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Texas Two Step: “Successors and Assigns”

by Neil Garfield | January 4, 2019

Homeowners are losing to legal presumptions arising from apparently facially valid documents. Thus defensive strategies, tactics and narratives should include a robust attack on the facially validity of the instruments relied upon by parties seeking foreclosure. In most cases the grounds for such an attack are present — but only upon careful reading and review of the instrument.

Looking a the “return to” instruction can often give a clue as to what is going on. If the “Lender” is asserted as “Broker One” or “American Broker’s Conduit” or some other sham conduit, the fact that no payments were ever made to BOL or ABC combined with the instruction to return the document to some other entity would be corroboration of a defense narrative that the debt was never owned or controlled by the name used to designate the “lender.”

The ubiquitous use of the phrase “successors or assigns” can also be used as part of the defense narrative. Was there a succession? Was there a previous assignment? If not directly referenced on the document then the assumption must be that “successors and assigns” is mere surplusage. That means that only the name used to designate the “lender.” And if that “lender” is dead then MERS has no party principal for whom it can act as nominee.

Assignments and indorsements from such an entity are not valid. Without assertions of the face of the document, it is improper and illegal to assume that MERS is acting on behalf of someone or some party that was the owner of the debt — especially when that party has never been specifically identified.

Take a look at the following analysis I recently performed for a client:

  1. DOT names MERS as Beneficiary. "MERS holds only legal title… " for "lender"

  2. Assignment of Deed-of trust has MERS executing as nominee for Broker One Lending (BOL) LLC its successors or assigns located at PO Box 2026 in Flint Michigan, which is an address associated with MERS and MERSCORP.

    1. The hidden factor here is that when you read the wording carefully you can see that it is unknown if (a) the person signing worked for MERS (I can tell you with certainty they did not) (b) BOL existed at the time of the assignment and (c) whether the assignment was executed on behalf of a successor or assign which on its face could indicate that the claimant successor was JP Morgan Chase.

    2. There is no basis of any agency relationship as nominee or otherwise between MERS and JP Morgan Chase as to this alleged loan.

    3. The agency relationship existed only between MERS and BOL. If there was a successor or other assign it is not revealed which makes the assignment subject to parole evidence, and hence cannot be claimed to be facially valid.

    4. If not facially valid no legal presumptions as to the existence or content of the assignment can be drawn.

    5. JPM cannot assign to itself — if they claim to be the successor or assign and thus claim the a agency (nominee) relationship with MERS, and to have some agent of JPM execute the assignment on behalf of JPM as successor or assign of BOL then they are assigning from JPM to JPM.

    6. The reference to "and assigns" indicates at least the possibility of a previous assignment that is unrecorded. Hence this assignment would not be considered facially valid and is presumptively in conflict with itself, to wit: if the DOT was previously assigned then it could not be again assigned to a different party. If the DOT was previously assigned to JPM there is no reference to such a transaction.

    7. BOL had ceased to exist when the assignment was executed, hence the agency relationship was automatically terminated by law when BOL ceased to exist.

    8. Since no purchase transaction is referenced the cessation of business by BOL either terminated MERS status as nominee or continued such status to the trustee as defined by statute of the estate of BOL.

    9. Samuel B Muller executes as "assistant Secretary" – a designation reserved for robosigned and forged documentation over the past 20 years. We can state with virtual certainty that he was not an employee or agent of MERS until he gained access to the MERS IT platform and designated himself as assistant secretary. We scan state with certainty that his knowledge of any data relating to the subject debt, note or mortgage was nonexistent and that therefore the document should be considered unauthorized or, as it is now known, "robosigned.”

    10. In all likelihood JPM never entered into any transaction in which it purchased for value the subject debt, note and mortgage. Based upon our proprietary information and related admissions by representatives and counsel for JPM it was neither the owner of the debt nor the beneficiary as defined by applicable statutes at the time of the foreclosure proceedings and sale. Any action undertaken at the direction of JPM including substitution of trustee or notices are not notices on behalf of any party answering to the definition of a beneficiary of the DOT.

    11. Based upon our prior encounters with JPM it has intervened and/or interposed itself as servicer for the subject debt, note and DOT and further claims to own the subject d debt, note and mortgage despite no foundation for such claim. Its claim to having the rights of a servicer are not defined, referenced nor founded upon any facts in reality.

    12. As such there could have been default in payment to JPM or BOL because BOL had never been receiver of payments and JPM was never entitled to receive them as creditor. If it claims to be the agent for the owner of the debt, note or DOT no such assertion or reference is contained in any document utilized in the alleged foreclosure proceedings and sale of the subject property.

    13. The amounts stated as due therefore cannot be taken as a representation of what is on the books of the party who owns the debt, note and DOT (as beneficiary).

    14. Claims for Quiet Title, Interest, and Judicial foreclosure are not only without foundation — they are contrary to the facts and events that took place in the real world marketplace.

    15. An interesting observation is that in the HELOC loan JPM Chase is asserted as "lender," This could be the time that JPM interposed or intervened in the original loan.

  3. Indorsement of the note from BOL to Flagstar Bank within days of the alleged loan closing is a strong presumptive indicator that BOL, as its name implies, was only acting as a Broker who did not in actuality have any rights to access the funds being loaned. Hence the BOL could not have owned the debt even at the time of the closing.

    1. An indorsement from a party who does not own the debt nor have any rights to enforce the debt is (a) meaningless and void as it cannot create rights that were not present at the time of the claimed "transfer" and (b) such endorsement could obviously not be used as proof (facially valid or otherwise) of ownership of the debt or rights to control enforcement. Therefore under Article 9 of the UCC, no foreclosure is applicable in the absence of clear and convincing proof that the debt was owned by party on whose behalf the foreclosure was initiated and pursued.

  4. The 2015 TILA Rescission notice is somewhat vague in its interpretation of law but effective as a notice of rescission. There is considerable conflict in the courts. But the Supreme Court by unanimous decision in Jesinoski v Countrywide made it clear that 15 USC §1635 is a procedural statute, not one that gives rise to a specific claim. When the notice is sent and delivered it is effective as terminating the loan contract, and under Reg Z rendering void the note and mortgage or deed of trust Ô by operation of law.

    1. While numerous defensive arguments could theoretically be raised to vacate the TILA rescission the fact that it occurred is indisputable according to both the statute and the US Supreme Court.

    2. And while such defensive arguments could be brought as claims to support vacating the notice of rescission, this is restricted to the following:

      1. A party with standing without reference to the note and mortgage that are now void

      2. Filing within 20 days of the date that the notice was effective

      3. Defensive references to a three year limitation, or other restrictive facts in sending the notice of rescission are attempts to raise the claim that the rescission should be vacated without filing a pleading on behalf of a party with standing who does not rely on the void note and void mortgage (DOT) as the basis for asserting standing. In essence such arguments are references to claims that could have been brought by the creditor but never were.

 

 

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