real property transaction warnings over the last

10 years and counting!

  • The life of loan path must deliver to each subsequent party "a lawful possession of a tangible interest".  NEVER FORGET that the answer for who has the “right to enforce” and “the right to collect” can be, “NO ONE”.   As with any DEBT OBLIGATION, the resolve begins and ends within the “4-corners” of the admissible definitive documentation (the RPT instruments).
  • THE JUSTICE SYSTEM: “The debtor owes money NOT to the world at large but to a particular person or institution, and ONLY the person or institution entitled to payment may enforce the debt by foreclosing on the security.”  Yvanova, the Supreme Court of California (2016)
  • Recent economic developments have brought to the forefront complex legal issues about the enforcement and collection of mortgage debt. Local real property law and local rules of foreclosure procedure govern many of these issues, but others are addressed in a uniform way throughout the United States by provisions of the Uniform Commercial Code (UCC).1   Although the UCC provisions are settled law, it has become apparent that not all courts and attorneys are familiar with them. In addition, the complexity of some of the rules has proved daunting.  (PEB 2011 - ON PROMISSORY NOTES)

THE WARNING FROM THE DEPARTMENT OF JUSTICE (2017)

 

  • *** “If you are considering a financial arrangement with someone, be sure to check the veracity of any documents they provide you, as fraudulent documents are common and easy to create,” said U.S. Attorney Bogdan.  Mortgagor  should then require “beneficial interest claimants” to “judicially establish their interests and authority” to foreclose through “definitive documentation.” (Branrup - 9th CCOA); see also Niday v. GMAC Mortg., 302 P.3d 444, 454 & n.8 (Or. 2013) suggesting that the relevant inquiry may be whether the foreclosing party is the “person entitled to enforce the note”. 

  • “CLEAR & MARKETABLE TITLE” is jeopardized by the shoddy handling of Notes and Mortgages, resulting in DEFECTIVE OWNERSHIP CLAIMS, which leads to faulty delivery of what is BARGAINED FOR (2019).  In a filing JUNE 3, 2016, the Department of Justice (DOJ)  confirms what many have known for years. Nobody, not even the U.S. Government, with massive resources, can determine who owns your loan and has the right to collect on your mortgage.  The information comes from case files unsealed on June 3, 2016 by  federal Judge Yvonne Gonzalez Rogers of the Northern District of California in the case of the United States v. Discovery Sales, Inc. The case involves some 325 fraudulent loans originated by Discovery Sales, Inc. (DSI) between 2006 and 2008, many of which were then sold to Wells Fargo Bank and JP Morgan Chase to securitize.

My (Neil Garfield, Esquire, 2020) interpretation of all that, based upon case decisions, applicable statutes, rules and regulations is that the following MUST BE TRUE in order for a foreclosure to be a valid exercise of legal rights that belong to a creditor:

 

  • The foreclosure is initiated on behalf of a creditor --- i.e., one who has paid value for the debt in exchange for legal ownership of the debt.  

  • The forced sale of the property will result in a pay-down of a legal debt owed to a disclosed creditor.  

  • If a servicer is involved their authority to collect, process or enforce the debt must have come from the creditor who paid value for the debt in exchange for legal ownership of the debt.  

  • Proper notice and demand for the correct amount due must have been delivered on behalf of the creditor and received by the borrower.  

  • The creditor must be sufficiently identified so as to comply with ordinary rules and practices governing the requirements of legal pleading. 

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