Dec 13, 2019
Yes ownership of the debt and payment for the debt, for the first time in history is actually split contrary to law. Under current law it is impossible to own the debt without paying for it. This is required by the most basic doctrine of judicial standing — a party may not go to court for a remedy unless there is injury. In a loan the only possible injury would be nonpayment. If nonpayment does not result in injury to the party making the claim for a remedy, no court has jurisdiction to hear that claim.
=====================================
GET FREE HELP: Just click here and submit the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================
*
The presumption of payment is being used to bridge the gap. So if someone gets an assignment of mortgage or beneficial right under a deed of trust it is presumed the assignor also conveyed the debt. If the possession of the note (along with rights to enforce it) changes hands it is presumed that money exchanged hands. It’s presumed because that is the way it has been for hundreds of years. Even common sense says that only upon receiving payment would someone part with ownership of a mortgage or a note. If the assignor did not own the debt then it conveyed either the debt nor the rights to the mortgage or deed of trust. The assignor did not own the debt unless it paid for it. That is the law.
*
So money didn’t change hands and the law has no room for that. An assignment of mortgage without the debt is considered a legal nullity — i.e., it happened in fact but it had no legal effect — like it never happened.
*
Foreclosure, the greatest civil loss to a party cannot occur unless the action meets the definition — restitution for an unpaid debt due to the claimant. But if the claimant doesn’t own the debt, then the action isn’t a foreclosure. That is even more true if the claimant cannot produce admissible evidence that it is representing someone who paid for the debt and will turn over the proceeds of foreclosure to the one who paid for the debt. Of course that means disclosing who paid for the debt.
*
That evidence is not available because it does not exist. The parties who deposited money that was used to fund the origination or acquisition of the debt are investors who immediately (by contract) had no interest in the debt, note or mortgage — supposedly to make them remote players that wouldn’t be liable for lending violations.
*
The brokerage firm (investment bank) that directed the money may have had some equitable right to lay claim to the debt, note or mortgage but certainly wasn’t the legal owner of the debt for the simple reason that it isn’t mentioned anywhere in the transactions originating or acquiring the loan. That is because it was hiding its involvement (see “active concealment”).
*
The legal presumptions that have carried the banks over the finish line in so many cases were easily rebuttable. And in almost every case where those presumptions were effectively and persistently challenged the banks lost. They lost because the presumption did not line up with the facts.
*
When the money was advanced by investors, there was no business reason for money to exchange hands between (A) grantors, who did not pay for the debt, and (B) grantees who did not pay for the debt. Neither one of them cared about the money. They only cared about the fee they were being paid to act as though money was exchanging hands. One lies and the other swears to it. Hence robosigning.
*
The movement of the paper created the illusion of movement of the debt. But the debt never moved because nobody paid either the investors or the brokerage firm (investment bank) for ownership of the debt. Without movement of the debt there could be no new owner of the debt. Without ownership of the debt there could be no injury resulting from nonpayment. Without injury from nonpayment there can be no foreclosure which is why, in Article 9 §203 UCC, it says that a condition precedent to foreclosure is payment of value for the debt.
*
We have tracked in several cases the flow of funds resulting from the ultimate sale of property that was foreclosed. In no case did the Trustee of a claimed REMIC Trust ever receive or retain any such proceeds. In all cases the money was laundered through various entities claiming to be servicers or Master Servicers only to end up in general operating funds of one of the brokerage houses that were allowed to call themselves commercial banks — over a weekend of deliberations over how to prevent financial freefall caused by the unwillingness of investors to purchase more “mortgage bonds” (certificates) which provided the only fuel to the Ponzi scheme that became known as “Securitization.”
*
PRACTICE NOTE: For those of you who know your rules of civil procedure, you might be coming round full circle to where we were in 2008 — i.e., besides the common motion to dismiss there is lurking here a very powerful claim for failure of the claimant to join an indispensable party. If you can get an order from the Judge saying that the party who paid for the debt must be named as a party to the action, at least in judicial foreclosures, your affirmative defenses would apply to all of the multiple parties who collectively constitute “the Plaintiff.” Your opposition will try to get you to file it as a counterclaim which they can defend using the statute of limitations. If you win, they lose.
Search Our Blog
Categories
Contact Our National Headquarters Phone: 844-583-5339
Connect with us
Contact Our National Headquarters
- 844-583-5339
- Available 24/7
-
200 S. Andrews Ave. Ste. 604
Ft. Lauderdale, FL 33301