IF IT WORKS, USE IT AND IF IT DOESN'T WORK, CHANGE SOMETHING

MOST POPULAR ARTICLES

GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

Just because I publish someone’s article doesn’t mean that I agree with everything —- or anything in it. The way I see my mission is to get ideas out there and maybe spawn some practical strategies that will work, whether they involve “legal” documentation or not. Yes, there is a risk that some of the people who comment on the blog are scam artists. Use your head before you hire someone. If they can’t make you understand what they are going to do and provide you with some references, then they probably should be avoided.

The Banks are winning because the theories and strategies are scattered. But some homeowners “Wins” have occurred for the same reason. Judges are confused and overloaded with work. There is no one silver bullet that will end this — in the final analysis we must stop these foreclosures because it produces an anomalous result: banks, who are by definition intermediaries, are getting the houses or the proceeds from them. The investors who put up the money and the borrower who put up his/her credit gets screwed.

Too many people are trying to simplify what is inherently complex and intentionally so. If it was simple, the courts could simply penetrate the dense fog and reverse all of this stuff. Somewhere in that fog is an answer that BOTH satisfies the goal of stopping foreclosures that simply further a fraudulent scam and the goal of preserving the UCC — such that negotiable paper can be negotiated without producing witnesses who can’t be found or are dead. And lawyers must study all aspects of the UCC, property law, civil procedure and civil causes of action, as well as the very ripe area of administrative hearings for solutions for their clients.

Neither this blog, nor any course I have ever given, nor any course anyone else has ever presented nor anything else is a substitute for (a) years of law school and (b) years of experience in the practice of law — particularly in the Courtroom. AND there is no substitute for beginning at the beginning and analyzing each step up toward your goal, whether it is modification, discharge of indebtedness or otherwise.

Ultimately, we must accept the ambiguity created by Wall Street that they are using against us in the Courts, the legislatures and in law enforcement to avoid criminal prosecution and to achieve civil results that are absurd but nonetheless continuing. It is crazy to have a result where the check you write results in the bank getting your TV. Somehow, Wall Street managed to control the narrative such that this obvious absurdity is not obvious to the Judge, the media or policy makers.

They did it by putting the following in a food processor and now it is up to us to try to pick the ingredients back out, unless we convince ourselves and others that the RESULT is improper, illegal and just can’t be right — the same way that the Banks have controlled the narrative focusing on the obligation instead of the note, mortgage and the negotiability of the note, perfection of lien and enforcement of security interest. By focusing on the obligation of the borrower instead of the obligation owed to the creditor, the banks have made the story about allowing borrowers off the hook and getting a free house — “after borrowing the money they refuse to pay it back because things went bad.” That story is playing in the minds of even the prized gunfighters out there who are fighting for homeowners.

The REAL result of following the Bank narrative is that the Banks get to keep the property even though they didn’t write the check — you did and others (investors) did. That is crazier than the free house to homeowners. Even if the goal was free homes for all homeowners there could be a public policy argument (not a very good one) for pursuing that goal. But allowing Banks as intermediaries to claim the subject matter of the transaction has no public policy argument at all. Quite the contrary, it has drained our economy of all the lifeblood it needed to prosper and darkened the prospects and confidence of consumers and world leaders alike. If we were dealing with investors who put up the money then of course there would be a legitimate argument for establishing equitable solutions that fit the need to mitigate the losses on both sides.

The Banks are taking up the argument that belongs to the investors and then denying responsibility as the lenders when it comes to counterclaims and affirmative defenses based upon deceptive, predatory or fraudulent lending and especially when the topic comes up that the signing of the note was a sham and the signing of the mortgage was a sham and that in reality the homeowner was duped into issuing a security remotely, so the Banks could claim they didn’t do it. They achieve this by deftly maneuvering back and forth between the following:

1. The representations and instruments signed or used for selling or “disclosure” at the closing with the homeowner/borrower.
2. The representations and instruments signed or used for selling or “disclosure” at the closing with the investor.
3. The representations and instruments signed or used for selling or “disclosure” at the closing with the “trustee” of empty or nonexistent trusts.
4. The representations and instruments signed or used for selling or “disclosure” at the closing with the insurers, Federal government and counterparties on credit default swaps and other hedge products.
5. The representations and instruments signed or used for selling or “disclosure” at the foreclosure with the homeowner, where only part of the accounting is used.
6. The representations and instruments signed or used for selling or “disclosure” at the closing of the “Trust” in which the investor thought there was an investment in “assets”, where again only part of the whole accounting is used (leaving out what is happening with the borrower and what happened to the proceeds of insurance, bailout, and other third party payments).
7. The actual money trail representing the WHOLE accounting for every penny that went in and every penny that went out that related to each loan or was attributable to each loan — for which there is no accounting in existence because if it existed it would need to be produced and if it was produced it would be discovered that two things are true (a) that the balance owed on the obligation of the homeowner had been paid down by resort to undisclosed funds created from the transaction between the borrower and the investor-lenders and (b) that as a whole far more money went into the system than went out, leaving the intermediaries richer and the investor-lenders and homeowners poorer.

So like the magician who distracts you from what he is doing while he is doing it, the Banks are successfully redirecting our attention to the details and arguing about splitting hairs when in fact we should be talking about whether it makes any sense at all for the Banks and servicers to get these homes. And if the investor-lenders feel they must abandon their rightful claims for repayment, to the extent that it involves the homeowners, then we should be finding ways for them to get together with homeowners, nearly all of whom want modifications not a free house, so that the investors and homeowners can preserve their claims against culprits who are screwing the investor source of funds and screwing the homeowner source of paper and credit, and then taking the spoils as well.

Tags: bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND
Posted in bubble, Corruption, Eviction, securities fraud |