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The Value of Loan Note Evaluation

June 21, 2014

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

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Let’s focus on the facts and remove the speculation.    What we’ve seen in foreclosure is scattered pieces to the puzzle.  Of course when you put the pieces together properly you see the picture.  Before we talk about the picture let’s look at the pieces properly.

  • Securitization of loans means massive money and profits.
  • The focus was always on the money and not on the documents.
  • The mortgage loans alleged to be pooled together in most cases never made it to the trusts.
  • The originator of a loan was nothing more than a broker being paid a commission to play the role of the lender.
  • The real lender/creditor remained undisclosed.
  • In the securitization world the real lender was normally the Sponsor of the securitized transaction.
  • The fake lender of a loan transaction was required to sell (which really means transfer) the note to the Sponsor.
  • The Sponsor was to then sell/transfer the loans to the Depositor of the securitized transaction.
  • The Depositor was required to create a Trust governed under New York or Delaware Trust Law.
  • The Depositor was required to sell/transfer the loans to the Trust.
  • The securitized trust is governed by the Pooling and Servicing Agreement (PSA) and other documents.
  • According to the PSA each mortgage loan transfer was required to have the chain of endorsements on the note and proper assignment where required.
  • Money moves electronically by wire.
  • How can loan notes and mortgage documents which are paper, move as fast as the money?  They can’t – FedEx and US mail prove to be more of a liability and unnecessary expense.
  • Loan notes and mortgage documents would have to be converted into electronic format to move electronically just like the money.
  • MERS was created by the financial giants so the loan documents could move just as fast as the money.
  • MERS removed the need to record transfers in public records each time the loan moved.
  • Wall Street super lawyers believed a lost note affidavit would be sufficient to foreclose.
  • Original documents were destroyed once the file was color scanned and submitted for electronic travel.
  • When the foreclosure crisis hit every complaint contained a lost note count.  Why?  The obvious reason was simple – they didn’t have the note.
  • Foreclosure mill attorneys – officers of the court – saw and knew there was a legal standing problem and used fabricated assignments to create standing where none existed.  Why? Because foreclosure mill attorneys filed foreclosures without being in possession of the original documents and saw the copy of the notes in their possession were not endorsed.  There literally was no connection between the foreclosing party and the named defendant – the borrower/homeowner.
  • Foreclosure Mill attorneys – officers of the court – sold their souls for money!
  • Courts require the original note to be present.
  • Judges were suckered by the robo-signing fabricated assignments of mortgages.
  • Great Florida Judges that smacked down MERS and recognized the legal issues were transferred off foreclosure cases.
  • Some States did something about the MERS epidemic of false and fabricated documents and outlawed MERS while Florida courts continue to look stupid and ratify MERS.
  • Foreclosure cases took a long pause -not because of borrowers – but because the financial plaintiffs needed to figure out a way to overcome the issue of not having the original note.
  • The Florida Supreme Court created the Foreclosure Residential Task Force to address these problems.
  • The Florida banking Association’s President files a Brief to the explain why there are all these lost note counts and flat out tells the Florida Supreme Court and the world – ALL ORIGINAL NOTES WERE DESTROYED!  They were scanned in color and kept electronically.  They destroyed the originals to eliminate any confusion.
  • Years go by dragging out cases to create standing where none exists.
  • The standing at inception argument becomes one of the most focused arguments in foreclosure defense.
  • Magically ALL ORIGINAL NOTES begin to appear.
  • Today, every foreclosure complaint contains a copy of an endorsed original note.

There is nothing complicated about what we have just reviewed.  EVERYTHING done to steal a home is based on fabrication.  The note being submitted to the Court is more than likely a color copy or a recreation of sorts albeit the endorsement, the signatures or combinations thereof.  Note examination does not require some incredible scientific analysis.  Truth be told someone fluent in Photoshop can tell you how the pixel ratios in the page don’t match up.  The value of a loan note examination is priceless.  Why?  Because the ONLY argument a foreclosing party can have today is the claim – they are the HOLDER of the note.  Not a holder in due course where they need to prove up the how – just that they are the HOLDER!  But to be the holder there are two very important factors that must be established – delivery and possession of the ORIGINAL note.  If what they are presenting is not ORIGINAL and is a color copy or fabrication then they fail.  That is the value of loan note examination.

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