Oct 15, 2021
I am often sent documents to review. And most of the documents purport to grant authority to some person or entity to do everything (or at least something) necessary to complete the process of foreclosure. In virtually all cases documents that are allowed to appear are merely part of the illusion of authority and not the source of Authority.
In short, the grantor does not say that it owns or has the authority to grant authority to anyone else. This is considered a fatal defect on most documents but it occurs regularly in foreclosure cases.
The interesting thing about documents like this is that they do not use any preamble stating that the company owns any of the loans for which the Authority has been granted.
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It is standard practice in virtually all legal documentation of this sort to start off with a paragraph that starts with the word “whereas”.
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The custom and practice would actually require two such clauses. The first being an affirmation of title or warranty of title. The second being an explanation of why such authority is being spread out over several people rather than a single person who is in charge of the enterprise.
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Many times the document presented is an agreement of some kind. Usually, the agreement is either not signed or digitally signed. It is also usually incomplete, referring to exhibits that are not attached or which conflict with the position taken by the foreclosure mill. Such agreements are only produced for purposes of foreclosure. They are not intended to be used and they are not used for any other purpose by and between the parties to the agreement or related parties.
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No transaction lawyer in the country would have drafted the agreement that people have sent to me if they actually intended for it to be used and enforced. *
The only reason these documents are created is to create the illusion and distraction that arises from a presumption that the company would not have such an agreement if it did not own the underlying obligation, debt, note, or mortgage in connection with active loans.
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Lawyers sometimes overlook these issues. The lazy way is to look at what is there. The appropriate way for a lawyer to review such a document is to consider what is not there and what should be there.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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