Wednesday, July 21, 2010
Where's the note, who's the holder?
Where's the note, who's the holder? Read more....http://stopforeclosurefraud.com/2010/07/21/wheres-the-note-whos-the-holder-enforcement-of-promissory-note-secured-by-real-estate/
Monday, June 14, 2010
McGookey Law Offices has won a landmark foreclosure case in state court in southern Ohio. Judge Kenneth Zuk of Clermont County ruled that Deutsche Bank had wrongfully filed the lawsuit on April 16, 2008, when it claimed it was the holder of the homeowners' promissory note, but did not present sufficient proof that it had actual physical possession of the instrument on that date. The Judge therefore indicated that the case would be dismissed. With that dismissal, every order, including the order confirming the purchase of the home by Deutsche at the Sheriff's sale, and the order requiring the homeowners to vacate will be set aside, and ownership restored to the homeowners. This huge victory strikes at the very core of the questionable practices of securitized lenders, and most importantly, forces them out of the shadows to provide qualified proof, as opposed to simply making bald assertions, that they are indeed entitled to foreclosure. This decision is a milestone in the fight by millions of vicitimized homeowners to save their homes.
Monday, March 8, 2010
What is Loan Securitization?
Mortgage Loan Securitization
In order to understand why loan securitization presents an opening for the use of the standing defense, you must understand the process itself. The term “securitization” derives from the fact that essentially, it is the process by which a loan is connected into a security, similar to a stock certificate. Of course, this is not a process involving a single loan, or even dozens. To the contrary, a typical “trust” or loan pool into which a single loan is bundled with others and poured into consists of a thousand loans, with a total face value of a billion dollars.
Why Securitize?
After funding the trust with the loans, the trustee sells “mortgage-backed certificates” (i.e. stock) in the trust to Wall Street investors for considerably more than the value of the loans. And therein lies the reason for securitization: to allow the lender to strip away the profit from the loan, normally realized over a period of years, as payments are made, without any risk whatsoever.
How Does Securitization Provide a Defense to the Homeowner?
The elaborate process of Loan Securitization is visually demonstrated by the following diagram:
Loan Securitization Diagram
The left side of the diagram shows the “ownership claim”; that is, the parties who are, at least in theory, transferees of your mortgage note after you sign it.
However, the reality often is that the parties in between the Originator (Fremont Investment and Loan) and the Trustee (HSBC) rarely, if ever, have anything to do with your note.
Rather, the only reason they are involved in the process is to insulate the Trustee from claims by the homeowners arising from the origination process. And therein lies the opportunity to present the standing defense – because these intermediate parties have not in actuality been “holders” of the note, then there is a distinct possibility that the Trustee is not either, and therefore cannot enforce the same.
McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy
Mortgage Loan Securitization
In order to understand why loan securitization presents an opening for the use of the standing defense, you must understand the process itself. The term “securitization” derives from the fact that essentially, it is the process by which a loan is connected into a security, similar to a stock certificate. Of course, this is not a process involving a single loan, or even dozens. To the contrary, a typical “trust” or loan pool into which a single loan is bundled with others and poured into consists of a thousand loans, with a total face value of a billion dollars.
Why Securitize?
After funding the trust with the loans, the trustee sells “mortgage-backed certificates” (i.e. stock) in the trust to Wall Street investors for considerably more than the value of the loans. And therein lies the reason for securitization: to allow the lender to strip away the profit from the loan, normally realized over a period of years, as payments are made, without any risk whatsoever.
How Does Securitization Provide a Defense to the Homeowner?
The elaborate process of Loan Securitization is visually demonstrated by the following diagram:
Loan Securitization Diagram
The left side of the diagram shows the “ownership claim”; that is, the parties who are, at least in theory, transferees of your mortgage note after you sign it.
However, the reality often is that the parties in between the Originator (Fremont Investment and Loan) and the Trustee (HSBC) rarely, if ever, have anything to do with your note.
Rather, the only reason they are involved in the process is to insulate the Trustee from claims by the homeowners arising from the origination process. And therein lies the opportunity to present the standing defense – because these intermediate parties have not in actuality been “holders” of the note, then there is a distinct possibility that the Trustee is not either, and therefore cannot enforce the same.
McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy
Tuesday, January 26, 2010
THE STANDING DEFENSE
FIGHT FORECLOSURE - - AND WIN!
THE STANDING DEFENSE
What is Standing?
Of all the weapons to fight foreclosure that you have in your arsenal, by far the most important and effective is the legal defense of standing. Standing is the necessary element of proof requiring a foreclosing party to show that he or she is the true owner and holder of the promissory note on upon which he or she is foreclosing.
Why is Standing So Important As a Foreclosure Defense?
Standing is critical in foreclosure defense involving securitized loans because of the way the securitization process works. Securitization is the process, devised and participated in by a small number of huge financial institutions, of converting a loan into a stock certificate, thereby creating profits many times more than which could otherwise be realized by simply receiving interest alone.
Because the securitization process involves transferring the mortgage obligation to a number of different entities before it ends up in the trust from which securities are sold, oftentimes the documentation falls short of that normally required to evidence transfer of such obligations. The problem then that parties seeking to foreclose on securitized loans have is that, when pressed, it is difficult for them to prove that they are the proper party to be bringing the action; in other words, that they have standing.
How Does One Facing Foreclosure Use the Standing Defense?
If you are fortunate enough to know the identity of the trust into which your loan was allegedly placed, you can go online and check the trust prospectus to find out who all the entities are who allegedly claimed ownership of your loan. This then allows you to compare the documents produced by the party seeking foreclosure with the chain of title of owners set forth in the trust prospectus.
If the identity of the trust is not readily apparent, then you must find that out either by way of a Qualified Written Request (“QWR”), if you are not in foreclosure, or by discovery if you are. Either way, once you know the identity of the trust, you are then able to compare the representations in the prospectus with the documents which the foreclosing party produces to attempt to show standing. Chances are, that you will then be able to punch holes in that party’s claim, successfully fight foreclosure, and stay in your home.
McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy
THE STANDING DEFENSE
What is Standing?
Of all the weapons to fight foreclosure that you have in your arsenal, by far the most important and effective is the legal defense of standing. Standing is the necessary element of proof requiring a foreclosing party to show that he or she is the true owner and holder of the promissory note on upon which he or she is foreclosing.
Why is Standing So Important As a Foreclosure Defense?
Standing is critical in foreclosure defense involving securitized loans because of the way the securitization process works. Securitization is the process, devised and participated in by a small number of huge financial institutions, of converting a loan into a stock certificate, thereby creating profits many times more than which could otherwise be realized by simply receiving interest alone.
Because the securitization process involves transferring the mortgage obligation to a number of different entities before it ends up in the trust from which securities are sold, oftentimes the documentation falls short of that normally required to evidence transfer of such obligations. The problem then that parties seeking to foreclose on securitized loans have is that, when pressed, it is difficult for them to prove that they are the proper party to be bringing the action; in other words, that they have standing.
How Does One Facing Foreclosure Use the Standing Defense?
If you are fortunate enough to know the identity of the trust into which your loan was allegedly placed, you can go online and check the trust prospectus to find out who all the entities are who allegedly claimed ownership of your loan. This then allows you to compare the documents produced by the party seeking foreclosure with the chain of title of owners set forth in the trust prospectus.
If the identity of the trust is not readily apparent, then you must find that out either by way of a Qualified Written Request (“QWR”), if you are not in foreclosure, or by discovery if you are. Either way, once you know the identity of the trust, you are then able to compare the representations in the prospectus with the documents which the foreclosing party produces to attempt to show standing. Chances are, that you will then be able to punch holes in that party’s claim, successfully fight foreclosure, and stay in your home.
McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy
FIGHT FORECLOSURE - - AND WIN!
FIGHT FORECLOSURE - - AND WIN!
BROUGHT TO YOU BY McGOOKEY LAW OFFICES, LLC
DANIEL McGOOKEY AND TREY HARDY
In the year and a half since I have been involved in helping distressed homeowners fight foreclosure on an almost full-time basis, I essentially had to “unlearn” all of the principles I became familiar with over the course of twenty-nine years of practicing commercial and banking law. These principles had held true with respect to lending procedures of legitimate lenders, and my knowledge of them had served me well.
However, what had been an asset for me when dealing with loans from legitimate lenders, my knowledge of the industry, turned out to be a huge detriment when considering the highly predatory, illegal loans of illegitimate, securitized lenders. That is because the fundamental rules governing those loans are diametrically opposed to each other.
First, and foremost among the differences is that the party claiming to “own” your loan, typically a trustee or a loan servicer acting on behalf of a trustee, in reality has no beneficial interest in your loan since the loan has already been bundled with hundreds of thousands of other loans, and sold to investors. Having no beneficial interest, these “lenders” have no incentive to work with distressed homeowners in helping them save their homes. Thus, when you realize that you can’t work with them, you must resolve yourself to stand your ground, and fight, if you are to keep your home.
Fortunately, and this is key: the very system which was engineered to maximize the profits of these illegitimate “lenders” in fact produces opportunities for the victimized homeowner to win the foreclosure fight. It is very difficult for me to think of how many families lost their homes when they could have stood and fought successfully, and kept them. I am sad to estimate that number in the tens of millions. Don’t let yourself and your family become part of that group. You have a number of weapons in your arsenal. All you have to do is become aware that they exist, and how to use them.
McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy
For a discussion of the most effective weapon you have in fighting foreclosure, please visit our website at www.mcgookeylaw.com.
BROUGHT TO YOU BY McGOOKEY LAW OFFICES, LLC
DANIEL McGOOKEY AND TREY HARDY
In the year and a half since I have been involved in helping distressed homeowners fight foreclosure on an almost full-time basis, I essentially had to “unlearn” all of the principles I became familiar with over the course of twenty-nine years of practicing commercial and banking law. These principles had held true with respect to lending procedures of legitimate lenders, and my knowledge of them had served me well.
However, what had been an asset for me when dealing with loans from legitimate lenders, my knowledge of the industry, turned out to be a huge detriment when considering the highly predatory, illegal loans of illegitimate, securitized lenders. That is because the fundamental rules governing those loans are diametrically opposed to each other.
First, and foremost among the differences is that the party claiming to “own” your loan, typically a trustee or a loan servicer acting on behalf of a trustee, in reality has no beneficial interest in your loan since the loan has already been bundled with hundreds of thousands of other loans, and sold to investors. Having no beneficial interest, these “lenders” have no incentive to work with distressed homeowners in helping them save their homes. Thus, when you realize that you can’t work with them, you must resolve yourself to stand your ground, and fight, if you are to keep your home.
Fortunately, and this is key: the very system which was engineered to maximize the profits of these illegitimate “lenders” in fact produces opportunities for the victimized homeowner to win the foreclosure fight. It is very difficult for me to think of how many families lost their homes when they could have stood and fought successfully, and kept them. I am sad to estimate that number in the tens of millions. Don’t let yourself and your family become part of that group. You have a number of weapons in your arsenal. All you have to do is become aware that they exist, and how to use them.
McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy
For a discussion of the most effective weapon you have in fighting foreclosure, please visit our website at www.mcgookeylaw.com.
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