Clearwater, FL For Immediate Release
NOTE (added on 4 June 2015): Go to these web sites to learn how securitization auditors and their gimmicky sales outfits spread the Black-Hearted LIE that their worthless products have some value:
I give my phone number and email contact at the end of the article. USE it if you have a mortgage problem and face foreclosure. READ the content at the two sites I linked above.
Remember: you are an idiot if you waste money on a securitization audit. I made this point gently more than 3 years ago, and the point has even more truth today because I HAVE WARNED YOU.
DON'T be an idiot. DEMAND a refund. Report the auditor as a scammer to the state Attorney General.
A truly crazy craze has hit the foreclosure defense communities of America. It goes by the name of “securitization audit” or some variation thereof. The nature of the securitization audit service is such that only the crazy will foolishly waste money on it.
Okay, so we cannot fairly call ignorant foreclosure victims “crazy.” Why? Because they cannot easily know that a securitization audit is just another scam intended to bilk them out of yet more money they cannot afford for a service they cannot use. Except perhaps to replace the old Sears Catalog in their outhouse.
So, we have undertaken this “press release” to inform the uninformed so they will not waste their hard-earned money on useless Securitization Audits.
Let us start by explaining the nature and alleged purpose of the securitization audit. Then we shall analyze its achievement of the purpose.
What is Securitization? Securitization is the financial practice of pooling various types of contractual debt such as residential mortgages, commercial mortgages, auto loans or credit card debt obligations and selling said consolidated debt as bonds, pass-through securities, or Collateralized mortgage obligation, to various investors. The principal and interest on the debt, underlying the security, is paid back to the various investors regularly. Securities backed by mortgage receivables are called mortgage-backed securities, while those backed by other types of receivables are asset-backed securities.
What is a Securitization Audit? The securitization audit consists of the activity of compiling a report of the rules and agreements regarding securitization, and the trail and timing of assignments of beneficial interest in the note and mortgage from the loan originator to the party foreclosing the loan for non-payment.
What is the Purpose of a Securitization Audit? The audit service provider alleges that foreclosure victims can use the audit to stop the foreclosure or cloud the title by proving that the foreclosing party does not have the right to foreclose.
- The borrower signed a note and mortgage giving the lender the right to sell the loan and the owner of the loan to foreclose the loan for non-payment and force a foreclosure sale of the mortgaged realty
- The lender lent the funds to the borrower
- The borrower used the funds to buy residential realty
- The borrower took possession of the residential realty and occupied it.
- The borrower started paying payments according to the note’s requirements
- The borrower stopped making timely payments
- The loan servicer called the note due and payable, giving notice to the borrower
- The note assignee or mortgagee have the right to foreclose according to the terms of the note and mortgage.
- Loan application tampering by the mortgage broker;
- Over-valuation of the realty by the appraiser.
- Breaches of the note or mortgage contract by the lender or lender’s agents.
- Violation of any a variety of laws/regulations that justify fine or rescission of the loan.
You see, the Securitization Audit service provider claims that the foreclosure victim can use the audit to stop the foreclosure dead in its tracks. Some providers imply the foreclosure victim can get the house free and clear.
- The judge focuses on the INJURY TO THE PLAINTIFF in a foreclosure lawsuit, or to the Defendant in a quiet title lawsuit in non-judicial foreclosure (deed of trust) states. The judge will cause the court to redress the injury.
- The typical Securitization Auditor cannot function in court as an expert witness, for want of qualification. So the audit’s information will not get entered into evidence because no expert can testify to it.
- The judge can plainly see any information about securitization which the SEC or lenders and others in the securitization process have posted on the world wide web for the whole world to see with a web browser. Such “self-authenticating” evidence tells the story of who assigned the note to whom
- Whoever shows up with the note can foreclose it, so the Securitization Audit has no effect on that.
- Even if the judge dismisses a case for robo-signing, wrong plaintiff, etc, the bank ALWAYS corrects the documents and either re-files or appeals the case, and, statistically, the bank always wins the foreclosure regardless of what the foreclosure defense attorney does.
- The mortgage, which the borrower signed, plainly gives the lender or nominee (mortgagee) the legal right to force a foreclosure sale for no-payment of the note.
- In Deed of Trust states, the trustee will foreclose
Does the Use of a Securitization Audit Delay Foreclosure? In a non-judicial foreclosure (deed of trust) state, the audit data will not stop or delay the foreclosure. In judicial foreclosure states, the audit data might contains information about robo-signing or improper assignment. In that case, the judge might dismiss the case. But this only delays, and does not stop, the foreclosure. Eventually, the foreclosure plaintiff will re-file the case after correcting the documents, and the court will grant the foreclosure.
Do Foreclosure Defenders Successfully Argue Against Split of Note from Mortgage? Some Foreclosure defense attorneys will argue that the securitization splits the note from the mortgage, and that gives neither the owner of beneficial interest in the note nor the mortgagee the standing to force a foreclosure sale. They argue that the mortgagee did not get injured by non-payment, and the note interest owner’s name doesn’t appear on the mortgage, and therefore the court can order foreclosure, but not sale of the mortgaged realty.
“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity”
Why Do Foreclosure Courts Nearly Always Grant the Foreclosure? The Court MUST give relief and remedy to the injured party, the lender or assignee. Period. The borrower breached the note contract. The breach injured the lender. The mortgage requires that the borrower must pay off the note or forfeit the realty. The Court will order the use of the proceeds of the foreclosure sale to pay off the note. The Court will give the borrower the balance after payoff of liens, or it will award a deficiency judgment to the lender.
The Court MUST do this.
The Securitization Audit, even in the hands of a highly skilled attorney, cannot avoid this hard-core reality of contract law. Look at just a few court rulings that prove this point:
- "[S]ince the securitization merely creates a separate contract, distinct from plaintiffs' debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs' claims arising out of securitization fail." Lamb v. MERS, Inc., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases); Bhatti, 2011 WL 6300229, *5 (citing cases);
- In re Veal, 450 B.R. at 912 ("[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.");
- Horvath v. Bank of NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt);
- Commonwealth Prop. Advocates, LLC v. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt);
- Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff's claim for unauthorized securitization of his loan because he "cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments");
- Johnson v. Homecomings Financial, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the "discredited theory" that a deed of trust " 'split' from the note through securitization, render[s] the note unenforceable");
- Frame v. Cal-W. Reconveyance Corp., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: "Plaintiff's allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan")
Do you see? Securitization has no relevance to whether the borrower owes and must pay the debt or the mortgagee may force a foreclosure sale.
- Matt Weidner, Matthew Weidner Law Firm, St. Petersburg, Florida
We all need a real discussion here about whether loan audits have any value at all. Let me be clear, 100% clear again….
IF A LOAN AUDITOR OR REVIEWER CANNOT BE QUALIFIED AS AN “EXPERT” BY A JUDGE AN AUDIT HAS ZERO VALUE
- Mark Stopa, Stopa Law Firm, Tampa Florida
- Brian Caputo, Canupp Law
- The documents from the SEC are free and available to the public.
- The newspaper stories, while informative, cannot be used as precedent to a judge.
- The analysis does nothing to breakdown what has happened with your payments after they were received by the Mortgage Company.
- The “expert” who is rendering the opinion would never be accepted by a court to testify in an expert capacity.
- The analytical process supporting the audit conclusion is flawed and that leads to an impossible opinion.
- None of the analysis brought to me by clients have included a review of the money paid by the homeowner.
Why Should I Buy a Mortgage Fraud Examination? You ought to spend the money on a mortgage fraud analysis because with the evidence in the corresponding report, the court might rule that the lender or lender’s agent defrauded you or breached the contract. If so, the Court might order the lender to pay you treble damages. Why? Because the Court must redress YOUR injury. The damages award might provide you with enough money to justify a rescission order by the court. If it does, you might get your house free and clear to settle the damage claim, or a hefty cash award to reduce your loan balance. And the jury might award you punitive damages sufficient to let you retire at a young age.
For proof, see the West Virginia Quicken Loans case where the court ordered the foreclosure victim punitive damages of $2.1 million, plus the house free and clear, and all attorney fees paid.
How Do I Find a Competent Mortgage Fraud Examiner? You find a competent mortgage fraud examiner by calling me, Bob Hurt at 727 669 5511, or just Email Me. The Chief Examiner, a personal friend of mine, has 38 years’ experience examining and analyzing legal documents in order to find fraud, tortious conduct, breaches, and other violations and flaws. Nobody on the planet does a better job of examining the mortgage and foreclosure related documents and preparing a report that any competent attorney can use to demand a settlement from or sue the lender.
What Kind of Attorney Should I Use To Settle or Sue? If the examination report reveals a cause of action sufficient justify suing, you should seek out a competent personal injury attorney to negotiate settlement with or to sue the lender. It makes more sense to negotiate the settlement, and then to sue only as a last resort.
How Do I Order my Mortgage Fraud Examination Report? To order your examination and report, CALL for a Mortgage Fraud Examination at this number NOW:
727 669 5511
Click Here to E-mail Me