Customarily, Lenders/Originators of mortgages sell those mortgages to third-parties (Investors). These investors are the REAL owners of the "NOTE" you created at closing. Usually the "LENDER" you signed with will be the "SERVICER" of the mortgage (they recieve payments and correspond with you throughout the life of the mortgage). As servicer of a mortgage, the "LENDER" is acting as an agent of the real owner of the "NOTE." This agency is also established when the "LENDER" brings suit in a foreclosure hearing. So...
An agency must exist between "Holder In Due Course" and grantee ("LENDER" on deed) because "LENDER" is bringing suit to establish claim and redress by way of foreclosure. (If they are not an agent or acting as "TRUSTEE" they have no right or interest to bring suit or make any claim on mortgage). (If they contend that no agency exists, you should Motion for Summary Judgement, or to have the case dismissed, claiming, "The Affiant/Claimant/"LENDER" has no interest, thus no right to foreclose). But...
When an agency relationship exists between "Holder In Due Course" (third-party Investor)and grantee ("LENDER" on deed), a constructive or explicit "TRUST" is formed. So...
If such a TRUST is formed, the original Settlor/Grantor (you, the "BORROWER") and/or Beneficiary (third-party Investor), maintains the right to request removal of a Trustee/"LENDER" (upon determination of a court) for a "BREACH OF TRUST," per ORC Title 5807.06 (A)(1). And...
Because the “LENDER” did not give full disclosure of the true nature or subsequent disposition of the ”NOTE” (in violation of Regulation Z of Truth In Lending Act of 1968; Title I of the Consumer Credit Protection Act 15 U.S.C. § 1601). This knowledge would have given you, the "BORROWER" the opportunity to rescind/revoke/cancel the "NOTE". The "CONTRACT" also contains unconscionable terms, specifically, a waiver of your "RIGHT OF PRESENTMENT" (per ORC Title 13, Chapter 1303.61 and UCC 3-501) and "RIGHT TO NOTICE OF DISHONOR." (per ORC Title 13, Chapter 1303.63 and UCC 3-503). The failure of the "LENDER" to fully disclose the nature of the "NOTE" and affect of waivers constitute fraud (by concealment/non-disclosure). So...
In the commission of the aforementioned frauds (by concealment/non-disclosure) and violations (of applicable law), causing injury, the "LENDER" committed a "BREACH OF TRUST," per ORC Title 58, Chapter 5810.01 (A), because of which, you, the "BORROWER" (and/or "Beneficiary") is entitled to removal of "TRUSTEE" per ORC Title 58, Chapter 5807.06 (B)(1) and damages, per ORC Title 58, Chapter 5810.01 (B)(3)(7)(8)(9)(10).
This claim should be made with a filed Motion called: "LEAVE TO FILE COUNTER-CLAIM," during the foreclosure court proceedings. This motion should be in Affidavit format, and state all pertinent facts.
Monday, September 28, 2009
Thursday, September 3, 2009
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