Why You Need to be Thinking About GAAP
by Neil Garfield
For 15 years I have tried to get CPA auditors to enter the field of expert witnesses against the investment banks. While some have nibbled at the line, none have taken the bait or come on board. So homeowners and their lawyers must familiarise themselves with some basic accounting concepts to avoid the many trap doors and pitfalls the investment banks have set for them.
The premise here is that nobody has maintained a loan account receivable on any accounting ledger. That would be the account where debits and credits are posted, resulting in an adjustment of the value of the account. That is, in other words, the place where the loan can be found. That is the only place. Litigants have been mucking up their requests for information by asking for the wrong things. The simple truth is that the loan no longer exists on any accounting ledger.
There is only one way an entry is made on any ledger — a transaction has occurred and the ledger shows the debit from one account and a credit to another account. Each transaction has a paper trail usually starting with receipt or payment of money. So there is a wire transfer receipt, ACH receipt, or canceled check that will prove the payment along with some bill of sale or other documents describing the transaction in which a third party has agreed to the terms. This is how auditors prove up the financial statements that are published or used for loans, shareholders etc.
Auditors do not use the published statements from management. they look at the ledgers. And it is in the ledgers that virtually all foreclosures fail because there is no debt, there is no owner and there is no authority to administer, collect or enforce the “debt” that seemed to have been previously created — no matter how crazy or counter-intuitive that seems to be.
The rules for accounting are well-established over centuries and while there are tricks and gambits played by management, the basic rules have been in place for millennia. The application of those rules is now law adopted in all U.S. jurisdictions. And the short name for it is GAAP (Generally Accepted Accounting Principles).
GAAP are those principles recognized by the accounting profession and the SEC as the uniform rules, conventions, and procedures necessary to define accepted accounting practices at a particular time. GAAP principles are the official standards accepted by the SEC and promulgated in part by the American Institute of Certified Public Accountants (“AICPA”).
SEC Regulation S-X (17 C.F.R. § 210.4-01(a)(1)) states that financial statements filed with the SEC that are not prepared in compliance with GAAP are presumed to be misleading or inaccurate, despite footnote or other disclosures. SEC Regulation S-X requires that interim financial statements must also comply with GAAP, with the exception that interim financial statements need not include disclosures that would be duplicative of disclosures accompanying the most recent annual financial statements. 17 C.F.R. § 210.10-01(a)(5). Additionally, SEC registrants are required under SEC rules to maintain sufficient systems of internal controls to ensure fair reporting in conformity with GAAP. PA. Public School Employee Retuirement System vs. Bank of America see yesterday’s post for copy of complaint.
That is the law and no amount of argument can escape the simple fact that if someone is claiming an unpaid loan, it must exist.
It is under these laws that investors sue companies who gave them false information, that bankers charge bank fraud and that homeowners can claim and establish that their opposition in foreclosure has failed and refused to respond to statutory requests for information (QWR under RESPA and DVL under FDCPA), proper and timely discovery requests, Court orders requiring the response, and even grace periods for purging themselves of contempt.
They can’t respond because their clients won’t let them. And their clients (investment banks acting through intermediaries like purported “subservicers”), won’t let them because to respond truthfully would be to admit there was no claim.
The rules work simply after that. The entire premise of every foreclosure is the collection of a debt that is presumed to be owned by the claimant and which is unpaid and therefore causing the claimant to be damaged. Without the loan account receivable on a proper accounting ledger there can be no such claim and there isn’t. This is why the “Creditor” is never identified.
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