In my particular case witch is referred to above, the PSA was used to show many inconsistencies within there allegations.
First off there is the note and chain of custody, or lack there of. My PSA specifically states that the note must be indorsed in a certain manner, which it is not.
Second, there was no prospectus, so they could not show my loan was in the so called trust they claimed it to be in.
Third, the plaintiff was unable to introduce anything into evidence except the note with the Allonge. The Allonge is what’s currently being challenged. The PSA gives us the ability to challenge the Allonge with regard to NY law. NY law is a useful tool to fight document execution.
Fourth, the PSA was not an official copy or a certified signed and sworn to copy.
Fifth, one could make the argument that the barrower is not a party to the PSA, but it is not the purpose of being a party that is important. It is the execution of documents and the lack of procedure that makes the note excluded from a trust by means of improper execution. Every aspect of a loan is spelled out in plain English, like a road map for the banks to adhere to. When they fail to execute documents in the proper manner that puts the so called transfers, assignment, endorsements and such in to question. We have the right to challenge everything.
Consequently, the bank was and is unable to foreclose. They did not meet conditions president, they did not show a default, they did not show a payment history, and in fact the witness they brought to trial was unable to testify to any facts of the case. The remaining issue is a matter of an equitable lien or an equitable mortgage. They moved to amend the complaint in the middle of trial when they were being told by the judge that he was NOT going to rule in their favor.
The remaining issues are of subrogation and the right to lien me and circumvent the contract, “mortgage”. We are also challenging the signature on the Allonge as to its authenticity. The supposed Steve Nagy signed/stamped the Allonge over two years after he was no longer employed by New Century Bank. His stamp tied to the blank endorsement which is expressively NOT allowed by the PSA. Further more HE DID NOT work for New Century at the time he supposedly endorsed the Allonge. His employment ended in 2007 and the stamp showed up in 2009. See a problem here?
They have not proved to the court that they have one cent of equity in the property, so at this point I’m hopeful this will swing in our favor.
Our trial is in the hands of the judge and he is set to hand down a ruling of the equitable lien/mortgage within the month.
Below is the remaining issue in our case.
“The substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he or she who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or Securities.
There are two types of subrogation: legal and conventional. Legal subrogation arises by operation of law, whereas conventional subrogation is a result of a contract.
The purpose of subrogation is to compel the ultimate payment of a debt by the party who, in Equity and good conscience, should pay it. This subrogation is an equitable device used to avoid injustice.
Legal subrogation takes place as a matter of equity, with or without an agreement. The right of legal subrogation can be either modified or extinguished through a contractual agreement. It cannot be used to displace a contract agreed upon by the parties.
Conventional subrogation arises when one individual satisfies the debt of another as a result of a contractual agreement that provides that any claims or liens that exist as security for the debt be kept alive for the benefit of the party who pays the debt. It is necessary that the agreement be supported by consideration; however, it does not have to be in writing and can be either express or implied.
The facts of each case determine the issue of whether or not subrogation is applicable. In general, the remedy is broad enough to include every instance in which one party, who is not a mere volunteer, pays a debt for which a second party is primarily liable and which, in equity and good conscience, should have been discharged by the second party.
Subrogation is a highly favored remedy that the courts are inclined to extend and apply liberally.
The ordinary equity maxims are applicable to subrogation, which is not permitted when there is an adequate legal remedy. The plaintiff must come into court with clean hands, and the person who seeks equity must do equity. The remedy is not available when there are equal or superior equities in other individuals who are in opposition to the party seeking subrogation. The remedy is denied when the person seeking subrogation has interfered with the rights of others, committed Fraud, or been negligent.
The right to subrogation accrues upon payment of the debt. The subrogee is generally entitled to all the creditor's rights, privileges, priorities, remedies, and judgments and is subject only to whatever limitations and conditions were binding on the creditor. He does not, however, have any more extensive rights than the creditor."