Plaintiff alleges that BankUnited, pursuant to industry-practice, securitized his mortgage note upon or shortly after “closing” of the mortgage agreement, which means placing the mortgage note into a securitzed pool in which the individual identity of notes and transactions are effectively lost and neither traced nor traceable.
Accordingly, such “pooled” securitization of mortgage notes (or any other credit notes) not merely breaks but obliterated any legal trace of the chain of “privity of contract” (also known or treated under the general UCC Rubric “holder in due course”) and renders all notes unenforceable as a matter of common and statutory law.
Unless and until BankUnited has shown by competent evidence (competent meaning authenticated original, documents) supported by independent actuarial or forensic analysis (“auditing and accounting”) of its books (double entry assets/liabilities) to prove that it specifically assigned or granted Plaintiff’s note to a specific agent with power of attorney or trustee by contract, deed, declaration of trust, or endorsement, this Court should temporarily and on final trial permanently enjoin BankUnited or any person taking by or under Bank one from collecting, attempting to collect, or showing any amount due from Michael Mastoris on any ledger or report, including reports to any of the three major credit bureaus or any minor credit bureau.
Plaintiff alleges that upon complete forensic or fiduciary accounting BankUnited cannot and will not show any specific assignment of his note to any trustee with power of attorney, but instead, the evidence will show, BankUnited compressed Plaintiff’s note, like wheat stalks, into a rich wheat paste known as a “pool” of mortgages, in which pool or paste all the individual wheat stalks have lost their identity and are no longer traceable.
Plaintiff alleges that BankUnited functioned initially as the “originator” of his loan (“originator” as defined under the UCC codified at ______ New Jersey Statutes Revised/Annotated).
Immediately upon approval, or within not more than 90-180 days thereafter, the BankUnited “originated” loan belonged to BankUnited no more, because the note was sold into a securitized “pool.”
At this point, there was no longer any direct link or “privity” of contract between Plaintiff and BankUnited, except to the degree that Plaintiff voluntarily continued to make payments to BankUnited pursuant to the Unilateral Contract which he had signed, which provided him with, basically, nothing at all, but required that he make a large number of promises to BankUnited (as alleged throughout this complaint).
The functional business relationship between Plaintiff and Defendant BankUnited at this point was (or should have been) that of strangers who owed nothing to each other at all.
In order to maintain the fiction, however, of lawful mortgage enforceability, the Defendant BankUnited, along with so many other financial institutions in the late 20th and early 21st centuries in the United States, invented a new function, that of “Servicer” (See Exhibit ____), a function quite unknown to the common law, and not the creature of any statutory innovation, but merely of financial industry custom and usage whose existence and function has no basis in any law aside from, perhaps, the law of the jungle.
Plaintiff alleges that the sole purpose of a “Mortgage Servicer” is to collect illegal debts, or collect lawful debts by an illegal means, in that the Mortgage Servicer can never maintain true privity of contract or any connection with the true “holder in due course” of any note, because Defendant BankUnited as Servicer has no more means of ascertaining the identity of the true “holder in due course” to whom the individual wheat stalks were originally sold and bundled before being ground into paste (for spaghetti or fettuccine or dumplings) than anyone else.
It is a fraud for BankUnited to pretend to stand in the same place physically in regard to the Plaintiff (and all others similarly situated) while imperceptibly changing its functional and legal identity by securitizing and selling the note.
It is a fraud for BankUnited to pretend to be a “holder in due course” when it is nothing but a servicer without any real relationship to the Plaintiff.
The transaction between Plaintiff and Defendant BankUnited was flawed, even in the beginning, by an unconscionably one-sided contract and a deal which appeared to be a “loan” but which was in fact no more than an “origination”, i.e., a creation of credit acceptable as legal tender out of the mist and the aether.
But there was a relationship of some sort between the Plaintiff and the Defendant BankUnited which ceased to exist the day that BankUnited sold the Plaintiff’s note for value, into a securitized mortgage bundle.