Who is the Creditor? NY Appellate Decision Might Provide the Knife to Cut Through the Bogus Claim of Privilege

Posted on September 29, 2016 by Neil Garfield

The crux of this fight is that if the foreclosing parties are forced to identify the creditors they will only have two options, in my opinion: (a) commit perjury or (b) admit that they have no knowledge or access to the identity of the creditor

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see http://4closurefraud.org/2016/06/10/opinion-here-ny-court-says-bank-of-america-must-disclose-communications-with-countrywide-in-ambac-suit/

We have all seen it a million times — the “Trustees”, the “servicers” and their agents and attorneys all beg the question of identifying the names and contact information of the creditors in foreclosure actions. The reason is simple — in order to answer that question truthfully they would be required to admit that there is no party that could properly be defined as a creditor in relation to the homeowner.

They have successfully pushed the point beyond the point of return — they are alleging that the homeowner is a debtor but they refuse to identify a creditor; this means they are being allowed to treat the homeowner as a debtor while at the same time leaving the identity of the creditor unknown. The reason for this ambiguity is that the banks, from the beginning, were running a scheme that converted the money paid by investors for alleged “mortgage backed securities”; the conversion was simple — “let’s make their money our money.”

When inquiry is made to determine the identity of the creditor the only thing anyone gets is some gibberish about the documents PLUS the assertion that the information is private, proprietary and privileged.  The case in the above link is from an court of appeals in New York. But it could have profound persuasive effect on all foreclosure litigation.

Reciting the tension between liberal discovery and privilege, the court tackles the confusion in the lower courts. The court concludes that privilege is a very narrow shield in specific situations. It concludes that even the attorney-client privilege is a shield only between the client and the attorney and that adding a third party generally waives that privilege. The third party privilege is only extended in narrow circumstances where the parties are seeking a common goal. So in order to prevent the homeowner from getting the information on his alleged creditor, the foreclosing parties would need to show that there is a common goal between the creditor(s) and the debtor.

Their problem is that they can’t do that without showing, at least in camera, that the identity of the creditor is known and that somehow the beneficiaries of an empty trust have a common goal (hard to prove since the trust is empty contrary to the terms of the “investment”). Or, they might try to identify a creditor who is neither the trust nor the investors, which brings us back to perjury.

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When does the Three Years Start to Run? How the “CHAIN OF CLAIMS” is Pure Wind

Posted on August 31, 2015 by Neil Garfield

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I’m in trial mode so I just wanted to post some articles that I found interesting. My own opinion is exactly what is expressed in this article about when consummation has occurred. And that is a question of fact that is neither obvious nor a closed matter when the true creditor’s identity has never been revealed and continues to be withheld. The banks seem to want to say that the borrower has no right to learn the identity of his or her creditor, on the one hand, but that the court must assume that a valid contract exists — even without any evidence as to who the party is on the lender side.
The banks are using the argument that it is obvious that a loan from 2004 can’t possible be subject to rescission because of the three year limitations. Being obvious is not a legal theory or procedure. If they want to say that consummation occurred on a certain date then they need to prove it. The contract must be complete for the loan contract to be enforceable. That is black letter law. If I somehow trick you into signing a note and mortgage that does not create a loan contract — unless I loan you money. “it’s obvious” is no defense.
They must show not that it is obvious but that it is true. AND they can’t do that because their paperwork talks about transactions that never existed nor were consummated starting with origination and continuing up the so-called chain of claims.They will fight for the “obvious defense” simply because they don;t have a creditor and therefore they don’t have standing to even raise the issue, which is why they regularly blow the 20 day limitation on either complying with TILA statutes or vacating the rescission which is the equivalent of a court order because it is effective by operation of law according to TILA, Scalia, and everyone else.
On equitable tolling, I think that is a trap. Technically I think it ought to apply but it seems fairly clear to me that arguments about equitable tolling will probably result in decisions for the lender side. I think that is wrong. But it is reality. Concentrating on equitable tolling is going to be tough going.
But challenging whether the loan was ever consummated is much easier because ultimately the only defense they have is to show the actual transactions in which the money was loaned, who loaned it, who sold it, who bought it along with proof of payment. This challenge reflects one of the main purposes of national policy as set forth in Federal Truth In Lending Act.
What the author is saying and I agree with him is that we can stick with industry standards on when the consummation occurred and challenge whether consummation ever occurred. Either way the remedies are virtually identical. Either it is rescinded or never happened.
That is application of the same industry standards in lending as applied to borrowers — if a borrower goes into a bank and wants to borrow money based upon receivables, notes, mortgages or anything else, the prospective lender is going to want to confirm the existence or nonexistence of the receivables or loan or note and whether the borrower asserts any defenses. It is called estoppel information. If the same bank wouldn’t accept partial information, (like “business records”) from us applying for a loan why should we accept anything less from them in enforcing the loan? They set the rules. Let them live or die with the standards they invented.
I like this one from a California lawyer 4 years ago:

It seems fair to say that the Courts are not willing to find a contractual obligation exists under State Law until a true and actual lender is identified. “Pretender lenders” – as Neil Garfield calls them – and intermediary “originators” who make false representations to the effect that they are “lending money”and are your “lender” should not be sufficient to set the three year TILA rescission clock in motion.  Until the real Wall Street entity, or Wall Street Investor, or true source of the table funded loan is identified, the loan should not be deemed “consummated” under TILA and the three year right to rescind should remain open until such disclosure is made.  That is TRUTH IN LENDING WHICH IS THE WHOLE POINT OF TILA IN THE FIRST PLACE.

Filed under: foreclosure | Tagged: , , , , | 31 Comments »

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