Two months ago, there were a variety of campaigns launched to get the mass public to demand from their bank an original, wet ink signature note for their mortgage. Many of these fizzled out. That said, we would like to present one instance of Bank of America responding negatively to just such a demand by a Zero Hedge reader, in which the bank’s Home Loans unit outright refuses to provide the requested information hiding behind a lack of affirmative responsibility.
Specifically, the response from the Qualified Written Request Group notes: “you cite no legal authority that supports your claim that you are entitled to view the original Note, and we are not aware of the existence of any such authority. Accordingly BAC Home Loans respectfully declines this request. If you wish to pursue this matter further, please provide such legal authority.” In other words, banks continue to hide behind a legal defense that ultimately involves the jurisdiction of various (if not all) state attorneys general.
In the meantime, odds are (99%) that the bank has absolutely no copy of the original and should the reader proceed to default (in a judicial state), the bank will likely ultimately be forced to give up its claim on the mortgage. And one wonders why the TBTF banks (especially BofA, Wells and JPM) are doing all they can to promptly bring the AGs under their fold (regardless of “cost”) before all hell breaks loose should the required “legal authority” be provided through case law.
Fraudulent concealment is a fairly difficult standard in many jurisdictions. Essentially, you cannot continue to make payments and never ask for the note… and then some years later say, I WANNA SEE THE NOTE NOW DAMNIT! I’VE BEEN DEFRAUDED?!?
In other words, you should have been provided a copy of the note at closing… and a copy is likely available from the closing company… you’ve had years to read the document you signed and file a suit to correct it. You slumbered on your rights… that is not fraudulent concealment.
If you possess the reasonable means to discover a fraud, you have an affirmative duty to utilize those means to uncover the fraud or else waive your right to contest it.
Now, whether or not you may see/contest an assignment of the note is likely governed by the terms and conditions stated in your original note (and other law).. and, further, making payments after you have been notified of an assignment is tantamount to waiver… if you wanted to contest an assignment, that you knew about (they usually send letters and tell you who differently to start paying), then you should have done that before you started sending payments…
Further, fraudulent concealment is only a device for getting past the statute of limitations… often times, depending on when you consummated the transaction, you’re not going to be past the time in which you can still file a myriad of lawsuits (e.g. breach of contract, fraud, etc.). Also, some types of action, e.g. equitable, really have no formal period of limitations…
The proper angle, I think, as per the Ibanez case… tackle the issue of clear title, not the right of the servicer to collect payments… they are intertwined and likely one in the same, in the end, but you have likely waived one… opt for plan b and keep trudging.None found.