Stop Using the Word “Servicer”
by Neil Garfield
The courts will always at least initially consider the points that you are raising to be technical attempts to escape liability for a legal debt. You need to reframe the situation. And the way that is done is by changing the case from “Bank vs Homeowner” to “Judge vs foreclosure mill”, for failing to comply with the rules, and court orders enforcing those rules.
I have come to the conclusion that there is a problem in accepting the label of “servicer.” By referring to companies who claim to be servicers, we are tacitly admitting that they are performing servicing functions. In fact, the attributes of servicing that are commonly attributed to servicing do not occur by, within, or on behalf of those companies.
It may be too late to bring this issue up in your case. But I think everyone needs to be aware of the fact that this may work against you. If you admit that the company is a servicer, then you are admitting that it is performing servicing functions like receiving payments and making disbursements to investors.
Direct and tacit admissions by homeowners are deadly in court. The problem is that most pro se litigants and many lawyers don’t even realize that they are directly or tacitly admitting the truth of facts asserted or implied by their opposition.
Logically that would be an admission that the payments were actually received by the servicer and then forwarded to investors. And logically that would mean that the action is brought on behalf of those investors no matter how it is formally styled. That could and does fall under the doctrine of damnum absque injuria — a violation without damage. What difference does it make that the paperwork was screwed up if the claim was valid and the money went to the right person?
And that is the problem that you are confronting. The courts will always at least initially consider the points that you are raising to be technical attempts to escape liability for a legal debt. You need to reframe the situation. And the way that is done is by changing the case from “Bank vs Homeowner” to Court versus foreclosure mill, for failing to comply with the rules, and court orders enforcing those rules.
It might be true that at your stage of litigation you might be best off fashioning a brand new complaint to give rise to new discovery demands. Many lawyers and pro se litigants fail to realize the importance of the rules and how to follow them until it is too late, discovery has closed and mediation has already occurred without objections to the failure of the plaintiff to show up.
I was tipped off about this issue by an insider who had direct knowledge and who will remain anonymous forever. With a laugh, he asked whether I would entrust all my income to some sketchy thinly capitalized company calling itself a servicer. I said of course not. And he said, “right, and neither do the investment banks.” That was in 2008.
After that, I learned that all of the commonly known companies that called themselves “servicers” do not actually receive or disperse any money. And they don’t actually account for the money. Further, I have learned that the named servicer authors or signs virtually none of the correspondence supposedly emanating from a company that has labeled itself as a “servicer”.
That means that their supposed “business records” are nothing more than reports of reports generated by the actual people who receive and account for the funds. Those third parties also are the sole repositories of “original” and fabricated documents. None of the exhibits preferred by such fake servicers qualify as business records. they are all subject to the hearsay rule, which is to say that they are not admissible into evidence in court.
And all of that means that there is no case and there is no claim that is being presented against any homeowner in which securitization is asserted in the forefront of the case or in the background.
The key issue that is presented in most cases is that the homeowner fails to raise a proper objection at the proper time to such exhibits and the proper objection at the proper time to the testimony from the Robo witness, which is essential to the foundation of accepting the exhibits into evidence in court.
The rules of the court require the judge to accept such testimony and to accept such exhibits into evidence if there is no timely and proper objection. That is not bias. It is the way the system works and if your think about it, it is the way the system must work. the judge is not an investigator.
The judge is the arbiter who decides whether the parties are playing by the rules. Once the evidence is in, the judge must weigh that evidence to determine whether the prima facie elements of the claim have been established. If there is no other evidence, the judge must, according to the rules, enter judgment for the claimant even if the judge suspects there is something wrong with the claim.
So the goal of every homeowner, if they want to win, is to recognize and confront the fact that the false claim against them is going to win if they don’t do something at the proper time and improper way as set forth in the rules and laws governing civil procedure and evidence.
The secondary goal should be to disabuse the court of its assumption that even if there is everything wrong with the claim there is no harm in entering judgment because the right party is getting the money that is owed in legal debt owed to that party. That requires a gradual process of education and persistent relentless use of the strategies that must be allowed to the homeowner in order to satisfy the requirements of constitutional due process.
LIST OF FORECLOSURE LAWS BY STATE
Get In Touch
Phone / Fax
Phone & Fax: 800-459-1215
Send A Message
THIS SITE IS NOT INTENDED TO BE MISCONSTRUED AS LEGAL ADVICE. FRAUD STOPPERS is a Private Members Association PMA. FRAUD STOPPERS PMA is NOT a law firm, non-profit organization, or government agency. FRAUD STOPPERS PMA does not operate in the public sector. Although this website is visible to the public FRAUD STOPPERS PMA does not intend for any information contained in this website to be considered as legal advise.
The information about Foreclosure law and other legal information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. This website contains links to other third-party websites. Such links are only for the convenience of the reader, user or browser; FRAUD STOPPERS and its members do not recommend or endorse the contents of the third-party sites.
Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers. This site provides “information” about the law and is only designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances.
The views expressed at, or through, this site are those of the individual authors writing in their individual capacities only – not those of their respective employers, FRAUD STOPPERS, or committee/task force as a whole. All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed. The content on this posting is provided “as is;” no representations are made that the content is error-free.
For instant access to an affordable local competent attorney click here