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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
George Riley sent me a letter he received from Fidelity Title that explodes the myth that somehow there was an actual connection between funding the loan and the party who is falsely identified as the lender on the closing papers. They closed nothing. And THAT means there never was consummation — a critical element when challenging the right to collect or foreclose and a critical element in rescission. You can’t rescind a contract that does not exist — but you can’t collect on it either. The corollary is that the remedy for an unconsummated transaction is the roughly the sale as a rescinded loan — disgorgement of money, return of canceled note and release of the encumbrance.
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Dear George,
Mr. Riley,
I am sorry, but as you mention, the original escrow file has been destroyed – Texas record retention rules only require us to maintain escrow records for three years. We do not have anything to provide the confirmation you are looking for, but if as you state Colonial funded the file, you might want to ask Colonial for a copy of its records.
We cannot give you any legal or other advice so you may want to consult an attorney of your choice, but with that said, please note that HUD-1 statements would often reflect the mortgage company but not the funding lender. [e.s.]
I am unsure why you sent us a copy of a warehouse agreement between lenders that is dated after our transaction.[e.s.]
Best regards,
Elise Kitchens
Vice President Escrow Administration
Fidelity National Title Group
Division 5
Yes it means that your loan was most likely table funded, although the letter doesn’t explicitly state that. AND THAT means that the party on the note and mortgage is NOT the party who owned the debt because they didn’t loan you any money. And THAT is precisely one of the main reasons for the passage of TILA 50 years ago — Banks were hiding behind “Originators” so that when disclosures were not properly done the liability would fall on the originator who in many cases was long gone and operating under some new corporate name.
More Importantly it means that the loan contract was never consummated. If ABC loans you money, but you sign papers “acknowledging” DEF Company as the lender and you execute a note and mortgage stating that you owe money to DEF Company, then you have only 2 legs of a 3 legged stool — —- a loan contract consists of an offer from a particular person or entity, acceptance by another person or company and consideration actually moving (funding) from each to the other. Otherwise it is basic black letter law that there is no contract to enforce.
The only way out of this is to tie the funding party to the originator (who was not the lender) at the time the loan documents were signed.
This is generally impossible for two reasons.
First the actual creditor is largely unknown because the investment money that was intended for the trusts was never actually given to the Trusts; part of the money investors advanced to investment banks was sent to closing tables where everyone present thought the money was somehow tied to the originator. It wasn’t. The originator merely was paid a fee and never booked the transaction as a loan on its financial records. Nobody else booked the “loan” as a receivable and debit to cash or other assets either at the time of the loan. The money came from a slush fund wherein the money from all investors was kept without regard or label as to any particular REMIC Trust and hence, without regard to the Trust or any of its beneficiaries.
Second, the banks took extra care to make certain that they were using bankruptcy remote and liability remote vehicles that would prevent anyone from easily tying the banks as a conduit for the money trail as described above. THAT means they made sure there was no connection between the originator and the source of the money.
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