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Proposed pleading submitted to me for review. The difference is subtle to the casual reader but it is the difference between giving the Judge a chance to rule in your favor and giving him no opportunity to rule in your favor. Once you have tacitly or explicitly admitted the connections and validity of any of the documents upon which the co-venturers in the Ponzi scheme relied upon to foreclose, you are tying a bow around the case of the would-be forecloser. The more facts you allege in your pleading, the more you will be required to prove. The more you deny what is either plead or presumed in the foreclosure, the better your chances of getting cancellation of the instruments.
Paragraph submitted to me:
However, the wire transfer evidenced to this court clearly shows that the money wired into Plaintiffs’ escrow came from a different bank altogether, Centennial Bank of…
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GSEs Remain Backdoor Bailouts for Banks
Editor’s Note: Hera research conducted an interview with Neil Barofsky that I think should be read in its entirety but here the the parts that I thought were important. The After Words are from Hera.
According to Neil Barofsky, another financial crisis is all but inevitable and the cost will be even higher than the 2008 financial crisis. Based on the way that the TARP and HAMP programs were implemented, and on the watering down of the Dodd-Frank bill, it appears that big banks are calling the shots in Washington D.C. The Dodd-Frank bill left risk concentrated in a few large institutions while doing nothing to remove perverse incentives that encourage risk taking while shielding bank executives from accountability. Neither of the two main U.S. political parties or presidential candidates are willing to break up “too big to fail” banks, despite the gravity of the problem. The assumption…
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By Tiffany Sanders on September 17, 2012
Whether you’re a foreclosure defense attorney or a bankruptcy lawyer whose clients are frequently struggling with mortgage debt, thoroughly familiarizing yourself with the uniform Fannie Mae and Freddie Mac documents is a must for both client service and your own efficiency. Of course, Fannie and Freddie hold a huge percentage of residential mortgage loans—Fannie alone had a 41% market share in 2011. But use of the uniform documents is much broader; most players in the residential mortgage industry use these same instruments because it makes it facilitates sale in the secondary market.
Fortunately, unlike the Fannie and Freddie servicing guides, the uniform instruments don’t change often. And, the document itself includes the date of the form. Just a quick glance at that information will tell you quite a bit about your mortgage. For example, Fannie and Freddie didn’t buy daily interest mortgage loans after January, 2001, so if you’re looking at a form dated 01/01, you know that it’s a scheduled payment loan.
Reading the whole Uniform Note and Uniform Security Instrument several times and understanding them thoroughly will save a lot of legwork in the long run, since you’ll be operating under those same terms and definitions again and again. While it’s important to do that full analysis yourself, here are a few key points to look out for:
- The definition of “loan” integrates the note and the security agreement, arguably destroying negotiability.
- The definition of “applicable law” contains no language that would exclude the U.S. Bankruptcy Code and associated rules, despite the arguments often set forth by opposing counsel.
- Understand the application of payment requirements set forth in Uniform Covenant 2; it’s standard for servicers not to comply with these provisions, but that failure gives rise to a breach of contract claim.
- Examine the legal fee provisions contained in Uniform Covenant 9. Fee applications submitted by servicers are often in no way “reasonable and appropriate”—for example, a $200 legal fee for submission of a supplemental Proof of Claim for a $50 property inspection.
These few provisions are only the beginning. The Uniform Covenants are filled with rights and responsibilities for borrowers that consumer lawyers routinely overlook, not to mention the protections afforded by TILA, Rule 3002.1 and other state and federal laws. So long as servicers aren’t challenged on those issues, they have no incentive to comply with these requirements and play fair with consumers. It’s up to us as consumer lawyers to general enough inconvenience, legal fees, penalties and other pain points to make it unprofitable for servicers to continue the routine practices that harm homeowners across the country on a regular basis. One important step in that direction is ensuring that you are well versed in what is required by the Fannie and Freddie uniform instruments and what remedies are available to your client when those obligations are breached.
Consider this an add-on to the workbook entitled Whose Lien is It Anyway also known as Volume II Workbook from Garfield Continuum Seminars.
Several Attorneys, especially from California are experimenting with a cause of action in which an instrument is cancelled — because it throws the burden of proof onto the any party claiming the validity or authenticity of the instrument.
I have been researching and analyzing this, and I think they are onto something but I would caution that your pleadings must adopt the deny and discover strategy and that you must be prepared to appeal. There is also a resurgence of tacit procuration doctrines, in which the receiver of communication has a definite duty to respond.
Here is Part I of the analysis: There will be at least one more installment:
Cancellation of Void Instrument
In most cases loans that are later subject to claims of securitization (assignment)…
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