Gieseke-The "Creditor" consists of the Investors not Servicer

The Illusion of Creditor

Gieseke Remand Order 5 20 16 from 9th Circuit (3)

“As it stands, the “creditor” consists of all investors in all trusts created by each investment bank. But nobody is acting as if that is true.”

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

And for those who thought they could get away with lying and cheating forever, let me say this: anyone can get away with almost anything — at first. But eventually if you keep doing it you are going to pay the price. The 9th Circuit Court of Appeals (Federal) has made it clear that it will routinely reverse any decision that involves the trial court accepting void assignments or in which the court rules that the borrower has no standing to raise the issue of ownership and standing based upon a void assignment on the grounds that the borrower was not a party to the transaction.
Just to be clear, that whole line of reasoning was flawed from the start. If you witness a murder, will your testimony be blocked because you were neither the murderer nor the victim? The very notion of due process means that all parties have an opportunity to pursue the truth and not be stuck with some legal presumption that is based upon a false statement of fact.

The importance of the Geiseke decision is that several states are involved and it likely to have strong persuasive impact on courts across the country. However, don’t think the party is over for the banks. They will continue to raise the standing issue (i.e., the borrower was not part of the assignment transaction) and judges will continue to say to borrowers until they absolutely cannot, that borrowers have no standing the raise the issue as to whether any of the implied transactions actually exist.

The same is true with the identity of the creditor, a closely related issue. It is black letter law, as they say, that every borrower should know the identity of his or her creditor. But like other issues, the courts are still asking “what difference does it make?”
But as to the standing issue on void assignments, here again we have a procedural due process issue. Isn’t it a finding of fact without any evidence for a court to say that the borrower was neither a third party beneficiary nor party to the transaction? How can that happen without evidence? Doesn’t that mean that the court must see the fictional transaction? This entire issue is about letting the banks steamroll over the borrowers and investors — where the bank or service takes the loan as its own, in direct conflict of interest to the actual creditors — the investors.

The banks don’t want this issue to surface because of a dirty little secret — in a legal sense there is no creditor that they can identify. And the borrower is completely faultless in that event. The borrower did not steal the investors’ money. The borrower did not create fictional trusts that were never active and the borrower did not create dark dynamic pools in which money was going in and out of the pool every second.

If the banks had obeyed the law those trusts would have been active for at least 90 days. But they were not active. But if they had been active there would be a definable group of creditors — the investors in that trust. As it stands, the “creditor” consists of all investors in all trusts created by each investment bank- not the loan servicer.

To Contact Attorney Charles Marshall:

Email: cmarshall@marshallestatelaw.com
Website: marshallesquire.com
Phone number: 619.807.2628, 619.755.7825
Original Order: https://scholar.google.com/scholar_case?case=14840482884466427978&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Tags: 9TH CIRCUIT COURT OF APPEALS, creditor void, es, foreclosure gieseke
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