Start at the Beginning: The Old Documents Reveal Everything

Homeowners should be willing to go toe to toe with their tormentors — foreclosure mills acting on behalf of investment banks and companies pretending to be servicers. You need not believe that there is no loan account; you just need to act like that is true and you will probably achieve a satisfactory result. This is only fair. Your opposition has no loan account but is pretending there is one. 

The only thing transferred in connection with documents produced at events labeled as “loan closings” is that the rights to claim administration, collection and enforcement are transferred. This does not in fact ever transfer servicing rights and it expressly does not transfer the purported obligation of homeowners.

This brilliant strategy is what enables the control over everythign from originations to modifications, forebearances, and foreclosures to  be maintained but not legally vested in the investment banks that were the underwriters, bookrunners and sellers of certificates. There is no loan forgiveness because there are no loans. 

Servicing righst are NOT transferred because there are no servicing rights if there is no principal or creditor who owns the udenrlying obligation. Nobody can claim that they have been granted authority to enforce if that authority did not come from either the owner of the alleged underlying obligation (if it is alleged) or someone who was given that authority by the owner of the alleged underlying obligation (i.e., in this case, the implied — but never stated —unpaid loan account).

The key error made by nearly veryone is that the “records” of the company named as servicer, even if they were records of transctions that were conducted by that company, are not evidence of the status of the unpaid loan accont on the books or records of the company that is supposedly holding the obligation as an asset.

Read the following document, along with my early posts on this blog. You will see that the contracts, the intention, and the actions of the Wall Street Players were NEVER structured or written to transfer, sell or purchase any loan accounts due to anyone. This fact is so counterintuitive that anyone who lacks direct experience in investment banking will usually recoil from it and reject it out of hand. Such a person then proceeds down a rabbit hole beautifully engineered by investment bankers and their lawyers. And that is our current status quo.

see Law_Insider_bear-stearns-asset-backed-securities-trust-2003_assignment-and-assumption-agreement_Filed_02-12-2003_Contract

The document is an Assignment and Assumption Agreement, which is not generally available any longer. Most of them simply ceded control over all aspects of any application for a loan such that the Assignor is merely a front for the Assignee. The Assignor is called the originator of the transaction, and the transaction is referred to as a loan.

But the Assignor never loans any money and, therefore, cannot factually or l legally sell the rights acquired from the execution of the closing documents — except the rights to control claims for administration, collection, and enforcement (sans ownership).

In the law, ownership of the underlying obligation is required to enforce the note and the mortgage. It cannot be claimed in foreclosure without first pleading and proving payment of value for the underlying obligation (regardless of whether it is the outcome of a loan transaction or if it is the product of a different kind of transaction mislabeled as a loan).

The obligation must exist, regardless of label, for anyone to claim rights to administer, collect or enforce it. One may not claim an obligation exists without proving that it exists and that the enforcer either owns it or possesses the right to enforce it.

This brings me into conflict with virtually very court in the land — all of whom will be red-faced when it is revealed that they failed to do their homeowner and have played a crucial role in undermining the U.S. economy by allowing foreclosure based upon nonexistent claims. Whether they did so intentionally or under threat from the Federal government or Wall Street is irrelevant for the homeowners who lost their biggest investment or were threatened with that loss.

There is no case in the entire world of securitization in which anyone has ever proved that they were a holder in due course. It is a rare bird where even the allegation is made. If anyone made that allegation, they would need to prove it.

And the elements for a holder in due course of a note are possession and a right to enforce the note, secured by payment for the underlying obligation (e.g., the unpaid loan account held as an asset of the company named as creditor/claimant or Plaintiff/beneficiary by the foreclosure mill who is telling that lie under cover of litigation immunity). The lawyers are protected because they do not know for an absolute fact that what they are saying is untrue.

NOTE: Recent events in the news indicate that lawyers can still get in trouble if they don’t know what they are saying is true. In an odd juxtaposition, they might not be disciplined for breaching the ethical and disciplinary rules governing lawyers, but they certainly need lawyers to protect themselves from being indicted for obstruction of justice).

But that is only in a criminal investigation. Millions of fraudulent foreclosures could be investigated and result in criminal charges. So far, law enforcement has skipped that beat, leaving the courts and the victims to decide civil liability based upon the very low threshold of “more like than not” (preponderance of the evidence) rather than the higher burdens of proof of either “clear and convincing” or “beyond a reasonable doubt.”

In most cases, after brow-beating me, my persistence pays off. The foreclosure mill cannot corroborate the most basic elements of their case. To prevail, they must prove that the truth of the matter asserted is sufficiently supported by the evidence. They can not do that regardless of how much they try to convince you, your lawyer, and the court that they should not be required to do so.

The “argument” offered against me has failed far more often than it ever succeeded. It is that the claimant does not need to prove that they own the loan — or, that anyone owns a loan, that the owner of the claim is irrelevant, and that it doesn’t matter whether or not the servicer’s “records” show the status of the unpaid loan account as an asset on the books for the designated “creditor.”

In short, they argue that the foreclosure mill need only prove that the homeowner was making scheduled payments and stopped. That, they argue, is reason enough for ANYONE TO ANNOUNCE A DEFAULT, AND THEN, AS THE ANNOUNCER, IT IS ENOUGH FOR THEM TO ENFORCE THE CLAIMED OBLIGATION. They say that the fact that the obligation is not owed to them or anyone they know is not just irrelevant; it is also protected, privileged, proprietary, and confidential information.

They’re saying that having gained information about the documents signed by the homeowner, they have every right to administer and enforce them. If this was true, anyone with knowledge of the affairs of any other person could claim the right to administer, collect and enforce those documents. That has never been the law, and hopefully, it will never be the law in a society based upon the rule of law.

They argue — and most courts agree at first — that they only need to show possession of an image of the promissory note. From that image, it is presumed that “they” have possession of the original note in their possession even if they never produce it (even at trial or upon sale of the property) because, despite foreclosure, the securitization infrastructure remains just as it would if there had not been a foreclosure.

Nobody loses money when one homeowner stops making scheduled payments. The only parties who risk loss are the investment banks if many homeowners stop paying, demonstrating what everyone except the courts seems to know. There is no lender or successor lender and no unpaid loan account because part of the scheme was to avoid lender liability. You can’t be a lender or successor if you never owned the account. Thus you can never be liable for violating lending and servicing laws.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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