ATTENTION LAWYERS: ARE SERVICER ADVANCES ARGUABLY A NOVATION

Where “servicer” advances to the trust beneficiaries are present, it explains the rush to foreclosure completely. It is not until the foreclosure is complete that the payor of the “servicer” advances can stop paying. Thus the obfuscation in the discovery process by servicers in foreclosure litigation is also completely explained. Further this would open the eyes of Judges to the fact that there may be other co-obligors that were involved (insurers, credit default swap counterparties etc.). Thus while the creditor is completely satisfied and has experienced no default, the servicer is claiming a default in order to protect the interest of the servicer and broker-dealer (investment bank). It is a lie. — Neil F Garfield, http://www.livinglies.me

This is not for layman. This is directed at lawyers. Any pro se litigant who tries doing something with this is likely to be jumping off a legal cliff so don’t do it without consultation with a lawyer. If you ARE a lawyer, you might find this very enlightening and helpful in developing a strategy to WIN rather than delay the “inevitable.”

I was thinking about this problem when the servicer advances are paid. Such advances are in an amount that satisfies the creditor. If the creditor is named as the real party in interest in a foreclosure, there is an inherent contradiction on the face of the situation. Someone other than the creditor is alleging a default when the creditor will tell you they are just fine — they have received all scheduled payments. Even though it is most likely that the money came from the broker-dealer I was thinking that this might be a novation or a failed attempt at novation.  A definition of novation is shown below. Here’s my thinking:

1.  the receipt of payment by the trust beneficiaries satisfies in full the payment they were to receive under the contract between them and the REMIC trust.

2.  if the foreclosure action is brought by the trust or the trust beneficiaries, directly or indirectly, they can’t say that they have actually experienced a default, since they have payment in full.

3. Some entity is initiating the foreclosure action and some representative capacity on behalf of of the trust or the trust beneficiaries as the creditor.  If the borrower has ceased making payments and no other payments are received by the trust or the trust beneficiaries relating to the subject loan then it is arguably true that the borrower has defaulted and the lender has experienced the default.

4.  But in those cases where the  borrower has ceased making payments but  full payment has been sent and accepted by the lender as identified in the foreclosure action, does not seem possible for a declaration of default by that lender to be valid or even true.

5. But it is equally true that the borrower has ceased making payments under an alleged contract, which the foreclosing party is alleging as a default relating to the lender that has been identified as such in the subject action.

6. In actuality the servicer advances have probably been paid by the broker-dealer out of a fund that  was permitted to be formed out of the investment dollars advanced by the investors for the purchase of the mortgage bonds. Presumably this fund would exist in a trust account maintained by the trustee for the asset-backed trust. In actuality it appears as though these funds were kept by the broker dealer. The prospectus specifically states that the investors can be repaid out of this fund which consists of the investment dollars advanced by the investors.
7. But these nonstop servicer advances are designated as payments by the servicer.

8.  And it is stated in the pooling and servicing agreement that the nonstop servicer advances may not be recovered from the servicer nor anyone else.

9.  That means that the money received by the trust beneficiaries is simply a payment of the obligation of the trust under the original agreement by which the trust beneficiaries advanced money as investors purchasing the mortgage bonds.

10. In other settings such payments would be in accordance with agreements in which subrogation of the payor occurs or in which the claim is purchased. Here we have a different problem. At no point here is the entire claim subject to any claim of subrogation or purchase. It is only the payments that have been made that is the subject of the dispute. That opens the door to potential claims of multiple creditors each of whom can show that they have attained the status of a creditor by virtue of actual value or consideration paid.

11.  But regardless of who makes payments to the trust beneficiaries or why they made such payments, the trust beneficiaries are under no obligation to return the payments. Hence the trust beneficiaries have experienced no default and the alleged mortgage bond avoids the declaration of a credit event that would decrease the value of the bond. That keeps the investors happy and the broker dealer out of hot water (note the hundreds of claims totaling around $200 billion thus far in settlements because the broker dealer didn’t do many of the things they were supposed to do to protect the investors). NOTE ALSO: The payment and acceptance of the regularly scheduled payments to the trust beneficiaries would cure any default in all events.

12.  But the entity that has initiated the foreclosure action is still going to argue that the borrower has breached the terms of the note and has failed to make the regularly scheduled payments and that therefore the borrower is in default. But they cannot say that the borrower defaulted in its obligation to the creditor since the creditor is already satisfied.

13. Even where we have successfully established that the origination of the loan occurred with the funds of the investor and not the named payee on the note or the named mortgagee on the mortgage, a debt still exists to the investors for the amount that is not paid by anyone. This debt would arise by operation of law since the borrower accepted the money and the investor lenders are the source of that money.

14. So the first issue that arises out of this complex series of transactions and a complex chain of documents (that appear to reflect transactions that never occurred), is whether the creator of this scheme unintentionally opened the door to allow a borrower to stop making payments and require the servicer or broker-dealer to continue making nonstop servicer advances the satisfying the obligation to the so-called secured creditor alleged in the initiation of the foreclosure action. If the obligation is indefinite as to duration, this might have a substantial impact on the amount due, the amount demanded and whether the original notice of default was fatally defective in stating the amount required for reinstatement and even claiming the default.

15.  I therefore come to the second issue which is that in such cases a second obligation arises when the first one has been satisfied by the payment from a third-party. The second obligation is clearly not secured unless a partial assignment of the mortgage and note has been executed and recorded to protect the servicer or broker-dealer or whoever made the payments to the trust beneficiaries under the nonstop servicer advances. This clearly did not occur. And if it did occur it would be void under the terms of the trust instrument, i.e., the pooling and servicing agreement.

16.  The only lawsuits I can imagine filed by the party who made such payments to the trust beneficiaries are causes of action against the homeowner (not to be called a “borrower” anymore) for contribution or unjust enrichment. And as I say, there could be no claims that the debt is secured since the security instrument is pledged to the trust beneficiaries and executed in favor of a third party that is different from the party that made the nonstop servicer advances to the trust beneficiaries.

17.  I am therefore wondering whether or not novation should be alleged in order to highlight the fact that the second obligation has been created. Some sort of equitable novation would also allow the Judge to satisfy himself or herself that he or she is not encouraging people to borrow money and not pay it back while at the same time punishing those who created the mad scheme and thus lost the rights set forth in the security agreement (mortgage, deed of trust etc.). Based on the definition below, it might be that the novation could not have occurred without the signature of the borrower. But  the argument in favor of characterizing the transactions as a novation might be helpful in highlighting the fact that with the undisputed creditors satisfied, that no default has occurred, and that any purported default has been waived or cured, and that we know that a new liability has been created by operation of law in favor of the party that made the payments.

18.  And that brings me to my last point. I would like to see what party it is that claims to have made the non-stop servicer payments. If the payments came from a reserve pool created out of the investment dollars funded by the investors, it would be difficult to argue that the  borrower has become unjustly enriched at the expense of the broker-dealer. The circular logic created in the prospectus and pooling and servicing agreement would obviously not be construed against the borrower who was denied access to the information that would have disclosed the existence of these complex documents and complex transactions, despite federal and state law to the contrary. (TILA and RESPA, Reg Z etc.)

COMMENTS are invited.

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FROM WIKIPEDIA —

In contract law and business law, novation is the act of either:

  1. replacing an obligation to perform with a new obligation; or
  2. adding an obligation to perform; or
  3. replacing a party to an agreement with a new party.

In contrast to an assignment, which is valid so long as the obligee (person receiving the benefit of the bargain) is given notice, a novation is valid only with the consent of all parties to the original agreement: the obligee must consent to the replacement of the original obligor with the new obligor.[1] A contract transferred by the novation process transfers all duties and obligations from the original obligor to the new obligor.

For example, if there exists a contract where Dan will give a TV to Alex, and another contract where Alex will give a TV to Becky, then, it is possible to novate both contracts and replace them with a single contract wherein Dan agrees to give a TV to Becky. Contrary to assignment, novation requires the consent of all parties. Consideration is still required for the new contract, but it is usually assumed to be the discharge of the former contract.

Another classic example is where Company A enters a contract with Company B and a novation is included to ensure that if Company B sells, merges or transfers the core of their business to another company, the new company assumes the obligations and liabilities that Company B has with Company A under the contract. So in terms of the contract, a purchaser, merging party or transferee of Company B steps into the shoes of Company B with respect to its obligations to Company A. Alternatively, a “novation agreement” may be signed after the original contract[2] in the event of such a change. This is common in contracts with governmental entities; an example being under the United States Anti-Assignment Act, the governmental entity that originally issued the contract must agree to such a transfer or it is automatically invalid by law.

The criteria for novation comprise the obligee’s acceptance of the new obligor, the new obligor’s acceptance of the liability, and the old obligor’s acceptance of the new contract as full performance of the old contract. Novation is not a unilateral contract mechanism, hence allows room for negotiation on the new T&Cs under the new circumstances. Thus, ‘acceptance of the new contract as full performance of the old contract’ may be read in conjunction to the phenomenon of ‘mutual agreement of the T&Cs.[1]

Application in financial markets

Novation is also used in futures and options trading to describe a special situation where the central clearing house interposes itself between buyers and sellers as a legal counter party, i.e., the clearing house becomes buyer to every seller and vice versa. This obviates the need for ascertaining credit-worthiness of each counter party and the only credit risk that the participants face is the risk of the clearing house defaulting. In this context, novation is considered a form of risk management.

The term is also used in markets that lack a centralized clearing system, such as swap trading and certain over-the-counter (OTC) derivatives, where “novation” refers to the process where one party to a contract may assign its role to another, who is described as “stepping into” the contract. This is analogous to selling a futures contract.

The Mystery of Servicer Non Stop Advances

Since I entered the fray as the actual attorney for clients, we are getting down to the nitty gritty. Judges are surprised to learn that the foreclosure case in front of them was filed despite the payments actually received by the alleged creditor through third parties. In other words the case in front of them does not actually present a default from the creditor’s point of view even tough the borrower stopped paying.

The primary payment we are focusing on today is servicer advances which come in different flavors — non-stop, limited and none. Most loans (96%) are subject to claims of securitization regardless of what the current servicer or trustee is telling you. And most of those (my guess is around 75%-90%) come with third party obligors, which is why there is so much confusion. Besides servicer advances, the agents for the trust beneficiaries at the investment bank who sold them the bonds received on behalf of the bond holders, insurance payments and other funds from other contracts designed to limit the risk associated with the terms of the bond repayment of interest and principal.

When you do the math, you can easily see how the “lender” could be overpaid by a multiple that averages 3-5 times, even while the borrower is being pursued for yet another payment or else losing a home. The dirty little secret, the mystery behind these payments is that under common law and statutory law there are potential causes of action against the borrower for such payments, but the actual creditor on the loan has been fully satisfied.

Worse yet, those third parties have waived subrogation or any right of action against the borrower to prevent multiple parties from suing the same defendant on the same debt. The insurers are mad as hell. But the servicers are curiously silent — possibly because they are not really paying the servicer advances which are instead coming from the pool of funds held by the investment banker from the original investment of the trust beneficiaries and the receipt of insurance, credit default swaps, guarantors and even sales to the Federal Reserve.

The lender (Trust beneficiaries) have agreed to lend money on the basis of interest only payments at a particular rate that rarely coincides with any of the loans alleged to be in the pool. Since they were sold the bonds first before the loan was made (see “selling forward”), you can assume fairly safely that the actual lender is the trust or trust beneficiaries, regardless of what was put on the loan documents — which is why I say that none of the loan documents are valid enforceable documents and why the investors have sued the real culprits (investment banks) stating the exact same thing.

In one case I have currently pending in Dade County, Florida, US Bank is putting itself through a ringer because servicer advances have been paid in full to the creditor that they acknowledge is the creditor. The Judge instantly recognized that this defeats the allegation of default, if the creditor has received and accepted payment. The attorney for US Bank allegedly as trustee for the trust beneficiaries is pursuing a strategy of getting the assignment of rents enforced. The statutory requirement is that there be a written demand for rents, which nobody ever made. And it turns out that the Trustee was unwilling to go on record demanding assignment of rents because the beneficiaries were paid in full exactly as set forth in the prospectus and pooling and servicing agreement. A call to the servicer confirmed they were not interested in the rents, but curiously, despite PSA restrictions to the contrary, the new “Trustee” US BANK is pursuing the foreclosure.

The Judge, who wants more proof of the advances which we are only too happy to provide, instantly recognized that if the trust beneficiaries were receiving their expected payment, then there can be no default on the principal, which is prerequisite to BOTH foreclosure and the assignment of rents. In this case there were 52 payments received and accepted by the trust beneficiaries after the alleged borrower default. We were able to get this information through drilling down to loan level accounting in our title and securitization reports. If there is money owed it is not owed to the plaintiff in foreclosure and it is not secured by a mortgage. see http://www.livingliesstore.com

We have since done the reports on other properties owned by the same client and found out that the same pattern holds true. In the one case we have already argued, more than $70,000 has been received by the trust beneficiaries from servicer non stop advances. Payment is the ultimate defense for an action to recover money. The fun part comes when the Judge starts asking why these payments were not disclosed by the attorney or his client.

There are other sources of third party payments from co-obligors at the inception of the loan. The mystery comes from the fact that the homeowner who signs loan papers has no idea, because it was never disclosed to him/her/them that the lender is not the payee on the note, not the mortgagee on the mortgage, not the beneficiary on the trust deed, but rather the trust beneficiaries who own bonds issued from the REMIC trust (which as I have already reported was never actually funded and never actually received title to the loan).

In other words, the lender has agreed to one set of terms that were never disclosed to the borrower in violation of the truth in lending act, and the borrower has agreed to an entirely different deal — which means that there is no “meeting of the minds.” Both the lender and borrower wanted a completed contract that would be enforceable and where title was clear, but neither of them got it. The solution is to get rid of the servicer and get rid of the investment banker, get an accounting of all funds, repay the investors and work out a reasonable deal with borrowers, most of whom would be willing to sign a mortgage that was enforceable based upon economic reality.

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