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?

2008 Schack Decision Reminds Us How Something “Nefarious” Is Happening

Judge Schack thoroughly understood the scam, fought for American Homeowners and died way before his time.

LivingLies: “All those problems exist because the Wall Street Banks got greedy and created the holy grail of investment banking: what if you did an IPO and never had to account for the proceeds of the sale of those securities?

The real question is not why should you give homeowners a windfall over some technical problems with the paperwork; no, the real problem is why would you give the banks and all their affiliates even more revenue through foreclosure than they had already received, which was at least 10 times the principal of the amount of the loans?

The answer to the first question is that no, homeowners should not get a windfall because of technical problems with paperwork. Creditors, real creditors that is, should be able to execute corrective paperworks, affidavits and filings to correct merely technical errors.

The answer to the second question is that if the “loan transaction” was strictly a revenue deal and not a loan of money where someone would lose money if the money wasn’t being repaid, then commons sense and the law (UCC Article 9 §203) clearly stands for the proposition that nobody should be able to foreclose on a home in order to just receive revenue.

There simply must be a debt and a creditor who has paid value and owns that debt. The fact that the banks can’t come up with such a party is evidence that the law is out of whack with the innovations of Wall Street and malfeasance on Wall Street.

But without a party actually getting hurt by nonpayment, why should anyone pay their mortgage? Practice Hint: The problem is that the investment bank who advanced funds for origination or acquisition of the loan sold off everything about the loan. In the end it was left with nothing but profit.”

Source: 2008 Schack Decision Reminds Us How Something “Nefarious” Is Happening

Jamie Dimon’s worst fears for the banking industry realized with Capital One data hack

Quote

JusticeLeague: “Move over Equifax…

  • At just the two biggest U.S. banks — J.P. Morgan Chase and Bank of America — cybersecurity budgets have swollen to a combined $1.4 billion a year.
  • The industry has been employing everything from low-tech reminders about passwords posted in offices to sophisticated data analytics and risk-management programs to stay ahead of criminals.
  • “The threat of cyber security may very well be the biggest threat to the U.S. financial system,” Dimon said in an April letter to shareholders.

It’s among the worst fears of any bank CEO.”

via Jamie Dimon’s worst fears for the banking industry realized with Capital One data hack

US Bank and Deutsch Agree That They Should NOT be named as Plaintiffs in Foreclosures

“People forget that Deutsch issued a directive to all servicers to cease using its name when initiating foreclosures. The investment banks fought back and apparently paid Deutsch more money in fees for the use of its name. That was around 2011.”

LivingLies: “U.S. Bank as Trustee: As Trustee, U.S. Bank Global Corporate Trust Services performs the following responsibilities:

• Holds an interest in the mortgage loans for the benefit of investors [Editor’s note: Not really true. It holds a claim to bare legal title to loan agreement for the benefit of the investment bank]

• Maintains investors/securities holder records [Editor’s Note: Also not true. Only the investment bank maintains such records. US Bank has no access to the names of investors nor any transactions ever conducted with them in the name of any trust in which US Bank is named as trustee.]

• Collects payments from the Servicer [Editor’s note: also not true. US Bank handles no money in connection with any account or any borrower or any servicer and does not disburse them. That is done by the party named as Master Servicer although that term is probably also a misrepresentation.]

• Distributes payments to the investors/ securities holder [Editor’s note: Not true see above.]”

Source: US Bank and Deutsch Agree That They Should NOT be named as Plaintiffs in Foreclosures

Finally a Judge Asks the right Questions about TILA Rescission and Invites Briefs

LivingLies: “The time may now be coming where the court systems and Federal and State legislatures must come to terms with two inescapable legal facts:

(1) That borrowers who sent TILA rescission notices — and particularly those who sent them within 3 years of consummation of the mortgage — still own the land that was deemed “lost” in foreclosure.

(2) That such borrowers possess valid claims to recover title, possession and money damages.

It was bound to happen and now it has. In one case, a judge is asking the following questions and inviting briefs on the following subjects: What is the effect of the failure to return consideration upon an attempt to exercise the right of TILA Rescission?

What is the effect on rescission if the borrower continues to pay?

Does TILA pertain to refinancing?”

Source: Finally a Judge Asks the right Questions about TILA Rescission and Invites Briefs