Where's the Money? Pretenders Relying on Transfers But No Sale of the Loan

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by Neil F Garfield, livinglies.me

Confusion Starts Here: The pretenders are playing a shell game that is intended to strip the homeowners of their claims, their remedies, and their homes. It’s working because hardly anyone is asking where the money went. Instead of looking for cold hard cash, we are trapped in a never ending cycle of cases in which the homeowner, either pro se, or through counsel, has essentially conceded the case away by admitting the debt, admitting the default, admitting the amount owed, and admitting that the opposing side either does or might have the right to foreclose on behalf of nameless third parties who were never disclosed.

At the start of any proceeding you don’t win on the merits. You win on procedure. Homeowners go into court expecting justice when all the court system promises is a fair hearing, not a guarantee of justice.  If you fail to present the issues such that there is an actual issue of fact about which the parties disagree and that fact is material to the outcome of the case, then the Judge, procedurally, has no choice but to provide you with a “fair hearing,” even if he or she thinks you have virtually no chance of winning.

The issue of fact must be credible though, so don’t be using arguments, even if they might be right, that sound like conspiracy theory. The only thing the Judge will actually hear are issues fact that apply to this loan, this debt, this note and this mortgage or deed of trust. The only thing the Judge can hear are questions of fact relating to the debt, who funded it, or bought it, and who stands to lose money because of the alleged default by the homeowner. Note the words “stands to lose money” which is the essence of “standing” as a legal argument.

So can only win on procedure not the merits, which is counter intuitive since it is the merits we want to get to. That means you raise the right issues at the right time so that you get to the next step in litigation. Each time you go to court you seek to remind the judge that the other side are banksters, but you don’t rely on that to move your side of the case forward.

They will play games with appeals too, where the order entered is not “final” and therefore can’t be appealed. The homeowner has posted bond, but the appellate court remands the case and dismisses the appeal because the order was not a final order. Then they file a motion to take the bond posted by the homeowner and in the end the demoralized homeowner is left with no claim pending, no appeal, no bond money, no house, and no remedies. Which is just where the Banks want you. Do they want your underwear too?

Here are some questions that lie at the heart of the procedural and substantive part of the case: Did they pay for this loan, did they fund it and if not did someone else do it that has not been disclosed and if so where is their authority to appear in a representative capacity?

Where is the money — i.e., what was the real transaction or set of transactions. There can’t be a sale if there was no consideration. Any transfer of documents, fabricated, forged or otherwise is void without it being a sale. It is a transfer of convenience in a shell game that seeks to deprive the debtor of a party against whom she can lodge her complaints and with whom she could conceivably settle or modify her loans.

Unless they paid for the loan in a sale of the paper, they have no colorable right to the claim — unless they NOW wish to allege that they are appearing in a representative capacity. If so, they need to say the identity of the creditor, how the debt of that creditor relates to this house, and how they came to represent the creditor, and why they didn’t tell the court any of this before. (That last one is one you want to pound them on, because of its relevance later in the proceeding).

This isn’t hypothetical. The good thing about attacking the whole foreclosure process and eviction process after it is “over” is that by that time the shell game is over — they have committed themselves in writing to who the players are and what transactions they are actually relying upon. The best time, from a lawyer’s perspective, to attack the pretender lenders is after they have completed their scam. It is at the end that they admit now that a pool of investors funded the loan and now claims ownership.

Question: If the investors already owned the debt, then why should a servicer or any other intermediary be able to foreclose and bid in its own name? For that matter if the investors already owned the debt at closing with the homeowner then how can any sale or transfer take place between the conduits or intermediates in the transaction? What effect would any transaction between the intermediaries when the full sale has already taken place between the homeowner and the investors who funded the loan?

The only valid sale would be from the investors. And if the investors funded the loan, then why wasn’t that reflected on the note? If the investors funded the loan, why wasn’t that reflected on the deed of trust (mortgage)? Why do they hold so tightly to the proposition that they are the “holder” of the note when they refuse to allege they are the holder in due course? Whom does that leave to sue for predatory and fraudulent lending practices?

The tactic that is working for the pretender lenders is get you lost in the woods of documentation when you should be looking at the money trail which is why I continually harp on people getting both the COMBO Title and Securitization Analysis AND the Loan Level Analysis. Ideally you should have the Forensic Loan analysis as well in which the requirement of TILA and other sources highlight the necessity of disclosure of the real parties, their real compensation and the real terms of the deal from source to borrower.

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 |