More Foreclosure Information

Ok. Here is some more foreclosure information I’ve found in my research. Some (or most) you probably already know. But, maybe having them all in one place instead of having to hunt them down just may be of some help in cutting down on the hunting for you.

DISCLAIMER: This is not, by far, an exhaustive compilation of information and it also is NOT legal advice. For that, contact a lawyer. All this is is a simple list of points and information that is readily available online.

1. As we ALL know by now ask for the original “wet ink” promissory note. But, did you know that you also add to that…. and the original Deed of Trust/Security Instrument? That’s right. Ask for BOTH original documents you signed at the closing. This is very important as both must stay together! If they haven’t, bifurcation has occured and the chain of title has been broken. Under Carpenter v. Longan, the US Supreme Court ruled that the Deed of Trust/Security Instrument MUST follow the promissory note.
2. Look at your Deed of Trust/Security Instrument. It’ll be a copy. But, it should be a copy of the original by the bank that is foreclosing on you. In other words, if your original lender was Countrywide, but US Bank is foreclosing, then the copy submitted should NOT have an attest that it is a true copy by a Countrywide officer! If US Bank has the original, all they have to do is copy it and attest that it’s a true copy THEMSELVES. And the original of course won’t have an attest of true copy stamp on it! This is a sure sign that the bank foreclosing doesn’t have the original.
3. If your promissory note was securitized, meaning your lender sold it to a REMIC Trust Fund, this action needs to be recordered in your county record as an assignment. Alot of times, since most lenders used MERS, this wasn’t done. Look up your trust fund information online (just put the name of the trust into google and up it’ll pop) and check out the dates. Most trust funds have the creation date as it’s name. For example… SAIL 2006-3. This means that it was created in 2006-March. In this document you’ll also find the closing date. If your assignment that the bank is using has a date AFTER that closing date, then it is fraudulant. Because once it’s in the trust fund, it has been de-securitized and sold as stock. Once it’s stock, FOREVER stock. It can NOT be re-converted to a promissory note. The note is destroyed once turned into stock. And since the bank is now using a copy of that destroyed note by assigment in the county records, it is securities fraud because a promissory note is a security note. It is also counterfiet fraud because it’s a COPY.
4. Whenever an assignment is recordered, you, as the owner must be notified by the entity recording that assignment. Check your state laws on this issue. In most cases, since it was done much later than the creation of the trust fund that your note was sold to, you never were notified.
5. FAS (Financial Accounting Standards) 140 governs the sale and securitization of a negotiable instrument. It states that once an asset is sold, the seller forever loses the ability to control the asset. So, they sold their right to enforce, control, or otherwise foreclose on your property. They are no longer the real party in interest because now it is the shareholders of the REMIC Trust who own the note. They (the bank) are now just a servicer. They can not have their cake (the money from the sale of your note as stock at 1.5% face value of your note plus 10% appreciation) and eat it too (getting money from you for the promissory note that they sold). They have been PAID IN FULL for the loan. So, since the shareholders are the ones who own the note (now coverted to stock), the bank bringing the foreclosure suit are NOT the real party in interest and does NOT have standing to sue!
6. At the signing of the promissory note and Deed of Trust/Security Instrument something very interesting happens. Unbeknown to the borrow (but well known to the lender, thus having “superior knowledge”) that promissory note becomes a negotiable note in the amount of what the borrower believes the lender is loaning to them. The lender then deposits this negotiable note (just like you would a check) into their account which creates a positive deposit in that amount. They then take that amount of money and pay the seller. They then take the promissory note and either sell it to another bank or through a SPV to a REMIC Trust Fund where the note gets converted into stock and they get 1.5% of the face value of the note plus 10% appreciation of the stock. NOWHERE has the lender ever fronted ANYTHING of value towards this contract. But yet, they have made money, thus being unjustly enriched. In a contract there is supposed to be “I give something of value, and in return you give something of value”. Where is the “something of value” from the lender? What has the lender given? NOTHING! They created money based upon the borrower’s signature. It is the borrower whose credit has created the money of which the lender deposited into their account and paid the seller with. The lender hasn’t put a dime towards this “loan”, thus hasn’t loan anything. In stating in the promissory note that they have loaned you $amount when they haven’t loaned a dime, is a lie. For a contract to be valid, full and fair disclosure (Real Estate Settlement Procedures Act [RESPA]) and a meeting of the minds or consensus ad idem MUST be in existence (Basic Contract Law). And since they misrepresented the loaning of money, this is a misrepresentation of a material fact and is Fraud in Factum. And since they didn’t disclose this to you because they knew you probably wouldn’t sign the contact if you knew, it is Fraud of Inducement also a misrepresentation of a material fact. .”Any false representation of material facts made with knowledge of falsity and with intent that it shall be acted on by another in entering into contract, and which is so acted upon, constitutes ‘fraud,’ and entitles party deceived to avoid contract or recover damages.” Barnsdall Refining Corn. v. Birnam Wood Oil Co. 92 F 26 817.
To Be Continued…..


1 Comment »

  1. Thomas Said:

    Thanks for posting this. Great info!

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