You need a bigger hammer when dealing with the bank
Proof of Methodology
Check out this proof (linked below) of how hugely mortgage victims can win a wad of cash if you will only learn how (and commit) to attack the validity of the loan. NO OTHER methodology wins compensation for mortgagors.
Click the above link to download the pdf containing the trial opinion, amended complaint, and damages award.
An Illinois jury returned a money verdict in favor of Alena Hammer against Residential Credit Solutions, Inc. (RCS), a national mortgage loan servicer headquartered in Fort Worth, Texas, for its breach of contract, violations of the Real Estate Settlement Procedures Act (RESPA), and violations of the unfairness and deception provisions of the Illinois Consumer Fraud and Deceptive Business Practices Act. All of Hammer’s claims dealt with RCS’s misconduct in handling and servicing the mortgage loan on Hammer’s home in DuPage County, Illinois, where Hammer has resided for the last 27 years.
The court awarded Alena Hammer $500,000 in compensatory damages and $1,500,000 in punitive damages.
Revisit Current and Old Cases?
Do you think this additional revelation about the workability of "Mortgage Attack" methodology would justify your revisiting some of your client's cases and actually doing the work it takes to find the injuries they have suffered at the inception of the loan?
I know a mortgage examiner who can guide you through the process. Why not call me so we can chat about it?
Overview – Bob Hurt proposes two Amendments that right terrible wrongs the Seven Deadly Amendments have done to the American Republic. I write this in response to Alex Newman's article in The New American.
Thank you, Alex Newman, for echoing thinking Americans' sentiments that Government officers routinely shuck off the chains of the Constitutions which should, but don't, bind their consciences and behaviors to the ideals of good government.
Thank you also for pointing out the common sense reason for shunning a Constitutional Convention in the present political climate: today's legislators would pervert it into a document worse than the present one.
Heed me now as I warn the nation that its citizens desperately need an amendment activity to correct the great wrongs Congress and the State Legislatures did in that once great document of responsible liberty.
To put it plainly, certain amendments now comprise a framework for destroying the nation by destroyed the responsibility prerequisite to liberty. I enumerate them as follows:
1. The 13th Amendment's proscription of involuntary servitude prohibits enslavement of those incapable of sufficiently rational thought to exercise reasonably prudent control over their lives without harming or draining sustenance from others. It should not, for reasons that should have become obvious even to imbeciles. An IQ test should suffice to determine such capability. The irresponsible and utterly stupid need constant supervision, as the street crimes and welfare rolls of America demonstrate with crystal clarity.
The stupid and irresponsible should not have the liberty to run around loose and unsupervised. This principle applies to 80 million people, a quarter of the population - 35 million Caucasians, 25 million non-white Hispanics, and 20 million Negroes, all of whom have IQ below 85, the level needed to graduate from a normal high school. They require inordinate effort to educate and train, they have low value of productivity, they make reliably and notoriously wrong decisions and actions. They gravitate to crime and welfare abuse to get by in life, effectively mugging the rest of society throughout their lives, they procreate stupid children, and no known cure exists for their own stupidity.
2. The 14th Amendment prevents Congress from questioning the validity of the national debt even when Congress should repudiate all such debt incurred in any effort other than a war vital to protecting inhabitants from foreign invasion. Furthermore, courts interpret its due process application as pertinent only to preventing racial oppression, and not to protecting the civil rights of all Americans.
3. The 15th Amendment granting of voting rights to Negroes did not also require them to demonstrate knowledge of the Constitution or any kind of civil responsibility. Half the US Negro population lacks the cognitive ability to graduate from a normal high school. Why on earth should such people vote who cannot graduate from high school? That Amendment should have imposed an IQ, knowledge, and responsibility requirement for all voters.
4. The 16th Amendment, a model of insanity, appears to Government thugs as authorizing a direct income tax without apportionment, and that lets those thugs send IRS agents into homes and businesses to steal their resources people directly. The founders never intended such nonsense.
5. The 17th Amendment, a model of insanity, destroyed the power of State Legislatures to have a say in the Federal government, thus making a farce of the term "United States of America." Electing US Senators by popular vote in the respective states has destroyed representation of the State governments in Congress.
6. The 19th Amendment giving women the right to vote did not impose any obligation of responsibility, knowledge, or IQ upon them as a prerequisite. It simply makes no sense to give voting rights to creatures who have traded sexual favors for security throughout most of the past million years, and who subsist largely on that activity today.
7. The 26th Amendment giving CHILDREN under 21 the right to vote constitutes a model of insanity. Insurance actuaries have proven with traffic accident statistics that people under 25 cause most of the car crashes, and science has shown that the brain has not developed fully until a typical human reaches the age of 25. It seems insane to allow people with undeveloped brains to vote, particularly without mandating intelligence, knowledge, and responsibility testing as a prerequisite.
Kindly recall, if you ever learned it before, that the American colonies and Several States during the 18th Century ALL allowed only free, landed Caucasian men to vote. That constituted an intelligence and responsibility prerequisite to suffrage, for one must have a good work ethic and a measure of perspicacity in order to amass wealth sufficient for the acquisition of land.
I could address numerous other faults in the Constitution. However, I have made my point without doing so. I have shown how an array of Amendments have gutted common sense and responsibility from government by destroying the quality of the electorate.
In summary, sophomoric amendments have deprived the State Legislatures of their voting power in the US Senate, and handed liberty and suffrage to the irresponsible, ignorant, dependent, non-productive, gullible, and stupid with NO requirement that they demonstrate any responsibility or good sense in order to vote and run around loose.
THAT and that alone explains why the USA will NEVER have a balanced budget amendment, AND why Congress will waste money on projects that benefit the stupid and irresponsible who enjoy voting rights, AND why such derelict spendthrifts manage to find their way into government at all.
That also explains why the stupid and irresponsible procreate and immigrate without restraint: elected and appointed officials want as many of those in the voter base as possible so that such voters will retain them in office for decade after profligate decade.
It also explains why a Constitutional Convention will wreak havoc, further empowering the irresponsible and stupid while hamstringing the intelligent, educated, and productive into servitude to the wastrels of American and foreign societies.
As anyone with an eye and ear knows, the above-cited Amendments have enslaved the so-called middle class to the stupid and irresponsible through taxation. And government has become ever more overbearing, militarizing local police forces in order to control the stupid and irresponsible who never should have run loose to begin with, turning the streets of American cities into both riot zones and virtual prisons where the responsible now fear to tread.
For the above reasons, I propose a legislative sneak attack. Sensible Americans should push mightily for two new amendments:
1. Loyalty and Oath –
a. All citizens and non-citizens shall take and pass a 100-question Constitution Competency test on state and federal constitutions with 80% correct answers, and swear or affirm a "loyalty oath" to support, protect, and defend the ideals of good government and constitutions codifying them, as prerequisites to graduating from high school, registering to vote, and qualifying for municipal, county, state, or federal government employment, election, or appointment.
b. Secretaries of State shall retain qualification tests, scores, and other qualification credentials for public employment, and make them available for public inspection free via easily accessible web site.
c. Betrayal of the public trust as evidenced by violation of the oath in public employment, to which two registered voters shall bear witness under oath and subject to cross examination in a court of competent jurisdiction, constitutes a public hanging offense without exception.
d. The Legislature shall enact such laws as necessary to enforce the provisions of this Amendment.
2. Grand Jury –
a. Every federal judicial district and every county, or its equivalent, in every USA State and territorial possession shall have a continuously empaneled Grand Jury with 25 members who shall remain members no less than two years.
b. Judges and prosecutors shall not interfere with the empaneling or deliberation of jurors.
c. The Clerk of Courts shall by lottery select jurors from registered voters over the age of 25, gainfully employed, not receiving government subsistence, and having a high school diploma, with preference going to those with experience serving in the US or state military and to those having a college associate or higher degree.
d. Grand jurors shall investigate all capitol and felony crimes on information from prosecutors or on evidence from the populace.
e. Local sheriffs and marshals shall accommodate the process of delivering evidence to the Grand Jury and provide protection for witnesses, jurors, and information providers.
f. Grand jurors shall elect their own foreperson.
g. The Grand Jury and may order a special prosecutor and tribunal to hear any case regarding racketeering or other malfeasance by public employees.
h. Grand jurors shall receive the same compensation as entry-level prosecutors in the jurisdiction.
i. Government shall not fail timely to prosecute public employees for whom the Grand Jury has issued a presentment or true bill of indictment.
j. Congress shall enact such legislation as necessary to enforce the provisions of this Amendment.
Call to Action
Re-read and contemplate my comments above. Then forward this commentary with your own comments to your state and federal legislators, and encourage them draft amendments embracing the above recommendations. Feel free to write me with your own comments and feedback.
I realize that my comments lack political correctness, and that they might seem to cast certain classes of people in a negative light. To you who feel offended I apologize and tell you to buck up and put on your game face. I insist on discussing requirements for advancing civilization forthrightly and without undue regard for hurt feelings. We got into this mess by mollycoddling the irresponsible and insipid. We cannot get out of it without bending a few oversensitive feelings.
DO NOT WASTE YOUR MONEY ON GARFIELD's RESCISSION PACKAGE.
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This Jesinoski opinion dealt only with the right to effect the rescission subsequent to 3 years after the borrower provided notice of TILA rescission within 3 years after receiving the loan. We should all remember that in a rescission, both parties must return one another's money.
No one should doubt the bank's ability to tender. But everyone has reason to doubt the typical borrower's ability to tender. Any lender who believes the borrower will not tender has good reason to balk at returning the borrower's money, especially in the case of an underwater loan or failure to make timely mortgage payments.
Thus, mutual "TENDER" controls every rescission. Lender can tender, but not hand off the money to the borrower till borrower tenders. Once both have tendered, they hand off. But borrowers seldom have that ability to tender. This borrower failure explains why lenders do nothing till the borrower sues or offers rescission as an affirmative defense in a foreclosure action.
I have made the point that the court has a duty to get to the bottom of the issue and do what's right, whether creditor forecloses or borrower sues for TILA rescission. The court will NOT order rescission unless:
1. The borrower proves creditor violations justify TILA rescission within the scope of the law. 2. The borrower can tender what the court's arithmetic shows necessary to settle the debt.
TILA rescision applies to only a minuscule percentage of borrowers because:
1. They did not timely serve notice, 2. They borrowed to purchase rather than to refinance, 3. They cannot prove the lender violated TILA, 4. They cannot tender payment according to court arithmetic.
So, here I provide the most important issue to readers:
The court will not exonerate the borrower from all or part of the debt the debt UNLESS the borrower can prove that one of these parties injured the borrower at the inception of the loan or during its term:
1. lender, 2. appraiser, 3. mortgage broker, 4 title company, 5. realtor, 6. seller, 7. lawyer, 8. servicer, or 9. some other party.
Once the reader comes to grips with the above realities, the reader becomes qualified to ignore the ravings of Garfield and his minions, and focus on attacking the loan and its perpetrators for injuries at the inception.
Why?
Because statistically, YOU CANNOT DEFEAT FORECLOSURE OF A VALID NOTE THE BORROWER BREACHED. Nearly every dismissal for lack of standing results in refiling, appeal, and win for the creditor, nationwide. Courts do NOT like to give borrowers a free house because that would simply amount to government-assisted thievery.
The incessant effort of Garfield to focus on everything but the above list of injurors explains why his law firm and all of his club of lawyers who "get it" merely bilk their clients for the privilege of losing their realty to foreclosure, short sale, deed-in-lieu, or an onerous loan mod (which mostly end in foreclosure), and why they don't win damages for their foreclosure victim clients.
Roy Diaz's above-linked article could generate more readership for you if you allowed people to register and comment. I submit these comments because the topic needs discussion.
The point Roy makes, that courts merely want to enforce a contract, while true, simply does not address two serious, glaring problems:
1. The Legislature provided a foreclosure limitation of Five years. That constitutes more than ample time to sue for foreclosure of a mortgage loan in default. Acceleration constitutes an arbitrary but binding and optional change of the terms of the note from a monthly payment scheme till maturity into an immediate payment of the entire balance plus accrued escrow, interest, and legal fees. Thus, at acceleration, the plaintiff has a full 5 years to sue for foreclosure sale of the mortgaged property, even though the loan balance, etc., remains collectable for 20 years.
2. The vast majority of mortgage notes lack validity because of appraisal fraud, mortgage broker fraud, and a variety of other injuries to the borrower perpetrated at the inception of the loan or during servicing of the loan.
Unfortunately, Roy did not address point 2 at all, but he should have.
Mortgagors in foreclosure hire an attorney to help them defeat the foreclosure. Attorneys know they deal with a contract dispute, and they know that government and lenders colluded in a nationwide predatory lending scheme that collapsed the economy and destroyed homeowner equities, driving many into job loss and foreclosure. But they don't attack the predatory team members, such as the lender who underwrote the bad loan, or the appraiser, mortgage broker, title company, realtor, and lawyers who facilitated it. Instead, they tell the feckless mortgagor that they'll drag out the foreclosure as long as possible, and they often don't even bother showing up at the summary judgment hearing. And such dilatory efforts violate the rules regulating the Florida Bar, and the Bar should discipline such attorneys who engage in them.
In other words, no defense will prevail against foreclosure of a valid mortgage note, but a mortgage loan that lacks validity constitutes fair, juicy game for an aggressive contract breach and tort attorney.
For a crystal clear example of how an attorney should attack a predatory lender, see the Brown v. Quicken Loans case which I have documented here:
Because they follow a different business model, one recommended by arch Kool-Aid Drinker Neil Garfield. The vast majority, or maybe ALL, of foreclosure defense attorneys in Florida charge their foreclosure victim clients $1000 to $20,000 down and $300, $500, or $1000 per month (whatever they think they can get) to file cookie-cutter or copy-machine pleadings and then abandon the client at the last minute, OR earn a fat commission for setting up a loan mod or short sale. They don't examine the mortgage for evidence of injuries, and they don't mount an attack for the injuries they discovered because it takes way too much work, resources, and skill to do it properly.
With the failing, flailing foreclosure defense model they use, they might handle 200 clients at a time and make $20,000 to $50,000 each. By contrast, they could only handle 5 or 10 clients in a full-bore mortgage attack action, and in most cases they would have to finance the action because most foreclosure victims, though badly injured, do not have the up-front money to fight a legal battle.
Thus, the dispute and debate over the statute of limitation constitutes a smoke screen that obscures the real issue - foreclosure victims have kool-aid-drinkers for their attorneys - lawyers who know they cannot save the house from foreclosure but who bilk their clients for a sideshow that inevitably leads the client to loss of the house. Meanwhile, most of those clients suffered real injuries at the inception of the loan, and the lawyers' legal malpractice will leave the injuries undiscovered while the client loses the house.
A mortgage examination by a competent professional could provide those attorneys with proof of injuries to the client. In my opinion, an attorney's failure to get the mortgage examined constitutes legal malpractice because I know, and every attorney should know, that numerous causes of action underlie most mortgage loans of the past 15 years. Litigation consultant Storm Bradford, the nation's premier mortgage examiner knows this from personal experience, and he shared his view of the issue with me today:
"We have done well over a thousand mortgage examinations since 2007. In every exam we have ever done there was at least something that could be negotiated with the bank or used in a lawsuit against the injurious parties." Storm Bradford, Mortgage Fraud Examiners.
I personally believe judges have a duty to "do the right thing" in equity proceedings like foreclosures. Even so, the Legislature, not the judiciary, has the authority to make the law, and the law (Florida Statute chapter 96) provides 5 years for commencement of a foreclosure action.
95.11 Limitations other than for the recovery of real property.— (2) WITHIN FIVE YEARS.—Actions other than for recovery of real property shall be commenced as follows:
(c) An action to foreclose a mortgage.
Plaintiffs nearly always come forward with an action within 5 years after breach of the note. But when they do a bad job with the complaint, the court dismisses the action with prejudice. Any more recent breach restarts the Limitation clock. If the Plaintiff does not file a new action within 5 years of the most recent breach, the Statute of Limitations prohibits the court from hearing the case.
Plaintiffs have argued that even though they accelerated the note properly, making the full balance due and payable at once, the originally scheduled payment stream also remains due, and that extends their window of opportunity to 5 years after the term of the note. Their opponents argue that acceleration slams that window of opportunity shut because it converts the original schedule of, for example, 360 monthly payments into a single payment due immediately. But they argue that it remains due immediately forever, until the court orders a final judgment of foreclosure.
This has become a sticky mess. I believe government precipitated it by requiring lenders to drag out foreclosures through offering loan modifications, and Plaintiffs made foreclosures even worse by failing to show up with the real person entitled to enforce the note, having the actual, correctly indorsed note, in-hand. That opened the door for foreclosure defendants to demand dismissal of the case for lack of standing. And all of that backed up the courts and the plaintiffs in a very messy snarl of litigation.
The Florida Supreme Court does have to sort out this mess. But the fact remains that borrowers should attack the lenders, appraisers, mortgage brokers, title companies, and others who injured them at the inception of the loan. THAT, Mortgage Attack, constitutes the best defense against foreclosure, and it moots the issue now before the Supreme Court.
TECHNICAL ALERT:I, the author, am not an attorney or practitioner, and I do not seek in this article to solve any specific problem for any specific person.I provide this information for academic and discussion purposes.Consultant a COMPETENT attorney on all questions of law.To ensure competence, demand and verify a winning record in similar cases before you trust his battle scheme.
Background:Why I Write this Article
Hundreds of people have called me personally or written to me about their mortgage problems since 2009.I would say thousands, but I have lost count. That year I started giving people FREE information about what works and what does not win mortgage disputes against creditors and their agents and associates.
The majority of those callers had already blown hundreds to thousands of dollars on a "Securitization Audit" or flimsy "Loan Audit" which did not have enough value to buy the powder to blow them to hell.Many mortgagors had blown thousands to pay a foreclosure "pretense defense" attorney for the privilege of dragging out the foreclosure.Most of those lost the home in a foreclosure auction.Many who did loan mods went into foreclosure again and either lost the home or soon will.
Every one of those people bought a service from a clueless "Kool-Aid Drinker" or an out-and-out scammer (charlatan, cheat, con artist).Even those attorneys who promised "We'll keep you in the house as long as we can" committed legal malpractice if they failed to examine the mortgage transaction comprehensively for evidence of fraud and other torts, contract breaches, regulation breaches, and legal errors.
I write this commentary not just to give all those snakes-in-the-grass the literary black eye that they deserve, but also to give the reader something FREE that bozo scammers charge hundreds or thousands for.
I shall tell you, in short order, how to find out who owns your note and why the chain of ownership of the note has no relevance to foreclosure courts.
Securitization audit scammers tell their desperate, clueless foreclosure victim prospects that they will research the "chain of title" and find out who owns the note and what shenanigans happened during transfers of note ownership.They will suggest that the chain of title to the note really matters in a foreclosure dispute.In reality, as demonstrated by myriad foreclosure sales, it does not matter at all to the foreclosure judge or trustee.Those scammers will talk about their certification, credentials, and the crookedness of securitization, putting the note into the trust after the closing date specified in the pooling and servicing agreement (PSA), REMIC violations, Bloomberg terminals for researching Securities and Exchange Commission information, etc.And they will show you a wad of useless affidavits, and claim to have functioned as expert witnesses.They will not tell you their affidavits and testimony have no notable effect on foreclosure decisions.
Judges and Lawyers Declare the Securitization Audit CROOKED
I shall prove to you right now that those securitization audit scammers and the charlatan attorneys who con you into paying for such audits are liars and con artists for suggesting such audits have an iota of value.
See, Demilio v. Citizens Home Loans, Inc. (M.D. Ga., 2013)
"Frankly, the Court is astonished by…Plaintiff's attempt to incorporate such an 'audit,' which is more than likely the product of "charlatans who prey upon people in economically dire situation."
In other words, after reading this, you show yourself a fool if you ever fall for their suggestions that you need the audit to terminate a foreclosure permanently.
You do not have to take my word for it.Look at what two attorneys say about securitization audits:
·"… Most 'securitization audits' that I have reviewed are inadmissible in a court of law; they contain a mere opinion of a layman without personal knowledge (direct experience) as to what happened with a particular mortgage note after closing. Why pay a securitization auditor when you can have your grandmother provide an opinion as to what happened with the note and have her sign an 'audit report'? In reality, in about 95% of all cases, the information supplied by a 'securitization audit' is either already publically available, or it is unavailable to either the homeowner or the auditor. Thus, where a homeowner genuinely lacks this information, an outsider's opinion (in contrast to the bank's admission) is unlikely to help."
Gregory Bryl, Foreclosure Defense Attorney, Virginia and Florida.
·"Mortgage Loan Securitization Audits ARE A CRIME!… THAT INFORMATION IS USELESS IF IT IS NOT ADMISSABLE IN COURT! … So I issue the challenge once again….WILL ANY SO CALLED SECURITIZATION EXPERT PLEASE STAND UP? PLEASE, SHARE WITH ME ADMISSABLE EVIDENCE OF SUCCESS IN ANY FORECLOSURE OR BANKRUPTCY CASE!"
Matthew Weidner, Foreclosure Defense Attorney, Florida.
Why A Borrower Defaulting a Valid Loan Cannot Beat Foreclosure
Before I tell you how to get the benefit of a securitization audit FREE, and how to get the name of the note owner, let us examine some essential facts.To get to those facts, please answer these questions, assuming you have become a mortgagor (borrower):
1.Did you borrow money to purchase, refinance, or get a line of credit on a home?
2.Did you sign a note in which you agreed that you had received a loan?
3.Did you sign a security instrument (Deed of Trust – DOT, or Mortgage) in which you asserted having seisin (possession) and having transferred the estate to the lender for purpose of a mortgage or deed of trust?
4.Did the lender assign a servicer to service your account (take payments manage, escrow, distribute proceeds, answer your questions regarding servicing the loan)?
5.Did you make any timely payments to the servicer?
Foreclosure Deals with Breach of Contract
If you answered yes to those questions, then you know you have a contractual relationship with the lender, in which various other entities played a role (realtor, appraiser, mortgage broker, Title Company, attorney, etc.).
Moreover, you know that if either you or the others breach the contract, then that entitles you or the lender to take legal action.You know that in a judicial foreclosure state the lender may sue you and take the house in a foreclosure sale if you breached the contract.You know that in non-judicial foreclosure state, the lender may get the trustee to foreclose.
The lender needs to fulfill certain conditions, listed in § 22 of your loan security instrument, prior to such action, such as notify you that you breached the note, accelerate the note to make the balance due and payable now, and then take the matter to the trustee or sue you to get that money or the house.
You Lose the House if You Breached the Note
You SHOULD know that if the lender or his agents or associates engaged in some crooked behavior that invalidated the note or the loan transaction, that will give you reason to sue.
If the lender sues you for a breach and wins, the lender gets your house, or money from its sale, because the lender has a security instrument.
Unlike the lender, you do not have a security instrument that lets you go to the court or trustee to order the lender or his agent or associate to give up his house in some kind of foreclosure sale.So how do you deal with injuries you suffered in the loan process? And how do you find out who owns the note?
Why Not Ask the Servicer and Complain to the CFPB?
You should know that if you want to learn who owns the note, you do not need a securitization audit because you can just ask the servicer. And that remains true if you want some error in your loan corrected.
You might know, though many do not, that the US Government has established the Consumer Financial Protection Bureau (CFPB) to resolve disputes between borrowers and lenders and their servicers. You can file a complaint at the following web site:
Why You Have No Standing in PSA or Note Assignment Disputes
But wait a minute. Surely you must wonder whether robo-signing, notary falsification of note assignments, assignment to a securitization trust after the closing date specified in the Pooling and Servicing Agreement (PSA), violations of Real Estate Mortgage Investment Conduit (REMIC) rules, and other securitization and assignment issues have any bearing on foreclosure, and whether you can use related arguments to beat foreclosure.You might actually believe a securitization audit can shine some light on these concerns.
Let us answer another set of questions to get to the truth:
6.Did you become a party to, become injured by, or become a third party beneficiary of:
a.The PSA for a trust that owns your note?
b.Any assignment of your note to another creditor (owner of beneficial interest in the note)?
If you answered NO to both a and b above, then you know that neither the assignment nor the PSA have any effect on you whatsoever.Surely you know they do not affect whether or not you have breached your note or owe a mortgage loan debt.So, therefore, you know (do you not?) that you have no standing to dispute or enforce the PSA or any assignment of the note in court.That means robo-signing of the note (one of those ridiculous things securitization auditors tell you they will find for you) has become irrelevant to you and to any court.
See,Javaheri v. JPMorgan Chase Bank N.A., 2012 WL 3426278 at *6 (C.D. Cal. Aug. 13, 2012).
"Plaintiffs here do not dispute that they defaulted on the loan payments, and the robo-signing allegations are without effect on the validity of the foreclosure process."
About Blank Indorsements of the Note
Furthermore, according to the Uniform Commercial Code (UCC), if a creditor indorses the note in blank instead of naming an assignee, the note becomes bearer paper. See, UCC §3-205https://www.law.cornell.edu/ucc/3/3-205.
§ 3-205. SPECIAL INDORSEMENT; BLANK INDORSEMENT; ANOMALOUS INDORSEMENT. (a) If anindorsementis made by the holder of aninstrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a"special indorsement." When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section3-110apply to special indorsements. (b) If anindorsementis made by the holder of aninstrumentand it is not a special indorsement, it is a"blank indorsement." When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed. (c) The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of theindorser, words identifying the person to whom theinstrumentis made payable. (d)"Anomalous indorsement" means anindorsementmade by a person who is not the holder of theinstrument. An anomalous indorsement does not affect the manner in which the instrument may be negotiated.
An enormous number of notes bear blank indorsements.That makes it easy to hand them off without cumbersome paper trails. Thus, whoever holds the note can enforce it, whether or not the holder owns beneficial interest in it. So, try answering this question:
7.If the most recent indorser of your note indorsed your note in blank, why would you care who owns it?
I suppose you realize that you should not care because the note holder, regardless of identity, will foreclose and take the house if you breach the note.
Who May Enforce the Note, Even if Lost, Stolen, or Destroyed
§ 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT. "Person entitled to enforce" aninstrumentmeans (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
§ 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.
(a) A person not in possession of aninstrumentis entitled to enforce the instrument if: (1) the person seeking to enforce the instrument(A) was entitled to enforce it the instrument when loss of possession occurred, or(B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;(2) the loss of possession was not the result of a transfer by the person or a lawful seizure; and(3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.(b) A person seeking enforcement of aninstrumentunder subsection (a) mustprovethe terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section3-308applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means. In view of these laws, the Trustees and Courts do not require the PETE to present the original note in order to foreclose. Some states, like Florida, which require the original and will not admit into evidence a copy of a negotiable instrument, provide a law allowing a creditor to reestablish a lost, stolen, or destroyed instrument, and thereby effectively to create a new, legal "original." See Florida Statutes, Chapter 71, http://goo.gl/hrB9bY.
So, answer these questions:
8.Can a creditor foreclose a lost, stolen, or destroyed note on which you defaulted?
9.Can a PETE who does not have creditor status foreclose a note in default?
I hope you answered YES to those two questions.If so, you have by now begun to realize that only two questions have salient importance in your mortgage:
10.Did you breach the note?
11.Does the note lack validity?
If you answer yes to the first question, then you know that the PETE can enforce the note by foreclosing and forcing a sale of the collateral property – your house.
The ONLY Reliable Basis for Battling the Creditor and Associates
If you answered yes to the second question, then you might have an opportunity to undo the foreclosure and wind up with the house free and clear, or with a loan modified to your advantage, or setoffs from your debt, or compensatory and punitive damages awards.You may sue for injuries that made the note invalid, whether or not you face foreclosure.
You may NOT sue until you have complied with § 20 of your loan security instrument, which provides the following delightful text:
Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.If Applicable Law provides a time period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph.The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20.
You can find applicable law (RESPA – Real Estate Settlement Procedures Act – 12 USC 2601 et seq.) and Regulations (Regulation X – 12 CFR 1024 et seq.) at the below web sites, but take note that I have provided links to the latest at this point in time, and you might need to refer to earlier years based on your situation:
Take note of (carefully read) 12 USC 2605 and 12 CFR 1024.35 at the above links, for these tell you the duties of the servicer to notify you of changes of the servicer, and explain what questions the servicer must answer for you, what questions the servicer may ignore, and what corrective actions the servicer must take.
So, you see, if you know the note lacks validity in some respect because the lender, servicer, title company, mortgage broker, appraiser, realtor, or some attorney or other third party injured you at the inception of the loan, you can ask for a settlement from, or sue the injurious party.You start by bringing the injuries to the attention of the servicer.
Now you face a gnawing question that you absolutely must answer:
12.How do you find out whether the note lacks validity?
Why Mortgage Borrowers Need a Professional Mortgage Examination
Obviously, YOU should examine all the documents related to your loan transaction for evidence of fraud, regulatory breaches, contract breaches, legal errors, and flim-flams. You might find all kinds of causes of action (reasons to sue) that entitle you to challenge the validity of the loan in court and get the court to compensate you for your injuries.
To examine your loan transaction and related issues comprehensively and comprehensively, you will need a good working knowledge of tort law, contract law, mortgage finance law, real estate law, criminal law, bankruptcy law, foreclosure law, consumer credit law, and federal and state regulations law dealing with mortgages, lending, disclosures, credit reporting, debt collection, equal opportunity, etc.
That brings us to the toughest question of all:
13.Do you have the requisite knowledge and skill to perform a comprehensive, professional examination of your loan transaction and any related court actions?
Frankly, I guess most home loan borrowers do not have a clue how to do that. So naturally, you will want an answer to this question:
14.Who has such competence and experience to perform a comprehensive mortgage loan transaction examination?
This article focuses on an entirely different issue.It deals with why you do not need a securitization audit and how to get the putative benefits of such an audit FREE.So, I shall address the answer to the above question briefly at the end of the article.
But, I do guarantee you right now that NO securitization auditor or so-called forensic loan auditor, and only the rarest of attorneys, has the remotest capability of doing such an examination correctly without wasting your money.
How to Discover Who Owns Your Mortgage Note:Ask the Servicer
So let us get on with this final question:
15.How do I find out who owns the note?
How to Avoid Paying the Wrong Party
Most people worry about who owns the note because they do not want to pay the wrong person and then face an accusation of breaching the note through non-payment.Some simply want to mount a challenge against foreclosure, thinking that if the wrong person forecloses, that will justify asking the court to dismiss the case or stop the foreclosure.
Suppose you do not know who owns the note and you fear that the wrong person will receive your mortgage payments. That could open you to an accusation by the real creditor that you breached the note through non-payment.The courts provide a means for ensuring that your payment goes to the right party:the Interpleader Action.
Your loan security instrument identifies whom to pay. If you ever doubt whom to pay, you can file the interpleader action to remove doubt and comply with the terms of your loan.The court will assign someone to take your money and pay it to the correct party.
Federal Law Helps You Find the Owner of the Note
As to how to find out who owns the note, federal law requires the creditor and servicer to notify you of any change in creditor or servicer timely so you do not pay the wrong party.Read the law for yourself, here:
(f) Treatment of servicer(1) In generalA servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as an assignee of such obligation for purposes of this section unless the servicer is or was the owner of the obligation.(2) Servicer not treated as owner on basis of assignment for administrative convenienceA servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as the owner of the obligation for purposes of this section on the basis of an assignment of the obligation from the creditor or another assignee to the servicer solely for the administrative convenience of the servicer in servicing the obligation. Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation.
Federal law also requires the servicer and creditor to notify the borrower of any change in the servicer or creditor.
See, 15 USC 1641(g)
(g) Notice of new creditor(1) In generalIn addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including—(A) the identity, address, telephone number of the new creditor;(B) the date of transfer;(C) how to reach an agent or party having authority to act on behalf of the new creditor;(D) the location of the place where transfer of ownership of the debt is recorded; and(E) any other relevant information regarding the new creditor.(2) DefinitionAs used in this subsection, the term "mortgage loan" means any consumer credit transaction that is secured by the principal dwelling of a consumer.
Thus, the borrower should always have timely notice in order to pay the right party and to know whether the right party has made any effort to foreclose a defaulted loan.
If in doubt the borrower need only call or write to ask the servicer.The servicer must give the borrower the identity and contact information for the creditor, and the details regarding escrow for insurance and property tax, and other information regarding servicing the loan.
Get Help from the Consumer Financial Protection Bureau
If the servicer plays dumb or either the servicer or creditor fail to inform the borrower, then the borrower may seek enforcement assistance from the CFPB.As I mentioned above, you can file a complaint via the web site:
As to punishing servicer recalcitrance, federal law provides borrowers with a private right of action against the creditor and/or servicer as appropriate. The court can order the defendants to pay the borrower up to $4000, plus any actual damage, plus legal fees and costs of the action.The court can force the defendants to give the proper information to the borrower.
See, 15 USC 1640(a)
§1640. Civil liability(a) Individual or class action for damages; amount of award; factors determining amount of awardExcept as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part, including any requirement under section 1635 of this title, subsection (f) or (g) of section 1641 of this title, or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—(1) any actual damage sustained by such person as a result of the failure;(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease under part E of this subchapter, 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $200 nor greater than $2,000, (iii) in the case of an individual action relating to an open end consumer credit plan that is not secured by real property or a dwelling, twice the amount of any finance charge in connection with the transaction, with a minimum of $500 and a maximum of $5,000, or such higher amount as may be appropriate in the case of an established pattern or practice of such failures; 1or (iv) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $400 or greater than $4,000; or (B) in the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery shall be applicable, and the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same creditor shall not be more than the lesser of $1,000,000 or 1 per centum of the net worth of the creditor;(3) in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of rescission under section 1635 or 1638(e)(7) of this title, the costs of the action, together with a reasonable attorney's fee as determined by the court; and(4) in the case of a failure to comply with any requirement under section 1639 of this title, paragraph (1) or (2) of section 1639b(c) of this title, or section 1639c(a) of this title, an amount equal to the sum of all finance charges and fees paid by the consumer, unless the creditor demonstrates that the failure to comply is not material…
Please read the full Civil Liability law at the below link.I have only provided the part important to this discussion.
You can satisfy your curiosity about the PSA and other documents related to your loan, such as the bank's 424(b)(5) prospectus form filing.You need only dig around in Edgar at the Securities and Exchange Commission's web site here:
Thus, You Need NO Securitization Audit to Receive its Alleged Benefits
As you can see, I have just saved you the cost of a securitization audit.I have given you the main benefit of it, knowledge of how to discover the identity of the creditor, the person who owns beneficial interest in the note, and I have shown your entitlement to get the court to award damages to you for a failure to give that information.And I gave you all that ABSOLUTELY FREE.
Now you know also that you do not need to pay some scamming scalawag hornswaggling huckster con-artist securitization auditor to find out who owns your note. Most of the time the so-called auditor gives clients a bunch of useless information like a copy of the PSA, but fails to tell you who owns the note.Why? Because creditors indorsed most securitized notes in blank and most notes have become securitized.If in doubt, check the Fannie Mae or Freddie Mac web site and enter your loan number, for they own many if not most of the mortgage notes.
If still in doubt, pick up the phone.Call the servicer, and ask, "Who owns my note?"If you get the bum's rush, try it in writing, then contact the CFPB, and complain. If that doesn't work, SUE.
But under NO CIRCUMSTANCES should you bother with a securitization audit.It will only waste your money and your time, and give you zero benefit.
Yes, I know I titled the article to make it seem like securitization audits provide benefits you can get free.Well I gave you FREE those benefits that a securitization auditor fools victims into thinking they'll get for a big fat fee, but which the victims do not get at all.
If you already made the ill-informed mistake of paying a securitization auditor for that useless audit, I suggest that you demand a full refund and report that scalawag to the State Attorney General.Why?Because those crooked "auditors" know they sell useless junk.
Save Your Money for a Professional Mortgage Examination
Besides, you will need all that money to pay a competent, professional mortgage transaction examiner to examine your transaction documents.That will reveal injuries you have suffered.And when you show the injuries to the servicer, the injurious parties, the CFPB, and the court, you thereby give yourself the ONLY opportunity of pressing your adversary into a settlement or of obtaining a damage award judgment from the court.
Yes, I know the ONLY such examination firm in the USA, the only one I can confidently recommend.
If you have a mortgage and you want help with it, familiarize yourself with the articles and concepts at the Mortgage Attack web site here:
