What does "Own the mortgage" mean?"

Oct 4, 2022

This is what enables the banks to get away with their scam while avoiding criminal prosecution. What does that mean when they say they “own the mortgage”?

Does it mean that they own the piece of paper?

Does it mean they own the liens strictly because they received an assignment?

Does it mean they own the underlying obligation because the assignment implies that?

Does it mean that they own the underlying obligation because they paid value for it?

Does it mean they warrant the existence of the underlying obligation (unpaid loan account)?

Does it mean that they are claiming ownership of the alleged unpaid loan account?

Does it mean they are claiming ownership of the right to enforce it without legal ownership?

There are more such questions. That is why we have lawyers and that is how pro se litigants lose cases without understanding why.

All the answers to such questions are presumed to be answered the moment someone fabricates and presents a document that conforms to statutory requirements, regardless of whether the document is or is not a legal instrument that memorializes a legal transaction enforceable.

In the beginning, it does not matter that it was fabricated, forged, robosigned, with false information edited. All things recited in the document are presumed to be true simply because it is deemed presented by a credible source.

I would argue that neither the foreclosure mill nor the alleged servicer is a credible source. Still, that has not produced any favorable results in the early stages of litigation. It does present a winning combination at trial and sometimes in motion practice.

The foreclosure mill is merely acting according to a well-defined script prepared by lawyers in New York and Chicago. Nobody in the foreclosure mill knows anything about the document or the transaction they are trying to “enforce” (i.e., fake). So that is not a credible source.

The CFPB investigation has revealed the alleged servicer to be something other than a company performing the functions customarily associated with a “Servicer.”

FINTECH companies perform those functions, and are now classified as “servicers” by the CFPB as of May 2022. So the “servicer” knows nothing about the document or the transaction as a result of any business undertaken by that company.

The named “servicer” is neither competent nor credible since its sole function is to produce one outcome in litigation: foreclosure. And yet, every document signed and presented in court is executed by an employee or independent contractor hired by the company who is named to be the “servicer” but who is not the servicer. In any other civil or criminal proceeding, the documents and testimony would be deemed inadmissible if challenged.

So these presumptions allowed by statute do not apply because there is no proper foundation for presuming that the document’s source or information is credible or competent. But Judges are allowing it. Why? Because few people ever object and without objection, you can get a ham sandwich into evidence.

Under these conditions, I think that the procedure for challenging this situation would be a Motion to Strike the Exhibit attached to a foreclosure lawsuit or a direct challenge to the exhibit in a nonjudicial proceeding in which the homeowner is seeking a TRO.

Ordinarily, you will want to combine a subpoena for deposition duces tecum with your motion or challenge.

Make them identify the document’s source, who has possession, and why they have a right to possess it. And make the servicer warrant or acknowledge that it is receiving, processing, depositing money received from homeowners and then making distributions to creditors. They can’t do that because it isn’t happening.

The problem here is not just that lawyers have it wrong. The problem is that homeowners are contributing to their own problems by using and admitting labels that don’t apply. If your blue car is sitting outside and you admit in court that it is green, then for all legal purposes, it is green. Don’t blame the court for that. Judges do not have the time, inclination or mandate to go outside and see of the car is really green.

This also contributes to the crisis in getting lawyers to take the case and win it. If the gravamen of your request is to have the lawyer get out of the “loan.” He accepts your admission that it is a loan and that it is nearly impossible to “get out it.” If you admit that you are “in default,” you also admit that you owe the money and have not paid it.

In criminal law, this is the equivalent of saying to the court, “Yes I did it, but let me go free anyway because I don’t want to pay a fine or go to jail.” The Judge has a job of enforcing the law not disregarding it.

Don’t assume that ANY of the answers to the above questions are being truly represented, and don’t make it easy for the judge to assume the answers exist. That is how I win cases for homeowners and how dozens of law firms became wealthy, beating cases seeking foreclosures.

Part of why lawyers have been chased out of the marketplace is because homeowners will frequently cave in defending the most important asset they will ever own. They agree to stupid modifications with companies that are neither lenders nor servicers.

And they agree to terms that virtually guarantee that foreclosure will occur later. Meanwhile, they insist on calling the transaction a loan, calling their own behavior a default, and believing that their decision not to make s scheduled payment is morally, ethically, and legally wrong. And that is because they insist that someone is losing money because of that “missed” payment. None of that is true.

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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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