AIG, Bailout, BankofAmerica, Congress, Credit Default Swaps, Derivatives, Fannie Mae, Federal Reserve, Foreclosure Crisis, Freddie Mac, HOEPA, MERS, Mortgage, Note, RESPA, Robo Signer, Securitization, Sub-Prime, TILA, Title Insurance, UCC
Posted on December 4, 2014 by Neil Garfield
Hat Tip to Patrick Giunta, Esq., Senior litigator and manager of litigation for the livinglies team.
When I said that lawyers should be counterclaiming for unlawful collection of payments by the servicer and related parties back in 2008, most people simply thought I was nuts and others were more generously skeptical. Everyone said “show me a case” which of course I could not because this scheme had never been played before and it has taken 7 years for courts to piece it together.
In the case we will discuss tonight briefly as I take more time to answer questions from the audience, we will see how the senior Judge in Seminole County carefully detailed the events and documents and concluded that the foreclosure was a farce — but more than that, the mortgage and note were a farce and declared them void. In addition, the Judge not only entered judgment for the homeowner on the issue of foreclosure but also granted a money judgment FOR THE BORROWER AGAINST BANK OF AMERICA for all payments made to Bank of America as successor or formerly known as Countrywide formerly known, but not registered or incorporated as America’s Wholesale Lender — which did not exist.
The conclusion of the Judge is that if the entity named on the note or mortgage does not exist, then neither does the note or mortgage. And any payments squeezed out of unwary borrowers are due back to the borrower because he might need them some day if someone actually makes a claim that is true. Thus at common law we have the very same remedy that was intended by the Truth in Lending Act under the right of rescission.
Hence the upcoming US Supreme Court decision probably doesn’t matter all that much although they should affirm the express wording of the statute even if they think the homeowner is getting a windfall. That is an erroneous assumption against the borrower — just as erroneous as assuming the loan documents were ever valid.
Sorry to be so immature, but I TOLD YOU SO!!!
Now when bankruptcy lawyers and foreclosure defense lawyers are preparing their pleadings and schedules they best look at whether there is an actual loan from an actual entity at the base of the chain relied upon by the foreclosing party.