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The Real Fraudclosure Watch Dogs Should Have Been The Courts! Why Are They Failing Us?

July 7, 2012

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Discovery Expert, Consultant and Strategist.  Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Legal Process Outsourcing Services (“LPO”) to licensed practicing attorneys.  AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.

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As I continue to read the frustration of America wanting answers and pounding judgment on the Department of Justice (“DOJ”) to prosecute the bosses of La Banko Nostra, I can’t help but go back to the fundamental grammar school history teaching of our government structure about the balance of powers and the purpose of the Executive, Legislative and Judicial Branches of government.  There is no doubt it is natural to call the police when a crime is committed thus, it is only natural we turn to DOJ for justice.  And minus the politics of it all we see how La Banko Nostra ran to, and has influenced, the Legislative Branch.  Those branches are very much political and where politics exist so does the evils of money, the greatest influence of all.  But if there were any greater sense of honor, integrity and justice, if there was any greater sense of shield from evil, the people’s faith has always fallen to the Judicial Branch, the Courts!  If there were ever to be a balance of the powers and a balance of justice, the Court would be the Pitbull no one would dare try to get by.

HBO has aired its new series John Adams, a vivid account of how America came to exist, the life loss and struggle pursued to claim and remain free from tyranny.  The series reflects the mindset and perspective of John Adams, a lawyer whose primary regard and forethought was for humanity, the rights of a free people and most importantly, the law.  Watching it, one can’t help but be inspired.  So what’s happening now in 2012 so very different from 1776?  We once again find ourselves struggling and fighting against the power(s) that are not the product of true democracy but rather, the product of taking advantage of true democracy.  As much as we’d like to see DOJ put the bosses of La Banko Nostra in jail, what the people of America would like to see is the enforcement of the balance of power and we’d like to see it in the very place the violators have chosen as the battle ground – we’d like to see it in the Courts!

There is no question the crime is evident.  There is fraud and the beauty of the American Dream has been stolen from the people.  The people have been violated by La Banko Nostra who have chosen the Courts, the Judicial Branch, the true balance, as the get away vehicle for their crimes.  While politicians and congressional committees are commonly bought off, while government officials or “wanna be” president hopefuls maintain off shore bank accounts as a validation of proof they have no real faith in the United States economy or banking system, its difficult to wrap your head around Judges falling into that category.  Yes I am aware that sounds a bit naive.  Yes I can see a Judge being paid off for a particular case but to seen Judges across the entire United States close a bind eye to the people and not decide cases on the merits – NOT HEAR AND DECIDE CASES ON THE MERITS – that’s just too difficult to believe.  One can only view that as a total failure of the judicial system.  Many may say Judges are just not well versed in securitization and the financial complexities of what is really taking place in foreclosure.  Well then Judges have still failed us by not educating themselves to the problem and that’s just not acceptable.

There is nothing complicated about the problems so let me bullet point them for every Honorable Judge reading this post:

  • The Note is NOT NEGOTIABLE because there are a number of conditions and it is not an unconditional promise to pay;
  • If the Note is NOT NEGOTIABLE then the property is not secured by the Mortgage or Deed of Trust (“DOT”);
  • It’s not that securitization is illegal HOWEVER, if the Note was securitized it means each owner should have endorsed the Note and the Mortgage/Deed of Trust should have followed it and a) if the Note is not properly endorsed to reflect all of the parties mentioned in the securitization documents (PSA – like the Originator, Sponsor, Depositor, Issuing Entity etc.) no movement in the case should take place until a full accounting (validation and verification of the debt) occurs to convince the court who the proper Creditor is to be paid and b) if the Mortgage/DOT did not follow each transfer, the Mortgage/DOT should be deemed a nullity;
  • Acknowledge that when the Note is securitized the monetary value of the Note is aggregated with other notes (“pooled”) and the aggregated amount is turned into a bond/security instrument.  once the Note was converted into a stock/security, or stock/security equivalent, it is no longer a Note because the loan has been de-recognized.  De-recognition is an accounting term which refers to the removal of an asset or liability (or a portion thereof) from an entity’s balance sheet.  In essence, the Note was gutted and all relevant accounting ledgers, including the so-called lender’s general ledger shows the Note to hold a “zero” value.  If both the Note and the stock/security, or stock/security equivalent, exist at the same time, that is known as double dipping. Double dipping is a form of securities fraud;
  • Acknowledge that if a Note was securitized and the montary amount was aggregated with other Note amounts, the total aggregated amount was factionalized and broken up into classes/tranches.  A true accounting means identifying a) did the note actually reach the trust and if so b) how many classes was the loan found in, determine how much was paid off and how much remains;
  • Yes MERS was named the Mortgagee and/or Nominee on the Mortgage/DOT HOWEVER, if the Mortgage/DOT follows the Note and the Note was sold multiple times, securitized and factionalized, the Mortgage/DOT cannot secure the Note any longer and MERS can no longer a) act as Nominee for the original lender and b) can no longer be the Mortgagee to the original Mortgage/DOT;
  • If a party is bringing action in another’s name, have that party show proof of authority to do so not just allege it;
  • Give a little bit more scrutiny to these bogus Assignment of Mortgages – you can’t keep ignoring the whole Robo-Signing issue;
  • Start sanctioning the fraudclosure firms filing false affidavits and pleadings and make the Bar drop the hammer on them;
  • Acknowledge the fact that it does not matter who makes payments on the Note as long as payment is made and if payment is made no DEFAULT has taken place;
  • Acknowledge the fact that when the Servicer brings the foreclosure action on behalf of another, chances are it is really equitable subrogation in that the Servicer may have been making the payment on behalf of the Borrower (because securitization docs like the PSA require such) and wants its money back but because there is no written agreement between the Borrower and the Servicer for those payments, the Servicer is foreclosing instead;
  • Acknowledge the Borrower is indeed a party to all third-party securitization documents (as noted by the OCC) and allow these documents into the case as most if not all docs mention the Borrower (not by specific name but as the Borrower and described as such) and none of those documents would not exist between third parties if the Borrower did not exist and play a role;
  • Toll the Statute of Limitation according to the Fraud that exist – the whole world knows this whole messed is premised on fraud so please stop acting like you’re the only people on the planet would do not see the fraud.

No one is asking for special treatment.  All the people ask for is to enforce the belief and notion that justice is blind, is impartial and the Court – YOU YOUR HONOR – will hear and judge a case on the merits!  Let the attorneys argue the cases and he that argues best wins!  Stop stacking the deck against the American people.  Don’t let fraudclosure attorneys run your courtroom like prosecutors calling case after case like prosecutors!  How dare you allow them to get so comfortable in your courtroom.  That room is sacred and all the American people ask is for the COurt to stop failing us.  Bring HONOR, INTEGRITY and JUST back into YOUR COURTROOM!  Don’t let your courtroom be owned by La Banko Nostra too!!!

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