Attack the presumption or rebut it. That is your choice.

Feb 26, 2020

This is how you determine if anyone owns loans:

Does the named entity actually legally exist? Is it registered anywhere?
Has the entity received a facially valid conveyance of ownership of the mortgage or beneficial interest?
Did the conveyance (assignment) also assign the debt?
Did the entity enter into a transaction in which it paid value in exchange for ownership of the debt?
Did the grantor of the assignment own the debt by reason of having paid for it.
Did the grantor own the mortgage prior to assignment?

A conveyance of ownership of a mortgage or beneficial interest without a conveyance of the underlying debt is a legal nullity in all U.S. jurisdictions. Merely recording an assignment without a transaction in which the assignee paid value for the debt is insufficient to convey any interest. This is the case in nearly all cases where a loan is subject to claims of securitization. There is no assignment of the debt because the debt was never purchased for value. Therefore there was no assignment of mortgage or beneficial interest.

The courts bridge that deficiency by use of legal presumptions. Claims of delivery of the promissory note are taken as true because few homeowners ever challenge that. The endorsements are frequently stamped or signed, undated, by persons unknown who are often the mortgage broker acting with instructions from a third party intermediary.

The indorsement is facially valid only because it conforms with statute, but it is otherwise invalid because it was neither signed by or on behalf of anyone who actually owned the debt. This is often contemporaneously with the “closing” of the table funded loan (i.e., signed by the mortgage broker — ask the closing agent who probably witnessed that).

Effectively the courts are using a series of cumulative presumptions to bridge a gap that is a condition precedent to foreclosure of any security instrument — that value be paid for the underlying debt. Article 9 §203 UCC adopted in all U.S. jurisdictions. These presumptions include one or more of the following:

The assignment of mortgage must have meant to assign the debt.
The assignment of mortgage also assigned the debt and therefore the assignee must have paid for it.
Delivery of the note must have been the result of a transaction in which the underlying debt was purchased.
Endorsement of the note must have been the result of a transaction in which the underlying debt was purchased.
Even if the assignee did not own the debt and did not legally own the mortgage and therefore technically could not foreclose, the foreclosure will yield proceeds that will be used to pay down the debt.
Explanations, representations and assertions by the foreclosure mills must be credible, trustworthy and probably true.

In the usual case where a loan is subject to claims of securitization, none of the above assumptions is true but if the presumptions are used they yield false results which results in forced sale of homes in which the proceeds are used as revenue and not to pay down any debt.

Legal presumptions are only supposed to be applied when the source is credible. Given the fact that the servicers and banks have admitted to fabricating millions of documents and have been paying hundreds of billions of dollars in settlements to investors, government agencies and homeowners, it is very difficult to understand why judges are applying such presumptions from such untrustworthy sources. But they do and that is a fact. Some of that is because they want to and some of it is that they need to because homeowners are not properly challenging the availability of the presumptions, not identifying the presumptions and not challenging the presumed facts. And you must deal with it. Attack the presumption or rebut it. That is your choice.

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

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