The term “servicer” is a fabricated term, a frankenstein legal term that has no legal meaning. It was made up by the banks and Wall Street cartels….for far too long, courts have let them get away with it. But our friend, the angel of foreclosure defense April Charney shares these nuggets with us:
If an entity does not own the account, or if it is not owed, the collector may not collect or sue. E.g., Cox v. Hilco Receivables, L.L.C., 726 F.Supp.2d 659, 666 (N.D. Tex. 2010) (” Improperly identifying oneself as the owner of a debt is certainly a misrepresentation of that debt’s legal status”); Wallace v. Washington Mut. Bank, F.A., 683 F.3d 323 (6th Cir. 2012) (suing before ownership documents transferred); Bourff v. Rubin Lublin, LLC, 674 F.3d 1238, 1241 (11th Cir. 2012) (misidentification of BAC as creditor); Shoup v. McCurdy & Candler, LLC, 465 Fed. Appx. 882, 885 (11th Cir. 2012) (misidentification of MERS as creditor); Gearing v. Check Brokerage Corp., 233 F.3d 469, 472 -73 (7th Cir. 2000) (allegation in its state court complaint that it was ” subrogated” to Ayerco’s rights gave a false impression as to the legal status); Grant-Hall v. Cavalry Portfolio Services, LLC, 856 F.Supp.2d 929, 942 (N.D. Ill. 2012) (misrepresenting that CPS had the right to file suit); Manlapaz v. Unifund CCR Partners , 2009 WL 3015166 *5 (N.D. Ill. 2009) (suing on a debt it did not own); Matmanivong v. Unifund CCR Partners, 2009 WL 1181529 *5 (N.D. Ill. 2009) (same); Hepsen v. J.C. Christensen and Associates, Inc., 2009 WL 3064865 *5 (M.D. Fla. 2009) (false representation of creditor’s name); Braatz v. Leading Edge Recovery Solutions, LLC, 2011 WL 9528479 *1 (N.D. Ill. 2011) (identifying two companies might cause consumer to be concerned about the possibility she was being defrauded or that she might pay the incorrect creditor and continue to have outstanding debt).
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Re: Wells Fargo FIPS 29097
They can in the 8th Circuit, apparently. I was in 3 years of litigation until 2008. Having the judge in your pocket always helps! I tried all these arguments to no avail. Glad it is helping some people, though. I believe there was an 8th Circuit case in 2012 that held all of this was not a valid defense as far as they were concerned.
Help us these Banks have taken all we had
help us, can’t fight them alone-we have a case
Mr. Wiedner
I had the pleasure of viewing your arguement before the 2nd DCA on utube and recall that the judge was inquiring as to why note ownership is relevant in a foreclosure action.
I wish you would have focused on economic injury. Only an owner of the debt can experience default or harm to its interests. A mere holder of a bearer instrument does not experience damages unless it also owns the instrument. An action to use a security instrument is an attempt to recover on a claim of damages, not to enforce a debt instrument.
The claim for damages is the exclusive property of the owner and mere possession of a bearer instrument is not indicative of suffering economic injury. Without identifying an injured party, there is no evidence of a controversy before the court.
The mere holder of a bearer instrument would need joinder with the owner of the claim in order benefit from the security instrument. A holder of a bearer instrument is not necessarily the owner of the claim to be sued upon and may not be a real party at interest in the outcome of foreclosure litigation.
Negotiability
A mortgage servicer that keeps a percentage of the borrower’s payment as a fee or strip before passing it thru to the owner of the proceeds means that owner doesn’t control rights to receive the full periodic loan payment, only rights to receive partially discounted proceeds derived from an obligation. In order to take the promissory note by negotiation, the purchaser must be able to accrue rights to the full periodic loan payment.
A servicer must take its cut before remitting payment because a remic trust doesn’t have assets it can hold back to pay the servicer as it is strictly a pass thru entity, therefore, it can’t write checks to the servicer to cover the cost of servicing. As such it is entitled by its contract to keep a percentage of loan payments before remitting the balance to the remic trustee. This implies that a note’s character has been overturned by a certain transaction and cannot be a negotiable instrument anymore. A purported transferee won’t accrue the right to receive the full periodic loan payment due under the terms of the note. FLA statute 672-403(1) purchaser takes all title which his transferor had or had power to transfer except that a purchaser of limited interest acquires rights only to the extent of the interest purchased. This also implies that a servicer is not collecting proceeds for the benefit of a note holder in due course but rather for partial assignees. FLA statute 673 3-203(d) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur, the transferee of that instrument obtains no rights under this chapter, and the transferee of that instrument has only the rights of a partial assignee.
A mortgage servicer that keeps a percentage of the borrower’s periodic payment by contract and its principal who receives partially discounted cash flow essentially both have a property interest in the note that must have been assigned outside UCC article 3. All recitations purporting to endorse the note are bogus. The lien was assigned to a person who didn’t accrue the right to enforce the note for the full value of periodic loan payments, rendering the mortgage instrument unenforceable and ineffective.
The servicer is not a fabrication. A servicer emerges soley by its servicing contract. That contract is an asset that must be reported on the servicer’s balance sheet and can be sold in its own secondary marketplace. In order to have a colorable claim to foreclose, a plaintiff who pleads facts its a servicer in the body of the complaint must attach its contract as an exhibit to establish an evidentiary basis for its pleading. Otherwise the defendant is prejudiced in raising certain defenses (such as non-negotiability, real party at interest, ect…)
My 2 cents
So if boa sues me for foreclosure in pa in 2010. But only assigned mortgage in 2011, is this misrepresentation of who owns the debt? They sued as serviced, never id’d investor, which is fannie. Help.
Brian, you can file a motion to dismiss based on the fact that they filed a Complaint of Foreclosure before having a VALID Assignment of Mortgage. Then, they’ll file for foreclosure again. I won the first case with that very argument, and today I had their Motion for Summary Judgment dismissed. [I’m NOT a lawyer. I’m sharing my personal experience]