livinglies.wordpress.com | November 30, 2015
By Neil Garfield
The Banks are getting increasingly obscure in their pleading and proof because they do not have any actual transactions in the chain upon which they can rely to collect or enforce an alleged "loan."
They are relying upon the appearance or illusion of actual transactions because there is all this activity of multiple parties supposedly "relying" on the alleged "transaction" chain. But what if the chain of originators, successors and agents is composed ENTIRELY of fee based servicers and thee is no lender nor an assignee who actually paid value of the "loan" and the Loan documents?
Everyone knows that the Banks are certainly not being forthright. With their fabricated, forged, robo-signed, fraudulent documents for which they get sanctioned once the homeowner reveals the defects in their allegations and proof, when you drill down to the reality, nothing adds up. In all transactions affecting ownership or authority to represent there must be a clear chain of transactions that reveal the existence of the funding or acquisition of a loan contract. In other words, it might be enough to PLEAD certain ultimate facts upon which relief could be granted, but it is quite another thing to prove the facts alleged.
The funding of the loan contract is needed to establish consummation of the loan transaction --- i.e., without the payee having been the the funding source of the loan it not only violates numerous disclosure requirements, it also reveals that there was a lack of consideration for the note and mortgage executed by the homeowners. If there is a lack of consideration between the payee on the note and mortgage, then there is no consummation because there is no contract. Basic contract law. The fact that the alleged "borrower" was duped into signing documents that named the originator as the lender is not proof that the instruments are genuine and enforceable. Such documents should never have left the "closing" table, much less be transmitted or recorded.
The same holds true for alleged transfers of the loan contract. Even if there was consideration when the loan was originated and even if that consideration came from the payee on the note, in order to assert ownership over the loan the successors must offer more than a multiple choice answer to who is the owner of the loan.
If the Trust, as asserted by Defendant, never paid for the subject "loan" documents then at best, assuming the trust actually exists, the Trust would in actuality be "holding" the loan on behalf of some other entity or entities. If so they have not revealed it in their pleading or proposed proof. And if they did not pay for the "loan" then who did? But the even more intruding question is if they didn't pay for the "loan" why didn't the alleged assignor require payment for such a "valuable" asset? The only credible answer is that the assignor did not demand payment because it was merely performing a fee-based service in which it agreed to misrepresent itself as the assignor without a warranty of title which ordinarily would be required by any bank, large or small, if they were accepting such a document as the basis for a transaction.
In one case I offered the following comments:
The plaintiff is curiously not identified except that Wells Fargo asserts it is the "trustee" for a "series." That is not the name of a trust, nor does it actually identify for whom Wells Fargo says it is the Trustee. In truth, Wells Fargo is most likely using the name of a fake trust in order to gain an advantage for itself. Trust law is like contract law. If there is no consideration there is no trust. The consideration is called the "res", which is the asset signed over to the trust, whether it be cash or other property. If the so-called trust never paid for the "loan" then the assignment to the trust raises more questions than it answers. In this case they assert that they have already "made" their case for standing --- when the documents they filed leave us with nothing but questions. And the biggest question is a multiple choice question in which we must sift through the various parties in a broken and convoluted line of parties, none of whom had any authority or ownership over the loan, note or mortgage.
They have stated that a prima facie case has been "made." This is designed to distract the Judge. If the Judge is not re-focused, the Plaintiff will argue that the court has already decided and the Plaintiff has already established that the prima facie case already exists, as to standing, which virtually concludes the case. Prima facie cases are not "made" in Pleadings. They are "made" at trial.
First the "prima facie case" has not been made, because there has been no evidence allowed by the court.
Second the allegation is contested by Thomas. If a party could establish a prima facie case by pleading there would never be a need for discovery or a trial.
Third, The endorsement on the note is cryptic, partially crossed out and is obviously subject to cross examination of a witness who would attempt to establish foundation for the endorsement.
Fourth it is signed by someone Belenda Luke, "Group Leader," for National City Bank (FKA crossed Out) "OBM" Harbor Federal Savings Bank. A prima Facie case could hardly be made on the basis of such a cryptic signature from an unknown person on behalf of a bank that no longer exists, where the signatory is not an officer but a "Group Leader."
Fifth, and most importantly, the so-called contested endorsement is undated --- which is at variance with custom and practice in the banking industry. Defendant will produce a witness at trial that will assert that custom and practice in the industry, to assure the validity of any transaction upon which a bank would rely, would be confirmed by (a) having a date on the instrument and (b) confirmation of the authority of the person whose signature appears on an instrument that is material to the proposed transaction. In this case the proposed transaction is foreclosure. But Plaintiff is attempting to pull the wool over the court's eyes in assuming that the court would not require the same precision that is required by Plaintiff or any other bank.
Sixth, the attached assignment contains the same type if irregularities --- Michele Fisher signs as "loan Review Administrator" on behalf of National City Bank "O/B/M" Harbor Federal Savings Bank, and purports to assign what they assert is a valuable asset based on the signature of someone who does not carry a title of any office within the Payee on the note nor the alleged successor by the alleged merger. Then Plaintiff attaches a corrective assignment that abandons the fist assignment.
Seventh, the corrective assignment is purportedly executed in front of a TEXAS NOTARY which states that "document is being recorded to complete Assignee entity name in the first assignment." It was prepared by a returned to RMAC in Texas. Attention "Collateral." It is apparently signed by Linda Genneken Chapa with the title of "Vice President" of Roosevelt Mortgage Acquisition Company, who is then executing the instrument on behalf of PNC Bank NA, neither of whom show up in the chain of title before or after the alleged assignment.
Eighth, there is no allegation nor any document that establishes actual authority to execute on behalf of other entities. Plaintiff is relying upon the snow storm of documents to cloud the vision of the court.
The assignee is asserted as Wells Fargo "not in its own Behalf" but rather on behalf of as "trustee" for RMAC REMIC Trust Series 2009-9, which is not necessarily the name of a trust and is certainly at variance with custom and practice in the industry of naming trusts with the word "trust" in it. In any event the alleged trust has no history of ever being in existence --- i.e., the Defendant contests the existence of the trust in that there is no evidence that any ACTUAL Transaction ever occurred with a trust by the name asserted or any similar name. Defendant asserts no payment was made, and if there was such a payment the Plaintiff would have asserted that it is a holder in due course which would allow it to enforce the note without being required to respond to the maker's defenses.
THUS IN ANSWER TO THE PLAINTIFF'S REPLY --- WHICH OF THE FOLLOWING MULTIPLE CHOICE ANSWERS ARE THEY RELYING UPON AND ASSERTING THAT THEY HAVE "MADE" STANDING?: (A) HARBOR FEDERAL (B) NATIONAL CITY (C) ROOSEVELT MORTGAGE ACQUISITION COMPANY (D) PNC BANK (E) WELLS FARGO BANK (F) AN UNNAMED or PARTIALLY NAMED TRUST THAT CONTAINS NO RES, NO BUSINESS, NO ASSETS, NO BANK ACCOUNT (F) RMAC?
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