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I cannot overstate the importance of understanding the elements of securitization and the way it was distorted and continues to be distorted by banks who have pulled the wool over the eyes of just about everyone — including the borrowers themselves and their attorneys. Pleadings I have examined show that the lawyer or pro se litigant who drafted them are merely saying “there is something wrong here, but I don’t know what because the opposition won’t give me the information I need.” It then becomes a cat and mouse game as to what issues are relevant for discovery. In the end, even if the discovery is forthcoming neither the lawyer nor the homeowner knows what to do with it, which is why my firm provides litigation support to attorneys who are defending foreclosures.
In an effort to provide attorneys with the type of pleading necessary for affirmative defenses to actually mean anything —- and provide the platform for appropriate discovery, I am giving you a statement that has been used in some cases and could be used in most cases, although the originator depicted below is not one size fits all. There are several different types of originators but the one thing they all have in common in cases where claims of assignment and securitization are made, is that nearly all of them are subject to an Assignment and Assumption Agreement (see Neil Garfield on YouTube) which is to say that the loan is “sold” even before any application for loan is submitted.
The following is merely a potential guide, depending upon the facts of the case. It would be extremely helpful if you had a securitization and title report that you could attach or refer to in making these allegations. Once the matters are put in issue, the judge has no choice but to allow discovery on those points, which is why affirmative defenses are important. After you have stated your factual premises then you must choose between a variety of affirmative defenses that recognized by law, which is why this article is directed at attorneys. (I.e., the narrative below does not contain the affirmative defense — it only provides the factual basis for the affirmative defense of, for example, “Setoff.”)
Background: It is affirmatively alleged by Defendant that the originator shown on the promissory note and mortgage was a naked nominee, that the mortgage therefore had two nominees and no real party in interest, that the the mortgage lien was never perfected, and that neither the note nor the mortgage is legally enforceable because the reference is to a loan transaction that never in fact occurred.
It is further alleged that the defendant was tricked into signing documents that were predicated upon the advance of money by the originator — an advance that never occurred, and that this allegation is based upon the SEC filings of the parent company in which it is apparent that the business of the originator was not lending and that therefore the originator reported no loans receivable and no reserve for defaults in the balance sheet of its financial statement but did report fees received on its income statement.
Accordingly it is affirmatively alleged that any “sale” of the loan was a sham unsupported by consideration and that the true lender was concealed from the borrower for the purpose of creating a false paper trail and a false history of payments that would encourage investors to buy more mortgage bonds. It is affirmatively alleged that the true party in interest who advanced money from which funds were taken to fund a loan was a collective of investors who might be represented by an asset pool (REMIC trust) if the rules of the pooling and servicing agreement were followed. If the terms of the Pooling and Servicing Agreement were not followed then the account receivable is collectively held by a group of investors who are not represented by any trustee or manager. Based upon the facts of this case, the terms and conditions of the Pooling and Servicing Agreement were not followed in that the asset pool was not funded, the assets were not purchased and the conditions of a REMIC trust were not established.
By concealing and blocking information about the true lender, the defendant was prevented from reinstatement, modification, mediation or offset by the receipt of funds paid in mitigation. Accordingly the powers of the “servicer” derived from the Pooling and Servicing Agreement, do not allow for judgment to be entered in its own name, do not allow for the servicer to become the “creditor” by virtue of a judgment based upon untrue statements, and that the investors and the borrower are being victimized by a scheme in which money and property is diverted from the real parties in interest whose identities are concealed by the intermediaries who used said identities for personal profit. Further, if the strict conditions of the Pooling and Servicing Agreement were not followed, then the servicer has no direct privity with the REMIC trust and therefore lacks legal authority to act as servicer.
Lastly, the statements, demands and notices sent by the servicer conceal the actual financial transactions, including deductions from the principal balance due as result of (1) mitigation payments received by the agents of the real party in interest but which were not reported as applied and (2) continued payments by the “servicer” from funds supplied by the investment bank underwriter or its affiliates, after the borrower ceased making payments in order to conceal the true status of the loan for the purpose of providing misinformation that would encourage the investors to buy more bonds issued by REMIC trusts that were probably unfunded and never possessed any assets.
The continued payments and distribution reports were received by investors and applied thus reducing the account receivable balance but were not reported to the borrower since it would contradict the position of the servicer that the loan was declared in default and would contradict the allegation of the principal balance and accrued interest due to the owner of the account receivable.
The current foreclosure case represents a continuation of the pattern of behavior in which the true facts are obscured and the real parties in interest are prevented from settling any claims through modification, mediation or even payment in which only the investors as the sole owners of the account receivable may execute a valid satisfaction of mortgage and delivery of the original paid note.
Foreclosure Crisis Just Now Hitting Some States
http://realtormag.realtor.org/daily-news/2013/08/20/foreclosure-crisis-just-now-hitting-some-states
Here… It…. Comes… (Foreclosuregate)
http://market-ticker.org/akcs-www?post=223771
How to get your house for free: rare but possible
http://www.theage.com.au/business/world-business/how-to-get-your-house-for-free-rare-but-possible-20130821-2s9xt.html
Probe of foreclosure billing widens
http://www.denverpost.com/breakingnews/ci_23917779/probe-foreclosure-billing-widens
Homeowners Still Hurt by ‘Sloppy’ Service on Mortgages, Feds Say — AOL Real Estate
http://realestate.aol.com/blog/2013/08/26/CFPB-report-criticizes-mortgage-servicers/
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