Dorian Grey: Loan Agreements have changed without detection by the courts

Thank you Neil!

Living Lies: “The normal loan agreement is based upon certain accepted and presumed elements. The borrower desires to borrow money, he/she gets a loan of money and signs documents in favor of the lender setting forth the terms of repayment. The lender, who is responsible under TILA for the viability of the loan, makes the loan with…

Since the law of contract starts with the intent of the parties it may fairly be said that there was no meeting of the minds because the true nature of the loan transaction was illegally concealed from the consumer/borrower. It is obvious that the borrower was directly intending to enter into one contract while the investment bank, acting indirectly through conduits was entering into another contract that entirely altered the scheme of interest, principal and cash flow.”

Source: Dorian Grey: Loan Agreements have changed without detection by the courts

A little humor is a good thing

How Do Court Reporters Keep Straight Faces? These are from a book called Disorder in the Courts and are things people actually said in court, word for word, taken down and published by court reporters that had the torment of staying calm while the exchanges were taking place.
ATTORNEY: She had three children, right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney. Can I get a new attorney?

Source: A little humor is a good thing

Who is the Plaintiff? US Bank or the Trust?

LivingLies: “While the banks never allege that they are a holder in due course because they know that the plaintiff has never paid for the debt, they often seek treatment as though they were a holder in due course and many courts do exactly that.

* By focusing on the promissory note, you are focusing the Court’s attention on Article 3 of The Uniform Commercial Code instead of Article 9. Under Article 3 there are numerous instances in which a promissory note can be negotiated. sold and enforced by parties who do not own the debt. In such instances it is generally presumed that the possession of the promissory note was delivered along with rights to enforce it on behalf of the owner of the debt. It is in effect treated as though it were the title to the debt. This is the law and it is not subject to philosophical discussion as to whether or not it should be the law.”

Source: Who is the Plaintiff? US Bank or the Trust?

Extension of Martin Act in New York Threatens Securitization Players

LivingLies: “Investment  bankers may not be going to jail but they are about to be taken to the cleaners for creating illegal securitization schemes that were directly intended to violate basic laws and doctrines that have existed for centuries. And this time the appetite is there to prosecute such claims.”

Source: Extension of Martin Act in New York Threatens Securitization Players

Fannie Mae Admits Mortgage Transfers Without recording — Sees Substantial Liability

LivingLies: “So over half of all mortgage loans claimed to be “owned” by Fannie either in its own portfolio or as Master trustee of a private label REMIC trust are registered with MERS. And Fannie admits that virtually all of those loans have been transferred multiple times but disclosed and recorded much less than the number of transfers. Hmmm.

That is why fabricated, forged, backdated and robosigned documents became so ubiquitous. Lots of paper transfers of the loan took place without anyone buying the debt. And we all know that a transfer of the mortgage without the debt is no transfer at all.

So you might think “No harm no foul,” right? Right except for the fact that the last party on that paper train is the party who brings the foreclosure action and who (a) has not purchased the debt for value and (b) is relying upon unrecorded transfer documents pursuant to transactions (“for value received”) that never occurred.”

Source: Fannie Mae Admits Mortgage Transfers Without recording — Sees Substantial Liability

Appellate Judges Do Not Redo the Case

LivingLies: “The appellate court does not review for purposes of figuring out whether an alternative decision would have been better. They review strictly for the purpose of deciding whether there was any legal basis supporting the judge’s decision. If the answer is yes the decision is affirmed. If the answer is no, then the decision is reversed.”

Source: Appellate Judges Do Not Redo the Case

Why “REMIC” Certificates Are Not Mortgage Backed

LivingLies: “For all of these reasons the judges in tax cases have determined that the holders of REMIC certificates or “bonds” are not the holders of any secured obligation. The fact that the words “mortgage-backed” are used does not make the certificates backed by mortgages. They are not. But simply asserting that they are and naming them as such is sufficient to raise questions of fact that must be determined by courts.

* This is particularly important in foreclosure cases where the case is asserted to be on behalf of the holders of the certificates. Since the holders have no right to foreclose it is obvious that anyone representing the holders would have no more power than the actual holders of the certificates.

Source: Why “REMIC” Certificates Are Not Mortgage Backed

How to Distinguish Between Ownership of the Debt, Ownership of the Note and Ownership of the Mortgage (or Deed of Trust)

LivingLies: “Foreclosure of a mortgage must be for payment of the debt, not just the liability on the note. All states have case law that says that transfer of mortgage without the debt are a nullity. This executing and receiving an assignment of mortgage and even recording it is a legal nullity unless the recipient paid money for the debt and the transferor was conveying ownership of the debt because the transferor had paid money for the debt.

If those conditions are not met the executed and recorded assignment of mortgage is a legal nullity and the title record must be viewed by the court as lacking an assignment of mortgage. * The judiciary has not caught up with these discrepancies in most instances. Hence a judge will ordinarily presume that the delivery and endorsement of the note and the assignment of the mortgage was equivalent to the transfer of title to the debt, with payment being presumed for the debt. So while the law requires ownership of the debt by reason having paid for it, the courts presume that the debt was transferred along with the paper, subject to rebuttal by the maker and borrower.”

Source: How to Distinguish Between Ownership of the Debt, Ownership of the Note and Ownership of the Mortgage (or Deed of Trust)

Chase-WAMU: Is it time to Declare Non Judicial Foreclosure Unconstitutional As Applied?

LivingLies:  “Faced with a notice of foreclosure sale from a company claiming to be the trustee on a deed of trust, homeowners in judicial states are forced to defend using well known facts in the public domain that are not evidence in a court of law. This is particularly evident in scenarios like the Chase WAMU Agreement with the FDIC and the US Bankruptcy Trustee on September 25, 2008.

In my opinion the allowance for nonjudicial foreclosure in circumstances where a new party appears under a lawyer’s claim that the new party is the beneficiary under a deed of trust under parole claims of securitization is an unconstitutional application of an otherwise constitutional  statutory scheme.

All such foreclosures should be converted to judicial and the claimant must prove the essential element under Article 9 §203 UCC that it has a financial interest in the debt because they paid for it.

Forcing homeowners to prove that such an interest does not exist is requiring homeowners to have access to knowledge that is unavailable and solely within the control of the party falsely claiming to have the right to enforce the deed of trust and promissory note.

In my opinion this is an unconstitutional application of an otherwise constitutional statutory framework. In plain language it favors expediency and moral hazard over truth or justice.”

Source: Chase-WAMU: Is it time to Declare Non Judicial Foreclosure Unconstitutional As Applied?