MIRANDA RIGHTS FOR BORROWERS

Oct 17, 2010

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

POSTED BY “RESEARCHER”

EDITOR’S COMMENT: It isn’t just Bank of America. And it isn’t just the servicers. EVERYONE in the securitization chain has a legal problem, a liability problem and is subject to potential fines, penalties, damage awards to borrowers, punitive damages or treble damages. It’s just not the way they say it is. The problem is that the presumptions of the banks keep seeping into the consciousness of borrowers, their lawyers and the judges that hear the cases. The presumptions are all wrong. So when borrowers mount a challenge to a servicer, pretender lender, MERS or other entity, they use terms that basically admit their case is wrong and that the banks are right. THERE ARE NO MIRANDA RIGHTS IN THIS BATTLE SO LET ME SAY THAT ANYTHING YOU SAY OR DO MIGHT BE USED AGAINST YOU.

When you refer to your servicer as “the bank” or “the lender” you are most probably (a) wrong and (b) making an admission against interest that can be used against you.

When the “servicer” sends a statement, don’t assume it is right. It probably does not show any credit for loss mitigation payments received by the real creditor from third parties. Don’t even assume they are the servicer. There is a master servicer that is directing the puppets in this play and only they know what money was paid to whom.

When you refer to your loan as being in trouble or in default, the same thing applies — you are most probably wrong. The servicers, AS CO-OBLIGORS ON YOUR OBLIGATION AND UNDISCLOSED TO YOU) ARE MAKING THE PAYMENTS. Legally that means there is no default. If the servicer has any claim against you for for the money they spent (assuming they spent it out of their own pocket, which we don’t know to be true) it is separate and apart from your loan obligation, note or mortgage. It’s just like any other creditor’s claim — unsecured.

When you receive papers to fill out for a modification, don’t assume that you are doing anything but wasting time — a favor to the “servicer” who wants that time to pass so they can foreclose. If you are being offered a modification, make sure the party making the offer actually has authority and don’t take their word for it — make them prove it. Just participating in the modification process could be an admission against your own interests and create a reasonable presumption in the mind of a judge that even you believed that they were the parties with standing — so why should he/she accept your challenge to it now?

When you receive papers from anyone, don’t assume they were authorized to send them, that the information contained in them is correct, or that their declaration of default is correct, authorized or even legally proper.

When you refer to your servicer as a servicer, you are also most probably (a) wrong and (b) making an admission against interest that can be sued against you. Having made the payment to the creditor, they are now simply a debt collector at best, and most probably the only claim they have is either as a debt collector, or for unjust enrichment. But wait there’s more —- if they advanced the payment for you then in order to even have a claim against you they must show a transfer of some kind on behalf of the creditor to BAC or whoever claims to be the “pretender servicer.” I’m sure they will come up with some document when challenged, but that brings us right back to the fact that the obligation was never effectively transferred and accepted into the pool that was created to receive it. So the “servicing” was never officially authorized by the originating lender, who was paid in full at your closing.

When you refer to your mortgage obligation the same thing applies. Don’t say it. It probably doesn’t exist. You may have an obligation but it most probably is NOT a mortgage obligation. The lender of record in the county recording office is not and never was owed one dime in most cases. Therefore under any property or mortgage law (check with a lawyer) there was no encumbrance or mortgage. There was just a piece of paper that was a lie. A note signed in favor of a party you didn’t know wasn’t owed any money and a mortgage signed in favor of a party who didn’t own the debt. THAT is the essence of an unsecured obligation.

When you refer to the amount due on your loan, you are subjecting yourself to the same thing. You are most probably wrong because of all the loss mitigation payments made by multiple parties as part of a deal that you knew nothing about, contrary to the disclosure requirements under federal law, and you making an admission against interest that can be used against you.

WHEN YOU THINK YOU HAVE A SETTLEMENT MAKE SURE IT IS BROUGHT TO COURT WITH A JUDGE DECLARING THE STATUS OF TITLE IN A QUIET TITLE ACTION. Otherwise you could find yourself, like some buyers at foreclosure auctions, subject to yet another mortgage or obligation you never knew about.

BOTTOM LINE: JUST LIKE ANY OTHER CASE — DON’T SAY A WORD AND DON’T ADMIT TO ANYTHING UNLESS YOU HAVE SPOKEN WITH A LICENSED ATTORNEY IN THE PLACE WHERE YOUR PROPERTY IS LOCATED.

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Bank of America and BAC Home Loans Services, LP have major issues on their hands; they could be buried in litigation for years.

1) BofA owns BAC (BAC) Home Loans Servicing, LP; they transfered all loans from BofA to BAC to create layers.
2) BAC is now a debt collector.
3) BAC is not responding or answereing RESPA QWR’s
4) BAC is not responding to FDCPA dispute letters
5) BofA has misrepresented who owns the loan in RESPA QWR response letters. Some times stating up to 4 differnt entities own the loan in differing indivdual repsonses.
6) IF BAC is sent a RESPA QWR, BofA answers it for them. BofA is a legal entity and BAC Home Loans Servinc, LP is a legal entity.
7) BAC and BofA claim in notice of defaults that they are the owner/creditor/holder of the loan; when BofA has stated in RESPA QWR response letters that they are merely the Servicer of the loan.
Advertising in Newspaper advertisements for notice of sales as BofA being the creditor/holder/owner and foreclsoing on properties they did not own, were merely the Servicer.
9) BofA acted as the orginating lender, then admits to selling a borrowers loan, stating in RESPA QWR’s BofA is merely the Servicer, but has kept the NOTE, MORTGAGE and all docuements since orgination. This is an admission of not perfomring to the Pooling and Service Agreement and to the letter of the law for the Trust agreement.
10) BofA and BAC represent to borrowers that the borrower is denied a loan modification due to The Investor denies it. BofA then communicates in writing to the borrower the name of a creditor, other than BofA, that is owner of the borrowers loan, misrepresenting and misleading to the borrower the loan had been sold. Then in Court and lawsuits BofA changes its claims to state BofA owns the loan and that BofA made mistakes stating that the loans were sold, when BofA did not sell them. BofA had them placed in internal divisions owned by BofA, but given different names. These names mislead borrowers in to beleiving the loan has been sold.

BofA has serious issues; not to mention the issues of closing loans where it did not investigate borrowers income or ability to repay the loan, also BofA owns an appraissal company, Home Focus Services, LLC, and ordered appraissals through its own entity!

Tags: BAC Home Loans Services, Bank of America, LP
Posted in bubble, Corruption, Eviction, securities fraud |