The Truth about US Bank

Lawyers and pro se litigants continue to ignore the basics when mounting a challenge to foreclosures in which US Bank is asserted to be a trustee of a name that is then treated as though it was trust or REMIC Trust. If you look closely, the name is word salad, containing references or names to several named entities and other categories of entities.
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 A typical presentation asserts no presence of US Bank in its individual capacity, so the institutional implication is false. It is appearing strictly in a representative capacity and an court award of costs against the “claimant” would not, according to US Bank, attach liability to US Bank but to rather whoever was being represented by US Bank “as trustee.” On that we have word salad presenting many options such as
  1. US Bank, as trustee
  2. as successor to Bank of America, as trustee
  3. as successor by merger to LaSalle Bank, as trustee
  4. for the holders of certificates entitled
  5. XYZ Corp.
  6. Mortgage pass through Certificates series 200x-a1

If anyone can tell me  from that description who would be liable for costs I applaud them. But I can tell you who would pay the costs regardless of actual legal liability. It would be a company claiming to be an authorized servicer who in fact is getting the money from the investment bank through conduits.

The issue of what if anything was transferred between LaSalle Bank and Bank of AMerica and thus what if anything was transferred between Bank of America and US Bank has actually not been litigated.

My answer is that LaSalle Bank had no duties as trustee, was subjected to the impact of three mergers — ABN AMRO, Citi and Bank of America — and that a trustee only exists for a legally existing trust in which the subject matter (Loan) was entrusted to the trustee for administration of the active affairs of the “trust.” With none of those elements present, nothing could have been transferred.

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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As to U.S. Bank, Deutsch, BONY etc. there are two categories that must be considered. If US Bank is named in a Pooling and Servicing agreement then the reasons for its non existence (or more specifically lack of legal presence in court or any other foreclosure proceeding) in fact and at law remain as previously stated in prior articles —- but exclude one central issue that has not been litigated.
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If US Bank has been asserted as successor to another alleged trustee then all sorts of other issues pop up. The main one that has not been litigated is whether the position of trustee can be transferred or sold like a commodity without consent of the beneficiaries or some other authorized party.
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In truth the only real “beneficiary” would be the investment bank — if only the trust legally existed. And in truth the investment bank indemnified US Bank from liability in exchange for the use of the US Bank name to create the illusion of institutional involvement.
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And in truth the only real party in interest is the investment bank, and if the trust actually existed the investment bank would be the only real beneficiary in an arrangement in which the trust name is used as a shield or sham conduit to hold bare naked legal title to paper that fabricates the illusion of debt ownership, much like MERS.
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And of course the whole use of the term “successor” is constantly used to distract lawyers, judges and homeowners from the fact that the previous party had no interest or right to administer, own, or enforce the subject debt, note or mortgage — unless they are able to produce authorization from the investment bank.
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But the investment banks have been loath to even hint that they could or would issues such authorization because that would be an admission that they were or are the real party in interest — an admission which probably would subject them to many levels of liability for fraud and statutory violations.
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It may well be that the pursuit of court costs and discovery available to do that might be the achilles heel of this house of imaginary cards. It would reveal the absence of any party to pay them, which would reveal the absence of a claimant, which would reveal the absence of a claim which would reveal the absence of a client, which would reveal false representations by the foreclosure mill.

Right in Front of Our Eyes: Black Knight and U.S. Bank

Anyone who knows about foreclosure litigation and securitization of residential debt knows that the only way the banks could succeed is if they had a central repository and central command center from which all documents were fabricated and all instructions were issued.

For nearly all loans the central command was Lender Processing Systems, aided by DOCX. While DOCX is technically defunct and Loraine Brown went to jail taking one for the team, the functions of LPS remained the same.

LPS  changed its name to Black Knight and in a PR coup transformed itself into the publisher of what is largely viewed as comprehensive data on mortgage lending and foreclosures.

Hence it went from the purveyor of false, fraudulent, forged documentation to the purveyor of data perceived as reliable and thence became a trusted source whose data is considered worthy of legal presumptions.

Systems at LPS/Black Knight include data processing on virtually all residential loans subject to claims of securitization many of which are represented by data on the MERS  Platform which is a workaround to hide separate split transfers of the debt, the note and the mortgage or deed of trust.

The systems on LPS/Black Knight are designed for the the express purpose of presenting consistent data in foreclosure claims. As such it also enables the rotation of apparent servicers, none of whom perform bookkeeping functions even if some of them interact with borrowers as if they were actually the servicers.

The rotation of servicers comes with the false representation and illusion of boarding in which the process is falsely represented as meaning that the new servicer inspected, audited, reviewed and input the data into their own system. None of that occurred. Instead the new servicer merely gained access to the same LPS system as the last servicer with a new login and password.

All evidence shows that the functions for fabricated, forging and robosigning documents continue to be performed under the direction of LPS/Black Knight which receives all instructions from various investment banks who have each started their own securitization scheme masking apparent trades in the secondary market for loans and trades in the shadow banking market where “private contracts” are regularly traded without any securities regulation.

Far from dropping their connection with LPS/DOCX the major banks have completely embraced this central repository of all loan data, all of which is subject to manual and algorithmic manipulation to suit the needs of the banks; thus they produce a report that creates the illusion of credibility, reliability and even independence even though none of those things are true.

So now U.S. Bank is further embracing LPS/Black Knight technology in the form of “Empower” for loan originations. U.S. bank is of course the major player whose name is used in foreclosures despite the fact that it has no interest in the loans and does not receive one cent from foreclosure sales of property. It merely receives a royalty for the use of its name as part of a fictitious name of a nonexistent trust which is falsely represented to have engaged in a transaction in which the trust acquired the debt, note and mortgage on multiple loans.

This deal furthers the PR myth. It strengthens Black Knight as having the attributes of a legitimate player when in fact it is a central figure in the greatest economic crime in human history.

see https://www.prnewswire.com/news-releases/us-bank-expands-relationship-with-black-knight-to-correspondent-and-hfa-lending-channels-on-empower-loan-origination-system-300859760.html

US Bank will implement the Empower LOS to manage loans purchased via its correspondent and HFA lending channels. The bank already uses Black Knight’s MSP servicing solution which integrates with the LOS; and its artificial intelligent virtual assistant AIVA.

“Aligning with Black Knight’s Empower for our Correspondent and HFA business serves our forward-looking vision of providing innovative capabilities that advance the lending process and provide a better client experience,” said Tom Wind, executive vice president, US Bank. “Expanding our enterprise relationship with Black Knight allows us to enhance our digital capabilities and customer experience throughout the entire homeownership cycle.”

 

If you think foreclosures are a thing of the past, think again

In order to maintain the illusion of legality and an orderly marketplace the banks and their servicers must continue to push foreclosures even if it means going after people who are not actually withholding payments. The legacy of the mortgage meltdown and the brainless government policies that let the banks get away with what they had done, is that the crime not only continues but is being repeated with each new claimed securitization or “resecuritization” of residential loans.

As I predicted in 2006, the  tidal wave of foreclosures was in fact unprecedented, underestimated and continues to this day. With a starting point of around 2002, foreclosures attributed to the mortgage meltdown have continued unabated for 17 years. I said it would 20-30 years and I am sticking with that, although new evidence suggests it will go on much longer. So far more than 40 million people have been displaced from their homes and their lives.

Google Buffalo and New Jersey, for example and see whether they think foreclosures are a thing of the past. They don’t. And the people in Buffalo are echoing sentiments across the nation where the economy seems better, unemployment is down, wages are supposedly increasing but foreclosures are also increasing.

And let’s not forget that back in the early and mid 2000’s foreclosures did not mention trustees or trusts. In fact when the subject was raised by homeowners it was vehemently denied in courts cross the country. The denials were that the trusts even existed. This was not from some homeowner or local lawyer. This was from the banks and their attorneys. It turns out they were telling the truth then.

The trusts didn’t exist and there were no trustees. But in the upside down world of foreclosure here we are with most foreclosures filed in the name of a nonexistent implied trust on behalf of a “trustee” with no trustee powers, obligations or duties to administer any assets much less loans in foreclosure.

In order to understand this you must throw out any ideas of a rational market driven by fundamental economics and accept the fact that the banks  and their servicers continue to be engaged in the largest economic crime in human history. Their objective is foreclosure because that accomplishes two goals: first, it rubber stamps prior illegal practices and theft of borrowers’ identities for purposes of trading profits and second, it gives them a free house and free money.

If they lose a foreclosure case nobody suffers a financial loss. If they win, which they do most of the time (except where homeowners aggressively defend) they get a free house and the proceeds of sale are distributed to the players who are laughing, pardon the pun, all the way to the bank. Investors get ZERO.

As for modifications, look closely. The creditor is being changed along with the principal interest and payments. It might just be a new loan, except for the fact the new “lender” is a servicer like Ocwen who has not advanced any money for the purchase or acquisition the loan. But that’s OK because neither did the lender or the claimant. Modification is a PR stunt to make it look like the banks are doing something for borrowers when in fact they are stealing or reassigning the loan to a totally different party from anyone who previously appeared in the chain of title.

Modification allows the banks to claim that the loan is performing — thus maintaining the false foundation supporting trades and profits amounting to dozens of times the amount of the loan. Watch what happens when you ask for acknowledgement from the named Plaintiff in judicial states or the named beneficiary in nonjudicial states. You won’t get it. If US Bank was really a trustee then acknowledging a settlement on its behalf would not be a problem. As it stands, that is off the table.

The mega banks, with unlimited deep pockets derived from their massive economic crimes, began a campaign of whack-a-mole to create the impression that foreclosures were on the decline and the crisis is over. Their complex plan involves decreasing the number of filed foreclosures where the numbers are climbing and increasing the filed foreclosures where they have allowed the numbers to sink. Add that to their planted articles in Newspapers and Magazines around the country and it all adds up to the impression that foreclosures derived from claimed securitized loans are declining.

Not so fast. There were over 600,000 reported foreclosures last year and the numbers are rising this year. Most of them involve false claims of securitization where the named claimant is simply appointed to pretend to be the injured party. It isn’t and in many cases a close look at the “name” of the claimant reveals that no legal person or entity is actually named.

US Bank is often named but not really present. It says it is not appearing on its own behalf but as Trustee. The trust is not specifically named but is implied without the custom and practice of naming the jurisdiction in which the trust was organized or the jurisdiction in which it maintains a business. That’s because there is no trust and there is no business and US Bank owns no debt, note or mortgage in any capacity. The certificates are held by investors who acknowledge that they have no right, title or interest in the debt, note or mortgage. So who is the claimant? Close inspection reveals that nobody is named.

In fact, those foreclosures proceed often without contest because homeowners mistakenly believe they are in default. In equity, if the facts were allowed in as evidence, the homeowner would be entitled to a share of the bounty that was a windfall to the investment bank and its affiliates by trading on the borrower’s signature. A “free house” only partially compensates the homeowner for the illegal noncensual trading on his name with the intent of screwing him/her later.

Upon liquidation of the property the proceeds of sale are deposited not by an owner of the debt, but by one of the players who just added insult to injury to both the borrower and the original investors who paid real money but failed to get an interest in the fabricated closing documents — i.e., the note and mortgage.

The Banks have succeeded in getting everyone to think about how unfair it is that homeowners would even think of pursuing a “free house”. By doing that they distract from the fact that the homeowners and the investors who put up the origination or acquisition money are both excluded from the huge profits generated by trading on the signature of borrowers and the money of investors who do not get to share in the bounty, which is often 20-40 times the amount of the loan.

The courts don’t want to hear about esoteric arguments about the securitization process. Judges assume that somewhere in the complex moving parts of the securitization scheme there is an owner of the debt who will get compensated as a result of the homeowner’s refusal or failure to make monthly payments of interest and principal. That assumption is untrue.

This is revealed when the money from the sale of property is traced. If you trace the check you will be mislead. Regardless of where the check is mailed, the check is actually cashed by a servicer who deposits it to the account of an investment bank who has already received many times the amount of the loan principal. That money is neither credited to the account of the borrower nor reported, much less distributed to investors who bought certificates (wrongly named “mortgage bonds”).

Neither the investors who bought the original uncertificated certificates nor the investors who purchased contracts based upon the apparent value of the certificates ever see a penny of the proceeds of a foreclosure sale.

In order to maintain the illusion of legality and an orderly marketplace the banks and their servicers must continue to push foreclosures even if it means going after people who are not actually withholding payments. The legacy of the mortgage meltdown and the brainless government policies that let the banks get away with what they had done, is that the crime not only continues but is being repeated with each new claimed securitization or “resecuritization” of residential loans.

When the economy contracts, as it always does, the number of foreclosures will shoot up like a thermometer held over a steam radiator. And instead of actually looking for facts people will presume them. And that will lead to more tragedy and more inequality of income, wealth and opportunity in a country that should be all about a level playing field. This is not the marketplace doing its work. It is the perversion of the marketplace caused by outsized and unchecked power of the banks.

My solution is predicated on the idea that everyone is to blame for this. Everyone involved should share in losses and gains from this illicit scheme. Foreclosures should come to a virtual halt. Current servicers should be barred from any connection with these loan accounts. Risk and loss should be shared based upon an equitable formula. And securitization should be allowed to continue as long as securitization is actually happening — so long as the investors and borrowers are aware that they are the only two principals on opposite sides of a complex transaction in which trading profits are likely as part of the disclosed compensation of the intermediaries in the loans originated or acquired.

Disclosure allows the borrowers and the investors to bargain for better deals — to share in the bounty. And if there is no such bounty with full disclosure it will then be because market forces have decided that there should not be any such rewards.

Unworthy Trusts

The simple fact is that the REMIC trusts do not exist in the real world. The parties named as trustees — e.g. US Bank, Deutsch, BONY/Mellon — are trust names that are used by permission through what is essentially a royalty agreement. If you are dealing with a trust then you are dealing with a ghost.

Discovery is the way to reveal the absence of any knowledge, activity or reports ever conducted, issued or published by the named Trustee on behalf of the “trust” or the alleged “beneficiaries.” Take deposition of officers of the named Trustee. Your opposition will try to insert a representative of the servicer. Don’t accept that.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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For purposes of clarity I am using US Bank as an example. It is the most common.
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US Bank has NO information about the trust, the servicer or the account for the borrower. Thus the purpose of any deposition of any officer of US Bank should be solely to establish the absence of events and data that should otherwise be present.
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This is why as counsel for the lender, lawyers will not recommend going forward with the refinancing. Your opposition is asking you to accept their word for the “fact” that they represent a creditor who is entitled to payment not just because there is paperwork indicating that, but because they are really owed the money.
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Knowing the truth is a basis for establishing gaps and revealing it to the trier of fact but should NOT be a basis of making allegations that you will be required to prove. It’s a thin line and the lawyer needs to be aware of this division, or else you will end up with a burden of proof you cannot sustain and unanswered questions that prevent the closing of refinancing — unless the “source” of refinancing is from another player in the world of securitization.
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The fact that securitization players would accept the paperwork is only testament to the willingness of all securitization players to engage in such conduct as to maintain an illusion of legitimacy. Other lenders rely on such conduct at their peril. Other lenders do not receive the reward from multiple resales of the same debt.
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So in your inquiries to officers of US Bank you want to establish the following, in order to force the true creditor to come forward (if there is one):
    1. US Bank has no duties normally attributed to a trustee.
    2. The “US Bank” name is basically a royalty arrangement in which the name can be used but there is no further substance to its “role” as trustee.
    3. There is no bank account established or maintained by US Bank for the alleged Trust.
    4. US Bank has never received any money through any means in connection with the subject debt. The borrower’s payments to the servicer have never been received by US Bank on its own behalf, as conduit or as trustee for any trust.
    5. In prior foreclosures involving the same trust, US Bank did not receive the proceeds of the foreclosure sale.
    6. US Bank has no reason to expect that it would receive the proceeds of a foreclosure sale involving the subject debt.
    7. US Bank has no mechanism in place where the payment of money to satisfy the claimed debt would be actually deposited into a bank account for the trust that is controlled by US Bank.
    8. The beneficiaries of the trust do not receive any money from borrower payments, foreclosure sales, or prepayments, refinancing or any other monetary transactions. US Bank probably does not know if this is true or not. US Bank has nothing to do with what, if anything, the “beneficiaries” of the “trust” receive or don’t receive.
    9. US bank has no information regarding the identity of the beneficiaries of the “trust.”
    10. US Bank has no information regarding whether any party is a beneficiary of the “trust”.
    11. US Bank has no information regarding the existence of the trust other than the documents forwarded to it for purposes of the deposition.
    12. US Bank does not keep or maintain accounting records pertaining to the trust.
    13. US Bank does not keep or maintain any records or documents pertaining to the trust.
    14. US Bank does not issue reports to anyone regarding the trust or the subject debt, note or mortgage.
    15. US Bank does not include information relative to the business activity of the “trust” or the subject debt, note or mortgage in any report to any regulatory authority, Federal or State.
    16. Except for fee income, US Bank does not include information relative to the business activity of the “trust” or the subject debt, note or mortgage in any financial report published to the public or to any regulatory authority, Federal or State.
    17. There is no “trust officer” appointed by US Bank to actively manage the affairs of the “trust.”There is no “trust officer” appointed by US Bank to actively manage the affairs of the subject debt.
    18. US Bank neither accepts nor gives any instructions to anyone regarding the affairs of the “trust.”
    19. US Bank neither accepts not gives any instructions to anyone regarding the subject debt, note or mortgage.
    20. US Bank has no power to either accept or give instructions regarding the trust or the subject debt.


Keep in mind that there are experts who believe that the debt no longer exists, and that you are dealing with the ghost of a creditor and the ghost of a debt. This is because the debt was resold multiple times and redistributed to multiple parties (new investors) under the guise of different instruments in which the value of the instrument was ultimately derived not from the debt, in actuality, but from the marketplace where such isntruments are traded. This is an ornate interpretation that has the ring of truth when you examine what the banks did, but this theory will not likely be accepted by any court.

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That theory explains why when appellate and trial courts asked the direct question of whether the creditor can be identified the answer was no. The response was that the courts stopped asking.
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But the issue at hand is whether, pursuant to state law governing foreclosures, a creditor is before the court possessing a valid claim to collect on a debt. If there is, then that creditor is entitled to payment. If there is not, then the claimed “creditor” is not entitled to either payment or foreclosure. 

Stop Referring to Defaults as Something Real

Referring to the default as real, but with an explanation of how it is subject to rationalization or argument, completely undermines your argument that they have no  right to be in court, to collect, to issue notices or initiate foreclosure. 

…when you refer to the default, you should refer to it as a false claim of default because at no time was Deutsch or any trust or any group of investors ever receiving payments from you as borrower. Nor did they have any contractual right to expect such payments from you as borrower. So Deutsch didn’t suffer any default and neither did the investors who own certificates that are not ownership interests in the debt, note or mortgage. And Deutsch won’t get any proceeds if the property is subjected to a foreclosure sale.

Questions to the servicer about how, when and where they made payments to Deutsch, or Deutsch as Trustee, or any trust, or any group of investors holding certificates will reveal their absence from the money trail. No such payments exist nor will they ever exist.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================
I take issue with the practice of referring to “the default.” When someone refuses or stops paying another person that does not automatically mean that a default exists. A default only exists if the the payment was due to a specifically identified party and they didn’t get it. Failure to pay a servicer is not a default. Failure to pay a servicer who is sending your payments to a creditor IS a default.
Since the fundamental defense for borrowers that wins cases is that the claimant has no right to be in court, it seems wrong to refer to”the default.” It should be “the claimed default.”
If your refusal to make payment was in fact a default as to Deutsch as Trustee of a real trust or as authorized representative of the certificate holders (they never make that clear), then all of your arguments come off as technical arguments to get out of a legitimate debt. You will lose.
On the other hand if your position (i.e., your denial and affirmative defenses) is that Deutsch is not a party on its own behalf and that it is being named by attorneys as being in a representative capacity for (a) a trust that does not exist or (b) for holder of certificates that do not convey title to the debt, note or mortgage and are specifically disclaimed, then you have a coherent narrative for your defense.
And if you further that argument by asserting that Deutsch has never received any payments and does not receive the proceeds of foreclosure on its own behalf nor as trustee for any trust or group of investors and will not receive those proceeds in this case then you push the knife in deeper.
So if Deutsch is not appearing on its own behalf and the parties that the lawyers say it is representing either don’t exist or are not identified, then the action is actually being filed in the name of Deutsch but for and on behalf of some other unidentified party who may or may not have any right to payment.
What is certain is that Deutsch is being represented as the owner of the loan when it is not.  The owner of a loan receives payments. Deutsch never receives payment from anyone and the investors never receive payment from the borrowers. If they did the servicer would have records of that. 
So when you refer to the default, you should refer to it as a false claim of default because at no time was Deutsch or any trust or any group of investors ever receiving payments from the homeowner as borrower. Nor did they have any contractual right to expect such payments from you as borrower. So Deutsch didn’t suffer any default and neither did the investors who own certificates that are not ownership interests in the debt, note or mortgage. And Deutsch won’t get any proceeds if the property is subjected to a foreclosure sale. 
If Deutsch didn’t suffer any default it could not legally declare one. If the declaration of default was void, then there is no default declared. In fact, there is no default until a  creditor steps forward and says I own the debt that I paid for and I suffered a default here. But there is no such party/creditor because the investment bank who funded the origination or acquisition of the loan has long since sold its interest in the loan multiple times.
Thus when lawyers or as servicer or both sent notices of delinquency or default they did so knowing that the party on whose behalf they said they were sending those notices had not suffered any delinquency or default.
When homeowners refer to the default as real, but with an explanation of how it is subject to rationalization or argument, they completely undermine their argument that they have no  right to be in court, to collect, to issue notices or initiate foreclosure. 
And remember that the sole reason for foreclosures in which REMIC claims are present is not repayment, because that has occurred already. The sole reason is to maintain the illusion of securitization which is the cover for a PONZI scheme. The banks are seeking to protect “profits” they already have collected not to obtain repayment. That is why a “Master Servicer” is allowed to collect the proceeds of a foreclosure sale rather than anyone owning the debt.
Also remember that while it might be that investors could be construed as beneficiaries of a trust, if it existed, they actually are merely holders of uncertificated certificates in which they disclaim any interest in the debt, note or mortgage.  Hence  they have no claim, direct or indirect, against any individual borrower. 

PRACTICE NOTE: Don’t assert anything you cannot prove. Leave the burden of proof on the lawyers who have named an alleged claimant who they say or imply possesses a claim. Deny everything and force them to prove everything. Discovery should be aimed at revealing the gaps not facts that will prove some assertion about securitization in general. Judges don’t want to hear that.
Appropriate questions to ask in one form or another are as follows:
  1. Who is the Claimant/Plaintiff/Beneficiary?
  2. Who will receive the proceeds of foreclosure sale?
  3. Before the default, who received the proceeds of payment from the subject borrower? [They will  fight this tooth and nail]
  4. Did the trustee ever receive payments from the borrower?
  5. Does the trustee in this alleged trust have any contractual right to receive borrower payments?
  6. Do holders of certificates receive payments from the borrower through a servicer?

What Works and What Doesn’t

us-bank-na-v-mattos-sup-ct-hi-no-scwc-14-0001134-jun-6-2017

Note that the courts try to calls balls and strikes not decide, at least on appeal, who should win and then give an opinion that fits. It doesn’t always work that way but many courts do follow that simple rule of blind justice.

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WORKS: Objection to qualified witness status, no records from the actual claimant, failure to establish entitlement to enforce before foreclosure was started.

We address the third issue on certiorari first. We hold that the ICA erred by concluding the declaration of Richard Work (“Work”), the Contract Management Coordinator of Ocwen Loan Servicing, LLC (“Ocwen”), rendered him a “qualified witness” under State v. Fitzwater, 122 Hawai􏰀i 354, 227 P.3d 520 (2010)

for U.S. Bank’s records under the Hawai‘i Rules of Evidence (“HRE”) Rule 803(b)(6) hearsay exception for records of regularly conducted activity. In addition, U.S. Bank failed to establish that it was a holder entitled to enforce the note at the time the foreclosure complaint was filed. See Bank of America, N.A. v. Reyes-Toledo, 139 Hawai􏰀i 361, 370-71, 390 P.3d 1248, 1257-58 (2017).

DOESN’T WORK: “Robosigning” assertion without proof that attacks the foundation of the document, BUT:

With respect to the first issue on certiorari, because it
is unclear what Defendants mean by “robo-signing” and because a
ruling on the legal effect of “robo-signing” is not necessary to

conclusory assertions that fail to offer factual allegations or a legal theory indicating how alleged “robo- signing” caused harm to a mortgagee are insufficient to establish a defense in a foreclosure action. Addressing the factual allegations underlying the “robo-signing” claim, however, we conclude there is a genuine issue of material fact as to whether Ocwen had the authority to sign the second assignment of mortgage to U.S. Bank. (e.s.)

BEST PRACTICES. Objections must be made timely and with some specificity. You should also be prepared to argue why the objections apply. Payment records will come in evidence not only of the record of payments but also as to anything else shown on the records. Objection to such records, once they have already been introduced or even accepted into evidence, is basically futile, although they could conceivably be later undermined and even potentially struck from the record on cross examination.

If you have a pretrial court order that requires disclosure of all exhibits and expressly states that the parties must state their objections to the proposed exhibits, you must file a notice of such objections. It is wise to state as many grounds as possible for the objection and cite to specific rules of evidence in your jurisdiction.

This is not a legal opinion. Get a lawyer before you act on anything contained in this article.

Tonight! DISAPPEARING LEGAL PRESUMPTIONS on the Neil Garfield Show 6PM EDT With Charles Marshall, Esq. and Bill Paatalo

Just the Facts, Ma’am!

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Charles Marshall, California attorney and Bill Paatalo, private investigator, discuss the implications of two Hawaii cases that are mirroring other decisions across the country.

Hawaii Schranz Case

Hawaii St. John Case

The above links go to two recent Hawaii cases dealing with legal standing. The fundamental fact of law is that standing must be ACTUAL NOT PRESUMED.

Specifically the issue is whether the foreclosing party actually had the original note at the time the foreclosure was commenced. Reasserting that standing is jurisdictional and therefore must be proven (with actual facts) present before a party takes any action, the courts here reversed (not for publication) Summary Judgments in favor of U.S. Bank and BONY Melon respectively.

The basis of the ruling is really that summary judgment could not have been granted based upon the submissions of so-called trustees of the probably nonexistent trust that never owned the debts. These decisions can be read as brushing aside presumptions and requiring actual proof of the facts that were heretofore assumed or presumed. The reason is simple. Standing is jurisdictional. Since any case that proceeds without jurisdictional is void and subject to being vacated, the proof must be actual and not presumed.

The interesting reasoning in these decisions is that many courts, including these decisions in Hawaii are starting to rethink their formal and informal presumptions. At the height of the tidal wave of foreclosures the courts took to the notion that the foreclosing party would not have filed if they were not the creditor or at least the possessor of the note with rights to enforce. The giant leap that came thereafter was a ruling that presumed the foreclosing party had possession of the note and the right to enforce it.

These decisions show that there is more movement toward requiring proof rather than the sue of legal presumptions. In plain language the courts are beginning to distrust the banks who bring these actions on behalf of alleged trusts.

Since there was question of fact, the summary judgment could not be granted. Thus the court decisions lay out the procedure, requiring actual proof of contested facts rather than resolving them strictly on the basis of applying legal presumptions which we all know leads to erroneous factual and legal conclusions.

NY Monroe Case: Default entered against homeowner — CASE DISMISSED on Standing — US Bank Never refiled.

multiple choice robo-pleading

NO PLEADING: HOMEOWNER WON ANYWAY

I have held off on discussing this case until some time passed. As far as I now know US Bank, like several cases I won, has not refiled for foreclosure. There is a good reason for that. US Bank is not the Plaintiff. The Plaintiff is named as a REMIC Trust, for which the attorneys claim that US Bank is the Trustee.

As such the Plaintiff does not own nor have any interest in the loan either as owner or servicer. Hence the named trustee (U.S. Bank) is named but it has nothing to do since the trust is nonexistent and in all events no attempt has ever been made to entrust the subject mortgage into the fiduciary hands of U.S Bank.

And THAT is because the only party with an equitable interest in the debt is a group of investors whose money was used to fund the origination or acquisition of the loan. The investors meanwhile think that their money was placed in trust and then used to purchase, not originate, loans.

Every once in a while a wily judge catches on from the face of the documentation. This judge ruled against US Bank as Trustee for a named REMIC Trust because he didn’t believe US Bank or the Trust was actually related to the subject loan. He gave them a chance to correct their pleading, but apparently out of fear of perjury, the lawyers for the nonexistent trust backed off, apparently permanently.

Let us help you plan your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

===========================

see Memorandum and Order – USBank Trust NA as Trustee for LSF9 MPT v Monroe

Quoting from the complaint field by lawyers for their supposed client, a nonexistent trust with a completely denuded trustee, the court includes their own allegation in its ruling:

2 (“Plaintiff is the owner and holder of the subject Note and Mortgage or has been delegated authority to institute this Mortgage foreclosure action by the owner and holder of the subject Note and Mortgage.”);

What does that even mean? This is a perfect example of multiple choice robo-pleading. Either the Plaintiff is the owner and holder of the subject note or mortgage or they are not. If they own the debt,  they don’t say as much and certainly didn’t offer any proof at their uncontested hearing on damages. It’s pretty hard to lose an uncontested hearing but US Bank has done it multiple times, as reported in this case.

If they have been delegated authority by the owner and holder of the subject note and mortgage, they fail to say who delegated that authority and how the delegation occurred. Since the express purpose of the trust was to own the debt, note and mortgage and make payments to investors based upon the trust’s ownership of the debt, note and mortgage, Demoting the trust to the status of a conduit or agent would be completely adverse to the express wording and authority granted in the trust.

Actually that kind of wording is exactly what enables the players to claim interest in notes and mortgages adverse to the interests of the parties whose money was directly used to fund the origination and acquisition of loans.

 

Here are some revealing quotes from the District Judge:

The Complaint does not contain any details concerning U.S. Bank’s role as trustee or the powers it has over the trust property (including the mortgage here). (e.s.)

The party asserting subject matter jurisdiction carries the burden of proving its existence by a preponderance of the evidence. E.g., Makarova, 201 F.3d at 113; Augienello v. FDIC, 310 F. Supp. 2d 582, 587–88 (S.D.N.Y. 2004). This is true even on a motion for default judgment, since the principle that a default deems the well-pleaded allegations of the complaint to be admitted is inapplicable when a court doubts the existence of subject matter jurisdiction. Transatlantic Marine, 109 F.3d at 108.

2 While some of these issues were discussed elsewhere by U.S. Bank’s counsel, e.g., Dkt. No. 7, they were not included in the affidavit filed in support of default judgment.

“When a default is entered, the defendant is deemed to have admitted all of the well- pleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); accord, e.g., Bravado Int’l, 655 F. Supp. 2d at 190. “[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a basis for the damages that are sought.” United States v. Hill, No. 12-CV-1413, 2013 WL 474535, at *1 (N.D.N.Y. Feb. 7, 2013)

In the past year, U.S. Bank’s attorneys—Gross Polowy—have repeatedly failed to secure default judgments in similar foreclosure cases before this Court. E.g., U.S. Bank Tr., N.A. v. Dupre, No. 15-CV-558, 2016 WL 5107123 (N.D.N.Y. Sept. 20, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Moody, No. 16-CV-279, 2016 WL 4203514 (N.D.N.Y. Aug. 9, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Pignataro, No. 15-CV-1041, 2016 WL 3647876 (N.D.N.Y. July 1, 2016) (Kahn, J.); cf. Ditech Fin. LLC v. Sterly, No. 15-CV-1455, 2016 WL 7429439, at *4 (N.D.N.Y. Dec. 23, 2016) (denying a motion for default judgment due to a defective notice of pendency); OneWest Bank, N.A. v. Conklin, No. 14-CV-1249, 2015 WL 3646231, at *4 (N.D.N.Y. June 10, 2015) (same). In each case, Gross Polowy’s motion was denied for one of two reasons: either the complaint failed to sufficiently allege subject matter jurisdiction, e.g., Dupre, 2016 WL 5107123, at *2–5, or the motion for default judgment failed to meet the requirements of the Court’s Local Rules, e.g., Moody, 2016 WL 4203514, at *2. Here, both of these failures are present.

The Complaint also includes no allegations concerning U.S. Bank’s ability to proceed under its own citizenship, despite bringing this case on behalf of the “LSF9 Master Participation Trust.” Compl.

While U.S. Bank is the nominal plaintiff in this case, it is longstanding federal law that “court[s] must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980). “Where an agent acts on behalf of a principal, the principal, rather than the agent, has been held to be the real and substantial party to the controversy. As a result, it is the citizenship of the principal—not that of the agent—that controls for diversity purposes.” Hilton Hotels Corp. v. Damornay Antiques, Inc., No. 99-CV-4883, 1999 WL 959371, at *2 (S.D.N.Y. Oct. 20, 1999) (citing Airlines Reporting Corp. v. S&N Travel, Inc., 58 F.3d 857, 862 (2d Cir. 1995)). At issue here is the application of this rule in lawsuits brought by a trustee on behalf of a trust. —3 Gross Polowy should be aware of this rule because they were “foreclosure counsel” for the plaintiff-appellee in Melina, 827 F.3d at 216–17, though in fairness it seems they were replaced by Hogan Lovells for both the subject matter jurisdiction issue and the subsequent appeal, id. at 216; OneWest Bank, N.A. v. Melina, No. 14-CV-5290, 2015 WL 5098635 (E.D.N.Y. Aug. 31, 2015), aff’d, 827 F.3d 214.

In Navarro, the Court held that trustees can be the real parties in controversy—regardless of the type of trust—provided that they “are active trustees whose control over the assets held in their names is real and substantial.” 446 U.S. at 465; see also Carden v. Arkoma Assocs., 494 U.S. 185, 191 (1990) (noting that, if the trustees are “active trustees whose control over the assets held in their names is real and substantial,” they are brought “under the rule, ‘more than 150 years’ old, which permits such trustees ‘to sue in their own right, without regard to the citizenship of the trust beneficiaries’” (quoting Navarro, 446 U.S. at 465–66)). The continued validity of this rule was endorsed by the Court in Americold. 136 S. Ct. at 1016.

If U.S. Bank wishes to proceed in federal court, it must, within thirty (30) days, move to amend its Complaint to address the deficiencies identified in this order. This motion to amend must be prepared in accordance with Local Rule 7.1(a)(4), which establishes the form for such a motion and lists the required papers. With that motion, to resolve the Court’s doubts concerning subject matter jurisdiction, U.S. Bank must also provide its articles of association (along with any other documentation required to establish the location of its main office), the trust instrument for the LSF9 Master Participation Trust,4 and any other documentation required to show that U.S. Bank’s control over the trust assets is real and substantial. Failure to comply with this Memorandum-Decision and Order when moving to amend the Complaint may result in the denial of the motion or sanctions. L.R. 1.1(d).

 

4 In the Dupre case discussed above, U.S. Bank also was instructed to file the trust instrument for the LSF8 Master Participation Trust (presumably another securitization vehicle for mortgage debt) in order to establish subject matter jurisdiction. 2016 WL 5107123, at *2. When it did file the trust instrument, “the text . . . was almost entirely redacted,” and the only visible portion seemed to oppose the notion that U.S. Bank was an active trustee with real and substantial control over the trust assets. Id. at *2, *4. This failure should not be repeated here, and filing documents under seal or with redactions requires advance permission of the Court. L.R. 83.13; see also Lugosh v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006) (describing the standard for restricting public access to judicial documents).

 

Questions to Ask About the Trust and the Trustee

In the final analysis you are looking for evidence of absence of any real events currently presumed as facts in any foreclosure case.

The trustee issue is a jurisdictional issue. If the Plaintiff Trust does not exist, then it has no standing to make or pursue any claims. If the named Trustee is not engaged in the active management of active trust affairs on behalf of the beneficiaries of a trust, then it is not a trustee imbued with the powers to administer assets that have not been conveyed and entrusted to the Trustee.
 *
If the named beneficiaries have received a promise from the named “Trust” and the beneficiaries have expressly disclaimed any interest in the “underlying” loans, notes, mortgages or debts, then they are not beneficiaries and the entity is not a trust. (That fact pattern describes individual contracts with each investor who purchased a promise to pay executed by someone allegedly on behalf of an entity self proclaimed as a trust. If the named entity does not exist then the party who executed the isntruments may have liability for the promise).
 *
Since the Trust has not been identified as having been organized and existing under the laws of any jurisdiction, it is entirely appropriate to ask questions about the existence of the trust and its right to do business in the state or the courts. The second jurisdictional issue is subject matter jurisdiction in which the question is whether the trust owns the indebtedness. I frequently deal with these issues in drafting the substance of documents to be filed with the court, subject to opinion of local counsel.
 *
If prior demands for discovery are clear the appropriate strategy is to force the issue through a motion to compel. Filing an “amended” request fro discovery probably starts the clock all over again. By the time you get to a demand for sanctions for contempt the case could be over. If it is denied she should consider an interlocutory appeal on the issue of whether the record contains assertions or evidence of the existence of the trust. The only prejudice that could exist would be that the trust doesn’t exist and that “they” (actually the lawyers) would be “prejudiced” because they couldn’t foreclose using the trust name.
 *
There is no doubt in my mind that one or both narratives are true: (1) the trust doesn’t exist and never did and (2) the loan (i.e., the indebtedness) was never purchased by the trust, acting through tis alleged trustee.
 *
One of the problems here is that it would be wise, although not essential, to notice the named Trustee for deposition duces tecum. That’s often a problem because most homeowners not appear to have anyone competent to conduct the deposition. In a normal deposition, one MUST ask the witness identifying questions like
  1. What’s your name?
  2. Who do you work for?
  3. What is the relationship between your bank and this trust?
  4. Besides the alleged Prospectus and the alleged PSA, what agreements exist wherein the Trustee bank is obligated to do or receive anything from the trust, directly or indirectly. [This one should be broken up into parts].
  5. Under what jurisdiction was the trust organized?
  6. Under what jurisdiction is the trust now existing?
  7. Who is the trust officer for the trust?
  8. In which department(s) are trust matters generally handled in the Trustee Bank?
  9. In which department(s) are trust matters usually handled in the Trustee Bank for this trust?
  10. Has the Trustee bank published any memos or guidelines concerning the administration of securitization trusts?
  11. Assuming that the word “loan” means the indebtedness of the homeowners here in this case, on what date did US Bank as trustee purchase this loan to hold in trust?
  12. Who was the seller of the debt in that transaction?
  13. Was payment for the loan performed through a financial account held in the name of the Trustee for the alleged trust?
  14. How did US Bank as Trustee for the alleged trust perform due diligence to confirm the existence and ownership of the debt?
  15. Who are the beneficiaries of the alleged trust?
  16. Who is the trustor or settlor of the alleged trust?
  17. What is the date and name of the instrument that purports to create the trust?
  18. Describe the current functions of US Bank as trustee of the alleged trust.
  19. Describe the current assets of the alleged trust.
  20. Describe date and content of the last financial report received by US Bank as trustee for the alleged trust.
Most likely opposing counsel will object to the question’s relevancy at the time deposition is taken. But relevancy is not even a question at deposition which is by nature a fishing expedition. Even if opposing counsel was right that the question does not directly relate to proof of a fact asserted at trial, you are still entitled to inquire because it might lead to the discovery of admissible evidence.

No Surprise: Ocwen & US Bank Hit by $3.8 Million Verdict in Chicago Federal Trial For Violations in Fake Foreclosure

“The jury, after deliberating for approximately 7 hours, determined that Ocwen breached its contract, violated RESPA for failing to adequately respond to Saccameno’s Qualified Written Request, violated the FDCPA and committed both unfair and deceptive acts in violation of the Illinois Consumer Fraud Act.  Monette Saccameno was awarded $500,000.00 in compensatory damages, $70,000.00 in non-economic damages, $12,000.00 in economic damages and $3,000,000.00 in punitive damages. Nicholas Heath Wooten, Esq.Ross Michael Zambon, Esq., and Mohammed Omar Badwan, Esq. led the litigation team on behalf of Saccameno.”

And I ask again: WHY DO OCWEN DOCUMENTS AND “BOARDING PROCESS” GET ANY LEGAL PRESUMPTION ON SCANT TESTIMONY AND EVIDENCE THAT WOULD NOT BE ACCEPTED AS FOUNDATION IN ANY COURT OTHER THAN ONE IN FORECLOSURE PROCEEDINGS? With this verdict and dozens of other verdicts, settlements, lawsuits and whistleblower  news stories has establishing a crystal clear pattern of conduct of fake foreclosures based upon false documentation, false posting of payments and a clear mission to seek foreclosure whether the homeowner is current in payments or not.

The many cases akin to this one against OCwen and US Bank should be served up to judges hearing foreclosure cases with a single message: the foreclosures you are allowing are wrongful. Your decisions are giving rise to many lawsuits for damages.

GO TO LENDINGLIES to order forms and services

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

===========================

Hat Tip Greg da’ Goose

Case Number: 1:16-cv-05278
Court: Illinois Northern
Nature of Suit: 423(Bankruptcy Withdrawl)
Companies:
Ocwen Financial Corporation
U.S. Bancorp

see OCWEN BANGED WITH $3.8 MILLION VERDICT

This case shows that juries are still angry about the 2008 meltdown and that the entire burden was shifted to homeowners and taxpayers — who “bailed out” financial institutions that had no losses.

And it also shows that lawyers can get rich by charging contingency fees in wrongful foreclosure actions that most lawyers avoid or rush to settlement. It provides ample encouragement for homeowners to sue and for lawyers to take the cases.

So for those of you who are  contemplating filing a wrongful foreclosure action against Ocwen, or U.S. Bank or any of the other players that are acting in concert with Ocwen, here is a case that no doubt will be settled under “seal of confidentiality” (like thousands of others). I think it is high time for borrowers to pool their complaints in either a class action or mass joinder action.

And here are some of the causes of action that could be filed that a federal jury found were reasons enough to award $500,000 in compensatory damages and $3 Million in punitive damages:

  1. Breach of contract
  2. RESPA violation (failure to respond to QWR)
  3. FDCPA violations
  4. Violation of state law — Illinois Consumer Fraud Act: Unfair and deceptive acts.

There are many other causes of action that could be filed. Each case needs to be evaluated as to which causes of action are most appropriate for the subject “loan”, most of which have resulted in substantial verdicts.

And don’t forget the role of US Bank whose name is used as trustee of a trust that  either doesn’t exist, doesn’t own the debt or both. US Bank is paid a fee to pose as trustee not to BE trustee.

See also

https://www.prnewswire.com/news-releases/atlas-consumer-law-secures-3-582-000-jury-verdict-obtained-by-monette-saccameno-a-resident-of-cook-county-illinois-and-against-ocwen-loan-servicing-llc-a-national-mortgage-loan-servicer-300628541.html

https://cookcountyrecord.com/stories/511388869-jury-awards-3-5m-to-woman-who-claimed-loan-servicer-mishandled-mortgage-during-after-chapt-13-bankruptcy

Ocwen (OCN) Receives Daily News Sentiment Rating of 0.15
https://www.thelincolnianonline.com/2018/04/13/ocwen-ocn-receives-daily-news-sentiment-rating-of-0-15.html

https://www.leagle.com/decision/infdco20180410901

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 265 (N.D. Ill. 2018)
DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW Document #: 265 Filed: 04/09/18
https://www.gpo.gov/fdsys/pkg/USCOURTS-ilnd-1_15-cv-01164/pdf/USCOURTS-ilnd-1_15-cv-01164-3.pdf

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 231 (N.D. Ill. 2018)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/9/2018
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/231/0.pdf?ts=1520678019

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 152 (N.D. Ill. 2017)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/8/2017
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/152/0.pdf?ts=1517249686

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 75 (N.D. Ill. 2015)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/19/2015
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/75/0.pdf?ts=1448015323

US Government Publishing Office
15-1164 – Saccameno v. Ocwen Loan Servicing, LLC et al
https://www.gpo.gov/fdsys/granule/USCOURTS-ilnd-1_15-cv-01164/USCOURTS-ilnd-1_15-cv-01164-0

Fact Check: Robo-witness knows nothing

Information is admitted in evidence only after a proper foundation has been laid. If the witness knows nothing about the foundation the evidence should not be admitted as evidence. Appellate courts will usually reverse a trial court’s error in ruling on evidence UNLESS the appellate panel decides that the error would not have made any difference in the outcome. The fundamental fact at the root of all foreclosures is that the homeowner owes a debt to the foreclosing party and has not paid.

In the passage below a witness supposedly employed by US Bank displays a lack of personal knowledge on anything that would contribute to foundation for establishing the standing of the foreclosing party. I have inserted in brackets the significance of each answer of an actual witness in a court proceeding.

Let us help you prepare for deposition or trial: 202-838-6345
Get a consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Hat tip Bill Paatalo

Videoconference deposition of JOHN G. RICHARDS,II

Would you please provide your official title for
11 the record.
12 A Yes, I’m the vice president at U.S. Bank within
13 the global corporate trust services group. [The problem that was overlooked here is that his title is not foundation for establishing the existence of a trust that is managed by US Bank as Trustee. Additional questions regarding the existence of any account that is under trust management by US Bank would have revealed lack of knowledge because the witnesses are not given any information that could be used by the homeowner or counsel for the homeowner. In truths I have repeatedly pointed out, if you proceed under the assumption that there is no “account” in existence under which Trust assets are managed for the benefit of beneficiaries, all the pieces fall into place. There is no Trustee because there is nothing that has been entrusted to the trustee for the benefit of beneficiaries. Thus parties claiming authority “from the Trust” to serve as services or master servicers lack any foundation to support the assertion of that authority. This is why no modification is signed by anyone other than the servicer acting as attorney in fact for the purported Trust or other foreclosing party.]

——————

Q I see. Do you know who the beneficiaries are of

10 the WaMu trust?

11 A I do not know the specific beneficiaries — or I

12 would call them certificate holders. I don’t know the

13 identity of those investors or certificate holders. [Here is US Bank whom the attorneys have named as the foreclosing party. The witness is supposedly someone who knows about the USB trust arrangement for a REMIC Trust. Yet on the most basic questions about the existence of a trust — the existence of beneficiaries, he is unable to answer the question regarding their identity. A trust without beneficiaries is not a trust   — i.e., it is not an legal entity. In fact he is saying that there are no beneficiaries but that there are certificate holders. He can’t identify either the beneficiaries or the certificate holders. Note also that he knows nothing about the “certificates, which in most cases expressly state that the holder is NOT entitled to an interest in the loan, debt, note or mortgage. What they have is a promise to pay them money coming from a nonexistent trust.]

14 Q That’s fine. And because you don’t know, do you

15 know who would know or is there a list?

16 A I do not know specifically if there is a list

17 that would have the names of actual individuals or

18 entities who are certificate holders. [This further erodes the foundation for proving that the trust exists, the beneficiaries exist or the certificate holders exist. More importantly it is an admission that even a list of the certificate holders might not exist — thus corroborating a central point on this blog — that the money never went into the trust and that instead it was commingled with the money of other investors in a different entity altogether. I have referred to this scenario as a dark pool or slush fund in which the underwriting banks (who appoint themselves as Master Servicers) take charge of the investor funds instead of the money being administered by a Trust. Remember that in 2008-2009, the banks and servicers were asserting that such Trusts did not exist. That was probably a true statement in that the Trust was never an active trust and the trustee was never an active trustee.] 

19 It is common for many of these certificates to

20 be held. I’m not sure the exact way to hold it, but

21 something that is significant amount to brokerage or some

22 other place for the general holding of investment

23 securities. [He is referring to the practice of holding securities in street name — i.e., in the name of the brokerage house that allegedly completed the transaction on behalf of the investor. This enables the investment banking entity to assert ownership of the certificates for title purposes while supposedly holding the certificates for investors, the only evidence of which would be the end of month brokerage statement telling the investors that they own the rights to certificates even though the certificates are not in their name. Of course the rub here is that most certificates are uncertificated — merely computer entries. But that doesn’t mean that there isn’t a master certificate in electronic or paper form. The witness is saying he doesn’t know where such certificates are held, by whom or for what purpose] It’s a company called DTC that serves that

24 function just generally in the industry. But I don’t

25 have information about the identity of the specific certificate holders.

2 Q So you’re saying that this entity, DTC, holds

3 that information who would know?

4 MS. DARNELL: Objection. Calls for speculation.

5 THE WITNESS: I don’t know. I think I’m using

6 that as an example of sort of how these certificates are

7 commonly held and the entity that might be positioned to

8 communicate with actual certificate holders.

Q So does the trust actually communicate directly

11 with the certificate holders?

12 A I am not familiar with the — with any direct

13 communication between U.S. Bank as trustee for this trust

14 and certificate holders on an individual basis. I’m not

15 familiar with that at all. [This is as close as you will get to the admission that there is no active Trustee and there is no active Trust. If there is no communication or no knowledge of communication between the Trustee and the certificate holders then it is an inescapable conclusion that there is no activity in the alleged REMIC Trust. If there was such activity within the Trust it would need to be disclosed to the “beneficiaries” or “certificate holders.” There isn’t. The master servicer sends out a distribution report with the disclaimer that none of the information on the distribution report has been verified and could be entirely wrong.]

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23 Q So with respect to it being vague and

24 ambiguous — and I just want to clarify. Do you manage

25 Chase as the servicer of the trust?

A I would not describe that there is any kind of

2 management or oversight role by the trustee of a servicer

3 in this trust or any other. [So the party claimed to be the servicer is not managed by and need not report to the party named as the Trustee — thus further establishing that the Trustee is inactive and the “trust” is a sham. If there is no “kind of management or oversight role by the trustee of a servicer” then who directs the “servicer” on the distribution of the money collected from homeowners? Some document must exist that is not being produced in court. It would be a document that establishes the duties and responsibilities of the subservicer. It would be executed by the “Servicer” and the Master Servicer but kept secret because the document would establish, once and for all, that for all purposes other than foreclosure the parties conduct business as though the trust did not exist.]

Given the above testimony and commentary, the testimony of the witness should not be admitted into evidence at trial. The reason is lack of foundation. Proper objections on foundation, leading, and hearsay must be repeatedly raised or else the testimony, however riddled with untruth, will be admitted because the objection was” waived” by failing to raise it timely. If the objections are sustained and the witness has managed to spew out an answer as you were objecting then a motion to strike is absolutely required lest the objectionable testimony remain in the record. As Plan B, bring these things out in cross examination and then move to strike the testimony.

 

 

Trustee v Active Trustee US Bank Fails to show or even attempt to show it is an active trustee

CASE DISMISSED,WITH LEAVE TO AMEND. US BANK DECLINED TO AMEND. CASE DISMISSED.

Even where there is a clerk’s default “The burden is on the plaintiff to establish its entitlement to recovery.” Bravado Int’l, 655 F. Supp. 2d at 189.

Here is an example of how lawyers purport to represent US Bank when in fact they are creating the illusion that they represent a trust and in reality they are representing a subservicer who is receiving orders from a master servicer of a nonexistent trust. As Trustee of the nonexistent trust USB had no active role in the nonexistent trust. As the inactive Trustee for a nonexistent Trust, no right, title or interest in the debts of homeowners were within any scope of authority of any servicer, subservicer or master servicer. Each foreclosure is a farce based upon assumptions and presumptions that are exactly opposite to the truth.

Given the opportunity to amend the complaint, lawyers for USB chose not to amend — because they could not plead nor prove the required elements of an active trustee. Because of that USB lacked standing to bring the action except as agent for an active trust or on behalf of the trust beneficiaries. But where the certificates show that the certificate holders do NOT have any interest in a mortgage or note (true in about 70% of all cases), then they too lack of standing. And if the Trust is not an active Trust owning the debt, note or mortgage then it too lacks standing.

Let us draft your motions and do the research necessary to draw the attention of the court to the fraud taking place under their noses. 202-838-6345
Get a consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Hat tip Bill Paatalo

see Memorandum and Order – USBank Trust NA as Trustee for LSF9 MPT v Monroe

See Judgment – USB Trust for LSF9 v Monroe –

While this case discusses diversity and other issues concerning US Bank “as trustee” the reasoning and ruling clearly expose the truth about pleading irregularities by attorneys who purport to represent US Bank or a REMIC Trust.

A debt is an asset to anyone who owns it. Industry practice requires that for transfer of ownership, there must be an agreement or other document providing warranty of title, confirmation of the existence and ownership of the debt and proof of authority of the person executing the document. Go into any bank and try to borrow money using a note as collateral. The bank will require, at a minimum, that the debt be confirmed (usually by the purported debtor) and that each party in the chain show proof of purchase.

Without consideration, the assignment of mortgage or endorsement of the note is just a piece of paper.

When there is an assertion of ownership of the loan, what the banks and so-called servicers are actually saying is that they own the paper (note and mortgage) not the debt. In the past this was a distinction without a difference. In the era of patently f false claims of securitization, the debt was split off from the paper. The owner of the debt were without knowledge that their money was not under Trust management nor that their money was being used to originate or acquire loans without their knowledge.

The securitization sting is accomplished because the owners of the debt (the investors who sourced the funds) are unaware of the fact that the certificate they are holding is merely a promise to pay from a nonexistent trust that never was utilized to acquire the debts and whose ownership of the paper is strictly temporary in order to foreclose.

The failure to make that distinction between the real debt and the fake paper is the principal reason why so many people lose their homes to interlopers who have no interest in the loan but who profit from the sale of the home because a judgment was entered in favor of them allowing them to conduct a foreclosure sale. 

This case also sets forth universally accepted legal doctrine even where there is a clerk’s default entered against the homeowner. The Judge cannot enter a judgment for an alleged debt without proving the debt — even if the homeowner doesn’t show up.

“When a default is entered, the defendant is deemed to have admitted all of the well- pleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); accord, e.g., Bravado Int’l, 655 F. Supp. 2d at 190. “[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a basis for the damages that are sought.” United States v. Hill, No. 12-CV-1413, 2013 WL 474535, at *1 (N.D.N.Y. Feb. 7, 2013)

“The burden is on the plaintiff to establish its entitlement to recovery.” Bravado Int’l, 655 F. Supp. 2d at 189.

 

US Bank v Mattos: Ocwen’s Witness unable to collaborate U.S. Bank’s Records

Thanks to Investigator Bill Paatalo of BP Investigative Agency for the heads up on this case.  Furthermore if you are suing U.S. Bank please note that THERE ARE NO RECORDS KEPT BY US BANK OF ANY KIND other than receipt of a monthly fee.  Bill Paatalo will be dropping a bombshell on these findings in the next month.

Please see ruling:  US Bank v Mattos – No Standing 06-06-17

The Supreme Court of Hawaii on certiorari to the Hawaii Court of Appeals reversed a prior summary judgment when it was determined that Ocwen’s witness was unable to speak for the validity of U.S. Bank’s records.   Hawaiian attorney Gary Dubin did an exemplary job demonstrating why the fraudulent assigments were void, not just voidable and that US Bank could not prove standing to foreclose.

The Defendants complained that the circuit court improperly granted summary judgment when there were genuine issues of material fact including two mortgage assignments that were robosigned by persons with insufficient authority or personal knowledge as to what they swore to.  There were also two assignments to the securitized trust in the chain of US Bank’s alleged ownership that were only supported by hearsay declarations inadmissible pursuant to Hawaii’s Civil Procedure Rule 56 and Evidence Rules.  Therefore, the court ruled that the Defendant’s loan violated the requirements of the securitized trust’s Pooling and Servicing agreement.

U.S. Bank’s declarants also had no idea how earlier business records had been compiled in regards to the two invalid mortgage assignments allegedly assigned to the securitized trust.

It was ruled that the Intermediate Court of Appeals (ICA) incorrectly concluded that the declaration of Richard Work, the Contract Management Coordinator of Ocwen Loan Servicing, LLC (“Ocwen”), rendered him a “qualified witness” for U.S. Bank’s records under the Hawai‘i Rules of Evidence Rule 803(b)(6)- hearsay exception for records of regularly conducted activity.  In addition, U.S. Bank failed to establish that it was a holder entitled to enforce the note at the time the foreclosure complaint was filed(see Bank of America, N.A. v. Reyes-Toledo, 139 Hawaii(2017)).

 

Unfortunately in regards to the first issue on certiorari, the court was unfamiliar with the term “robosigning” and ruled that since the legal effect of “robo-signing” was not necessary to  the determination of the case, the court sidestepped the issue and set aside the ICA’s holding that, “conclusory assertions that fail to offer factual allegations or a legal theory indicating how alleged “robo-signing” caused harm to a mortgagee” are insufficient to establish a defense in a foreclosure action.

 

Addressing the factual allegations underlying the “robo-signing” claim, however, the court concluded that there was a genuine issue of material fact as to whether Ocwen had the authority to sign the second assignment of mortgage to U.S. Bank. With respect to the second issue on certiorari, the court affirmed the ICA in part and followed the majority rule in U.S. Bank Nat. Ass’n v. Salvacion (Hawaii App. 2014) and held that, “a third party unrelated to a mortgage securitization pooling and servicing agreement lacks standing to enforce an alleged violation of its terms unless the violation renders the mortgage assignment void, rather than voidable.”  However the court limited the holding to the judicial foreclosure context not impacting non-judicial foreclosures.

 

The court issued a reversal and vacated the prior March 9, 2016 Judgment on Appeal, as well as the circuit court’s August 26, 2014 Findings of Fact, Conclusions of Law and Order Granting Plaintiff’s Motion for Summary Judgment and Decree of Foreclosure against all defendants and remanded the case back to the circuit court.

It is unfortunate that the circuit court and Intermediate Court of Appeals were so obviously biased towards the homeowner that they refused to apply prior rulings of law that would have quickly resolved this case.  However, part of the MegaBank-Lower Court game is to exhaust the homeowner of financial resources, while abusing them with delay strategies, discovery deficits and the misapplication of established law.  When these unethical methods are employed and a homeowner is forced to return to the lower courts and start all over again, the banks and courts should immediately be held responsible for violations of due process and the deliberate use of legal abuse tactics. The homeowner should in time be compensated for the stress incurred, emotional trauma, any lost earnings, and any resulting physical and mental health degradation.  Only when there is a sufficient financial penalty will the banks and courts consider following the rule of law.

 

 

Attorney Fee Award: Heads the Bank Wins, Tails the Homeowner Loses

Appellate courts stepping on a rake: This thread of decisions makes it extremely important for attorneys representing homeowners to establish the earliest possible safe harbor period so they can recover fees when they win.

These decisions are essentially punishing homeowners on the grounds that they won on an issue that revealed the underhanded, fictitious narratives that are cooked up by central repositories of fabricated data and documents in order to obtain a foreclosure judgment to which the banks and servicers are not entitled.

Get a consult! 202-838-6345

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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 Attorney Fees 57-105 DOC030317

The bottom line is that Judge Jennifer Bailey was right and the appellate court was wrong. Another case of the rules being used to twist the court system against itself. There are consequences arising from the Courts making policy (a legislative function). One of them may well be that even the highest court in a state could be subject to obvious reprimand from courts in the Federal system.

Since 2001, foreclosure litigation has been a strange world combining Opposite Day with twisted legal opinions based upon the single premise that the Banks must win and the homeowners must lose. Nowhere is that more obvious than in Florida, where a homeowner can win the case, with Final judgment entered in the Homeowner’s favor, but still lose the case on the issue of recovery of reasonable attorney fees and costs.

Under the logic of the Alexander case and now this third district opinion, the Bank can assert rights under what is an existing contract and, if it wins, recover attorney fees and costs. But the homeowner cannot recover fees if the homeowner wins. Despite the provisions of F.S. §57.105(7) that expressly states that if one party is entitled to recovery of fees in a contract then the provision becomes reciprocal — i.e., if the party using the contract for suit loses the prevailing party gets fees upon winning the case.

As in other decisions the court is hell bent on making it more difficult for homeowners to defend their homes by denying them recovery for their attorney fees. The obvious impact is to increase the risk of challenging the core defect in all foreclosures — standing. The DEBT is simply not owned by any of the parties who have been acting as “servicers”, “collectors” or “lenders” or “investors.”

The logic of the courts is defective and twisted. If US Bank, for example, is defeated in a foreclosure action because it was never a party to any loan contract, written, implied or otherwise, then it nevertheless does not need to pay for attorney fees for the opposition homeowner BECAUSE the homeowner won on standing.

Thus a party like US Bank et al who invokes a presumably valid contract, stands to lose nothing if it loses. The simplicity of the decisions is misleading. The appellate courts are making a finding of fact contrary to that of the trial judge. In this case the trial judge found that the Plaintiff was not a party to the contract and never became one. Hence the court entered judgment for the homeowner and then ruled that the homeowner was entitled to attorney fees and costs and awarded over $40,000 to the defendant as recovery of fees and costs.

But the appellate courts invented a concept that simply does not exist. They are finding that the contract does not exist rather than the trial court’s finding that the Plaintiff never became a party to the contract despite its allegations to the contrary. Either the contract exists or it doesn’t. If it doesn’t exist then nobody gets to enforce it and the the homeowner is now free to quiet title and get the mythological “free house.”

The correct decision under these cases should be that the Plaintiff, having invoked the contract including an award of attorney fees, was admitting that the reciprocity provisions of F.S. §57.105(7) apply and is now bound by the contractual provisions regardless of the outcome of litigation. Having failed to prove their rights under the contract, they are subject to the consequences set forth in the contract that formed the entire basis of their lawsuit in foreclosure.

This issue should be taken up with the Florida Supreme Court. These decisions are essentially punishing homeowners on the grounds that they won on an issue that revealed the underhanded, fictitious narratives that are cooked up by central repositories of fabricated data and documents in order to obtain a foreclosure judgment to which the banks and servicers are not entitled.

But the interesting thing about this reasoning, is that the issue of whether the contract exists or not might lead to a quiet title action for the homeowner.

Having established that the Plaintiff had no right to bring the action, the trial court must then vault such a decision into a rule, per se, that therefore there is no contract. This can only be prevented in the event that the next step in this thread is to suggest that the contract DOES exist but not as to the Homeowner in connection with this Plaintiff. But that will muddy title even more, inasmuch as all the evidence adduced to date was that the loan was somehow under the control of the Plaintiff or Plaintiff’s agents. How does another creditor/predator come along and say “OK, it was really us all along?”

A plain reading of the doctrine of estoppel in a court of equity would clearly allow the award of fees to the homeowner who wins on the issue of standing.

None of this discounts my prime directive that there is no contract at all to enforce becasue the debt was never merged into the note and the mortgage only serves as collateral for the alleged obligations under the note. In the absence of merging the debt (owed to an undisclosed, unidentified third party) into the note, the note represents only a contingent liability — if the note ends up in the hands of a holder in due course who purchased the note in good faith and without knowledge of the borrower’s defenses.

I might add that in the case of the so-called purchase or transfer of loan documents in which the homeowner is already declared in default, the rights of any holder or any possessor of the note are dubious at best, since the note is no longer a negotiable instrument under the UCC.

Can you really call it a loan when the money came from a thief?

The banks were not taking risks. They were making risks and profiting from them. Or another way of looking at it is that with their superior knowledge they were neither taking nor making risks; instead they were creating the illusion of risk when the outcome was virtually certain.

Securitization as practiced by Wall Street and residential “mortgage” loans is not just a void assignment. It is a void loan and an enterprise based completely on steering all “loans” into failure and foreclosure.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Perhaps this summary might help some people understand why bad loans were the object of lending instead of good loans. The end result in the process was always to steer everyone into foreclosure.

Don’t use logic and don’t trust anything the banks put on paper. Start with a blank slate — it’s the only way to even start understanding what is happening and what is continuing to happen. The following is what you must keep in mind and returning to for -rereading as you plow through the bank representations. I use names for example only — it’s all the same, with some variations, throughout the 13 banks that were at the center of all this.

  1. The strategic object of the bank plan was to make everyone remote from liability while at the same time being part of multiple transactions — some real and some fictitious. Remote from liability means that the entity won’t be held accountable for its own actions or the actions of other entities that were all part of the scheme.
  2. The goal was simple: take other people’s money and re-characterize it as the banks’ money.
  3. Merrill Lynch approaches institutional investors like pension funds, which are called “stable managed funds.” They have special requirements to undertake the lowest possible risk in every investment. Getting such institutional investors to buy is a signal to the rest of the market that the securities purchased by the stable managed funds must be safe or they wouldn’t have done it.
  4. Merrill Lynch creates a proprietary entity that is neither a subsidiary nor an affiliate because it doesn’t really exist. It is called a REMIC Trust and is portrayed in the prospectus as though it was an independent entity that is under management by a reputable bank acting as Trustee. In order to give the appearance of independence Merrill Lynch hires US Bank to act as Trustee. The Trust is not registered anywhere because it is a common law trust which is only recognized by the laws of the State of New York. US Bank receives a monthly fee for NOT saying that it has no trust duties, and allowing the use of its name in foreclosures.
  5. Merrill Lynch issues a prospectus from the so-called REMIC entity offering the sale of “certificates” to investors who will receive a hybrid “security” that is partly a bond in which interest is due from the Trust to the investor and partly equity (like common stock) in which the owners of the certificates are said to have undivided interests in the assets of the Trust, of which there are none.
  6. The prospectus is a summary of how the securitization will work but it is not subject to SEC regulations because in 1998 an amendment to the securities laws exempted “pass-through” entities from securities regulations is they were backed by mortgage bonds.
  7. Attached to the prospectus is a mortgage loan schedule (MLS). But the body of the prospectus (which few people read) discloses that the MLS is not real and is offered by way of example.
  8. Attached for due diligence review is a copy of the Trust instrument that created the REMIC Trust. It is also called a Pooling and Servicing Agreement to give the illusion that a pool of loans is owned by the Trust and administered by the Trustee, the Master Servicer and other entities who are described as performing different roles.
  9. The PSA does not grant or describe any duties, responsibilities to be performed by US Bank as trustee. Actual control over the Trust assets, if they ever existed, is exercised by the Master Servicer, Merrill Lynch acting through subservicers like Ocwen.
  10. Merrill Lynch procures a triple AAA rating from Moody’s Rating Service, as quasi public entity that grades various securities according to risk assessment. This provides “assurance” to investors that the the REMIC Trust underwritten by Merrill Lynch and sold by a Merrill Lynch affiliate must be safe because Moody’s has always been a reliable rating agency and it is controlled by Federal regulation.
  11. Those institutional investors who actually performed due diligence did not buy the securities.
  12. Most institutional investors were like cattle simply going along with the crowd. And they advanced money for the purported “purchase” of the certificates “issued” by the “REMIC Trust.”
  13. Part of the ratings and part of the investment decision was based upon the fact that the REMIC Trusts would be purchasing loans that had already been seasoned and established as high grade. This was a lie.
  14. For all practical purposes, no REMIC Trust ever bought any loan; and even where the appearance of a purchase was fabricated through documents reflecting a transaction that never occurred, the “purchased” loans were the result of “loan closings” which only happened days before or were fulfilling Agreements in which all such loans were pre-sold — i.e., as early as before even an application for loan had been submitted.
  15. The normal practice required under the securities regulation is that when a company or entity offers securities for sale, the net proceeds of sale go to the issuing entity. This is thought to be axiomatically true on Wall Street. No entity would offer securities that made the entity indebted or owned by others unless they were getting the proceeds of sale of the “securities.”
  16. Merrill Lynch gets the money, sometimes through conduits, that represent proceeds of the sale of the REMIC Trust certificates.
  17. Merrill Lynch does not turn over the proceeds of sale to US Bank as trustee for the Trust. Vague language contained in the PSA reveals that there was an intention to divert or convert the money received from investors to a “dark pool” controlled by Merrill Lynch and not controlled by US Bank or anyone else on behalf of the REMIC Trust.
  18. Merrill Lynch embarks on a nationwide and even world wide sales push to sell complex loan products to homeowners seeking financing. Most of the sales, nearly all, were directed at the loans most likely to fail. This was because Merrill Lynch could create the appearance of compliance with the prospectus and the PSA with respect to the quality of the loan.
  19. More importantly by providing investors with 5% return on their money, Merrill Lynch could lend out 50% of the invested money at 10% and still give the investors the 5% they were expecting (unless the loan did NOT go to foreclosure, in which case the entire balance would be due). The balance due, if any, was taken from the dark pool controlled by Merrill Lynch and consisting entirely of money invested by the institutional investors.
  20. Hence the banks were not taking risks. They were making risks and profiting from them. Or another way of looking at it is that with their superior knowledge they were neither taking nor making risks; instead they were creating the illusion of risk when the outcome was virtually certain.
  21. The use of the name “US Bank, as Trustee” keeps does NOT directly subject US Bank to any liability, knowledge, intention, or anything else, as it was and remains a passive rent-a-name operation in which no loans are ever administered in trust because none were purchased by the Trust, which never got the proceeds of sale of securities and was therefore devoid of any assets or business activity at any time.
  22. The only way for the banks to put a seal of legitimacy on what they were doing — stealing money — was by getting official documents from the court systems approving a foreclosure. Hence every effort was made to push all loans to foreclosure under cover of an illusory modification program in which they occasionally granted real modifications that would qualify as a “workout,” which before the false claims fo securitization of loans, was the industry standard norm.
  23. Thus the foreclosure became extraordinarily important to complete the bank plan. By getting a real facially valid court order or forced sale of the property, the loan could be “legitimately” written off as a failed loan.
  24. The Judgment or Order signed by the Judge and the Clerk deed upon sale at foreclosure auction became a document that (1) was presumptively valid and (b) therefore ratified all the preceding illegal acts.
  25. Thus the worse the loan, the less Merrill Lynch had to lend. The difference between the investment and the amount loaned was sometimes as much as three times the principal due in high risk loans that were covered up and mixed in with what appeared to be conforming loans.
  26. Then Merrill Lynch entered into “private agreements” for sale of the same loans to multiple parties under the guise of a risk management vehicles etc. This accounts for why the notional value of the shadow banking market sky-rocketed to 1 quadrillion dollars when all the fiat money in the world was around $70 trillion — or 7% of the monstrous bubble created in shadow banking. And that is why central banks had no choice but to print money — because all the real money had been siphoned out the economy and into the pockets of the banks and their bankers.
  27. TARP was passed to cover the banks  for their losses due to loan defaults. It quickly became apparent that the banks had no losses from loan defaults because they were never using their own money to originate loans, although they had the ability to make it look like that.
  28. Then TARP was changed to cover the banks for their losses in mortgage bonds and the derivative markets. It quickly became apparent that the banks were not buying mortgage bonds, they were selling them, so they had no such losses there either.
  29. Then TARP was changed again to cover losses from toxic investment vehicles, which would be a reference to what I have described above.
  30. And then to top it off, the Banks convinced our central bankers at the Federal Reserve that they would freeze up credit all over the world unless they received even more money which would allow them to make more loans and ease credit. So the FED purchased mortgage bonds from the non-owning banks to the tune of around $3 Trillion thus far — on top of all the other ill-gotten gains amounting roughly to around 50% of all loans ever originated over the last 20 years.
  31. The claim of losses by the banks was false in all the forms that was represented. There was no easing of credit. And banks have been allowed to conduct foreclosures on loans that violated nearly all lending standards especially including lying about who the creditor is in order to keep everyone “remote” from liability for selling loan products whose central attribute was failure.
  32. Since the certificates issued in the name of the so-called REMIC Trusts were not in fact backed by mortgage loans (EVER) the certificates, the issuers, the underwriters, the master servicers, the trustees et al are NOT qualified for exemption under the 1998 law. The SEC is either asleep on this or has been instructed by three successive presidents to leave the banks alone, which accounts for the failure to jail any of the bankers that essentially committed treason by attacking the economic foundation of our society.

US Bank Business: Rent-A-Name, Trustee

IF THE SERVICER IS NOT AFFILIATED WITH US BANK “IN ANY WAY” THEN EITHER US BANK HAS NO TRUST DUTIES OR THE SERVICER HAS NO SERVICING AUTHORITY

BOTTOM LINE: A trust without a trustee holding fiduciary duties and actual powers over trust assets is no trust at all. This signals corroboration for what is now well known in the public domain: the REMIC trustee has no powers or duties because there is no trust and there are no trust assets.

See below for why I am re-publishing this article.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Until now I knew about a letter sent out by US Bank until the TBTF banks in control of the mortgage mess realized that this was a dangerous letter. It provides proof and corroboration and opportunities for further corroboration that US Bank is a fictitious trustee even when named in a PSA/Trust.

I can’t give you a copy of the actual letter as that contains private information. But I now physically have in my possession of the wild card letter sent out by US Bank filled with factual misstatement, legal absurdities, fraud, and admissions against interest that show clearly that the  entire “securitization” game is but a rotating cloud of existing and non-existing entities blinking in and out such that finding the those in charge becomes impossible to detect.

The text in blue are direct unedited quotes from the letter answering a homeowner, in 2013, who was trying to figure out who is in charge. This is a short letter and the quotes essentially make up virtually the entire letter. They are not taken out of context. The rest are my comment and opinions.

NOTE: [FORECLOSURE BY PARTY CLAIMING TO BE THE CREDITOR OR HOLDER OR OWNER WITHOUT MENTION OF TRUST;]Where the Master Servicer or a subsidiary or affiliate of the Master Servicer names itself as Plaintiff (i.e., the foreclosing party) you may not realize that you are dealing with a securitization plan that went bad or was reconstituted, but either way the Master Servicer never funded (i. e., was the source) any loans within this class of loans that were falsely represented to be subject to claims of securitization. The goal is the same because internally the Master Servicer is attempting to seal the illegal record with a legal act or judgment and is attempting to get its hands on mislabeled “servicer advances.”

Here are the quotes (in blue0 from the letter with commentary (in black):

  • I have researched your mortgage and have determined that
    • Since he disclaims any authority or responsibility for the trust assets, what “research” did he perform?
    • Where did he get his information from when the authority and responsibility for the loans rests with a third party?
    • US Bank clearly could not have business records unless the Master Servicer was reporting to the NAMED Trustee. But we know that isn’t happening because the PSA expressly prevents the beneficiaries or the trustee from getting any information about the trust assets or in even seeking such information. 
    • This letter is clearly a carefully worded document to give false impressions.
    • Upon reading the PSAs it is obvious that neither the Trustee nor the beneficiaries have any permitted access to know how the money or assets is being managed
    • This opens the door to moral hazard: i.e., that the sole source of information is coming from third parties and thus neither the beneficiaries nor the putative “borrowers” have any information disclosed about who is actually performing which task. 
    • This could be concealment fraud in which the direct victims are the investors and the indirect victims are the homeowners.
  • US Bank is merely the Trustee for the pool of mortgages in which your loans sits.
    • “Merely the Trustee” is non descriptive language that essentially disclaims any actual authority or duties. It is apparently conceding that it is “merely” named as Trustee but the actual duties and authority rests elsewhere.
  • The Trustee does not have the authority to make any decisions regarding your mortgage loans.
    • So we have a Trustee with no powers over mortgage loans even if the “loans” were in a pool in which ownership was ascribed to the Trust. Again the statement does not specifically disclaim any DUTIES. 
  • The servicer is the party to the trust that has the authority and responsibility to make decisions regarding individual mortgage loans in the trust. It is the Servicer who has taken all action regarding your property.
    • “all action” would include the origination of the loan if the investors’ money was being used to originate loans rather than buying existing loans.
    • This statement concedes that it is the servicer (actually the Master servicer) that has all power and all responsibility for administration of the trust assets. 
    • In short he is probably conceding that while US Bank is NAMED as Trustee, the ROLE of Trustee is being performed by the Master Servicer, without any information or feedback to the named Trustee as a check on whether a fiduciary duty has been created between the Master Servicer and the trust or the Master Servicer and the trust beneficiaries. 
    • Hence the actual authority and duties with respect to the trust assets lies with the Master Servicer who hires subservicers to do whatever work is required, mainly enforcement of the note and mortgage, regardless of whether the loan ever made it into the Trust. 
    • It follows that the sole discretion of the Master Servicer creates an opportunity for the Master Servicer to gain illicit profits by handling or mishandling originations, foreclosures and liquidations of property. Taking fictitious servicer advances into account it is readily apparent that the sole basis for foreclosure instead of workouts is to “recover” money for which the Master Servicer never had a claim for recovery. 
      • Reporting in actuality is nonexistent except for the reports of “borrower payments” which are massaged through multiple subservicers each performing a “boarding process” in which in actuality they merely input new data into the subservicer system and claim it came from the old subservicer.
      • This “boarding process” is a charade as we have seen in the majority of cases where the knowledge and history of the payments and alleged delinquency or default has been challenged. In nearly all cases despite the initial representation from the robo-witness, it becomes increasingly apparent that neither the witness nor his company, the subservicer, have any original data nor have they performed any reviews to determine if the data is accurate.
      • In fact, upon inquiry it is readily apparent now that the “records” are created, kept and maintained by LPS/BlackKnight who merely assigns “ownership” of the records from one assigned subservicer to the next. LPS fabricates whatever data is necessary to allow an appointed “Plaintiff” to foreclose, including the fabrication adnfoqgery of documents.
        • This is why the parties to the 50 state settlement do not perform the reviews required under the settlement and under the Dodd-Frank law: they have no records to review. 
    • in this case the current subservicer is SLS — Specialized Loan Servicing LLC
  • While US Bank understands and wishes to assist you with this matter, the servicer is the only party with the authority and responsibility to make decisions regarding your mortgage and they are not affiliated with US Bank in any way.
    • Hence he concedes that the duties of a trustee (who by definition is accepting fiduciary responsibilities to the trust entity and the trust beneficiaries) is being performed by a third party, with absolute power and sole discretion, who has no affiliation with US Bank.
      • This concedes that US Bank is not a trustee even though it is named as Trustee in some trusts and otherwise “acquired the trust business” from Bank of America and others. 
        • A Trustee without powers or duties is no trustee. Disclaimer of fiduciary duties denotes non acceptance of being the Trustee of the Trust.
        • Acquiring the trust business is a euphemism for the continuation of the musical chair business that is well known in subservicers. 
        • Being the trustee is NOT a marketable commodity without amendment to the Trust document. Hence if a Trustee is named and has no power or duties, and which then “sells” its “trust business” to US Bank the “transfer” trust responsibility is void but damnum absque injuria. 
        • No action for breach of fiduciary exists because nobody assumed the fiduciary duty that must be the basis of any position of “trustee” of any trust.
  • BOTTOM LINE: A trust without a trustee holding fiduciary duties and actual powers over trust assets is no trust at all. This signals corroboration for what is now well known in the public domain: the REMIC trustee has no powers or duties because there is no trust and there are no trust assets. 

============================

Update: An identical letter (see below) has been sent to me from various sources all ostensibly from US Bank. My opinion is that

  • The letter is not from US Bank
  • US Bank Corporate Trust Services has nothing on the alleged loans
  • No business records are kept by US Bank in connection with alleged loans subject to alleged claims of securitization
  • The letter was not sent out by Bank of America either although one might surmise that. It was sent by LPS/Black Night
  • The letter is pure fabrication and forgery.
  • The cutting and pasting was done by persons who have no relationship with even the false claims of the banks
  • Goldade has no trust duties in connection with the alleged loan
  • And of course the alleged loan is not in the trust, making claims by or behalf of the “trustee” or the “Servicer” completely without merit or foundation.

Here is an example of one of the letters that I used for analysis : Note that the “:,F4” indicates that the signature was pasted not executed by a real person with a pen. You can examine your own letters like this by highlighting the letter contents and then pasting to text edit rather than Word or any other program that corrects and substitutes the command rather than just printing it. The “errors” in grammar and formatting occur in text edit.

The meta data from the letter shows the following, and I have the rest of it as well.

/Type /Metadata
/Subtype /XML
/Length 673
>>
stream
<?xpacket begin=”” id=”W5M0MpCehiHzreSzNTczkc9d”?><x:xmpmeta x:xmptk=”NitroPro 9.5″ xmlns:x=”adobe:ns:meta/”><rdf:RDF xmlns:rdf=”http://www.w3.org/1999/02/22-rdf-syntax-ns#”><rdf:Description rdf:about=”” xmlns:dc=”http://purl.org/dc/elements/1.1/” xmlns:pdf=”http://ns.adobe.com/pdf/1.3/” xmlns:pdfaExtension=”http://www.aiim.org/pdfa/ns/extension/” xmlns:pdfaProperty=”http://www.aiim.org/pdfa/ns/property#” xmlns:pdfaSchema=”http://www.aiim.org/pdfa/ns/schema#” xmlns:pdfaid=”http://www.aiim.org/pdfa/ns/id/” xmlns:xmp=”http://ns.adobe.com/xap/1.0/”><xmp:ModifyDate>2016-11-04T18:28:42-07:00</xmp:ModifyDate>
</rdf:Description>
</rdf:RDF>
</x:xmpmeta>
<?xpacket end=”w”?>
endstream
endobj
xref

Note the reference to Nitro Pro 9.5 --- 
which is a program that allows one to edit pdf files
 and then print them out 
as though the new pdf was simply a printout 
of a pre-existing document.  
Here is how the letter appears in text edit:
I am writing in response to your Debt Elimination Scheme and complaint on the subject property sent to U.S. Bank National Association (“U.S. Bank”). On behalf of U.S. Bank, I am happy to assist you with this matter to the extent I am able to provide information.
I have researched your mortgage and have determined that U.S. Bank is merely the trustee for the Trust that owns yourmortgageandnote. PleasenotetheTrustistheownerofyourmortgageandnote,notthetrustee. Theservicer is the party to the Trust that has the authority and responsibility to make decisions and take action regarding individual mortgage loans in the Trust. The trustee has no authority or responsibility to review and or approve or disapprove of these decisions and actions. It is the servicer who has taken all action regarding your property, and has the information you have requested.
As we stated in our response of July 27, 2016 you must work with Bank of America as the servicer of your loan, to have your request addressed. I have forwarded your correspondence to Bank of America and they have responded and stated you may utilize the following email – litigation.intake@bankofamerica.com.
While U.S. Bank understands and wishes to assist you with this matter, the servicer is the only party with the authority and responsibility to make decisions regarding this mortgage and they are not affiliated with U.S. Bank in anyw ay.
Please work with Bank of America to address your concerns using the information provided to you in this letter, so they may assist you in a more timely and efficient manner.

Sincerely  :,f4

Kevin Goldade Corporate Trust Services 60 Livingston Ave
St Paul, MN 55107
cc Bank of America
  •  IF THE SERVICER IS NOT AFFILIATED WITH US BANK “IN ANY WAY” THEN EITHER US BANK HAS NO TRUST DUTIES OR THE SERVICER HAS NO SERVICING AUTHORITY

 

Servicers Using US Bank as Shield From Liability in Fraudulent Foreclosures

The conclusion is that US Bank “as trustee” is a sham entity. it does not exist.

The marketplace is flooded with false representations about the role of US Bank. This becomes abundantly clear when you are made privy to decisions made wherein sanctions were levied against US Bank. It underscores the basic premise that there is no formal loan, and hence that there is no creditor and there is no borrower — a very accurate but  counter-intuitive conclusion.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

On U.S. Bank I have always had a problem with describing them as a national bank in this context.

While it IS a national bank, it specifically disclaims that it is acting on its own behalf and states that it appears strictly as Trustee for a putative trust. As such it is neither acting as an investment bank nor a commercial bank processing deposits or withdrawals. It COULD perform those services if US Bank received borrower payments on putative loans. But it doesn’t perform those tasks since the records produced in court are ALWAYS those of a third party who claims rights to “service” particular loans including the subject loan.

Further, upon information and belief, US Bank has no knowledge or involvement in the invocation of the name “US Bank.” It uniformly refuses to sign off on any settlement or modification of loans and uniformly avoids sending any employee or officer to any court proceeding involving foreclosure of residential putative loans where it is described as “trustee” of a “trust”.

In addition US Bank has no duties that it is required to perform and no duties that are required by any document or instrument, save the consent to use its name in foreclosure cases. The absence of any duties to perform as Trustee is equivalent to the absence of a Trustee — a basic requirement in the creation of a valid trust.

And the absence of any duties as Trustee is evidence of the absence of any res, another basic requirement for the creation of a trust.

The use of the name “US Bank” is an attempt at “layering” or “laddering” as it is defined in the financial industry, to create a shield from liability on the part of self-proclaimed “servicers” whose authority is entirely dependent upon (1) the existence of a valid trust and (2) the presence of a real trustee.

Thus US Bank is not performing nor required to perform any trustee duties; and the putative trust never entered into any transaction in which the Trust paid for assets. Nor have any third parties contributed assets (owned by such third parties) to the res of the Trust.

Hence the sub rosa third party using the name of US Bank as a shield while the sub rosa third party pursued claims for its own benefit and not the benefit of any trust nor any beneficiaries of the putative trust nor any third party investors. Thus neither the named Trustee (or the named trust) nor the “servicer” had any right, justification or excuse to claim any rights arising out of the receipt of funds or the obligation to repay those funds by the putative borrower.

 

CHECKLIST — FDCPA Damages and Recovery: Revisiting the Montana S Ct Decision in Jacobson v Bayview

What is unique and instructive about this decision from the Montana Supreme Court is that it gives details of each and every fraudulent, wrongful and otherwise illegal acts that were committed by a self-proclaimed servicer and the “defective” trustee on the deed of trust.

You need to read the case to see how many different times the same court in the same case awarded damages, attorney fees and sanctions against Bayview who persisted in their behavior even after the judgment was entered.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

*

This case overall stands for the proposition that the violations of federal law by self proclaimed servicers, trusts, trustees, substituted trustees, etc. are NOT insignificant or irrelevant. The consequences of merely applying the law in a fair and balanced way could and should be devastating to the TBTF banks, once the veil is pierced from servicers like Bayview, Ocwen et al and the real players are revealed.

I offer the following for legal practitioners as a checklist of issues that are usually present, in one form or another, in virtually all foreclosure cases and the consequences to the bad actors when the law is actually applied. The interesting thing is that this checklist does not just represent my perspective. It comes directly from the Jacobson decision by the high court in Montana. That decision should be read, studied and analyzed several times. You need to read the case to see how many different times the same court in the same case awarded damages, attorney fees and sanctions against Bayview who persisted in their behavior even after the judgment was entered.

One additional note: If you think about it, you can easily see how this case represents the overall infrastructure employed by the super banks. It is obvious that all of Bayview’s actions were at the behest of Citi, who like any other organized crime figure, sought to avoid getting their hands dirty. The self proclamations inevitably employ the name of US Bank whose involvement is shown in this case to be zero. Nonetheless the attorneys for Bayview and Peterson sought to pile up paper documents to create the illusion that they were acting properly.

  1. FDCPA —abusive debt collection practices by debt collectors
  2. FDCPA who is a debt collector — anyone other than the creditor
  3. FDCPA Strict Liability 
  4. FDCPA for LEAST SOPHISTICATED CONSUMER
  5. FDCPA STATUTORY DAMAGES
  6. FDCPA COMPENSATORY DAMAGES
  7. FDCPA PUNITIVE DAMAGES
  8. FDCPA INHERENT COURT AUTHORITY TO LEVY SANCTIONS
  9. CUMULATIVE BAD ACTS TEST — PATTERN OF CONDUCT
  10. HAMP Modifications Scam — initial and incentive payments
  11. Estopped and fraud: 90 day delinquency disinformation — fraud and UPL
  12. Rejected Payment
  13. Default Letter: Not authorized because sender is neither servicer nor interested party.
  14. Default letter naming creditor
  15. Default letter declaring amount due — usually wrong
  16. Default letter with deadline date for reinstatement: CURE DATE
  17. Late charges improper
  18. Extra interest improper
  19. Fees even after they lose added to balance “due.”
  20. Notice of acceleration based upon default letter which contains inaccurate information. [Not authorized because sender is neither servicer nor interested party.]
  21. Damages: Negative credit rating — [How would bank feel if their investment rating dropped? Would their stock drop? would thousands of stockholders lose money as a result?]
  22. damages: emotional stress
  23. Damages: Lost opportunities to save home
  24. Damages: Lost ability to receive incentive payments for modification
  25. FDCPA etc: Use of nonexistent or inactive entities
  26. FDCPA Illegal notarizations
  27. Illegal notarizations on behalf of nonexistent or uninvolved entities.
  28. FDCPA naming self proclaimed servicer as beneficiary (creditor/mortgagee)
  29. Assignments following self proclamation of beneficiary (creditor/mortgagee)
  30. Falsely Informing homeowner they cannot reinstate
  31. Wrongful appointment of Trustee under deed of trust
  32. Wrongful and non existent Power of Attorney
  33. False promises to modify
  34. False representations to the Court
  35. Musical entities
  36. False and fraudulent utterance of a document
  37. False and fraudulent recording of a false document
  38. False representations concerning “US Bank, Trustee” — a whole category unto itself. (the BOA deal and others who “sold” trustee position of REMICs to US Bank.) 

Self Serving Fabrications: Watch for “Attorney in Fact”

In short, the proffer of a document signed not by the grantor or assignor but by a person with limited authority and no knowledge, on behalf of a company claiming to be attorney in fact is an empty self-serving document that provides escape hatches in the event a court actually looks at the document. It is as empty as the Trusts themselves that never operated nor did they purchase any loans.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.

If you had a promissory note that was payable to someone else, you would need to get it endorsed by the Payee to yourself in order to negotiate it. No bank, large or small, would accept the note as collateral for a loan without several conditions being satisfied:

  1. The maker of the note would be required to verify that the debt and the fact that it is not in dispute or default. This is standard practice in the banking industry.
  2. The Payee on the note would be required to endorse it without qualification to you. Like a check, in which you endorse it over to someone else, you would say “Pay to the order of John Smith.”
  3. The bank would need to see and probably keep the original promissory note in its vault.
  4. The credit-worthiness of the maker would be verified by the bank.
  5. Your credit worthiness would be verified by the bank.

Now imagine that instead of an endorsement from the payee on the note, you instead presented the bank with an endorsement signed by you as attorney in fact for the payee. So if the note was payable to John Jones, you are asking the bank to accept your own signature instead of John Jones because you are the authorized as an agent of John Jones.  No bank would accept such an endorsement without the above-stated requirements PLUS the following:

  1. An explanation  as to why John Jones didn’t execute the endorsement himself. So in plain language, why did John Jones need an agent to endorse the note or perform anything else in relation to the note? These are the rules of the road in the banking and lending industry. The transaction must be, beyond all reasonable doubt, completely credible. If the bank sniffs trouble, they will not lend you money using the note as collateral. Why should they?
  2. A properly executed Power of Attorney naming you as attorney in fact (i.e., agent for John Jones).
  3. If John Jones is actually a legal entity like a corporation or trust, then it would need a resolution from the Board of Directors or parties to the Trust appointing you as attorney in fact with specific powers to that completely cover the proposed authority to endorse the promissory note..
  4. Verification from the John Jones Corporation that the Power of Attorney is still in full force and effect.

My point is that we should apply the same rules to the banks as they apply to themselves. If they wouldn’t accept the power of attorney or they were not satisfied that the attorney in fact was really authorized and they were not convinced that the loan or note or mortgage was actually owned by any of the parties in the paper chain, why should they not be required to conform to the same rules of the road as standard industry practices which are in reality nothing more than commons sense?

What we are seeing in thousands of cases, is the use of so-called Powers of Attorney that in fact are self serving fabrications, in which Chase (for example) is endorsing the note to itself as assignee on behalf of WAMU (for example) as attorney in fact. A close examination shows that this is a “Chase endorses to Chase” situation without any actual transaction and nothing else. There is no Power of Attorney attached to the endorsement and the later fabrication of authority from the FDIC or WAMU serves no purpose on loans that had already been sold by WAMU and no effect on endorsements purportedly executed before the “Power of Attorney” was executed. There is no corporate resolution appointing Chase. The document is worthless. I recently had a case where Chase was not involved but US Bank as the supposed Plaintiff relied upon a Power of Attorney executed by Chase.

This is a game to the banks and real life to everyone else. My experience is that when such documents are challenged, the “bank” generally loses. In two cases involving US Bank and Chase, the “Plaintiff” produced at trial a Power of Attorney from Chase. And there were other documents where the party supposedly assigning, endorsing etc. were executed by a person who had no such authority, with no corporate resolution and no other evidence that would tend to show the document was trustworthy. We won both cases and the Judge in each case tore apart the case represented by the false Plaintiff, US Bank, “as trustee.”

The devil is in the details — but so is victory in the courtroom.

Revisiting the Nash Case v “America’s Wholesale Lender.”

The court held there was no Plaintiff filing the foreclosure lawsuit. This is extremely important and highly relevant to what is going on now. So many cases name a Plaintiff that either does not exist or whose name has merely been rented for the purpose of filing foreclosure. Like US Bank as Trustee for series XYZ “Trust.”

see http://stopforeclosurefraud.com/2014/10/22/nash-v-bank-of-america-n-a-successor-by-merger-to-bac-home-loans-servicing-lp-fka-countrywide-home-loans-servicing-lp-fl-circuit-ct-the-note-and-mortgage-are-void/

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

A reader reminded me about the Nash case and sent the link from stopforeclosurefraud.com. Besides reminding lawyers who sometimes forget about these cases, there is point in which I originally failed to comment when I first read about the case.

The court held there was no Plaintiff filing the foreclosure lawsuit. This is extremely important and highly relevant to what is going on now. So many cases name a Plaintiff that either does not exist or whose name has merely been rented for the purpose of filing foreclosure. Like US Bank as Trustee for series XYZ “Trust.”

Lawyers and judges tend to take the opposing lawyer at their word — that US bank is their client as trustee for a trust and not in their individual capacity. Others simply state a series of certificates and don’t even name a trust.

All evidence points to the fact that nearly all Plaintiffs in judicial states and nearly all parties claiming the title of beneficiary in the nonjudicial states simply have no nexus with the subject loan, the subject property or the subject homeowner. They also have no financial interest other than collecting a monthly fee for the rental of their name.

10 years ago I was advancing the idea that a motion should be filed requiring the attorney for the beneficiary under the deed of trust or the mortgagee under a mortgage deed to prove the authority to represent that entity.

Since we now know what I only suspected back then, these attorneys are receiving instructions from LPS/Blacknight etc who names the Plaintiffs, servicers etc. and transmits the foreclosure instructions directly to the lawyers.

The named Plaintiff or beneficiary receives no notice because it maintains no records and could care less about the outcome, since neither the named plaintiff (or beneficiary) nor the alleged trust (which does not exist, much like the AHL/Nash case) have any financial interest in the alleged loan, note, mortgage, debt, collection or enforcement of the alleged closing loan documents.

Upon inquiry, if the court takes it seriously you will most likely discovery zero contact between the lawyers and the named Plaintiff or beneficiary.

Here is what was posted on stopforeclosurefraud.com

a.) America’s Wholesale Lender, a New York Corporation, the “Lender”, specifically named in the mortgage, did not file this action, did not appear at Trial, and did not Assign any of the interest in the mortgage.

b.) The Note and Mortgage are void because the alleged Lender, America’s Wholesale Lender, stated to be a New York Corporation, was not in fact incorporated in the year 2005 or subsequently, at any time, by either Countrywide Home Loans, or Bank of America, or any of their related corporate entities or agents.

c.) America’s Wholesale Lender, stated to be a corporation under the laws of New York, the alleged Lender in this case, was not licensed as a mortgage lender in Florida in the year 2005, or thereafter, and the alleged mortgage loan is therefore, invalid and void.
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
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