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Mortgage Defense and the Law of Restitution

August 12, 2015

By Richard F. Kessler, Esq.

Wanton and willful financial misconduct in the origination, securitization, servicing and foreclosure of a mortgage debt will not bar collection and enforcement of the debt. Notwithstanding the creditor’s misconduct, the sanctity of debt is the controlling and paramount variable. Judges believe that absent strict enforcement of the obligation to repay debt, the engine of commerce will grind to a halt without lubrication of the gears with commercial credit.

Courts throughout the country faced with the choice of enforcing rules or protecting the flow of commercial credit have overwhelmingly found it in the public interest to enforce debt. Accordingly the courts have accorded judicial license for continued egregious and demonstrable financial misconduct by banks engaged in single family residential mortgage lending.

Robosigning, forged signatures, fraudulent documents, non-compliance with the requirements prescribed by Chapter III and Chapter IX of the UCC, payment by a third party of debt installments, lack of possession of the original mortgage note endorsed in blank have all been disregarded or disallowed by courts as defenses to the enforcement of a mortgage debt.

What price has this expedient accommodation of commerce exacted? By overlooking wanton and willful financial misconduct, we have sacrificed transparency, accountability, regulatory oversight judicial integrity, objectivity and neutrality and due process. The foray into judicial activism and realism has preferred the certainty of an outcome favorable to the creditor banks over disinterested adherence to legal authorities.

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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

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CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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