Pleading: The devil is in the details

Proposed pleading submitted to me for review. The difference is subtle to the casual reader but it is the difference between giving the Judge a chance to rule in your favor and giving him no opportunity to rule in your favor. Once you have tacitly or explicitly admitted the connections and validity of any of the documents upon which the co-venturers in the Ponzi scheme relied upon to foreclose, you are tying a bow around the case of the would-be forecloser. The more facts you allege in your pleading, the more you will be required to prove. The more you deny what is either plead or presumed in the foreclosure, the better your chances of getting cancellation of the instruments.

Paragraph submitted to me:

However, the wire transfer evidenced to this court clearly shows that the money wired into Plaintiffs’ escrow came from a different bank altogether, Centennial Bank of Colorado. Under Cal. Fin. Code §22009, AHL does not qualify as a lender in California. AHL acted as a broker of funds that were derived from the sale of mortgage backed securities, as was the intent of the “AMLT 2006-2 Trust”. (In this area you are writing about entering the “contract.”  See the AmJur for entering contracts without full “awareness.”)Deutsche Bank had a close contractual relationship with AHL prior to Plaintiff entering into any contractual agreement and was aware of the intent of the Trust to fund Plaintiffs’ loan and all of the loan(s) in the trust that were funneled through AHL as a “straw lender”. False and misleading information was entered onto Plaintiffs’ loan application by Defendants’ predecessors in interest without Plaintiffs’ knowledge. The applications, as exhibits, are factual evidence in this case and are admitted by Defendant(s). AHL, and thus Defendant Deutsche, as trustee of the beneficial trust and partner to AHL in the AMLT 2006-2 Trust, had a duty to deny the loan application for using false information that it knew to be false and because Mr. Macklin simply did not qualify financially, under TILA and Reg. Z, as well as California lending laws.

All that is sort of correct and mostly conjecture and what is being suggested is antithetical to the position that any homeowner wants to take.

MY Comments

As stated before do not refer to AHL as having acted as a broker. As far as you are concerned they were the lender according to their own disclosures and representations and those disclosures and representations were untrue. They were borrowing the transaction between you and the investors and passing it off as their own. With no other information and the other parties all having superior access to the real facts, you had no basis to know or even inquire about irregularities in the supposed loan papers.

You don’t know if Deutsch had a close contractual relationship with AHL and the probability is that they did not. If they did, then the AHL acts could be as authorized agent for an undisclosed principal — true, that might be violative of TILA and RESPA but it ties the funds you got with AHL which you want to deny. The fact that it is a violation but it does not negate the obligation running through AHL or at least it might not nullify the obligation.

THEN YOU USE THEIR OWN DOCUMENTS AGAINST TO CORROBORATE YOUR FIRST ARGUMENT THAT THERE WAS NO CONTRACT between homeowner and Deutsch and no contract between homeowner and AHL. : Even if Deutsch was the trustee of a valid trust into which loans were being assigned timely (within the 90 day cutoff period) and which were performing, Deutsch was violating the requirements, terms and conditions of the documents upon which they rely to assert their claim. Those documents require a performing loan to be assigned in recordable form into the trust within 90 days. The loan was neither performing, according to their own declarations, nor was the purported assignment within the 90 day window.

Deutsch is attempting to create circular logic here to prove a nonexistent point. Even if the situation was as they say, they would be violating their duties as trustee and could not accept the offer of the assignment, thus negating the contract. Further, examination of the transaction will show that the trust never paid for the assignment, thus lacking consideration in the same way as there was no consideration for the origination documents that Deutsch claims was signed by homeowner.

Deutsch was a co-venturer that had no concern as to the value or validity of the loan at any point in the chain events leading up to the point where they asserted a claim. They knew or must have known there was no committee using industry standard underwriting procedures and that the goal was not to loan money for repayment, but rather to simply loan money with the expectation of non-payment, thus enabling the the investment banker to collect on insurance and credit default swaps and federal bailouts that should have been made payable to the investors whose money was used to fund the loans.

By purchasing multiple insurance policies that were sham transactions in the sense that they were really sales of the same loan portfolio multiple times, the Ponzi scheme was enhanced on financial steroids. These soaring, ill-gotten gains enabled the investment bank to spread fees around on Wall Street like it was raining money. Any financial analyst would know instantly that on a loan where there was 5% interest, the fees could not possibly be sufficient to pay all the people up and down the false securitization chain.

Yet the money was there as has been reported abundantly in the mainstream media, with bonuses and profits literally in the billions of dollars to single individuals or small groups of individuals.

As further corroboration, the terms of the PSA require the assignor to either buy-back the bad loans or replace them with cash. Deutsch has either never made such a demand or it is concealing the demand so it can collect more than once. This is why a complete accounting, with a receiver if necessary, should be delivered starting with the funding of the loan and continuing to the current time. Both Deutsch and AHL were paid puppets of the investment bank that sold the bogus mortgage bonds and then took the money and used it for their own purposes.

Neither Deutsch nor the AHL have demanded a share of the insurance, credit default swaps and bailout that was paid to Deutsch. The reason is clear: Deutsch agreed that it would disclaim any interest in the loans and agreed NOT to pursue the homeowner for collection or foreclosure. The investment banker needed this assurance because otherwise both Deutsch and the participants and co-venturers in the false securitization scheme might have shown up foreclosing on the property not as co-venturers but as having opposing interests. Deutsch was paid its monthly fee to allow the renting of its name, with no further duties. The investment bankers were thus able to claim the loan as though they were holding the loan receivable when they had neither funded nor purchased it.

As further corroboration, of the fact that Deutsch did not treat the situation as one in which they were true trustee of a valid trust with an actual trust account, no trustee, would have ever agreed under these circumstances to release their interest or allow the investment banker to assert claims of ownership of what was in the trust — a fact well known to Deutsch since it was the issuer of most of the credit default swaps in the industry.

Posted in bubble, Corruption, Eviction, securities fraud |