Comment: 'Foreclosure Defense: Why People are Ignoring ...
Comment: "Foreclosure Defense: Why People are Ignoring Their Rights"
I had court today, the judge will be making a decision, I’m hoping to stay the case. I want to see the note, if they actually produce it then i may be screwed, if they don’t produce it then I will have some options. My attorney thought it would be good to have the note delivered to the banks attorney and we can go to his office to inspect it, what do you think? so much to learn in so little time.
ANSWER: Well you might be screwed and you might not. Probably not.
First of all the Lenders are on the run now. No where to hide. We have tried to come up with possible defenses, and the only one that comes up is if they roll over on the mortgage aggregators, investment bankers and others. Not likely unless they are granted immunity by DOJ and local law enforcement.
Just because they get the note doesn't mean they an enforce it and doesn't mean they can avoid fraud charges.
The note itself should be endorsed to an assignee, if there was one. In 99.9% of all cases there was an assignee. In most cases the note itself does not contain the endorsement.
The usual scenario is to attach the "note" to an assignment. To be effective the "assignment" must be recorded. If it isn't recorded and the note is not endorsed, then the money the lender has received for the note is payment in full by a third party. The third party might and might not have rights to enforce the note but the lender definitely doesn't because the lender has been paid in full.
The third party is probably barred from enforcement because of prima facie non-disclosure of the real party in interest (the source of funding) the fact that the "lender" was a stand-in for an unregulated and illegal "financial institution" and the fact that the "lender" received a fee equal to 2.5% (industry average) of the entire balance of the note.
The third party is further barred because the third party re-assigned the "note" which was eventually placed in a financial food processor with thousands of other obligations (including other "mortgages," auto loans, student loans etc.) and then the GOOP was scooped out to fill tranches in an SPV. Frequently the documents referring to a particular loan transaction were pooled, sliced, diced and pureed and then divided into multiple tranches of the same SPV and into multiple tranches of multiple SPVs.
The result was that the investor (the only one in the chain who has a possible claim to being holder in due course if he/she/it didn't know what was going on) who purchased the certificates on "asset-backed" security purchased thin air. But for a while they still got paid because some of the proceeds of the security sale was put in a reserve pool and some of the payments were insured by AMBAC et al, and some were paid by virtue of credit default swaps. The investor paid a premium far above the value of the note you signed. That money was used to pay fees that were undisclosed to him and the borrower to pay the investor back.
Thus in almost every case the figure claimed as being in default is either false or not susceptible of being proved. Because the party attempting to foreclose in fact does not have any document from an actual holder in due course giving him the right to enforce the note. Nor does the “lender” admit to being potentially liable on counterclaims that relate to the behavior not only of the “lender” but all the parties (fraudsters) upstream in this largest Ponzi scheme of all time.
Now why did I put "note" in quotations? Because the document attached to the assignments was NOT the real note in many or most cases. It was a blank note forged in blank with the signature of a person who somewhere signed at least a mortgage application and probably closed, but included people who never closed (see Wells Fargo Case on News Page this Blog). So the note that was assigned was not your note, it was a forged substitution. Why else would all these notes disappear? It's like holding money. why would you rip up a ten dollar bill unless you had told someone that it was a $100 bill and now had to show it. The notes were destroyed because they were evidence of criminal and civil fruad.
Bottom Line: Don't get stalled by production of the note. It might not be real, and possession only means they are a holder. Being a holder creates a presumption of being a holder in due course which is easily rebutted by demonstrating that there is probable cause to believe that the loan documents were procured by fraud, deceit and non-disclosure --- an easy task in this environment, especially by reference to sworn filings on public record with the SEC.
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