A good read
Attorney’s Frequently Asked Questions
1 Who is Mitchell J. Stein
2 Who is Philip A. Kramer
3 Lead Attorney Phillip A Kramer Introduces The Lawsuit(s)
4 Can I get a local lawyer to sue my lender or do a lawsuit myself?
5 What are Attorney Phillip A Kramer’s qualifications?
6 How do I know if my loan is the type that can join the suit?
7 What are my possible outcomes if I become a Named Plaintiff
8 What is MERS and why is it illegal and fraudulent?
9 What is the difference between Loan Modification and this Litigation?
10 What documents do I need to provide?
11 What is the flow of communication between my attorney and myself?
12 Should I continue to make my mortgage payments if I am accepted as a plaintiff on this suit?
13 What if I’m dealing with a pending foreclosure?
14 What about those annoying calls from my lender(s)?
15 How long until I can expect resolution?
16 What is the motivation behind this law suit?
17 In a nutshell, what did the banks do wrong?
18 How did this whole mess happen?
19 What is Securitization?
20 Litigation Verses Modification In Table Format
Who Is Mitchell J Stein?
Who Is Philip A Kramer?
Lead Attorney Phillip A Kramer Introduces The Lawsuit(s)
Can I get a local lawyer to sue my lender or do a lawsuit myself?
What are Attorney Phillip A Kramer’s qualifications?
How do I know if my loan is the type that can join the suit?
What are my possible outcomes if I become a Named Plaintiff
What is MERS and why is it illegal and fraudulent?
What is the difference between Loan Modification and this Litigation?
What documents do I need to provide?
What is the flow of communication between my attorney and myself?
Should I continue to make my mortgage payments
if I am accepted as a plaintiff on this suit?
What if I’m dealing with a pending foreclosure?
What about those annoying calls from my lender(s)?
How long until I can expect resolution?
What is the motivation behind this law suit?
In a nutshell, what did the banks do wrong?
How Did This Whole Mess Happen?
To put this in perspective…the banks got greedy, really greedy. They were not satisfied with just making the 6% interest on your mortgage, they wanted more. So they chopped up their home loan portfolios and packaged them into “mortgage backed securities” (MBS) that could then be sold to Wall Street investors for even bigger profits. The only problem was, Wall Street had a huge appetite for these MBS’s and could not get enough of them. They kept demanding more of them from the banks so they did everything in their power to churn more out but unfortunately they took time to package and properly securitize. What happened next is where they went wrong. The banks decided to cut corners and avoid two critical steps in the securitization process so they could speed up the funding of these loans from the standard 45 – 60 days to as quick as 4 to 5 days. We all know time is money on Wall Street right? They committed this fraud knowingly and just kept doing it, over and over again 62 million times as shown on all of the documents being currently presented to the courts. The banks left their fingerprints on the gun, providing homeowners with the legal leverage needed to expose this fraud and use it to save their homes from imminent foreclosure.
The question is….will you choose to take action like so many have already done or will you sit back and wait to see what happens? The banks are counting on you doing nothing and going quietly? Become the “squeaky wheel” – show them you are serious about defending your home!
The Alphabet Problem – The Pooling and Servicing Agreement
The Pooling and Servicing Agreement (PSA) is the document that actually creates a residential mortgage backed securitized trust and establishes the obligations and authority of the Master Servicer and the Primary Servicer. The PSA also establishes that mandatory rules and procedures for the sales and transfers of the mortgages and mortgage notes from the originator’s to the Trust. It is this unbroken chain of assignments and negotiations that creates what we have called “The Alphabet Problem.”
In order to understand the “Alphabet Problem,” you must keep in mind that the primary purpose of securitization is to make sure the assets (e.g., mortgage notes) are both FDIC and Bankruptcy “remote” from the originator. As a result, the common structures seek to create at least two “true sales” between the originator and the Trust. You therefore have in the most basic securitized structure the originator, the sponsor, the depositor and the Trust. We refer to these parties as the A (originator), B (sponsor), C (depositor) and D (Trust) alphabet players. The other primary but non-designated player in my alphabet game is the Master Document Custodian for the Trust. The MDC is entrusted with the physical custody of all of the “original” notes and mortgages and the assignment, sales and purchase agreements. The MDC must also execute representations and attestations that all of the transfers really and truly occurred “on-time” and in the required “order” and that “true sales” occurred at each link in the chain. Section 2.01 of most PSAs includes the mandatory conveyancing rules for the Trust and the representations and warranties. The basic terms of this Section of the standard PSA is set-forth below:
The complete inability of the mortgage servicers and the Trusts to produce such unbroken chains of proof along with the original documents is the genesis for all of the recent court rulings. One would think that a simple request to the Master Document Custodian would solve these problems. However, a review of the cases reveals a massive volume of transfers and assignments executed long after the “closing date” for the Trust from the “originator” directly to the “trust.” We refer to these documents as “A to D” transfers and assignments. There are some serious problems with the A to D documents. First, at the time these documents are executed the A party has nothing to sell or transfer since the PSA provides such a sale and transfer occurred years ago. Second, the documents completely circumvent the primary objective of securitization by ignoring the “true sales” to the Sponsor (the B party) and the Depositor (the C party). In a true securitization, you would never have any direct transfers (A to D) from the originator to the trust. Third, these A to D transfers are totally inconsistent with the representations and warranties made in the PSA to the Securities and Exchange Commission and to the holders of the bonds (the “Certificate holders”) issued by the Trust. Fourth, in many cases the A to D documents are executed by parties who are not employed by the originator but who claim to have “signing authority” or some type of “agency authority” from the originator. Finally, in many of these A to D document cases the originator is legally defunct at the time the document is in fact signed or the document is signed with a current date but then states that it has an “effective date” that was one or two years earlier. Hence, this is what we call the Alphabet Problem. In the eyes of the courts and millions of homeowners nationwide, all of this spells out the word FRAUD, and there is no legal defense for the lender on this.
THEY COULD HAVE A LEGITIMATE CAUSE OF ACTION.
THE BIG FIVE LENDERS SAT AROUND A TABLE SOMEWHERE AND PLANNED FOR THE INFUSION OF CAPITAL AND THE PUMPING OF THE REAL ESTATE MARKET IN AN UNPRECEDENTED AMOUNT. SEE THE DOCUMENTARY “INSIDE JOB” ACADEMY AWARD WINNER FOR A DOCUMENTARY. AT SOME TIME THEY KNEW THAT THEY WHERE GOING TO STOP THE MUSIC AND THERE WOULD BE NO CHAIRS TO SIT IN ONCE THE MUSIC STOPPED.
THE KRAMER LAWSUIT IS ABOUT THIS FRAUD PERPETRATED ON THE AMERICAN TAXPAYER. THE PROBLEM IS IT WAS SOLD AS A FORECLOSURE DEFENSE METHOD WHICH IT IS NOT. THE OTHER PROBLEM IS THAT AN ATTORNEY NEEDS TO HAVE A RELATIONSHIP WITH HIS CLIENT TO DIRECTLY REPRESENT THE CLIENTS INTEREST. WITH OVER 10,000 CLIENTS AND 55 MILLION IN FEES THIS WOULD BE IMPOSSIBLE TASK. I BELIEVE THIS IS WHERE THE FALSE ADVERTISING ISSUE PRESENTS ITSELF.
American Banker | Wednesday, June 16, 2010
By Kate Berry
Correction: An earlier version of this story misidentified the court
where Judge J. Michael Traynor presides. It is a Florida state court,
not a federal one. An editing error was to blame.
The backlash is intensifying against banks and mortgage servicers that
try to foreclose on homes without all their ducks in a row.
Because the notes were often sold and resold during the boom years, many
financial companies lost track of the documents. Now, legal officials
are accusing companies of forging the documents needed to reclaim the
On Monday, the Florida Attorney General’s Office said it was
investigating the use of “bogus assignment” documents by Lender
Processing Services Inc. and its former parent, Fidelity National
Financial Inc. And last week a state judge in Florida ordered a hearing
to determine whether M&T Bank Corp. should be charged with fraud after
it changed the assignment of a mortgage note for one borrower three
“Mortgage assignments are being created out of whole cloth just for the
purposes of showing a transfer from one entity to another,” said James
Kowalski Jr., an attorney in Jacksonville, Fla., who represents the
borrower in the M&T case.
“Banks got away from very basic banking rules because they securitized
millions of loans and moved them so quickly,” Kowalski said.
In many cases, Kowalski said, it has become impossible to establish when
a mortgage was sold, and to whom, so the servicers are trying to
recreate the paperwork, right down to the stamps that financial
companies use to verify when a note has changed hands.
Some mortgage processors are “simply ordering stamps from stamp makers,”
he said, and are “using those as proof of mortgage assignments after the
Such alleged practices are now generating ire from the bench.
In the foreclosure case filed by M&T in February 2009, the bank
initially claimed it lost the underlying mortgage note, and then later
claimed the mortgage was owned by First National Bank of Nevada, which
the Federal Deposit Insurance Corp. shut down in 2008, before the
foreclosure had been started.
M&T then claimed Wells Fargo & Co. owned the note, “contradicting all of
its previous claims,” according to Circuit Court Judge J. Michael
Traynor, who ordered the evidentiary hearing last week into whether M&T
perpetrated a fraud on the court.
“The court has been misled by the plaintiff from the beginning,” Judge
Traynor said in his order, which also dismissed M&T’s foreclosure action
The Marshall Watson law firm in Fort Lauderdale, Fla., which represents
M&T in the case, declined to comment and the bank said it could not
In a notice on its website, the Florida attorney general said it is
examining whether Docx, an Alpharetta, Ga., unit of Lender Processing
Services, forged documents so foreclosures could be processed more
“These documents are used in court cases as ‘real’ documents of
assignment and presented to the court as so, when it actually appears
that they are fabricated in order to meet the demands of the institution
that does not, in fact, have the necessary documentation to foreclose
according to law,” the notice said.
Docx is the largest lien release processor in the United States working
on behalf of banks and mortgage lenders.
Peter T. Sadowski, an executive vice president and general counsel at
Fidelity National in Fort Lauderdale, said that more than a year ago his
company began requiring that its clients provide all paperwork before
the company would process title claims.
Michelle Kersch, a spokeswoman for Lender Processing Services, said the
reference on the Florida attorney general’s website to “bogus
assignments” referred to documents in which Docx used phrases like
“bogus assignee” as placeholders when attorneys did not provide specific
pieces of information.
“Unfortunately, on occasion, incomplete documents were inadvertently
recorded before the missing information was obtained,” Kersch said. “LPS
regrets these errors and the use of this particular placeholder
The company, which was spun off from Fidelity National two years ago, is
cooperating with the attorney general and conducting its own internal
Lender Processing Services disclosed in its annual report in February
that federal prosecutors were reviewing the business processes of Docx.
The company said it was cooperating with that investigation.
“This is systemic,” said April Charney, a senior staff attorney at
Jacksonville Area Legal Aid and a member of the Florida Supreme Court’s
foreclosure task force.
“Banks can’t show ownership for many of these securitized loans,”
Charney continued. “I call them empty-sack trusts, because in the rush
to securitize, the originating lender failed to check the paper trial
and now they can’t collect.”
In Florida, Georgia, Maryland and other states where the foreclosure
process must be handled through the courts, hundreds of borrowers have
challenged lenders’ rights to take their homes. Some judges have
invalidated mortgages, giving properties back to borrowers while lenders
In February, the Florida state Supreme Court set a new standard
stipulating that before foreclosing, a lender had to verify it had all
the proper documents. Lenders that cannot produce such papers can be
fined for perjury, the court said.
Kowalski said the bigger problem is that mortgage servicers are working
“in a vacuum,” handing out foreclosure assignments to third-party firms
such as LPS and Fidelity.
“There’s no meeting to get everybody together and make sure they have
their ducks in a row to comply with these very basic rules that banks
set up many years ago,” Kowalski said. “The disconnect occurs not just
between units within the banks, but among the servicers, their bank
clients and the lawyers.”
He said the banking industry is “being misserved,” because mortgage
servicers and the lawyers they hire to represent them in foreclosure
proceedings are not prepared.
“We’re tarring banks that might obviously do a decent job, and the banks
are complicit because they hired the servicers,” Kowalski said.
The court in Mabry
Posted 3 days ago by Neil Garfield on Livinglies’s Weblog
The bottom line is that none of these signors of affidavits have ANY personal knowledge regarding any document, event, or transaction relating to any of the loans they are “processing.” It’s all a lie.
In a 35 hour workweek, 18,000 affidavits per month computes as 74.23 affidavits per JPM signor per hour and 1.23 per minute. Try that. See if you can review a file, verify the accounting, execute the affidavit and get it notarized in one minute. It isn’t possible. It can only be done with a system that incorporates automation, fabrication and forgery.
Editor’s Note: Besides the entertaining writing, there is a message here. And then a hidden message. The deponent is quoted as saying she has personal knowledge of what her fellow workers have as personal knowledge. That means the witness is NOT competent in ANY court of law to give testimony that is allowed to be received as evidence. Here is the kicker: None of these loans were originated by JPM. Most of them were the subject of complex transactions. The bottom line is that none of these signors of affidavits have ANY personal knowledge regarding any document, event, or transaction relating to any of the loans they are “processing.” It’s all a lie.
In these transactions, even though the investors were the owners of the loan, the servicing and other rights were rights were transferred acquired from WAMU et al and then redistributed to still other entities. This was an exercise in obfuscation. By doing this, JPM was able to control the distribution of profits from third party payments on loan pools like insurance contracts, credit defaults swaps and other credit enhancements.
Having that control enabled JPM to avoid allocating such payments to the investors who put up the bad money and thus keep the good money for itself. You see, the Countrywide settlement with the FTC focuses on the pennies while billions of dollars are flying over head.
The simple refusal to allocate third party payments achieves the following:
* Denial of any hope of repayment to the investors
* Denial of any proper accounting for all receipts and disbursements that are allocable to each loan account
* 97% success rate in sustaining Claims of default that are fatally defective being both wrong and undocumented.
* 97% success rate on Claims for balances that don’t exist
* 97% success rate in getting a home in which JPM has no investment
(THE DEPONENT’S NAME IS COTRELL NOT CANTREL)
JPM: Cantrel deposiition reveals 18,000 affidavits signed per month
HEY, CHASE! YEAH, YOU… JPMORGAN CHASE! One of Your Customers Asked Me to Give You a Message…
Hi JPMorgan Chase People!
Thanks for taking a moment to read this… I promise to be brief, which is so unlike me… ask anyone.
My friend, Max Gardner, the famous bankruptcy attorney from North Carolina, sent me the excerpt from the deposition of one Beth Ann Cottrell, shown below. Don’t you just love the way he keeps up on stuff… always thinking of people like me who live to expose people like you? Apparently, she’s your team’s Operations Manager at Chase Home Finance, and she’s, obviously, quite a gal.
Just to make it interesting… and fun… I’m going to do my best to really paint a picture of the situation, so the reader can feel like he or she is there… in the picture at the time of the actual deposition of Ms. Cottrell… like it’s a John Grisham novel…
SFX: Sound of creaking door opening, not to slowly… There’s a ceiling fan turning slowly…
It’s Monday morning, May 17th in this year of our Lord, two thousand and ten, and as we enter the courtroom, the plaintiff’s attorney, representing a Florida homeowner, is asking Beth Ann a few questions… We’re in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida.
Deposition of Beth Ann Cottrell – Operations Manager of Chase Home Finance LLC
Q. So if you did not review any books or records or electronic records before signing this affidavit of payments default, how is it that you had personal knowledge of all of the matters stated in this sworn document?
A. Well, it is pretty simple, I have personal knowledge that my staff has personal knowledge of what is in the affidavit on personal knowledge. That is how our process works.
Q. So, when signing an affidavit, you stated you have personal knowledge of the matters contained therein of Chase’s business records yet you never looked at the data bases or anything else that would contain those records; is that correct?
A. That is correct. I rely on my staff to do that part.
Q. And can you tell me in a given week how many of these affidavits you might sing?
A. Amongst all the management on my team we sign about 18,000 a month.
Q. And how many folks are on what you call the management?
A. Let’s see, eight.
Isn’t that just irresistibly cute? The way she sees absolutely nothing wrong with the way she’s answering the questions? It’s really quite marvelous. Truth be told, although I hadn’t realized it prior to reading Beth Ann’s deposition transcript, I had never actually seen obtuse before.
In fact, if Beth’s response that follows with in a movie… well, this is the kind of stuff that wins Oscars for screenwriting. I may never forget it. She actually said:
“Well, it is pretty simple, I have personal knowledge that my staff has personal knowledge of what is in the affidavit on personal knowledge. That is how our process works.”
No you didn’t.
Isn’t she just fabulous? Does she live in a situation comedy on ABC or something?
ANYWAY… BACK TO WHY I ASKED YOU JPMORGAN CHASE PEOPLE OVER…
Well, I know a homeowner who lives in Scottsdale, Arizona… lovely couple… wouldn’t want to embarrass them by using their real names, so I’ll just refer to them as the Campbell’s.
So, just the other evening Mr. Campbell calls me to say hello, and to tell me that he and his wife decided to strategically default on their mortgage. Have you heard about this… this strategic default thing that’s become so hip this past year?
It’s when a homeowner who could probably pay the mortgage payment, decides that watching any further incompetence on the part of the government and the banks, along with more home equity, is just more than he or she can bear. They called you guys at Chase about a hundred times to talk to you about modifying their loan, but you know how you guys are, so nothing went anywhere.
Then one day someone sent Mr. Campbell a link to an article on my blog, and I happened to be going on about the topic of strategic default. So… funny story… they had been thinking about strategically defaulting anyway and wouldn’t you know it… after reading my column, they decided to go ahead and commence defaulting strategically.
So, after about 30 years as a homeowner, and making plenty of money to handle the mortgage payment, he and his wife stop making their mortgage payment… they toast the decision with champagne.
You see, they owe $865,000 on their home, which was just appraised at $310,000, and interestingly enough, also from reading my column, they came to understand the fact that they hadn’t done anything to cause this situation, nothing at all. It was the banks that caused this mess, and now they were expecting homeowners like he and his wife, to pick up the tab. So, they finally said… no, no thank you.
Luckily, she’s not on the loan, so she already went out and bought their new place, right across the street from the old one, as it turns out, and they figure they’ve got at least a year to move, since they plan to do everything possible to delay you guys from foreclosing. They’re my heroes…
Okay, so here’s the message I promised I’d pass on to as many JPMorgan Chase people as possible… so, Mr. Campbell calls me one evening, and tells me he’s sorry to bother… knows I’m busy… I tell him it’s no problem and ask how he’s been holding up…
He says just fine, and he sounds truly happy… strategic defaulters are always happy, in fact they’re the only happy people that ever call me… everyone else is about to pop cyanide pills, or pop a cap in Jamie Dimon’s ass… one or the other… okay, sorry… I’m getting to my message…
He tells me, “Martin, we just wanted to tell you that we stopped making our payments, and couldn’t be happier. Like a giant burden has been lifted.”
I said, “Glad to hear it, you sound great!”
And he said, “I just wanted to call you because Chase called me this evening, and I wanted to know if you could pass a message along to them on your blog.”
I said, “Sure thing, what would you like me to tell them?”
He said, “Well, like I was saying, we stopped making our payments as of April…”
“Right…” I said.
“So, Chase called me this evening after dinner.”
“Yes…” I replied.
He went on… “The woman said: Mr. Campbell, we haven’t received your last payment. So, I said… OH YES YOU HAVE!”
Hey, JPMorgan Chase People… LMAO. Keep up the great work over there.
Posted 6 days ago by Neil Garfield on Livinglies’s Weblog
NON-JUDICIAL STATES: THE DIFFERENCE BETWEEN FORECLOSURE AND SALE:
FORECLOSURE is a judicial process herein the “lender” files a lawsuit seeking to (a) enforce the note and get a judgment in the amount owed to them (b) asking the court to order the sale of the property to satisfy the Judgment. If the sale price is lower than the Judgment, then they will ask for a deficiency Judgment and the Judge will enter that Judgment. If the proceeds of sale is over the amount of the judgment, the borrower is entitled to the overage. Of course they usually tack on a number of fees and costs that may or may not be allowable. It is very rare that there is an overage. THE POINT IS that when they sue to foreclose they must make allegations which state a cause of action for enforcement of the note and for an order setting a date for sale. Those allegations include a description of the transaction with copies attached, and a claim of non-payment, together with allegations that the payments are owed to the Plaintiff BECAUSE they would suffer financial damage as a result of the non-payment. IN THE PROOF of the case the Plaintiff would be required to prove each and EVERY element of their claim which means proof that each allegation they made and each exhibit they rely upon is proven with live witnesses who are competent — i.e., they take an oath, they have PERSONAL KNOWLEDGE (not what someone else told them),personal recall and the ability to communicate what they know. This applies to documents they wish to use as well. That is called authentication and foundation.
SALE: Means what it says. In non-judicial sale they just want to sell your property without showing any court that they can credibly make the necessary allegations for a judicial foreclosure and without showing the court proof of the allegations they would be required to make if they filed a judicial foreclosure. In a non-judicial state what they want is to SELL and what they don’t want is to foreclose. Keep in mind that every state that allows non-judicial sale treats the sale as private and NOT a judicial event by definition. In Arizona and many other states there is no election for non-judicial sale of commercial property because of the usual complexity of commercial transactions. THE POINT is that a securitized loan presents as much or more complexity than commercial real property loan transactions. Thus your argument might be that the non-judicial sale is NOT an available election for a securitized loan.
When you bring a lawsuit challenging the non-judicial sale, it would probably be a good idea to allege that the other party has ELECTED NON-JUDICIAL sale when the required elements of such an election do not exist. Your prima facie case is simply to establish that the borrower objects the sale, denies that they pretender lender has any right to sell the property, denies the default and that the securitization documents show a complexity far beyond the complexity of even highly complex commercial real estate transactions which the legislature has mandated be resolved ONLY by judicial foreclosure.
THEREFORE in my opinion I think in your argument you do NOT want to concede that they wish to foreclose. What they want to do is execute on the power of sale in the deed of trust WITHOUT going through the judicial foreclosure process as provided in State statutes. You must understand and argue that the opposition is seeking to go around normal legal process which requires a foreclosure lawsuit.
THAT would require them to make allegations about the obligation, note and mortgage that they cannot make (we are the lender, the defendant owes us money, we are the holder of the note, the note is payable to us, he hasn’t paid, the unpaid balance of the note is xxx etc.) and they would have to prove those allegations before you had to say anything. In addition they would be subject to discovery in which you could test their assertions before an evidentiary hearing. That is how lawsuits work.
The power of sale given to the trustee is a hail Mary pass over the requirements of due process. But it allows for you to object. The question which nobody has asked and nobody has answered, is on the burden of proof, once you object to the sale, why shouldn’t the would-be forecloser be required to plead and prove its case? If the court takes the position that in non-judicial states the private power of sale is to be treated as a judicial event, then that is a denial of due process required by Federal and state constitutions. The only reason it is allowed, is because it is private and “non-judicial.” The quirk comes in because in practice the homeowner must file suit. Usually the party filing suit must allege facts and prove a prima facie case before the burden shifts to the other side. So the Judge is looking at you to do that when you file to prevent the sale.
Legally, though, your case should be limited to proving that they are trying to sell your property, that you object, that you deny what would be the allegations in a judicial foreclosure and that you have meritorious defenses. That SHOULD trigger the requirement of re-orienting the parties and making the would-be forecloser file a complaint (lawsuit) for foreclosure. Then the burden of proof would be properly aligned with the party seeking affirmative relief (i.e., the party who wants to enforce the deed of trust (mortgage), note and obligation) required to file the complaint with all the necessary elements of an action for foreclosure and attach the necessary exhibits. They don’t want to do that because they don’t have the exhibits and the note is not payable to them and they cannot actually prove standing (which is a jurisdictional question). The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home. This is not being addressed yet but it will be addressed soon.
Posted 14 hours ago by Neil Garfield on Livinglies’s Weblog
Editor’s Note: Their intention was to get MERS and servicers out of the foreclosure business. They now say that prior to foreclosure MERS must assign to the real party in interest.
Here’s their problem: As numerous Judges have pointed out, MERS specifically disclaims any interest in the obligation, note or mortgage. Even the language of the mortgage or Deed of Trust says MERS is mentioned in name only and that the Lender is somebody else.
These Judges who have considered the issue have come up with one conclusion, an assignment from a party with no right, title or interest has nothing to assign. The assignment may look good on its face but there still is the problem that nothing was assigned.
Here’s the other problem. If MERS was there in name only to permit transfers and other transactions off-record (contrary to state law) and if the original party named as “Lender” is no longer around, then what you have is a gap in the chain of custody and chain of title with respect to the creditor’s side of the loan. It is all off record which means, ipso facto that it is a question of fact as to whose loan it is. That means, ipso facto, that the presence of MERS makes it a judicial question which means that the non-judicial election is not available. They can’t do it.
So when you put this all together, you end up with the following inescapable conclusions:
* The naming of MERS as mortgagee in a mortgage deed or as beneficiary in a deed of trust is a nullity.
* MERS has no right, title or interest in any loan and even if it did, it disclaims any such interest on its own website.
* The lender might be the REAL beneficiary, but that is a question of fact so the non-judicial foreclosure option is not available.
* If the lender was not the creditor, it isn’t the lender because it had no right title or interest either, legally or equitably.
* Without a creditor named in the security instrument intended to secure the obligation, the security was never perfected.
* Without a creditor named in the security instrument intended to secure the obligation, the obligation is unsecured as to legal title.
* Since the only real creditor is the one who advanced the funds (the investor(s)), they can enforce the obligation by proxy or directly. Whether the note is actually evidence of the obligation and to what extent the terms of the note are enforceable is a question for the court to determine.
* The creditor only has a claim if they would suffer loss as a result of the indirect transaction with the borrower. If they or their agents have received payments from any source, those payments must be allocated to the loan account. The extent and measure of said allocation is a question of fact to be determined by the Court.
* Once established, the allocation will most likely be applied in the manner set forth in the note, to wit: (a) against payments due (b) against fees and (c) against principal, in that order.
* Once applied against payments, due the default vanishes unless the allocation is less than the amount due in payments.
* Once established, the allocation results in a fatal defect in the notice of default, the statements sent to the borrower, and the representations made in court. Thus at the very least they must vacate all foreclosure proceedings and start over again.
* If the allocation is less than the amount of payments due, then the investor(s) collectively have a claim for acceleration and to enforce the note — but they have no claim on the mortgage deed or deed of trust. By intentionally NOT naming parties who were known at the time of the transaction the security was split from the obligation. The obligation became unsecured.
* The investors MIGHT have a claim for equitable lien based upon the circumstances that BOTH the borrower and the investor were the victims of fraud.