You need to challenge the status of the company claiming to be a servicer by finding out what functions they really perform.
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I know I have contributed to the problem, but I think it’s time to stop using the labels that are promoted by the banks.
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Companies that are claimed to be the “servicer”, by all accounts, do not perform any functions normally attributed to that label. This it is against the interests of the homeowner or the lawyer representing the homeowner to accept the use of the term unless there is foundation testimony as to the actual functions performed by the company rather than the presumptions arising from the label “servicer.”
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The actual receipt and distribution of funds, and the bookkeeping and accounting therefor, is performed by third-party vendors (FINTECH) who have absolutely no contractual or other duties owed to the company named as the “servicer.” That makes the “report” presented in court as a “payment history” both fictional and pure hearsay that cannot be admitted into evidence — unless the homeowner waives that objection.
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The FINTECH companies also have absolutely no contractual or other duty owed to the named claimant. And the named claimant (Plaintiff or beneficiary) does NOT receive any payment from either the “servicer” or the FINTECH companies — including the money proceeds of foreclosure sales. That is entirely fiction. AND that is why every attempt to obtain corroboration through QWR, DVL or legal discovery is stonewalled. There is no corroboration.
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Each foreclosure produces money proceeds that go into the pocket of an investment bank as either general revenue or “return of capital” against the fictitious double-entry bookkeeping account. In plain language, the money is NEVER used to reduce a loan account because there is no loan account. That is why you can’t get the loan account even in discovery and even if you sue under the FDCPA. But that fact alone gives the homeowner the upper hand.
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You need not understand or believe this presentation. But if you want to win your case, you need to assume that this is true and act accordingly.
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By accepting the label of “servicer” you are also tacitly and unintentionally accepting the “payment history” as an exception to the hearsay rule and an acceptable substitution for the testimony and proffer of the records of the known and named claimant. Once you have done that, you have lost. You need to challenge the status of the company claiming to be a servicer by finding out what functions they really perform.
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But the payment history is nothing of the sort. It is a report on a report prepared by an undisclosed FINTECH company from data that has been “massaged” as instructed by an investment bank. It is NOT a simple report of the condition of the loan account.
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Want proof? Show me one “payment history” that contains the beginning entry starting the loan account and showing the current balance as owned by the named claimant. It doesn’t exist. Show me one payment history that shows disbursement of funds received from anyone to any creditors. It doesn’t exist.
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So if there is no presentation of disbursements to creditors, how would the court ever accept the idea that the company received any money? How could the court ever assume that the company could account for the receipt of money it never actually received?
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The answer is obvious even to people with accounting or legal knowledge. You would have no record of receiving money that was never received. And that is because nobody would enter any data in any record of any company saying that they personally received the payment as an employee of the company claiming to be the servicer. Making such an entry would be a lie and presenting it in court would be perjury.
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The other part is the assumption that the company that is claimed to be the “servicer” is somehow working for the named claimant, or is the agent for the named claimant.
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This is exactly the trap that the banks have set. This is sleight of hand maneuvering.
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By distracting the homeowner and the attorney for the homeowner to the question of the authority of the servicer, the argument shifts away from whether the “servicer” is performing any of the normal duties attributed to the servicer and away from the issue of whether the existence of a trustee or trust is even relevant since the trust does not own the underlying obligation as required by UCC 9-203.
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I write this primarily for the benefit of attorneys. Only an attorney will recognize the importance of these issues.
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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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