  and repaid their creditors (from whom Investment Bank borrowed money). Lets say they repaid $2 per $1 borrowed.

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4. After this initial  Securitization was established and borrowed by Investment Bank money were repaid, all documents about this transaction were destroyed,  including  the original Note leaving this Bank $10 per $1 profits

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5. Question: did this FIRST homeowner had ANY debt he/she is obligated to repay? Secured or Unsecured?

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6. Next, this first homeowner decided to sell its home  to the Second Homeowner who applied to a mortgage, received a document named mortgage, signed the promissory to repay this mortgage  – but no money was involved since the Securitization scheme was already established.

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7. So, this Second homeowner did not received a cent as a “loan”, while his signature generated additional $12 per $1 based on information about the first transaction – which was funded with borrowed by Investment Bank money which were already repaid and all information about this transaction was destroyed thus no account receivable.

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8. Question – does this Second homeowner has any debt – secured or unsecured- with any creditor?

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9. Next, this Second homeowner sold its home to Third homeowner, who also applied  for a loan, received information about money and so on. So, this Third homeowner  did not received a cent from anyone, and did not paid to any prior “lenders” since here was nobody to receive this payment (except Investment Bank who get monthly payments  via chain of intermediaries as additional revenue).
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Does this Third homeowner have any debt – secured or unsecured?
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Where this unsecured debt mentioned by Elle is coming from?
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From borrowed by Wall Street Banks money? They were repaid long time ago.
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From payment dressed as a loan to the First homeowner? It was covered 12 times from sales of securities and this transaction does not exists on anyone’s books or records
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From Second and Third homeowner?They did not received a cent and have no relationship to the origianl transaction – other than getting unknowingly  involved in more rounds of revenues for Investment Bank
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So, where is the DEBT? Secured or unsecured – but DEBT?

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MY RESPONSE AND OPINIONS: There are three options:
  1. The current one is that there is no enforceable debt but actors are getting “relief” anyway by faking it. So no debt and no security does not equal no foreclosure unless the procedures (judicial or nonjudicial) are contested.
  2. The likely one, in my opinion, is that the parties are forced into the reformation of the transaction in which there is a hearing and determination in which the judge (or jury) decides on the equities.  This has not yet been done. In this scenario — only applicable to those transactions in which some money was paid to or on behalf of the homeowner) recognition is given to the fact that the money was paid and the homeowner agreed to make scheduled payments regardless of whether they were legally due. Additional recognition would be given as to the value of the homeowner’s “service”  in starting the securitization infrastructure and the compensation due to the homeowner for assuming hidden risks. The bottom line is that virtually all “balances” would be reduced and the transaction would be re-started with some schedule of payments that would support existing infrastructures supporting claims of securitization without collapsing them entirely.
  3. The absence of conditions precedent required to legally support claims of the right to administer, collect or enforce a debt, and the absence of the loan account itself, makes it impossible to legal claim that there is a debt. Since the debt is what is secured by the alleged mortgage lien, the lien would be invalid, void, or at least voidable.
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Practice note: Any law professor would concur with this analysis. Lawyers and judges on the other hand, insist on treating the mortgage as an instrument securing the note, which is not true. It is only true if there is a debt because the note is not the debt it is evidence of the debt — and in most cases it is an incorrect statement of the balance of the debt.
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One of the trickier facets of this scheme is that the note may in fact be evidence of debt but still contain an erroneous or fraudulent representation of the amount of the debt. The debt is the amount paid to or on behalf of the homeowner — in cash.
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The fact that the homeowner received money does not make it a loan, even if the homeowner thought it was a loan. If someone tells you a lie, the liar gets the book thrown at them, not the victim who reasonably believed the lie.
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The fact that a homeowner receives SOME money does not mean they received the benefit of the entire balance recited on the promissory note. In most cases, they did not. Thus the note, mortgage, amortization, statements, notices and correspondence are all at best, erroneous. At worst they’re examples of pure fraud.

Why and How Some Homeowners Win in Foreclosure Cases

Homeowners do not win their cases because they proved the claim was false. They win their cases by preventing the lawyers from the foreclosure mill from putting on the required evidence to establish the claim.

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Law is confusing because it is extremely obtuse at times, and it depends heavily on laws and rules of procedure that cannot be fully understood without the benefit of 3 years of law study and years in practice. Homeowners keep asking about how their victory can be justified or how they could lose when the claims against them cannot be verified.

The fact that the claim cannot be justified and cannot be verified is not a legal bar from alleging the opposite. People don’t get arrested for alleging stupid things in civil actions. And if they fabricate documents as exhibits, the judge is (a) forced to treat those allegations as true and (b) likely to be at least partially convinced that the claim is true.

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It is not up to the claimant to justify or verify as long as they allege the right facts as required by law, true or not.  And it is not up to the homeowner or consumer “borrower” to prove that the claims cannot be justified or verified. And it is not enough to raise “questions” about the verification or justification for the claim.
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The goal in litigation of foreclosures is to identify all the elements of the claim and then demand corroboration (witnesses and documents) beyond the documents provided as exhibits. Unless the transaction is not subject to claims of securitization, nobody will be able to produce such corroboration in foreclosure cases.
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Since the profits on the sale of unregulated securities issued contemporaneously with the consumer transaction are much larger than the transaction itself, it is difficult to imagine a scenario in which any installment contract was not subject to false claims of securitization (sale) of the alleged debt.
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PRACTICE NOTE: There is a huge difference between saying “the loan was securitized” or that “it is in a securitized trust” and proving that the loan was sold.
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To many people, even lawyers without the benefit of training in accounting and auditing, the relationship between the allegation of “securitization” and a “Sale of the debt” is obtuse and basically incomprehensibly complex and blurred.
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But the very plain truth under all securities laws and rules is that there is no securitization without the sale of the asset — in this case, an underlying legal debt owed by the homeowner to the claimed “assignee” or “Successor.”
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No such sales occur in the current iteration of securitization techniques because no such sale is wanted or needed. Hence the allegation or claim of securitization is void, or in legal parlance, a legal nullity. No documents exist showing a purchase of any debt owed by any homeowner by any grantee via payment to the grantor. THAT is why you ask for the witnesses to the transction and the proof that payment was made.
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All laws of evidence and procedure provide that if the claimant cannot provide corroboration for the truth of the matters asserted in the documents, the claimant is not entitled to a presumption that the facts asserted are true.
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That does not end the case. But it does prevent the lawyers for the claimant from putting on any evidence they could not corroborate during discovery. And THAT is what ends the case —  but only if you file the appropriate motions to end the case.

The simplest answer is usually true regardless of how unlikely it might appear.

Whether you are fan of Occam’s Razor or Sherlock Holmes, the conlusion is usually the same. And the corrolary is that people tend to pursue complex paths of investigation and challenges when the simple answer is the only thing that will help them.

Like many people, I tend to overthink some issues. When people do that, they end up looking for a complex answer when the simple answer is right in front of them.

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Legally, a debt arises after a business transaction in which mutual consideration is exchanged. Consideration can be in the form of cash or other valuable consideration recognized by law. In the case of the loan account, the debt arises if money was paid to the homeowner to establish an unpaid loan account to be repaid under the terms of a mutual agreement between the parties.

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 As to funding, while in many cases there was no funding, generally speaking money was paid to or on behalf of the homeowner. But unless the money was paid with the intent to establish a loan account as an asset of a creditor, some other explanation is required to serve as the foundation for the money paid to or on behalf of the homeowner.
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in either event, you will never get anything other than an evasive response to any questions regarding the initial funding, because the initial funding came through various intermediaries for any securities brokerage firm operating as an “investment bank.”  But it is helpful to become aggressive in seeking the simple answer to a simple question, because doing so gradually raises the awareness of the judge to the absence of evidence to support the claim.
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In Foreclosure proceedings, you don’t need to prove any of the theory. You only need to establish that the foreclosure mill is unable or unwilling to corroborate the existence of the loan account, the ownership of the loan account (which can only be achieved through payment), and the authority to enforce the loan account, if it exists.
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My point has always been that there is nothing to enforce and no right to administer or collect any money. I am 100% certain that this is the correct legal conclusion required by both statute and common law. The only reason the foreclosure mills have prevailed is that both attorneys and pro se homeowners have been reluctant to challenge the most obvious deficiency in the claim against them — i.e., no loan account.
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 Contributing to this confusion is the erroneous perception that reports issued under the name of a company that has been designated as the “servicer” are an acceptable substitute for the actual record of the creditor (who was a different party) showing the existence of the loan account.
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Further contributing to the confusion is the fact that virtually all homeowners (and lawyers) were successfully deceived by the offer of a “loan transaction.” Since the homeowner was seeking a loan, and believed that he or she received a loan, it is almost impossible to dislodge the belief that their transaction was anything other than a loan transaction.
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 But the record over 20 years has clearly demonstrated that homeowners who proceeded under the assumption that the foreclosure mill will be unable to establish or corroborate its case generally win in litigation.
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And the assumption that this somehow results in a “free house” is equally erroneous since all parties have been paid in excess of any amount that could have been due under a loan agreement. Such payments arise from the sale of unregulated securities masquerading as asset-backed securities or certificates.
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The homeowner has generated more than sufficient revenue, payback, and profit to each of the actors (including foreclosure mills) in securitization schemes to compensate them above industry standards that existed before the so-called era of securitization.
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The retention of a house that the homeowner paid with proceeds of what was, in reality, a securities transaction in which the homeowner was the primary issuer is probably insufficient payment to the homeowner, without whom there would have been no securitizations scheme. That is a topic for another discussion on the affirmative relief that MIGHT be available to homeowners who were not properly compensated for exclusively absorbing the transaction risk that enabled the actors to proceed without regulation of any kind.

Mortgages Secure Debts. They do NOT secure notes.

Hat tip to Wendy Allison Nora

Even before I went to law school, when I was getting then called an “Advanced MBA”  I learned that notes are only pieces of paper. With the proper foundation, they could be evidence of something that is an agreement.

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In law school, I didn’t understand why the professor for the contracts class for two semesters and why the professor for the negotiable instruments class for two semesters kept pounding on the same concept in urgent terms like we might forget it: “THE NOTE IS NOT THE DEBT. IT IS ONLY EVIDENCE OF THE DEBT. IF IT IS NOT EVIDENCE OF A DEBT, IT IS VOID — REGARDLESS OF WHAT IS WRITTEN UPON IT.”

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Then I went out into the real world and found out why they were urgently reminding us of that and pounding it into our heads. The reason was simple: most people did forget it and never understood that distinction to begin with. And that included nearly all lawyers, which in turn obviously meant that nearly all judges did not grasp the distinction between the note and the debt.

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As a result of this deficiency, many lawyers for people who are described as “borrowers” will file documents that essentially admit that the note is the debt and, therefore, that the mortgage secures the note.  This produces a conflict that nevertheless becomes the law and facts of the case, once the homeowner or the lawyer for the homeowner makes that admission.

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So I was relieved to see an email thread in which Wendy Allison Nora described how this works:

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The correct legal position with respect to the “Note” is that the Note is evidence of debt but does not establish that there is a debt outstanding.  The Wisconsin Supreme Court got this part right in Mitchell Bank v. Schanke, 2004 WI 13, 268 Wis. 2d 571, 587, 676 N.W.2d 849 (Wis. 2004) “[W]e hold that the Bank did prove the debt underlying the Mortgage, despite the Bank’s failure to produce the Note, because the parties intended the Mortgage to secure antecedent debt and the Bank proved the existence of extensive antecedent debt” and “In order to foreclose on the Mortgage, the Bank was required to prove the existence of the underlying debt that the Mortgage secured. “Where there is no debt — no relation of debtor and creditor — there can be no mortgage” 268 Wis. 2d at 595, citing Doyon & Rayne Lumber Co. v. Nichols, 196 Wis. 387, 390, 220 N.W. 181 (1928).  The Wisconsin Supreme Court in Mitchell Bank, clearly stated at 268 Wis. 2d 595:
While certainly, this court would not allow a creditor to recover sums from a debtor if the creditor never advanced the money, Schanke’s argument is more germane to the requirement that the mortgagee prove the existence of debt in order to foreclose on the mortgage, as a mortgage cannot exist without a debt. See Doyon & Rayne Lumber Co. v. Nichols, 196 Wis. 387, 390, 220 N.W. 181 (1928).
Doyon Rayne holds at 220 N.W. 182-183:
It seems plain that none of the mortgages became a lien upon the premises until someone paid value therefor. “A mortgage is only an incident to a debt, which is the principal thing. It is merely security for the debt. Where there is no debt–no relation of debtor and creditor–there can be no mortgage. Here there was no debt, and hence no mortgage that can be enforced in equity. If the mortgage could be sustained upon any theory, it could only be as a security for future advances, and then only to the extent of such advances.” Cawley v. Kelley, 60 Wis. 315, 319, 19 N. W. 65, 66.
A mortgage is not property at all, independent of the debt it secures. The extinguishment of the debt ipso facto et eo instante extinguishes the mortgage. The mere entry on the record of a release of the mortgage is not for the purpose of extinguishing it, but as evidence of a previous discharge of the debt.” Fred Miller Brewing Co. v. Manasse, 99 Wis. 99, 74 N. W. 535. (Emphasis added.)

The burden is not on the Judge. it is on the litigants.

In an article published by he absolutely understands and perfectly articulates the requirements of law concerning standing to bring a claim. But he does not understand and does not properly articulate the burden of proof or the burden of persuasion concerning that issue.

Despite that deficiency, I recommend that both lawyers and pro se litigants read his article.

see https://recentlyheard.com/2022/08/11/pro-se-primer-101-3-constitutional-irreducible-minimum-requirements-of-standing-in-foreclosure/

Khanna incorrectly states that the burden is on the judge to perform an investigation and then insert his findings into the evidence record without anything being done by either side. He further suggests that the foreclosure mill has a burden of proof beyond pleading when the claim first appears.

Neither statement is true. The Judge’s “Burden” is to rule on the admission of evidence into the record and then rule on the weight of evidence presented. The burden on the lawyer for the foreclosure mill is merely to state a recognizable claim at law as prescribed by statute, custom, and practice. The law is that all statements within the initial claim must be taken as true to determine whether the claim should be dismissed or rejected.

So the article is an excellent source of both understanding and wording concerning the law on standing but the conclusions expressed in it should not be used.

The burden is on the homeowner to attack the facial v validity of documents and the ability of the lawyer from the foreclosure mill to produce, upon appropriate and timely legal demand, corroboration for the truth of the matters asserted in those documents. If he or she can’t or won’t do that, then the presumptions to the truth of the matters asserted vanishes.

But the underlying theme of the article is also true: that the idea is to cut off the ability of the foreclosure mill to present its case. Please notice that I keep referring to the “lawyer from the foreclosure mill.”

That is because I am 100% certain that the foreclosure mill brings the case on behalf of a regional law firm that answers to a national law firm governed partly by in-house counsel for the investment banks. A mistake commonly encountered when the lawyer from the foreclosure mill is pushed to disclose the identity of the client being represented is that it is representing the r regional law firm. Likewise, the regional law firm will identify its client as a national law firm.

Nobody claims to represent US Bank, Bank of New York Mellon or Deutsch Bank National Trust Company. But if the homeowner doesn’t raise the issue, the presumption remains that the “REMIC’ Trustee” is indeed acting as trustee — i.e., that it has trust officers managing the affairs of a trust account that is receiving and distributing funds that it is legally entitled to receive.

Further, the trust account contains an unpaid loan account receivable due from a particular homeowner as an asset held and managed for beneficiaries pursuant to a trust agreement (not the PSA).

None of those statements is true. And no foreclosure mill represents the designated “trustee” or even has any contact with them. This is only true because there is no creditor to represent, as has been seen in trial and appellate cases for the last 16 years.

And homeowners who proceed on the assumption that no such trust accounts and no such loan accounts exist are more likely than not to win the case — i.e., judgment for the homeowner.

 

Here is why the Judge doesn’t answer your questions in court

I think the biggest mistake that trial lawyers and pro se litigants make is that they think their questions, especially those supported by forensic reviews, are sufficient to rebut the case.

When the judges rule agasint the homeowner and for the foreclosure mill many people and lawyers think that the judge had a choice in doing that.

That is mostly untrue because of the admissions made by the homeowner over a long period of time in communicating with the opposition and what they filed in court.

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Questions are not evidence, even if they are well-founded and should be answered. An unanswered question at trial requires a finding that no rebuttal exists. Questions about documents and the truth of the matters asserted in those documents need only be answered must only be answered in discovery or in a QWR (RESPA) or DVL (FDCPA).

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[Practice Note: I distinguish between unanswered questions and those subject to a court order to respond].

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At trial, the sole robowitness called to testify against the homeowner does not have the answers to most of the questions. Once he or she testifies that he or she has familiarity with the books and records of the “servicer” and that testimony is allowed to stand without objections and motions to strike, the case is basically over.

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Such unopposed testimony establishes that the witness is employed by a company that performs servicing functions concerning record keeping of receipts and distributions of money. It also is evidence that the claimed debt exists, that the designated creditor owns it, and that the servicer is acting for the creditor.

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After that, raising questions about the integrity of the process, the witness, the documents etc. is virtually pointless.

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The judge really has no choice. It is not up to the judge to determine what the evidence in the record should contain. Once the homeowner admits the debt, and usually admits the default, there is no practical defense available and the judge must take that as true — even if the Judge earnestly believes that the homeowner is mistaken in making that admission. There are cases in which a forensic analyst has successfully attacked the signatures and chain of title, but they are few and far between.

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This is someone like minimum mandatory sentences in criminal law. Most judges hate those laws and they hate being required to apply them, but they must apply them because they are the law. No judge has the authority to ignore the law. In all civil cases based on a preponderance of the evidence, judgment will be entered in favor of the claimant as long as the basic elements of the claim are found to exist – more likely than not.
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I know people want the judge to do more. And I know that many judges have in fact ignored the law or pretended not to understand the law to achieve a certain result. That happens in many foreclosure cases, particularly where rescission under the truth in lending act has occurred.
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But mostly, that is not happening in foreclosure cases because it doesn’t need to happen. The homeowner has already admitted the elements of a prima facie case. The homeowner has not rebutted the elements of the prima facie case. The rebuttal is not about raising questions. The rebuttal can only be evidence that disproves the truth of the matter asserted in the claim against them.

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Pro se litigants do not understand the trial process and should not be required to possess such knowledge. Lawyers should know better, and eventually, after conducting 50-100 trials, they do know better. This is precisely where and how the Federal and State government failed to protect homeowners who were victims of an act of economic terror — the false claims of securitization of debt.
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Although agencies have been long established (FTC, CFPB, FDIC) to protect the consumer, they have been prevented from doing so, leaving the homeowner or consumer to deal with highly sophisticated financial products and legal consequences that not even the federal reserve Chairman and 100 PhDs understood.
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Alan Greenspan expressly admitted his mistake and that his blind faith in market forces was a major cause of the mortgage meltdown — something that is still happening. There were no free market forces, there was no disclosure of the true nature of these financial schemes and products, and thus there were no free market forces. Caveat emptor never applied to the transaction because the transaction was not disclosed.
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But despite the widespread recognition that consumers (homeowners) were duped, the government let them and even required them to bear the loss inflicted by bad actors. This might not end until the day comes when it is safe for political actors to run against the banks. Undoubtedly, they would be elected because most people understand they were screwed, even if they don’t fully comprehend how that was done.

Investigation of Credit Reporting and Verification of Credit Reports Shows Fabrications At Every Level

It is no surprise that Black Knight, previously known by other names including but far from limited to DOCX and Lender Processing Systems, is one fo the central control entities for the Wall Street investment banks in what is generally referred to as “securitization” schemes in which false claims are made regarding the securitization (sale) of unpaid loan accounts.

Summer chic has done an incredible amount of in-depth research that adds meat to the bones of homeowners defenses and claims.

In this case she provides a step by step guide to understanding the whole process of how negative credit reports containing false information are sent to what appears to be third-party companies posing as credit reporting agencies.

Both the reports and the verifications (required by law upon request of the party claimed to be a debtor) are false because there is no unpaid loan account receivable owned by the company on whose behalf the report is made. Frequently there are other false statements such as criminal records that are nonexistent ($3 million verdict for homeowner).

Hence the credit report is the utterance of a false instrument, based upon information the CRA knows to be false, the use of it by any creditor or prospective creditor is unlawful because most users know the information is false, and all of that is happening “in-house.”

Namely Black Knight performs or manages each and every function of receiving, collecting, processing, reporting, payment histories, reporting negative credit events essentially to itself.

The net effect of this is that it raises interest rates for the so-called “debtor” and even eliminates the homeowner’s prospect of getting alternative financing — something that Wall Street is dead set on blocking.

Imagine what would happen if homeowners were able to obtain alternative financing to submit an offer to pay off the entire balance as demanded or a fair settlement amount.

Every such closing is subject to due diligence on the title chain and the credentials of the designated creditor. Nobody wants a satisfaction of mortgage from a party who does not own the underlying obligation that is alleged to exist. Such an instrument would be void.

Such investigations would result in the revelation that the party demanding payment was not entitled to receive it. And the securitization infrastructures that support infinite revenue and profits would collapse.

The further implication is that virtually all hoemowners whoa re making or who have made payments according to a schedule presenting to them at closing, would have a valid claim to recover the payments made on the same principle.

Neither the “servicer” nor the designated “creditor” had any right to receive such payments nor any authority to execute any proceedings or documents concerning the payments received from homeowners (or the sale of their property) or any right, title or interest to any debt, note or mortgage.

And if further investigation were permitted by the court, it would be discovered that there is no lending party anywhere in the securitization infrastructure or in what is presented as the lending infrastructure.

There is no party that is owed any money at the  close of the transaction cycle with the homeowner. They have all been paid from the sale of securities — payments that were not credited to the nonexistent loan accounts mostly because Wall Street was allowed to do that under current accounting rules. So they received the payment but did not credit or even notify the homeowner.

Hence we are left with a transction in which the illusion of a debt is created, administered and enforced by central control entities like Black Knight, who performs most of these tasks for most of the securitization schemes.

The  fabrication of documents, fake “Business records”, and false implied claims of economic loss serve as one of the sources of titanic bonuses distributed on Wall Street because collections from homeowners have no place to go.

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From Summer chic: We all owe her a deep debt of gratitude because she is relentless and accurate.

I continue my research on “credit reporting agencies” which are nothing but a scam to cover up the involvement of our old friends – Wall Street Banshists, Foley, Gravelle, Cogburn, etc

 “Transunion”‘s letter  was sent to me by Exela TEchnologies who used one of its FINTECH companies HOVServices

“Equifax” letter was sent to me by FIS Output Solutions, which is a branch of Fidelity National Information Services – which is located of course at 601 Riverside Dr. Jacksonville FL and more known as Fidelity National Financial /Black Knight.

The individual who registered FIS Output Solutions is hard-working lawyer Michael L. Gravelle (who has 2500+ jobs) who also registered nearly all 850+ ServiceLinks nest doll corporations across America.

The method how your information is “verified” is as following”

All “agencies” use so-called E-Oscar system which is a Trade Mark for Online Data Exchange LLC, which is located in Jacksonville Florida and its “parent” is listed TransUnion – while I think its Black Knight

Inline image

The system primarily supports Automated Credit Dispute Verification (ACDV) and Automated Universal Dataform (AUD) processing as well as a number of related processes that handle registration, subscriber code management and reporting.

While the system called “E-Oscar”, the email extensions for its employees are “newmtgservices”

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In other words, all “furnishing” is coming from Balck Knight and all verifications are conducted by Black Knight and its numerous FINTECH companies. ”

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“Agencies” names are used as a cover up.

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PRACTICE NOTE ON THE USE OF FABRICATED INSTRUMENTS:
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Every claim must start somewhere. So if the proposed claim is based upon written instruments, it begins with attaching those instruments to the complaint or producing those on request. If the written instruments are prepared in the manner set forth by an applicable statute or if the instrument was prepared in accordance with custom and practice it is (and must be) taken as presumptively true.
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This is why I have developed an extremely focused defense narrative and strategy. The information needed to rebut the presumptions raised by fabricated documents in foreclosures during the 1999-present era is not available to the homeowner or defense counsel — even when court orders are issued requiring that such information be produced for inspection and that questions (interrogatories) be answered.
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Of the hundreds of strategies that I have reviewed and analyzed, the only one that works most of the time is steadfast, aggressive, persistent, and even “litigious” efforts to enforce compliance with the statutes and court orders.
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Of all the cases I have won, and of all the cases that other lawyers have won, it seems that the main factor was and remains the reluctant willingness of the trial judge to sustain objections from the homeowners and overrule objections from the lawyer representing the foreclosure mill.
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This is a prolonged effort. It is a ground war. While it is possible to achieve this goal only at trial, the judge is far more likely to consider the objections raised (foundation, hearsay, relevance etc.) if the homeowner has properly litigated discovery questions in the foreclosure action or in the lawsuit to enforce rights under the FDCPA, RESPA, and FCRA.
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Such litigation shifts the focus away from the homeowner getting a “free house” and toward the enforcement and respect of the powers of the court. In contests between lawyers and judges, the judge almost always wins.
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The question of whether the homeowner should be able to plead affirmative defenses or counterclaims for compensatory and punitive damages is not addressed her. Remember that affirmative defenses are generally not subject to being barred by the statute of limitations.
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But I reiterate that I am absolutely certain that under existing law and precedent going back hundreds of years, the homeowner is entitled to be paid compensatory damages for being involuntarily drafted in the position of an issuer, without which the extremely profitable securitization practices could not have occurred.
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The world is waiting for an enterprising large law firm to take on this herculean task that so far, every one of them has been too intimidated to undertake.

Don’t Sue the Clerk of the reording Office Just Yet: Start with Organized Petitions and Phone Calls.

Multiple reports around the country have demonstrated that there is overwhelming evidence of corruption in the office that records instruments in the title chain of real property.
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In a few rare interviews, the people who run such offices have complained that they are being forced to record documents that are actually outside of the chain of title. This is all caused by fabricated documents used to weaponize the procedures allowed for the pursuit of foreclosure remedies.
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20 years after it all began, it is apparent that the only real correction is going to come from political action rather than legal action. You must make noise to get people to listein. As Victor Frankel said decades agao, evil only flourishes when good people do nothing.
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People are always venting about their frustration, which is well-founded, with the recording offices that allow facially invalid documents to be recorded in the chain of title.
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Once that is recorded, getting the document out of the chain of title is expensive and time-consuming, and even futile in the new era of false claims of securitization.
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The new era is marked by false claims that loans were created and “securitized,” meaning that the claimed underlying obligation was purchased and sold. No such transactions ever take place in current securitization infrastructures and therefore all documents relying upon that premise are false and misleading.
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Perhaps more importantly, the meaning of this false claim clearly manifests the truth that the transaction with homeowners did not create an unpaid loan account receivable nor anyone to own it.
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Anyone who has a passing interest and understanding in securities analysis knows that the transaction was mostly for the revenue derived from the sale of unregistered, unregulated securities. Payments coerced from homeowners were and remain an unnecessary bonus.
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So people are asking how they sue the Clerk of the county Recording Office to stop the recording of false documents.
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You start off with the presumption that any agency of the federal, state or local government is cloaked with the presumption of immunity.
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This does not cover individual acts of malfeasance, and which the individuals who are guilty of committing a crime can be punished for doing so. Such individuals are known to exist. They literally get paid through intermediaries for the securitization schemes. I personally know of multiple instances where that has occurred. But these individuals cannot respond to a civil judgment because they generally have no money. And they are not prosecuted criminally unless you can serve up, on a silver platter, the complete case against them and present it to the local prosecutor.
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The next issue is whether the agency actually knew about the malfeasance and condoned it. We all know this is probably true. But in order to allege the proper elements of a lawsuit against the agency, you would need to state the ultimate facts upon which relief could be granted. The mistake frequently made by homeowners is alleging opinions that they are confident must be true. Such allegations are dismissed under our system. Secondly, even if you were able to make the proper allegations, you would then have to prove them. This would require a ground battle in disclosure.
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 So the bottom line is that unless you have a lot of money and a lot of time on your hands is pointless to pursue this avenue of relief in the current context and in the current judicial climate. As far as I know, the probability of finding a lawyer who would be willing to take such a case based on contingency fees is zero. And even if you found such a lawyer, the costs and expenses of the lawsuit and preparation for the lawsuit would exceed the probable resources of anyone trying to pursue the case.
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The better route, at this point, in my opinion, is to use petitions, telephone calls, and a lot of noise directed at the recording office and the press.

Look Who Owns Equifax credit reporting

Hat tip to summer chic

Echoing the questions issued by multiple judges when the mortgage meltdown became clear, the question I pose is the same as those posed by J udge Shack, Boyco and others back in 2007-2009:

Why is it that the largest  financial conglmerates in existence continually invesst together in companies that aid theirrespective enterprises. They suppsoedly compete with each other. WHy are they aiding their competitiors?

We see here the common investments by America’s largest “banks” in Equifax. But the exact same thing is true with Mortgage Electronic Registration Systems (MERS), and the all encompassing ICE (Intercontinental Exchange Inc).  and we see it  and companies that provide services that are designed to reinforce the illusion that the homeowner is involved in a loan transaction including but not limited to dozens of appraisal companies.

For those of us whose birthday is before 1990, we remember that antitrust laws were first created more than a century ago to prevent exactly this type of behavior. Those laws still exist.

The pervasive influence of corrupt “donations” from sources has tilted the economy away from the average citizen such that the Perpetrators accumulate power and money on a level that has never been experienced in human history. such behavior will not stop until antitrust laws are once again enforced with vigor.

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Underwriting Agreement

August 11, 2021

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

Mizuho Securities USA LLC

1271 Avenue of the Americas, 3rd Floor

New York, New York 10020

Truist Securities, Inc.

3333 Peachtree Road NE, 11th Floor

Atlanta, Georgia 30326

Wells Fargo Securities, LLC

550 South Tryon Street

Charlotte, North Carolina 28202

As Representatives of the several Underwriters

Ladies and Gentlemen:

Introductory. Equifax Inc., a Georgia corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the several underwriters named in Schedule A (the “Underwriters”), acting severally and not jointly, the respective amounts set forth in such Schedule A of $1,000,000,000 aggregate principal amount of the Company’s 2.350% Senior Notes due 2031 (the “Securities”). J.P. Morgan Securities LLC, BofA Securities, Inc., Mizuho Securities USA LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC have agreed to act as representatives of the several Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the Securities.

The Securities will be issued pursuant to, and will form a separate series of senior debt securities under, the indenture, dated as of May 12, 2016 (the “Base Indenture”), between the Company and U.S. Bank National Association, as indenture trustee (the “Trustee”). Certain terms of the Securities will be established pursuant to a supplemental indenture (the “Supplemental Indenture”) to the Base Indenture (together with the Base Indenture, the “Indenture”). The Securities will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “Depositary”).

Tips on the enforcement structure of nonexistent loan accounts

Most lawyers and even homeowners have heard that for a settlement or modification to be approved, it needs to go up through several layers. After comparing notes with Bill Paatalo, I believe the following is a true description of the enforcement infrastructure for virtually all transactions with homeowners arising from business schemes that serve to sell securities.

  1. The top rung in the hierarchy is a law firm that works for an investment bank.

  2. The next rung down is a law firm with almost as much authority to act for the investment banks. Generally located in Chicago or New York.

  3. The third rung down is a regional law firm that serves as the intermediary through which instructions are sent to foreclosure mills.

  4. Fourth is the foreclosure mill which receives instructions, forms, and exhibits via electronic media from unknown sources.

  5. 5th is the lawyer, who is the only person who has any contact with an intermediary that tells him or her about the witness that will testify at the final hearing and who will be claimed as an employee with familiarity” with the books and records of Ocwen (or whoever is designated as servicer).

  6. Ocwen (or whoever is designated as servicer) is a sham conduit licensing its name for use by third parties to receive, collect, digitally process and manually process payments from homeowners.

  7. The records of Ocwen in this example are not admissible as evidence of the payment history because they are barred by the hearsay rule because they were created through the functions and work of third parties who created and maintained such records.

  8. The third parties are FINTECH companies who operate under contract with intermediaries for securities brokerage firms doing business as “investment banks.”

  9. The records of FINTECH in this example are admissible as evidence of the payment history because they qualify as “business records” as an exception to the hearsay rule of evidence (i. e., law of evidence) because the records were created through the functions and work of the FINTECH parties who created and maintained such records.

I again caution both homeowners and lawyers to avoid any allegation that would require them to prove the above hierarchy. The only thing that matters is whether the currently designated claimant possesses a legally recognizable claim. And that depends upon whether the lawyer representing the foreclosure mill can prove that the “creditor” he or she designated in the notice or pleading that was filed is the owner of the underlying implied or claimed obligation (loan receivable account).
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I am 100% positive, and my opinion has been corroborated by interviews that no such creditors, accounts, or claims exist.
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The majority of support for believing otherwise comes from the homeowners themselves, who mostly insist that their transaction is a loan even though many of them know that they have no creditor and that the authority of the designated servicer is at best problematic. Ignorance of the legal requirements for a claimed “loan” to be legally recognized as such is what is driving millions of foreclosures.
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“The currently designated claimant” can ONLY be the Plaintiff in a judicial state or the beneficiary in a nonjudicial state. It is not the designated servicer nor a trust or holders of certificates.
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If a REMIC trust is referenced, that reference is included to mislead you and the court. The designated claimant in such instances is the designated trustee of a nonexistent or irrelevant trust.
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It is the “bank” that does not appear as a bank. It appears solely as a trustee and not on its own behalf; therefore, the claim, despite what you might think, is not the claim of a financial institution.
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