In this volatile and highly charged time of economic instability its difficult managing the prospects of losing a home to a foreclosure. Experienced mortgage sector analyst’s from Los Angeles California have stated in declarations their arguments that uncover bank foreclosures as something highly non transparent. It is impossible to recover collateral under such a clandestine set of circumstances needed to perfect title at sale. This is according to a 25 year industry participant and secondary markets trading expert. The analyst alleges the home for free argument is lost to the reality of the economics and situation causing title to rest disturbed.
The economics in these nearly all BofA Wells Fargo structured financing deals do suffer from what analysts forewarned against as for the heightened risk in the event of a market collapse. In such an event the title holder’s estate that was transferred is discovered a victim of a sale lease back controversy used to collateralise a bond sold at discount to a foreign national bank.
In these proactive arguments the analyst to counsel is looking at the construction of the financing arrangement the harkens back to ancient law. Over 100 years ago unscrupulous lenders used a security deed to take title in advance off a default. In this manner the principal debtor was (1) not a title holder and (2) not paying down a mortgage obligation. He was in fact working off purchase option to repurchase his home. Under a security deed (see Georgia) title is in fact lawfully seised representing he has transferred legal title unencumbered and free of liens except for those liens of record.
CASE IN POINT – Where the property estate is held to a deed of trust with a grant deed under a conventional deed of trust , the fact the instrument is alleging to have seised the title from the estate is prima fascia to having enforced the grant deed element of the agreement in advance of a default. In this regard the mortgage origination under a security deed is for transferring purposes as if to have sold the title . And this is the alleged case for which the consumer household is an adverse party possession holding on to a right of repurchases at some later date.
In a recent analysis provided the Los Angeles Times, the matter of a standing to bring a foreclosure is valid. According to M.Soliman, the argument is nevertheless so convoluted; the merit for alleging an unenforceable recovery fails upon the oppositions filing of a 12(b) 6 motion. The new law and order for motioning objections to claims is a pumped up demurrer on steroids.
The failure to state a claim must expand the alleged lack of standing argument in order to overcome the defenses motion to dismiss. In stating the claim the Plaintiff is citing the following:
Lender lack of Standing is argued due to:
1. Failure to satisfy the states civil codes
2. The assignee is not a bona-fide TPP of value
3. Absence of collateral / collateral rights
4. To foreclose in avoidance of accounting rules
5. Missing requirements for a condition precedence
A Failure to satisfy code for states sanctioned POS , for example, would maintain the foreclosure is voidable due to the states having lost all jurisdiction over the matter(See TARP and passage of 2008 “ACT”. civil codes. Further arguments citing where the accounting rules clearly cause the assignee to fail as a bona-fide TPP of value. Therefore the assignee cannot enforce the rights and entitlements of a holder under the judicial understanding for an abandonment claim.
The matter becomes further problematic due to defendant’s absence of collateral or for having lost its rights in the value held in the original recording. Where the banks are held one in the same as a government, the government can avoid GAAP rules for accounting.
Now the borrowers who take loans from banks are also allowed to avoid basic accounting rules. Where the home is valued at 100% of a current appraisal the mortgage is held at its current market value. So a mortgage measured against title in increments of $1,000.00 at 80% Loan to Value is equal to $800.00.
The mortgages value is not based but found off the promissory note. Under the accounting rules for economic conversion the mortgage of 800.00 is valued off the HUD 1 advance into settlement for wire received the night before by the settlement agent. Let’s assume Deutsch Bank wired the fund into settlement for the disbursement agent to close the transaction. The mortgage notes value is demonstrated on the closing statement however it is calculated on an accrual based method of valuation determined by daily per diem interest out 30 years.
More to follow –