Consumer complaint received 2023-08-28
Company: BANK OF AMERICA, NATIONAL ASSOCIATION
State: GA
Product: Mortgage
Sub-product: VA mortgage
Issue: Closing on a mortgage
Sub-issue: Closing disclosure or other related disclosures

Complaint:
Excerpt from 2nd Edition Attorney Workbook, Treatise and Practice Manual ASSIGNMENT : All contracts require an offer, acceptance and consideration to be enforced. An assignment is a contract. In the context of mortgage loans and litigation, an assignment is a document that recites the terms of a transaction in which the loan, note, obligation, mortgage or deed of trust is transferred and accepted by the assignee in exchange for consideration. Within the context of loans that are subject to securitization claims or claims of assignment the documents offered by the pretender lender are missing two out of three components : consideration and acceptance. The assignment in this context is an offer that can not and in fact must not be accepted without violating the authority of the manager or trustee of the SPV ( REMIC ) pool. 
Like all contracts it must be supported by consideration. An assignment without consideration is probably void, almost certainly voidable and at the very least requires the proponent of this instrument as evidence to be admitted into the record to meet the burden of proof as to foundation. 
The typical assignment offered in foreclosure litigation states that for value received the assignor, being the owner of the note described, hereby assigns, transfers and conveys all right, title and interest to the assignee. The problem is obvious there was no value received if the loan was not funded by the assignee or was being purchased by the assignee at the time of the alleged transfer. A demand for records of the assignor and assignee would show how the parties actually treated the transaction from an accounting point of view. Therefore we are declaring this as a QWR. 
In the same way as we look at the bookkeeping records of the payee on the original note to determine if the payee was in fact the lender as declared in the note and mortgage, we look to the books and records of the assignor and assignee to determine the treatment of the transaction on their own books and records. 
The highest probability is that there will be no entry on either the balance sheet categories or the income statement categories because the parties were already paid a fee at the inception of the loan which was not disclosed to the borrower in violation of TILA. 
At most there might be the recording of an additional fee for processing the assignment. At no time will the assignor nor the assignee show the transaction as a loan receivable, the absence of which is powerful evidence that the assignor did not own the loan and therefore conveyed nothing, and that the assignee paid nothing in the assignment transaction because there was no transaction. 
Any accountant ( CPA ) should be able to render a report on this limited aspect. Such an accountant could recite the same statements contained herein as the reason why you are in need of the discovery and what it will show. Such a statement should not say that the evidence will prove anything, but rather than this information will lead to the discovery of admissible evidence as to whether the party whose records are being produced was acting in the capacity of servicer, nominee, lender, real party in interest, assignee or assignor. 
The foundation for the assignment instrument must be by way of testimony ( I doubt that business records could suffice ) explaining the transaction and validating the assignment and the facts showing consideration, offer and acceptance. Acceptance is difficult in the context of securitization because the assignment is usually prepared ( a ) long after the close out date in the pooling and servicing agreement and ( b ) after the assignor or its agents have declared the loan to be in default. Both points violate virtually all pooling and servicing agreements that require performing loans to be pooled, ownership of the loan to be established by the assignor, the assignment executed in record-able form and many PSAs whereas we have ( 2 ) require actual recording a point missed by most analysts.

If we assume for the moment that the origination of the loan met the requirements for perfecting a mortgage lien on the subject property, being that of XXXX XXXX XXXX XXXX Georgia XXXX is the party managing the pool ( REMIC, Trust etc. ) would be committing an ultra vires act on its face if they accepted the loan, debt, obligation, note, mortgage or deed of trust into the pool years after the cutoff date and after the loan was declared in default. 
Acceptance of the assignment is a key component here that is missed by most judges and lawyers. The assumption is that if the assignment was offered, why wouldnt the loan be accepted. And the answer is that by accepting the loan the manager would be committing the pool to an immediate loss of principal and income or even the opportunity for income. 
Thus we are left with a Hobsons choice : either the origination documents were void or the assignments of the origination documents were void. If the origination documents were void for lack of consideration and false declarations of facts, there could not be any conditions under which the elements of a perfected mortgage lien would be present. If the origination was valid, but the assignments were void, then the record owner of the loan is party who is admitted to have been paid in full, thus releasing the property from the encumbrance of the mortgage lien. Note that releasing the original lien neither releases any obligation to whoever paid it off nor does it bar a judgment lien against the homeowner but that must be foreclosed by judicial means ( non-judicial process does not apply to judgment liens under any state law I have reviewed ). 
There is nothing as far as my credit report that states that I have a mortgage loan which was removed around XXXX

Company public response: Company has responded to the consumer and the CFPB and chooses not to provide a public response
Company response to consumer: Closed with explanation