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MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. Pretenders with more money and more lawyers than any consumer or borrower are stealing homes from homeowners while they undermine the investments by Pension Funds.

LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient forensic and legal resources to combat banks who are using fictitious names and entities to cover up their malfeasance.

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California Decision for Borrower Post Sale in Eviction Proceeding

BIG HAT TIP TO STEPHEN LOPEZ, ESQUIRE FOR THIS SAN DIEGO WIN!!

This is the latest of a string of decisions from trial judges who took the time to carefully analyze the law and then facts. In this case the issue was whether the Plaintiff in a lawsuit for Unlawful Detainer could be awarded Summary Judgment simply because the sale had been recorded.

This decision, following the law in all jurisdictions, says that recording the sale is interesting but not dispositive. If the actual sale was void because ti was conducted in favor of a party who was not a true beneficiary under the deed of trust, then the sale itself is void.

This judge quote approvingly from otheor case decisions words to the effect that any other decision would produce the absurd result of allowing completely disinterested parties to issue instructions to sell the property and then claim possession of homestead property.

Despite the long line of “bad results” published, this case shows that a case properly presented, properly argued and based upon sound legal reasoning has a good chance of gaining traction even after the foreclosure has been allowed to proceed. That means you need to prepare and be certain as to your facts and that you don’t ask the court to presume facts in your favor.

We don’t know how this case will  be decided at trial, if there is one. In all probability this case, like thousands of others like it, will most likely be buried by settlement with the homeowner and payment to the homeowner for executing a confidentiality agreement.

For those who bother to actually read the decision it looks like I wrote it. I didn’t. My point is that what I have provided in my articles is not theory. It is fact based upon established law and the real facts of most foreclosure cases. The assignments are void.

If the Plaintiff in this Unlawful Detainer case is unable to prove at trial that it is the owner of the debt it will lose because owning the debt is the key component or element of being a beneficiary under a deed of trust and a key component or element of a valid credit bid.

See 2019.07.15 – Minute order for MSJ

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Key quotes from this decision:

“To establish that he is a proper plaintiff, one who has purchased property at a trustee’s sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter “duly perfected” his title.” ((Code Civ. Proc., § 1161 a, subdiv. 3.) (Id.))[California]”

“[W]here the plaintiff in the unlawful detainer action is the purchaser at a trustee’s sale, he or she ‘need only prove a sale in compliance with the statute and deed of trust, followed by the purchase at such sale, and the defendant may raise objections only on that phase of the issue of title.”‘ (Bank of New York Mellon v. Preciado, (2013) 224 Cal. App. 4th Supp. 1, citing, Old Nat’/ Fin. Servs. V. Seibert (1987) 194 Cal.App.3d 460, 465, 239 Cal.Rptr. 728.) “The statute” with which a post-foreclosure plaintiff must prove compliance is Civ. Code, § 2924. (Bank of New York Mellon v. Preciado, supra, citing Seidell v. Anglo-California Trusts Co. (1942) 55 Cal.App.2d 913, 920, 132 P.2d 12.)

The term ‘duly’ implies that all of those elements necessary to a valid sale exist, else there would not be a sale at all.” (Bank of New York Mellon v. Preciado, supra at 9-10, citing Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841, 327 P .2d 241 [internal citations omitted].) This holding by the court in Preciado makes clear that in Code Civ. Proc., § 1161a post-foreclosure trustee sale cases, a focus on the sale itself (rather than simply the recorded title documentation) is part of the analysis of determining  whether the title was “duly perfected.”

subsequent buyer must also prove that the trustee sale was conducted in accordance with Civ. Code, § 2924 and that title has been duly perfected. (Stephens, Parlain & Cunningham v. Hollis, supra, at p. 242.)

[l]f the borrower defaults on the loan, only the current beneficiary may direct the trustee to undertake the nonjudicial foreclosure process. “[O]nly the ‘true owner’ or ‘beneficial holder’ of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law.” (Barrioneuveo v Chase Bank, N.A. (N.D.Cal.2012) 885 F.Supp.2d 964, 972.” (Id. at pp. 927-928.) Where the nonjudicial post-foreclosure trustee sale is not property initiated, ” … a borrower may base a wrongful foreclosure claim on allegations that the foreclosing party acted without authority because the assignment by which it purportedly became beneficiary under the deed of trust was not merely voidable but void.” (Yvanonova, supra, at pp. 851-852.)

“A void contract is without legal effect. (Rest.2d Contracts,§ 7, com. A.) “It binds no one and is a mere nullity.” (Little v. CFS Service Corp. (1987) 188 Cal.App.3d 1354, 1362, 233 Cal.Rptr. 923.) “Such a contract has no existence whatever. It has no legal entity for any purpose and neither action nor inaction of a party to it can validate it …. ” (Colby v. Title Ins. And Trust Co. (1911) 160 Cal. 632, 644, 117 P. 913.) “If a purported assignment necessary to the chain by which the foreclosing entity claims that power is absolutely void, meaning of no legal force or effect whatsoever, [internal citations omitted] the foreclosing entity has acted without legal authority by pursuing a trustee’s sale, and such an unauthorized sale constitutes a wrongful foreclosure. (Yvanonova, supra, at pp. 855-856; citing Barrionuevo v. Chase Bank, N.A., at pp. 973-974.

it would be an “‘odd result indeed’ were a court to conclude a homeowner had no recourse where anyone, even a stranger to the debt, had declared a default and ordered a trustee’s sale.”

“[w]hen a non-debtholder forecloses, a homeowner is harmed because he or she has lost her home to an entity with no legal right to take it. If not for the void assignment, the incorrect entity would not have pursued a wrongful foreclosure. Therefore, the void assignment is the cause-in-fact of the homeowner’s injury and all he or she is required to allege on the element of prejudice.” (Id. at pp. 555-556.) “A contrary rule would lead to a legally untenable situation – i.e., that anyone can foreclose on a homeowner because someone has the right to foreclose. ‘And since lenders can avoid the court system entirely through nonjudicial foreclosures, there would be no court oversight whatsoever.”‘

Tonight! Word Salad Claimants Hiding in Plain Sight — The Neil Garfield Show 6PM EDT

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The Neil Garfield Show 

or prior episodes

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The more I research and analyze the issue, the more convinced I am that the fundamental deficiency of the case against homeowners is hiding in plain sight. And I think it is jurisdictional so it might be possible to raise it at any stage.

Close analysis of the actual wording used in the style of judicial and nonjudicial foreclosures shows that if there is a direct or indirect reference to an alleged REMIC Trust there is no Plaintiff and there is no Beneficiary asserted or alleged.

Who is the claimant if they lose? Whose assets will be used to satisfy an award of costs, damages, or sanctions. Who could be found in contempt of court?

Is it Bony Mellon who will say they are only named in order to allow a third party to be the claimant because a trust cannot appear except through a trustee?

Is it an implied trust that is not identified except by name?

Is it certificate holders who have no right, title or interest in the debt, note or mortgage?

Forensic Seminar August 2: Truman Trust

A number of homeowners who are registered to attend the seminar are requesting that a use specific examples that are relevant to their own case. This is not possible in a 90 minute lecture that gives an overview of what is expected from forensic loan audits. I will be using some examples, but only in general terms.

 

One person specifically asked that I address what appears to be a new variation of U.S. Bank appearing as trustee, e.g., US BANK, NA as Legal Title Trustee FOR TRUMAN 2012 SC2 TITLE TRUST.

 

This is a variation in wording more than it is anything else. Based upon my review of the actual trust agreements involving U.S. Bank it has always been merely a legal title trustee for a single beneficiary, to wit: the investment bank who was the underwriter and seller of certificates to investors. In the case of the word salad described above, attorneys are once again shifting the wording to make it seem more credible.

 

But upon close analysis, you can easily see that U.S. Bank NA is not saying that it has been entrusted with the debt or the note, or that it purchased by the one for value, as required by article 9 section 203 of the Uniform Commercial Code.

 

Further, the attorneys continue to withhold a description that identifies the alleged trust or its existence. This is a facial deficiency which should affect any examination of pleadings and documents, whether recorded or not. If the trust actually exists, the normal wording would be, for example, “a common-law trust organized in the State of New York and currently existing in the State of Michigan.” Or it can simply say “a Michigan trust.” But the absence of any such description leaves the reader with no information at all about the existence of the trust.

 

In addition, stating that U.S. Bank is merely a legal title trustee is an admission that U.S. Bank is not the owner of the debt or the note and quite possibly not the mortgage either. This is a further attempt to avoid the requirements and conditions precedent imposed by law in all US jurisdictions. If the beneficiary under the alleged trust is the actual owner of the debt, then I would concede that having U.S. Bank as legal title trustee for the actual debt owner would not invalidate any action to collect or enforce the debt, note or mortgage.

 

But the investment bank who was the underwriter who sold certificates to investors never retained ownership of the debt beyond 30 days after funding the origination or acquisition of the debt. Thus the illusion of a legal title trustee for a dubious trust with a beneficiary who no longer holds an interest in the debt is both a facial and substantive deficiency.

 

This is yet another example of how the investment bank’s or using new special-purpose vehicles to hide their involvement in the origination and acquisition of loans. Remember that investment banks are actually brokers. They are not principals in transactions. Any temporary ownership that they might have had with respect to the debt and any temporary claims that they might have had with respect to the note and mortgage were extinguished when they divested themselves of any interest in the flow of interest payments, principal payments, or sale proceeds to satisfy the debt.

 

Finally I should make one last note on this topic. Some of the special-purpose vehicles are being used as conduits for elaborate schemes to launder money and debts arising from nonperforming loans. The banks believe, with good reason, that the more layers they present to a court, the more the court will tend to accept the authenticity of the transactions that are referenced and fabricated documents. As most trial lawyers know, the “greater weight of the evidence” is frequently interpreted literally. By presenting an ever larger stack of documents, involving multiple business names, even if they are not actual entities, the illusion is complete.

 

The job of the forensic analyst in the context of foreclosure litigation is actually to reveal the facts that cannot be known by mere reference to the documents. In addition to revealing discrepancies and inconsistencies, the forensic analyst should be identifying gaps in what would otherwise be the prima facie case of a claimant seeking foreclosure.

 

I’ve spoken with many attorneys who have been successful in defending homeowners in foreclosure actions. They all say basically the same thing. While discovery is important and enforcement of discovery is even more important, nearly all cases are won because the lawyer was able to break the robo-witness and successfully object to exhibits introduced by the attorneys who assert that they represent U.S. Bank, when in fact they have had no contact with U.S. Bank, nor have they had any contact with the investment bank. The investment bank so far has successfully shielded itself from liability for instigating false claims by false claimants.

Reference sheet for Forensic Examiners Seminar —“Lenders” that Died.

DON’T TELL THE CLIENT WHAT THEY WANT TO HEAR. TELL THEM WHAT THEY NEED TO HEAR.

see reference sheet for dead lenders

Homeowners come to loan examiners for one purpose: to find a way to get relief from a deal that was probably not viable when it was made and is certainly not viable now. They are usually “behind” in their payments. Their accounts have been declared delinquent and notices of default have been sent and received. Phone calls, letters and even statutory requests under RESPA and FDCPA are routinely ignored.

So the homeowner is asking you “who am I really dealing with here and what can I do to get through to the real people who own my debt?” You probably can never answer that question because the answer is more theoretical than actual. But your investigation can arm them with the information they need to undercut the case against them. And THAT is how homeowners win cases against false claimants making false claims.

The inability of the loan examiner to to answer those questions is not a failure of the analyst or of the homeowner’s proof. It is evidence of gaps in the case against the homeowner. In the weird world of foreclosure defense you can always prove violations of lending laws and servicing laws but you can only win when you expose the absence of essential elements in establishing the existence and rights of the claimants and the existence of an actual claim.

The answer lies in the details, and what they want from you as a forensic auditor or examiner are details that matter. Things that matter fall into two distinct categories.

First there are facts that actually get traction in court (as distinguished from facts that you think ought to get traction in court).

Second there are facts that undermine the credibility of the prima facie case for foreclosure.

The list of dead lenders is one place to start. Any “transfer” of a debt, note or mortgage after the alleged “lender” is dead is easy to attack. That is what you want to give your clients.

The fact that all the documents in all the loans are fabricated, forged and robosigned as distractions from the real facts does little to advance the position of your client. But you are not an advocate. You are a fact finder. And with a few exceptions, most people who signed up for the Free Seminar lack the necessary credentials, knowledge, training and experience to give an opinion.

Everyone is entitled to their own opinion but nobody is entitled to their own facts. Your job is keep track of what is working as well as who is developing new approaches that could work. The homeowner doesn’t know how to narrow the focus. They are depending upon you to do so.

Every forensic loan auditor or examiner is qualified to testify or sign an affidavit on facts they found. In so doing they should be prepared to describe the actual work they did, how they went about it,  what facts were revealed — but no conclusion on what that means. An opinion from a fact witness reveals bias of the witness thus undermining their own credibility.

Don’t tell the client what they want to hear. Tell them what they need to hear.

Free Forensic Audit Seminar Has Closed Registration

Seminar starts Friday, August 2 at 1:30PM. Instructions on how to attend are in your email inbox. Please use email for questions. neilfgarfield@hotmail.com.

All invitations have been sent via www.freeconference.com. Anyone who did not receive an invitation was cutoff when we exceeded 100 prospective participants. Or, they were cutoff because they did not supply a correct email address. Look in your email folders for the invitation if you signed up.

Registration is closed.

When you attend, please make sure that you are in a quiet place with no background noise.

You should be at your computer to see what I share on screen. Attendance by phone will likely not be as productive as attendance with computer. You can still listen to audio by dialing in by phone as well as connecting by computer.

Questions will held until we reach 90 minutes. Make sure your phone is on mute except for the brief period in which you are asking a question.

QUESTIONS: We don’t have time to listen to your narrative. Boil your question down to a yes or no answer from me. If I want to elaborate I will.

Just to be clear, MERS is absolutely nothing.

For some reason I have been getting more questions about MERS lately. My analogy has always been that MERS is like a holograph of an empty paper bag. So here are some basic factors for the checklist and analysis:

  1. MERS never signed any contract with any borrower.
  2. MERS never has any contractual or other legal relationship with investors (certificate holders) or Government Sponsored Entities (GSEs) like Fannie, Freddie or Sallie.
  3. MERS never signed any agreement or contract with most named “lenders.”
  4. MERS never signed any agreement or contract with respect to any specific loan transaction or acquisition.
  5. MERS was never the Payee on any note from a borrower.
  6. MERS never loaned any money in any residential loan transaction.
  7. MERS never paid any money for the acquisition of any residential loan agreement, debt, note or mortgage.
  8. MERS never handled any money arising from the origination of the loan.
  9. MERS never handled any money raising from administration of the loan.
  10. MERS never received a loan payment.
  11. MERS never disbursed any money to any creditor of a debt created by a loan.
  12. MERS does not conduct meeting of its board of directors to authorize any officer to sign any document.
  13. MERS never asserts warrants that the information maintained on its platform is true, correct or even secure from manipulation.
  14. MERS’ members can enter the system to insert any data  they want to insert, delete, or change.
  15. MERS never claims any right, title or interest in any debt, note or mortgage. In fact, its website disclaims such an interest.
  16. MERS never maintains any agency relationship with any actual lenders.
  17. MERS never retains any agency relationship with any named lenders who are creditors after the loan is consummated.
  18. MERS has no successors.
  19. MERS never has power on its own to assign any right, title or interest to any debt, note or mortgage.
  20. MERS never has power as an agent to assign any right, title or interest  to any debt, note or mortgage except for a principal who does have a right, title or interest to whatever is assigned.
  21. MERS never warrants that it has any agency relationship or power of attorney on behalf of any party whom it warrants is its principal and who owns the right, title or interest to any debt, note  or mortgage.
  22. MERS never has any legal relationship or retainer with any lawyer seeking to enforce the note or mortgage in any transaction or court proceeding.
  23. MERS never has any legal relationship or agreement with any company asserted to be an administrator or servicer of a residential loan.
  24. MERS never has any legal relationship or agreement with any trustee of any REMIC trust.
  25. MERS has been sanctioned, banned and fined in many states along with the parties who claim rights through the use of MERS. Despite that MERS has never changed its practices or procedures.
  26. Any document of transfer of rights to a security instrument that shows a signature of a person who is identified as an officer or employee of MERS is a false document, with a false signature containing one or more false utterances.
  27. MERS is always a naked nominee possessed with no powers, rights or obligations and possessed with no rights, title or interests in any loans originated or acquired by third parties; however the courts have held that if a new party had paid for the debt, then it may instruct MERS to execute an assignment even if the original principal no longer exists.
  28. MERS is never party to any part of any loan transaction or loan acquisition in which consideration is paid.
  29. MERS is always a diversion from the true facts. In 2008 16 banks took my deposition for 5 1/2 days straight regarding the status of MERS. I said then and I say now that the use of MERS is less meaningful than using the name of a fictional character like Donald Duck.
  30. Despite thousands of attacks on me and my work over 12 years, not one memo, treatise or article has ever been published that said otherwise.
  31. No expert opinion has ever been given by affidavit or in live testimony to the contrary.
  32. In fact, not even a blog article or fake news article has ever said MERS is either a legitimate alternative to tracing title through county recording or a legitimate beneficiary under a deed of trust or a legitimate mortgagee under a mortgage. 
  33. The asserted presence of MERS on any document or pleading or notice always means that the lawyers, servicers and other third parties are seeking to conceal material facts from the borrower and from the courts.

What is Fair?

The question should not be the bipolar question of who gets a “free house,” with the answer being the borrower or a party claiming entitlement to enforce. The question should be how to create a new equitable and legal infrastructure to clean up the mess that the banks created without unnecessarily penalizing either the investors who put up the money in the first place and the borrowers who put up their lives.

This is a question that BOTH the courts and the legislatures must face for failure to do so compounds the already compounding chaos and tragedy that befell our nation when the scheme initially collapsed in 2008.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================
The borrower was lured into a loan contract in which she thought that the named lender had a financial interest in the outcome of the contract. The actual lender was a remote investment bank about whom she had received no disclosure and, as an average person of ordinary knowledge and means, had no access to information that would revealed the true nature of the contract.
*
Rather than seeking to conform to law in selling such loan products the real lender sought to avoid the law.
*
Rather than making money through the receipt of interest payments, the real lender intended and quickly divested itself of any interest or expectation of receiving interest or principal payments. The real lender also divested itself all of all risk of loss associated with payments. In short, the real purpose of the loan was to create multiple vehicles that could be sold as private contracts, resulting in the receipt of money that far exceeded the principal amount of the loan made to the borrower.
*
While ordinary residential homeowners normally rely on the premise that the loan’s purpose was to generate revenue and profit for the lender through the receipt of interest payments, her named lender would not and did not receive interest payments and had no profit except from fees paid by the remote investment bank through conduits.
*
Thus the actual lender entered into a loan arrangement without contract for the sole purpose of selling various attributes of the loan to as many investors as possible using as many complex financial instruments as they could conjure. The borrower had entered the arrangement believing that the named lender was the actual lender and that all compensation arising from the consummation of the loan was disclosed.
*
The actual lender retained no direct interest in the performance or outcome of the loan. The borrower was unaware that they had signed up for an arrangement in which the other side of the equation would create millions of dollars in “trading profits” arising from the declared existence of the loan, along with her name, reputation, signature and the collateral of her home.
*
Hence the goal of the lender was to create such loans regardless of quality. In fact, the lower the quality the more profit they made. And foreclosures became the vehicle by which the actual lender (investment bank) covered up the violation of federal and state lending statutes and common law doctrines of fair dealing and public policy.
*
Since judges thought that the proceeds of a foreclosure sale would go to the owner of the debt, and thus pay down the debt, they thought that there was little harm in granting foreclosures even if the paperwork was somewhat “dodgy.” But an increasing number of judges are questioning two main issues.
*
The first issue, which has been repeatedly voiced by hundreds of judges since 2008, is why there have been so many changes in the name of the servicer who supposedly was authorized to administer the loan and whether the servicer was actually administering the loan for or on behalf of an owner of the debt as required by law. Because without that its records would not  be allowed in as an exception to the hearsay rule. (The claimed “servicer” would just be a company that had intervened for its own financial interest which included fees for enabling a successful foreclosure. Hence their records would not have intrinsic credibility of a third party who had no interest in the outcome of litigation).
*
The second issue which is being raised with increasing frequency is why it was necessary to create documents of dubious origin and authenticity? In an industry that created virtually all the paperwork required for closing loan transactions, and created the industry standards for maintenance of such documents how and why did they manage to lose or destroy the original promissory note so often? (And why was it necessary to fabricate any documents?)
*
And a third issue which is only now being discussed with some earnest, is whether the right to resell the loan automatically includes the the right to use the personal data of the borrower for many sales of many of the loan attributes that were not contemplated by the borrower because they were hidden from the borrower.
*
Europe is ahead of the U.S. in understanding that personal data is a property right. But laws in the U.S. do answer the question. Where the contract in known by only one side to have attributes that are withheld from the other side it is subject to the doctrine of implied contract (assumpsit) in which the party discovering the true nature of the contract may enforce a right to receive compensation for the attributes that were previously unknown.
*
There can be little doubt that nearly all loan arrangements for residential property as collateral since 1996 have all the elements of an implied contract that is far beyond the scope of the written contract. Hence there can be no doubt that the borrowers are entitled to some form of compensation or damages arising from the implied contract and/or the violation of disclosure requirements in the Truth in Lending Act and state lending laws.
*
The scope of this issue is a fact. In 1983 there was zero in nominal or actual value of instruments deriving their value from debt. Today there is over 1 quadrillion ($1,000,000,000,000,000) dollars in the shadow banking market. The total amount of fiat (actual) currency in the world is only 85 trillion ($85,000,000,000,000) dollars.
*
The meaning is clear: for every dollar ($1.00) in real transactions of fiat currency there is, on average, $11.75 in trading profits for the banks and investors who trade in that market. That means that for the average of loan of $200,000 it is almost certain that the profits generated from the origination or acquisitions that loans was on average $2,352,941. In other words, payoff on the loan was incidental to the loan transaction — not the point of the loan arrangement.
*
The current claim by the banks is that this enormous profit from lending is the result of separate contracts and transactions that should not be included as part of the original contract with borrowers.
*
The claim by borrowers, while phrased in different ways, is that somehow the borrowers should be receiving some compensation or allowance as part of the package since the base transactions from which all value was derived for further instruments or agreements was their own signature, name, reputation and home as at least apparent collateral. Borrowers consider the non disclosure of the actual intention of the actual lender to be base violations of TILA and state lending laws.
*
In addition, with the proceeds of foreclosure sale being distributed as revenue rather than the payoff of a loan receivable, existing law is insufficient to deal with the crisis of nonpayment by borrowers most of whom have been paying servicers who have been feeding such payments into large pools of cash from which payments are made to the holders of “certificates” who only have a right to receive payments from the investment banker who was doing  business under the name of a nonexistent trust.
*
In some sense the holders of such certificates are the ones most likely to be considered owners of the debt. But the certificates themselves and the accompanying contracts (prospectus) clearly state that the certificates convey no right, title or interest in the borrower’s debt, note or mortgage.
*
There is no right of investors to enforce the certificates against borrowers and the certificates are not “mortgage backed” despite claims to the contrary. This has already been decided in several tax cases. Their exemption from securities regulation is therefore unfounded.
*
This has resulted in various parties posing as authorized enforcers of the debt and the security instrument ( mortgage or deed of trust). Regardless of their claimed title or status, all such entities share one controlling characteristic: they all initially or eventually claim to be acting in a representative capacity even when they present themselves as the “holder” of the note or any other claim to rights to enforce the note or mortgage.
*
The evolution of such claims lends some perspective. Initially foreclosures were brought in the name of “servicers” and when challenged the servicing claims were then accompanied by an denial of securitization or the existence of any trust that owned the debt, note or mortgage. As it turned out the lawyers for such entities were telling the truth — there was no such trust nor would it have been the owner of the debt, note or mortgage even it had existed.
*
In addition foreclosures were brought in the name of Mortgage Electronic Registration Systems, Inc. (MERS).
*
Neither the servicers nor MERS ever could assert or allege that they had any right, title or interest in debt, note or mortgage. In the case of MERS it could not even alleged possession of the note or mortgage and had handled no money whatsoever in relation to any loan.
*
And in all cases the proceeds of foreclosure sales permitted by the courts were distributed as revenue to several participant claiming authority to act, including the lawyers, servicers, master servicers, and the investment bank. In no case were such proceeds distributed to the owners of certificates issued in the name of a “trust.” Several forensic analysts tracked the “credit bids” and quickly discovered that those bids were not submitted by a creditor.
*
The existence of the actual debt from the borrower has been converted from actual to theoretical; this explains the lack of any identified party who is the owner of the debt. This is not a problem created by borrowers who knew nothing of this scheme nor do they now understand it.
*
This all results in the posing of three issues that need to be addressed head on if this crisis is to end.
  • The first which everyone has voiced since the beginning of the crisis is whether the homeowner should get a “free house” merely because the paperwork is now out of order.
  • The second is whether the current parties receiving revenue from the sale of foreclosed homes should be allowed to receive a “free house.”
  • The third is whether the borrowers have always been entitled to receive compensation for the larger implied contract in which compensation and revenue was generated from the origination or acquisition of their loan.
*
Since this is a pervasive issue occurring through tens of millions of loan contracts, the best possible vehicle for addressing a remedy is through government action that goes far beyond the nominal settlements that have been announced thus far.
*
All stakeholders should be given a voice at this table. Any approach that is punitive only to one particular class of stakeholders should be rejected. Laws need to be changed to reflect the modernization of financial instruments, only after consideration of the effects of such changes. Any law that simply makes it easier to foreclose or to merely cover up the title and legal errors that have been occurring for 20 years should also be rejected.
*
If we are to make sense out of this chaos that was in fact conjured and created by investment banks, then we need changes in our property laws, contract laws, securities laws, lending laws, laws of civil procedure and due process, and laws of evidence. If the banks have put themselves in a position where they cannot foreclose on mortgages, that should not be the end of the inquiry.
*
The question should not be the bipolar question of who gets a “free house,” with the answer being the borrower or a party claiming entitlement to enforce. The question should be how to create a new equitable and legal infrastructure to clean up the mess that the banks created without unnecessarily penalizing either the investors who put up the money in the first place and the borrowers who put up their lives. 

Tonight! Banks Get Taste of Their Own Medicine Neil Garfield Show 6PM EDT

Thursdays LIVE! MERS SEEKS RELIEF FROM QUIET TITLE!

The Neil Garfield Show With Co-Host Charles Marshall

or prior episodes

Or call in at (347) 850-1260, 6pm Eastern Thursdays

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MERS is seeking to vacate a default quiet title judgment in a California lawsuit, by suing as a plaintiff on the basis that they were never properly served the lawsuit in which they were named as a defendant. Borrowers in California are increasingly using default quiet title judgments as a litigation tool, and we will discuss this process on the Show today.

In this particular case, in which MERS seeks to vacate the judgment, MERS is claiming a lack of proper service. Bill has exposed already in this case, through the discovery process, that MERS is not able even to demonstrate that they meet the minimum agency requirements of their own Membership Agreements.

An interesting wrinkle to this situation is that it exposes the court bias often seen for institutional foreclosure litigants, in which same litigants are able to get the benefit of the doubt when it comes to the application of service rules in foreclosure-related lawsuits.

Message to All People Who Signed Up for Free Forensic Loan Auditor Seminar

This is a message to all people who have signed up for the Free Forensic Loan Auditor  Seminar presented by the Garfield Continuum and hosted by GTC Honors, Inc. 

 

There are approximately 85 people signed up so far. The seminar length is 2 hours including Q&A. We will not cover all potential topics in that short time span. We will cover the work plan and the business plan for doing forensic audits, and explanations as to what has actual value for homeowners who are seeking to win foreclosure cases.

In one week, you will be getting an invitation to attend on our conference bridge www.freeconference.com. Please RSVP when you get the invitation. If you have not received the invitation by Wednesday July 17, 2019 5PM EDT in the email account that you used to sign up, then check your spam folders etc. and if necessary sign up again.

When you join the conference, make sure you do so from your computer so you can view the screen sharing presentation. You can still get the audio by phone, but you won’t be able to see the PowerPoint presentation or anything else I share on screen.

In the meanwhile here is a constantly evolving checklist I use and would like to see all auditors use when checking loan documents, chain of title and court pleadings and exhibits.

Why am I doing this? Simple answer. Better reporting from you will improve my work product, enable me to help more people and make more money for our site.

Why are you doing this? Simple answer. Better work product, better business model, higher earnings and more respectability.

If your work makes it easier to get a lawyer to accept the case, and if your work actually helps homeowners WIN their cases (not just “make a point”) then your fees will rise as to rates and volume — and so will your self-esteem.

Also see 2015.03.25-Opinion-Reverse-and-Direct-Judgment-in-Favor-of-Seffar

Existence of Loan and Lender
LENDER v OWNER OF DEBT
[]  Evidence of loan received
[]  Evidence of payments on behalf of borrower
[] Evidence of payment of value at origination
[] Evidence of source of funds
[] Evidence of investment banker at origination
[]  Evidence of privity between investment banker and lender at origination
[] Evidence of privity between investment bank and lender at acquisition
[]  Evidence of value paid at acquisition of note
[] Evidence of value paid at acquisition of debt
[]  Evidence of value paid at acquisition mortgage
[]  Evidence of additional principal between MERS, lender and third party
[]  Evidence of investment bank conduits at time of origination
[]  Evidence of investment bank conduits at time of acquisition
[]  Evidence that debt, note and mortgage entrusted to Trustee for REMIC Trust by owner of debt, note and mortgage
[]  Evidence that debt, note and mortgage were purchased by Trustee for REMIC Trust
[]  Evidence that servicer was authorized by owner of the debt
[]  Evidence that servicer was authorized by authorized representative of owner of the debt
[]  Evidence of Appraisal Fraud
[]  Evidence of violations of TILA
[]  Evidence of violations of HOEPA
[] Evidence of violations of RESPA
[] Evidence of violations of FDCPA
[] Evidence of violations of RICO
[] List of possible witnesses
[] List of possible documents
[]  Evidence of existence of lender at time of loan
[]  Evidence of existence of lender at time of alleged transfer of note
[]  Evidence of current existence of lender
[]  Evidence of payment of value at time of loan
[]  Evidence of payment of value at time of transfer #1
[]  Evidence of MERS authority
[]  Evidence of license of lender
[]  Evidence of description of lender in public domain
[]  Evidence of actual payment of value as condition precedent to enforcement of mortgage Article 9 §203 UCC
[]  Evidence of identity of owner fo the debt
[]  Evidence of current existence of owner of the debt
[]  Evidence of endorsement at closing
[]  Evidence fo assignment at closing
[]  Evidence of allonge at closing
[]  Evidence of allonge at acquisition
[]  Evidence of date of allonge
[]  Evidence of fabrication
[]  Evidence of forgery
[]  Evidence of robosigning
[] List of possible witnesses with personal knowledge
[] List of possible original documents
[] Evidence of “original” Stamp”
[] Evidence that “original” was tamped on original
[] Evidence that “original” was stamped on copy or reproduction
[] Evidence of GSE ownership (Fannie, Freddie, Sallie)
[] Evidence of GSE purchase
[] Evidence of FDIC, Bankruptcy?
SECURITIZATION
DEFAULT
[]  What is name of Trust? (Examine carefully)
[]  Does trustee have any trustee powers?
[]  Evidence of a complete Pooling and Servicing Agreement
[]  Evidence of a completed Trust Agreement besides PSA
[]  Evidence of Prospectus
[]  Evidence of Existence of Certificates
[]  Evidence of sale to holders of certificates
[]  Evidence of certificate indenture: what are the rights of a holder of certificate
[]  Evidence that sale of certificate was sale of debt, note more mortgage
[]  Evidence of holder as beneficiary of a trust — which trust?
[]  Evidence of named REMIC Trustee authority to represent holders of certificates
[]  Evidence of rights and powers claimed by named REMIC Trustee on its website and/or public domain
[] Evidence that named Trustee possesses naked title for benefit of investment bank
[] Evidence of relationship between named Master Servicer and Investment Bank
[] Evidence of “succession” of REMIC “Trustee”
[] Evidence of existence of trust
[] Evidence fo prior history of sale proceeds conducted under same REMIC trust name
[] Evidence that named REMIC “Trustee” maintains any loan receivable account?
[] Evidence that named REMIC “Trustee” ever receives or handles any money?
[] Does name of Trust indicate presence of Investment bank contemporaneously with loan origination?
[] Evidence that investment bank funded the loan — industry practices
[] Does investment bank still have risk of loss?
[]CUT OFF DATE if PSA Admitted Into Evidence
[]  Evidence of first payment made by borrower
[]  Evidence of last payment made by borrower
[]  Evidence of misallocation of funds
[]  Evidence of notice of delinquency — identity of sender, identity of principal
[]  Evidence of miscalculation of amount demanded for reinstatement
[]  Evidence of notice of default — notice of sender, identity of principal
[]  Evidence of existence of actual default — failure to pay amount due to owner of debt
[]  Evidence of effect of declared default on qualification of note as negotiable paper
[]  Evidence of refusal of payments from borrower
[]  Evidence of bad faith
[]  Evidence of dual tracking
[]  Evidence of instruction to withhold payments
[] Evidence of original location of original promissory note
[] Evidence of loss or destruction of note — certificate or memo of destruction or loss.
[] Evidence of actual transfers of actual possession of the note — cover pages, correspondence etc.
[] Evidence of Servicing Agreement with Current Servicer
[] Evidence of Power of Attorney
[] QWR
[] DVL
[] CFPB
[] State AG Consumer Affairs
[] Evidence of undated documents
[] Evidence of blank documents or    endorsements in blank
[] Evidence of transfers of servicing of loan
[] Evidence of authorization for transfer of servicing
INITIATION OF FORECLOSURE
FAMILIAR PLAYERS
[]  Judicial Summons
[]  Judicial Complaint
[]  Judicial complaint exhibits
[]  Evidence that exhibits match with prior correspondence, QWR (or DVL) response
[]  Allegation identifying Plaintiff?
[]  Allegation of loan?
[]  Allegation of ownership of debt?
[]  Allegation of holder in due course?
[]  Allegation of holder?
[]  Allegation of Possessor?
[]  Allegation of original note?
[]  Allegation of lost note?
[]  Allegation of right to enforce note?
[]  Allegation of right to enforce mortgage?
[]  Allegation of right to enforce debt?
[]  Verification on personal knowledge?
[]  Nonjudicial Notice of Substitution of Trustee (SOT) filed on behalf of beneficiary of Deed of Trust (DOT)?
[]  Nonjudicial Notice of Default (NOD) filed on behalf of beneficiary on DOT?
[]  Exhibits: Original note?
[]  Exhibits: Assignments?
[] Evidence assignments, endorsements or allonge backdated, forged, robosigned?
[]  Evidence of fabrication of documents
[]  Evidence that foreclosure sale proceeds would go to owner of debt
[]  Evidence of foreclosure mill
[]  Foreclosure mill history
[]  Servicer history
[]  Reference to PSA?
[]  Reference to Trust Agreement?
[]  GS GOLDMAN SACHS
[]  JP MORGAN/ JPM CHASE
[]  WELLS FARGO
[]  WORLD SAVINGS/ WACHOVIA/ WELLS FARGO
[]  WELLS FARGO/ AMERICA’S SERVICING COMPANY
[]  CW COUNTRYWIDE/ BAC/ BOA
[]  US BANK
[]  MERRILL LYNCH/ BOA
[]  BONY MELLON
[]  DEUTSCH
[]  LASALLE
[]  CITI/ABN AMRO/LASALLE
[]  DITECH/ GREENPOINT/ GMAC
[]  SPS/ CREDIT SUISSE/ CHASE
[]  WAMU/CHASE, FDIC, US BKR TRUSTEE
[]  LEHMAN/ AURORA
[]  BEAR STEARNS
[]  NATIONWIDE/ MR. COOPER
[]  OCWEN
[]  BAYVIEW
[]  AMERICAN BROKERS CONDUIT
[]  AMERICA’S WHOLESALE LENDER
[] HSBC
[] MERS
[] CALIBER
[] WILMINGTON TRUST
[] INDYMAC/ONE WEST
[] PENNYMAC/ CITI
[] SETERUS
[] SHELLPOINT
[] LITTON

 

How do I Use Article 9 §203 UCC Requiring Value Be Paid for Debt?

Many of you have essentially asked the same question referring to Article 9 §203 UCC as adopted by the laws of your state. There is no known cause of action for breach of that statute although one might be conjured. It is an interesting suggestion.
My reference to it is simple: the statute says that a condition precedent to enforcement of the security instrument (mortgage or deed of trust) is that the party seeking to enforce must have paid value for the security instrument. Translating that, it automatically means that if someone paid for it then they paid for the debt. BUT all law in all states says that if the “seller” or transferor does  not own the debt then the transfer of the mortgage is a nullity.
A condition precedent means you can’t do one thing without first doing the other. We are a nation of laws and personal bias about this is irrelevant.
GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

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What many lawyers continue to miss is that there is a difference between the laws entitling someone to enforce a note and the laws entitling someone to enforce a mortgage. There are different public policies behind each one. For Notes, the public policy is to encourage the free flow of negotiable instruments in the marketplace. For mortgages, the public policy is to make sure that the civil equivalent of the death penalty (loss of home) is not imposed by someone who actually has no interest in the debt.
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It is an added protection. As a condition precedent it means that standing to enforce the note is different from standing to enforce the mortgage. It is both factual and jurisdictional.
*
The grey area occurs because many states adopt the doctrine that if someone has the right to enforce the note they automatically have the right to enforce the mortgage. Although that seems to contradict the Article 9 §203 provision it actually doesn’t. That is because possession of the note by a person who is entitled to enforce it raises the legal presumption that the value was paid by the person on whose behalf the note and mortgage are enforced.
*
This is a fuzzy area of the law. But boiled down to its simplest components, it means that possession of the note is deemed (presumed) to be possession of legal title to the debt which, as we know from Article 9 §203 can only be true if the person has value invested in the deal.
*
The point of that policy is that if the forced sale of the house is not going to produce proceeds that will be used to pay down the debt, then the foreclosure should not occur. If the person on whose behalf the foreclosure is brought is not the owner of the actual debt then without evidence from the lawyers representing the party named as Plaintiff or Beneficiary, there is no evidence that the proceeds will go towards paying down the debt and the court is required, with no discretion, to enter judgment for the homeowner.
*
So the question comes down to whether the party claiming both possession and entitlement to enforce the note is the owner of the debt. The answer is yes if the homeowner does nothing. This presumption can be rebutted. A simple question as to whether the value was paid and if so, how many times, and demanding the dates and parties involved, would clear up the question if the banks had a factual answer. They don’t. They present a legal argument instead. As virtually all lawyers know, their job is to win however they can do it. So if they can’t dazzle the court with facts they can baffle the courts with bullshit.
*
Carefully educating the judge who most probably slept through the UCC classes in law school is key to winning on this basis but it has been done many times. All jurisdictions have case decisions that reflect what I have described above. You must find those decisions and present them as part of your pleadings, memoranda and argument in court. 

What is in a name? For Forensic Examiners Free Seminar on August 2

FREE SEMINAR FOR FORENSIC AUDITORS

 

The analysis of the name being used by the lawyers to present a Plaintiff defeats the existence of a legal person. And and in cases where the the same named Plaintiff has already initiated foreclosure and been dismissed, the findings of fact announced by the prior judge will bar relitigation of the same issues if the prior litigation result produced findings of fact that corroborate this analysis.

Either the Plaintiff is US Bank, (for example) in which case they have not alleged anything to show that it is and their styling of the case says otherwise, or US Bank is not the Plaintiff. US Bank will NEVER agree that it is the Plaintiff. US Bank will ONLY state that it has agreed and acknowledged that its name can be used in a “representative capacity.” US Bank will not even assert the existence of a trust in which the certificates have any relevance to an action for enforcement of the mortgage.

*
The only reason the lawyers mention the certificates and SASCO is to mislead the court into thinking that there is a trust lurking somewhere and that trust owns the subject debt, note and mortgage.
*
The implication is that there are certificate holders with the right to enforce the debt, note and mortgage. The implication is that the certificates convey a right, title or interest tom the debt, note or mortgage of the borrower. They don’t. In fact both the certificate holders and the trustee are barred contractually from even inquiring as to the status of the loans much less enforcing them.
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This is what forensic examiners are supposed to be doing — hunting down the certificates and finding the indenture — or failing that finding similar indentures are similar “certificates” which we all know were never printed or delivered but rather exist only in the   digital world.
*
So it’s US Bank or nothing and US Bank will say it is nothing. The issue is how do we approach this issue? The lawyers will respond to it with doublespeak. They will say that the Plaintiff is US bank as Trustee and that the trust will be presented at trial using the Pooling and Servicing Agreement. They will argue that this is enough for pelading purposes to allege a legal person. And in the absence of the prior litigation they could arguably be correct.
*
But the actual “Trust Agreement is NOT the PSA. It is a “Trust Agreement.” And the terms of that agreement speak the truth about the role of U.S. Bank and the nature of the “trust.” So the forensic examiner needs to find the Trust Agreement and the indenture.
*
So it boils down to getting the lawyers to admit that US Bank is NOT appearing in its own behalf and US Bank is not the trustee or authorized representative of any legal person who owns the subject debt, note and mortgage by virtue of having paid for it. The forensic examiner should simply refer to the proclamations on the website of US Bank.
*
It’s obvious that US bank has none of the powers of a trustee and is a naked nominee with no more power to do anything without instructions from the owner of the debt than MERS has when executing assignments of mortgage.
*
The hidden nuance here is that the investment bank (Lehman) was doing business as the SASCO Trust and DID fund the loan (or acquisition of the loan), but the whole business plan was to divest itself of all ownership of the loans so they would not appear on the Lehman balance sheet. Such divestiture occurred usually within 30 days from the origination of the Certificates issued in the name of the putative SASCO trust.
*
So Lehman was briefly a creditor but sold the debt. US Bank if it is a trustee at all, is actually only a trustee for Lehman as to naked title to the paper but never the debt. That is what the actual Trust Agreement says (not the PSA). US Bank is being used in the same way as MERS.
*
The Subject Loan was not on the Lehman books when Lehman declared BKR in October of 2008. The only party showing records relating to the subject loan was a servicer, but they did not own the loan. Thus the investment bank (Lehman) had stripped off all attributes of the debt, revenue, risk of loss etc. and sold each one as derivative products amounting to many times the principal amount of the loan.
*
Nobody claimed ownership of the debt because nobody wanted it and nobody cared whether it was paid. Everyone had already been paid and nobody wanted risks associated with ownership of the debt. They only wanted the revenue from enforcing the paper. All the money arising from payments from the borrower was coming in as revenue and not as an offset on the books of Lehman or any other entity to what had been the borrower’s loan receivable — an entry that no longer exists anywhere on the balance sheet of any company.
*
We can’t argue that in court. No judge will like it even if they agree it is true. But we can ask questions and argue around it such that there are unanswered questions that the lawyers, Ocwen, the new servicer and US Bank refuse to answer. That is all we need to defeat the new foreclosure and show that US bank and Ocwen were engaged in an illegal enterprise to lie to the borrower, lie to the court and even file false documentation in the county records and  the court records.
*

Bottom Line: If they get the house they will take it as revenue and not to pay down the debt. That means there is no financial injury for which the sale of the house serves as a vehicle for restitution. And THAT means that the court lacks jurisdiction to hear a case where there is no actual injury. That injury can be presumed through pleading but must be proven at trial. Proper objections based upon a knowledge of the true facts, plus effective cross examination will blow up the robowitness.

*
The job of the forensic examiner is to ferret out the relevant facts and distill them for use in court.

Required Reading for Free Forensic Loan Examiners Seminar on August 2, 2019

see FREE SEMINAR FOR FORENSIC LOAN AUDITORS

The difference between merely writing a report and actually getting its contents admitted into evidence — and then to get a court to give it enough weight to turn the tide in findings of fact — is monumental. Anyone can write a report. Whether it is admissible and whether it is credible or convincing are entirely different matters.

This is the issue I have struggled with for years. And for the past 15 years, both pro se litigants and lawyers have struggled vainly to get such reports admitted into evidence without the live testimony of a credible witness or who can establish their bona fides. The homeowner can’t testify about what is int ehr report because (a) they didn’t do the investigation and research and (b) they don’t fully understand its contents.

This article deals with who is really an “expert” and when can they testify and why should their testimony be given any weight, even if admitted into evidence,

FLORIDA SPONTANEOUSLY COMBUSTS ON EXPERT WITNESS RULES:

Daubert v Frye expert witness testimony. Each state is different and states may differ from the Federal rule.
*
*
Florida see Florida Bar News July 2019 volume 46 number 7
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“On its own authority, The Florida Supreme Court has revisited and reversed its 2017 Opinion and approved using the Daubert standard in the procedural evidence rules to qualify expert testimony and witnesses in trials.”
*
Thus general acceptance is not sufficient in and of itself. GAAP is not sufficient in and of itself although the loophole is probably that testimony providing foundation for introducing GAAP principles  and then factually applying them to the facts at hand might be admissible anyway simply as a fact witness giving factual testimony without opinion, even if an opinion is implied.
*
The new rule under Daubert in Florida makes it more difficult to predict whether at all the testimony from a witness will be admissible and suggest that the practitioner might try to seek a ruling a provoke a fight over that before trial, since it could have a devastating impact on the trial strategy if the witness is declared incompetent or unable to testify.
*
Disclosure of the expert witness is an essential threshold to getting their testimony admitted into evidence. And of course judges might take the safe path of admitting the testimony and then ignoring it, in terms of giving it weight in their final decision.
*
The new rule in Florida also means that introduction of a witness who is being asked to testify in a foreclosure trial will be subject to the individual perception of the judge using unenumerated Daubert tests but which include “for example”
*
  • Whether the expert’s technique or theory has been tested and  to what result
  • Whether the technique has been subjected to peer review or publication
  • The known or potential rate of error
  • The existence and maintenance of standards or controls
  • The Frye rule — general acceptance
*
What all of this means, is that expert testimony may simply be reduced to a wild card in Florida especially if the designated expert does not possess generally accepted professional credentials (advanced academic degree and professional licensing).
*
But for forensic auditors the fact remains that their testimony is really only required to provide foundation for the introduction of their report and reading excerpts from the report. Whether the testimony is persuasive or will be given any weight by the trier of fact depends entirely upon the the use of demonstrative exhibits (like posters) and the credibility of the witness.
*
So the credentials of such a witness are not so important as to exclude him or her from performing forensic auditing of loan accounts — but credentials remain important in terms of admissibility, credibility and weight of the testimony as evidence.
*
Having experience, as some of you already do, as a licensed Private Investigator, or “certified” Loan auditor will help but probably only if the witness can state that they have performed many such investigations or audits and can point to findings of fact, in prior court cases, that conform to the evidence presented by the witness.
*
And their testimony probably won’t be given much weight unless they can establish — or some other witness can establish — that what they were looking for and how they were looking were methods that a re in general acceptance.
*
To that extent the testimony of an accountant about GAAP — Generally Accepted Accounting Principles —— as promulgated by the Financial Accounting Standards Board, whose statements are used as part of the rules and regulations of the SEC and other Federal and State agencies would be quite helpful as corroboration for the witness who performed the investigation unless the accountant (CPA) performed the investigation himself or herself.
*
Although there are many factors to consider when vetting an expert, the ultimate question is whether the expert’s testimony will be admissible in court. If the court deems an expert’s testimony inadmissible, especially suddenly and in the middle of trial, it can have a disastrous effect on the outcome of the case. However, the governing standards of expert witness admissibility are not uniform throughout the United States.
*
The two major governing standards can be found in two seminal cases – a D.C. Circuit case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and a U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The federal court system exclusively follows Daubert while state courts are divided between the two. Interestingly, each state has taken on its own interpretation of these two benchmark cases, making the admissibility of expert testimony more variable between jurisdictions. Prior to trial – and ideally, prior to retaining your expert – it is critical to have a working understanding of these standards, their specific jurisdictional variations, and any recent, applicable case law.
*
The Frye Standard: General Acceptance in the [Scientific] Community. 
The general premise in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) states that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. In Frye, the Circuit affirmed the trial court’s decision to expert testimony concerning a lie detector test. The test, which was based on changes in systolic blood pressure, was considered to have “not yet gained such standing and scientific recognition among physiological and psychological authorities.”
[Generally accepted Accounting Principles (GAAP) would automatically qualify by definition. ]
*

The Daubert Standard: Enumerated Factors to Consider

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court effectively overruled Frye in federal courts, holding that the case law was inconsistent with the applicable evidentiary rules, namely, Rule 702 of the Federal Rules of Evidence. In Daubert, the Court held that the twin standards of Rule 702 – relevance and reliability – are incompatible with the stricter “general acceptance” test.
*
The Court emphasized the importance of a trial judge’s “gatekeeping responsibility” when admitting expert testimony and listed a non-exhaustive list of factors to consider such as: 1) whether the expert’s technique or theory can tested and assessed for reliability, 2) whether the technique or theory has been subject to peer review and publication, 3) the known or potential rate of error of the technique or theory, 4) the existence and maintenance of standards and controls, and 5) whether the technique or theory has been generally accepted in the scientific community.
Under this new standard, the Court encouraged a more liberal approach to admitting expert testimony, stressing the importance of subjecting witnesses to vigorous cross-examinationinstead. The decision in Daubert to relax the admissibility standards of expert testimony was further expounded by its progeny. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Court emphasized the importance of expert methodology, opposed to focusing solely on the conclusory opinion, finding that “conclusions and methodology are not entirely distinct from one another.”

Federal Judge Slams Bayview and Attorneys on Illegal “Modification” Maneuvering

The Lesson here is that the denial of modification presents and important opportunity to challenge the practices, authority and viability of claims by parties who seek to collect, enforce or administer loans. 

[This decision is dated 11/15/17. Check any future litigation or comparable decisions before using. ]

The goal is foreclosure. There can be no doubt that the modification process over the last 20 years has been largely an exercise in futility. That’s because the parties who are asserting the right to collect, enforce or administer residential loans actually have no interest in making the loan a performing loan.

And that is because they do not have any of the loans as an asset on their balance sheets. Allowing a nonperforming loan to be modified would merely preserve a stream of revenue consisting of principal, interest, insurance and taxes together with fees is attached to that revenue stream.

But a foreclosure results in the sale of the property. This produces a windfall equivalent to the sales proceeds. This windfall is distributed as revenue to all of the players who participated in the foreclosure, including at least one undisclosed player – the investment bank (or the successor investment bank) that started the scheme.

Government laws and regulators, together with public opinion, expects that modifications should be allowed in order to reflect economic realities and enable homeowners to retain home ownership. And when the performance of a loan affected the balance sheet of a lender or bank, workouts were the rule rather than the exception. Frequently the workout was a modification.

So the game plan is to create the appearance of a procedure in which homeowners can apply for settlement, workouts or modification while at the same time setting up the homeowner for failure to comply with the procedure. Failing that, the game plan calls for proceeding with the foreclosure regardless of any pending modification activity.

Attorneys are usually excused under the twisted concept of litigation immunity, which says that an attorney cannot be sued for advocating the position of his client even if the position is based on a line. In this case, the federal judge blasted both the attorney and Bayview servicing, and in the process exposed the pernicious plan that is devoted to achieving foreclosure rather than preserving the rights of a true creditor or preserving the rights of a homeowner.

Hat tip to “summer chic”

see Weisheit v Rosenberg and Bayview Maryland

see Article explaining Weishert v Rosenberg and Bayview

=======================================

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

Maryland homeowner Sherry L. Weisheit handed Bayview Loan Servicing an embarrassing defeat in her foreclosure case.

She filed suit against Bayview Loan Servicing and their law firm Rosenberg and Associates for violating RESPA and FDCPA. Weisheit’s suit revolves around Bayview Loan Servicing’s failure to give her a loan modification.

Bayview Loan Servicing denied the loan modification while proceeding with foreclosure.

However, Weisheit qualified for a HAMP modification. Bayview Loan Servicing just didn’t want to give her one and used a debunked excuse typical of a mortgage servicer.

Bayview Loan servicing explained that it denied Weinsheit’s request for a HAMP Modification because the modified monthly payment was outside the required range of 10-55% of Weisheit’s monthly gross income.

RESPA allows homeowners to appeal their modification denials. HAMP also did when it was in effect. Sherry Weisheit did exactly that. She appealed the decision with Bayview Loan Servicing.

Weisheit sent her appeal to Bayview on November 29, 2016. She notified Bayview that her monthly debt payment, in fact, would be within 10-55% of her income.  In other words, Bayview had done the math wrong.

Bayview claimed their unnamed “investor” prevented them from extending the term of the loan. The Response Letter also did not name the investor nor did it describe the nature of the investor restriction.

Bayview’s Response Letter it stated that “[w]e have enclosed all supporting documentation used to complete the review on your account.”

However, the letter did not contain any such documents. Weisheit responded to Bayview stating that she would be appealing the second denial once she had received the supporting documentation.

  • So let us stop right there. Bayview is lying about everything.
  • First, if forced to do so, it could never produce any evidence that in fact it is authorized to administer the loan by any owner of the debt who paid for it.
  • Second, Bayview describes a relationship with an investor that does not exist.
  • Third, Bayview implies communication with the “investor” or instructions from the “investor” which does not exist.
  • Fourth, Bayview employs a tactical strategy of falsely stating that it is enclosing documentation supporting its representations concerning communication and instructions from the investor.

In this case the federal judge was able to see through the charade. The important thing is that in this decision he characterized the attorney has a tax collector who obviously was not covered by litigation privilege.

A key element of the judge’s decision was that Bayview did not dispute the accuracy of plaintiff’s calculations, “but instead of reversing course and approving plaintiff’s lost mitigation application, Bayview asserted it was bound by an open ‘investor restriction’ that prevented it from extending the term of the loan.”

The judge’s ruling specifically states that “the response letter did not name the investor nor did it describe the nature of the investor restriction, other than to say that a prevented extension of the loan term. Towards the end of Bayview’s response letter it stated that ‘we have enclosed all supporting documentation used to complete the review on your account.’ The letter however did not contain any such documents.”

Even while the plaintiff had initiated the appeals process to Bayview and the attorney had acknowledged that the appeals process was underway, the foreclosure sale was scheduled. Among other things this violated the dual tracking restriction in which “servicers” may not pursue foreclosure while modification procedures are underway.

In his opinion, the judge points out that “a denial ostensibly based on an investor restriction that does not name the investor or explain the restriction has been held to be insufficient. See Nash, 2017 WL 1424317.

Conclusion: plaintiff has alleged sufficient facts to state a claim for relief against Bayview for violation of respirators dual tracking provision, 12 CFR section 1024.41 (g) and notice of error provisions, 12 CFR section 1024.35, and for violations of the FDCPA, 15 U.S.C. sections 1692E – 1692 have. Plaintiff has alleged sufficient facts to state a claim against Rosenberg for violations of the FDCPA, 15 U.S.C. sections 1692E – 1692F. Therefore, Bayview’s and Rosenberg’s motions to dismiss will be denied by accompanying order.

Why Standing is Important

It’s easy to get lost in the weeds. Lots of people bring up the issue of standing without realizing that they are invoking constitutional rights and required processes. But beyond that they are invoking common sense, to wit: simply stated, no person should be deprived of their property without due process of law by a person who has the right to do so.

While it seems that nobody is arguing with that simple proposition, the banks are dead set against it. They seek to take property from a homeowner and sell it for the purpose of obtaining revenue — not to pay down any debt. They do so without one penny of value invested in the debt and they are successful because they have convinced most judges that foreclosure is proper even if the creditor is unknown.

Since the proceeds of foreclosure are received as revenue, the question is why should anyone receive that revenue under the disguise of collecting a debt?

Foreclosure is the civil equivalent of capital punishment recognized for centuries as a drastic draconian remedy. Why would you let that happen simply because someone wants to make more money than they already did off of a transaction in which the homeowner received no disclosure of the true nature of the deal?

And why is the quest for revenue an acceptable substitute for debt repayment? The law says it isn’t. That should end the argument; but for millions of homeowners, the intentional ignorance of the courts as to ownership of the debt has ended their right to own and possess the largest investment of their lives together with their lifestyle and reputation. It wasn’t always so.

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

The 2008 crisis was caused and created by a very long-running plan of political influence in which the financial tools of mass destruction were deregulated and the legal tools to institutionalize fraud were passed starting with local, state and even federal laws, rules and regulations.

One such example is the law in some jurisdictions that says that if you don’t raise jurisdiction (standing) as an issue you have waived it.

Such laws unconstitutionally allow a court to confer jurisdiction upon itself when there is none. In a nutshell there is no doctrine, law or Supreme Court decision that agrees, but legislators, under the heavy influence of bank money, have nonetheless passed bills that have no justification in law, in fact, in public policy or even debate.

Now some jurisdictions are seeking to protect homeowners from further legal atrocities like a foreclosure conducted by a party who conducts a void foreclosure and pockets the money as revenue because no debt was owed to them.

The new bills, hotly contested by the banks, merely removes a power that never existed in the first place. Standing, subject matter jurisdiction and due process are not requirements and processes that can be waived. They are required for an orderly society and in ours, the US Constitution is quite clear that we are all subject to its laws.

Standing is a jurisdictional issue. The new bills merely correct a legislative error.

If a court lacks subject matter jurisdiction, then it has only one limited power — to dismiss the case for lack of jurisdiction. Lack of subject matter jurisdiction is not a technical issue.

If the party claiming a right to pursue the foreclosure in fact is not the proper party then there is no assertion, much less assurance, that the foreclosure will result in actually paying down the debt.

When the property is supposedly sold without jurisdiction the sale is void, thus clouding title forever.

When the proceeds received from the void sale are used to pay parties who receive it as revenue instead of debt payment then the debt remains (and the liability to pay it) or the debt was not as claimed from the beginning.

UCC Article 9 §203 has a special provision to prevent just this sort of problem: the would-be enforcer must have paid value for the debt, not merely possess the note. That provision is adopted as state law in all jurisdictions.

The concept of waiver of jurisdiction is a legal fiction devised by the banks. No party has the right to “waive” the constitutional requirement of subject matter jurisdiction. No court may hear issues or cases just because the parties want an advisory or binding decision if the court lacks the power to hear it. That power comes from the US Constitution which cannot be changed except by amendment to the constitution.

If the party seeking foreclosure has no legal right to do so, they should not be allowed to do so anyway. If the court has no power to consider or hear an issue or claim, then it should not be permitted to do so anyway. The banks  have succeeded in both ignoring the law and institutionalizing those changes as though that made it right. They didn’t amend the U.S. Constitution, thankfully, so it remains wrong.

FREE FORENSIC LOAN AUDITOR SEMINAR

THIS SEMINAR REGISTRATION IS CLOSED BECAUSE MORE THAN 100 PEOPLE SIGNED UP AND WE ONLY HAVE SPACE FOR 100. IF YOU WOULD LIKE TO SEE ME DO THIS AGAIN SEND AN EMAIL TO NEILFGARFIELD@HOTMAIL.COM

 

Dear Forensic Loan Auditors:

I am weary from looking at reports that do not present homeowners or lawyers with something they can easily use in court. When homeowners or their lawyers come to me to engage me as consultant your reports frustrate  me because I still need to do further analysis on the points you missed. So I mean to make sure you don’t miss those points.

I have scheduled a FREE SEMINAR for FRIDAY, AUGUST 2, 2019 AT 1:30PM EDT. When you submit your registration you will receive an invitation. I will allow homeowners, lawyers and paralegals to attend as well. I will be the sole presenter. If there is a demand for a more in depth workshop lasting a full day, I’ll consider it and invite others to participate as presenters. The full day workshop might not be free. In fact, it probably won’t.

I realize that I could charge substantial fees for the seminar. I usually do. But to be honest I actually lose money (in my time) by having to redo your work. So my compensation will be a savings arising from better content and better presentation of your work.

The seminar will be conducted on www.freeconference.com with screen sharing. There will be no cost for signing up but donations to the livinglies blog are always welcome (CLICK HERE TO DONATE TO LIVING LIES BLOG). You can donate now, later or never.

My goal is to improve your analysis and reports such that they can be easily used by lawyers and pro se litigants in court or in preparation for court. More importantly my goal is to make it easier for me to provide drafting and consulting services to clients.

You are not required to attend, pay attention or follow my advice. But if you do, you will make more money because your reports will become more valuable.

To sign up please do the following:

  1. Submit registration form with no obligation or cost. Your information will not be used, shared or sold to any third party. CLICK HERE TO SIGN UP.
  2. Within a few days after you sign up, you will receive an invitation from our conference bridge, freeconference.com, unless we find a different vendor whose technology is more suitable to this seminar.
  3. After you have submitted the registration and accepted the invitation to join the conference as a practicing forensic auditor you may upload samples (no more than 2) of your work. I will use some such samples in the seminar without identifying the author.
    1. For this function you will receive an invitation to our ftp server to a special subfolder on box.com named “FORENSIC AUDITOR SEMINAR MATERIALS — [YOUR NAME.]” Nobody else will have access to your submissions to view or copy them.  And I won’t use them for any purpose other than the presentation of the seminar.
  4. I will probably also upload a PowerPoint presentation that you will see during the seminar and have access to because you have access to the folder.

The curriculum will be as follows:

  1. Introduction to Forensic Auditing
  2. Overview of expert fact testimony and expert opinion testimony
  3. Overview of laws of evidence relating to forensic reports
  4. Overview of foundation testimony.
  5. What a lawyer needs to see
  6. What a lawyer doesn’t want to see
  7. What is useful
  8. Overview of presentations, demonstrative evidence etc.
  9. Questions and Answers

 

Transcript of Neil Garfield Show: How to Survive Litigation

CLICK HERE TO LISTEN TO SHOW

 

Blog Talk Radio 6-27-19
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Tonight! How to Survive Litigation on the Neil Garfield Show 6PM EDT!
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Hello, Neil Garfield here and this is Thursday June 27, 2019. Tonight, we talk about the uphill battle for pro se homeowners and lawyers for homeowners in the current judicial environment.
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Both lawyers and pro se homeowners are continually frustrated by the Dickensian process of the courts. If you don’t know what that means, go read Bleak House by Charles Dickens. If nothing else just read the first chapter.
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What you need to know and accept as fact is that the litigation in foreclosure defense will always be long. That is because the lawyers for the banks, like every lawyer advocating an indefensible position, know that there is a difference between who should win and who can win.
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And often merely outlasting an opponent spells victory in what would otherwise be a losing position. Banks win because they have the money to drag things out and most homeowners and their lawyers give up.
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So we have millions of cases that ended up with wrong results because of defaults, inaction, improper action and lack of resolve by lawyers and homeowners.
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Surviving that requires physical and mental stamina and accepting the realities of the role of courts and judges. And most of all it requires the development of a strategic plan for each case and a tactical plan for executing the strategy. That can only be done by investigating and analyzing all the facts of each case.
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First I want to address something in the news. US Bank is said to have filed another lawsuit against Bank of America seeking to enforce the buyback provisions of a nonexistent sales agreement. It’s another ploy to get people to think about the poor trust when there is no trust.
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It’s a “friendly” suit to make it look like US bank is a real trustee of a real trust with assets that included the loans.
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This is the bank’s way of countering the mounting evidence that no such trust arrangement exists and that the trust name is just a fictitious name for the investment banker, Merrill Lynch in this case, whose liabilities were apparently assumed when BOA acquired ML in the 2008 crash.
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Now when they settle it, it looks like BOA pays US Bank and US Bank gets a princely fee for filing the lawsuit which it receives as economic damages as trustee because that is what BOA and US bank agreed. It is approved by a court because nobody is saying the whole thing is a sham. And that money might find very well its way back to Bank of America because Merrill Lynch was the investment banker in the scheme and ML is now BOA. US Bank turns over the money to Merrill Lynch, which is BOA.
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And when people challenge the physical and legal reality of the Trust, BOA gets to point to this lawsuit in which it appears as though BOA agreed to buy back some loans and leave others with US Bank. This creates the illusion of “title” to the debt, note and mortgages where no such title existed. On its face the illusion is complete. In reality it is nothing. It is a self dealing deception staged for the public and for the courts.
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 I’m broadcasting live from Duval County Florida and this show is brought to you by the livinglies blog, GTC honors, Lendinglies, AMGAR, and the Garfield firm.
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And this show is specially brought to you because of donations to the livinglies blog from listeners like you. Thank you.
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For those of you who are not yet contributors we ask that you HIT THE DONATE BUTTON ON THE BLOG at www.livinglies.me or www.livinglies.wordpress.comOR call  954-451-1230 or
202-838-6345  and pledge whatever you think you can afford.
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Our work on the blog and our radio shows is done at our own expense, without payment or other support from anyone other than you. If this work has value to you then chip in. Please make a contribution to help us continue helping you and all consumers.
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Over 99% of the population of the United States consists of laypeople with little or no practical experience in the courtroom.
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Nearly all of them believe that we have a system of justice that favors the party that should win. They are all wrong.
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There are 1.3 million lawyers in the United States. Many of them hold the same belief as their lay counterparts.
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The other 700,000 lawyers know the truth: in court the issue is who CAN win not who SHOULD win.
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We all know that there are many cases in which the party who should win doesn’t win. And there are many cases in which a party shouldn’t win but can win and often does.
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The difference between winning and losing boils down to one simple thing: persuasion. Successful persuasion depends entirely upon a good strategy, a good tactical plan and great execution.
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Sometimes great execution will make up for defects in strategic or tactical planning but for most pro se litigants and most lawyers who find themselves in court, great execution is elusive. And even for good lawyers it can prove challenging.
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The people who should win are the people who are aggrieved by some action or inaction of another person or legal entity. The people who can win are the people who can convince the judge to rule in their favor.
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Most litigants who rely only on the merits of their claim lose their cases in court, especially if they can’t afford adequate legal representation from an attorney who is experienced in the courtroom.
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You must not only have merit to your claim, when the case can only be won if the court is convicted of either the lack of merit of the claim against you or the permit of your claim against your opposition. Presentation and persuasion are the key and that doesn’t happen just because someone has a silver tongue.
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For many people their only experience with a courtroom is in Small Claims Court. With the rules of evidence and procedure relaxed, it is often the case that the meritorious claim does in fact prevail. But in all other cases, the decision is based upon technical rules of pleading, argument, discovery, and examination at trial. This includes obviously the ability to make timely objections during a hearing or during the trial.
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So how do you survive a court system which plays by rules that you don’t know and don’t understand?
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Stop assuming you know or understand what the banks did. That will only interfere with your planning and execution of a successful defense strategy.
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Assumptions by homeowners and their lawyers are what gets them into trouble. It leads them to ignore what is right in front fo them. For example, let me quote form an email I wrote in response to a client:
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You need to study these things carefully and not assume anything. The pleading says that BONY Mellon is appearing on behalf of holders of certificates. Neither the certificates nor the holders are identified. If BONY Mellon was appearing on behalf of the trust they would be no need to mention the certificates or the holders. There would only be a need to identify the trust, which would then be subject to discovery or cross-examination as to the existence of the trust and whether the subject debt had ever been entrusted to BONY Mellon as trustee. So you have 2 questions to ask them:
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1. Where are the certificates, and what does the indenture on the certificates say? You will find that the certificates do not convey any right, title or interest in the subject debt, note or mortgage.
2. Who are the holders? If those are the real beneficiaries, as claimed, why are they not identified? Keep in mind that if the certificates do not represent any right title or interest in the debt note or mortgage, then the holders of the certificates are irrelevant.
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Most lawyers only glance at the style of the case. They compound that error by not comparing the style of the case with the body of the foreclosure complaint or the body of the notice of substitution of trustee which starts off the whole wrongful foreclosure scheme. It’s like a puzzle that seems unsolvable at first. But if you stare at it long enough things start to emerge.
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The first thing you need to understand is that our justice system runs on money not merit. If you want justice you have to pay for it. Nobody is going to do the investigation, discovery and preparation required for trial for you unless you pay them. For many distressed homeowners this is an obstacle which they are sometimes unable and often unwilling to tackle.
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Homeowners often think that the system has failed them and they are probably exactly right in that thought. Many of them are sitting with homes that are still not worth the principal amount of the loan that was given to them 10 or 15 years ago. While businesses are allowed under the bankruptcy code to strip the liens down to the actual value of the property, individual homeowners are not allowed to do that under the law.
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Most laypeople consider lawyers as being part of the system and they are right. Since they believed that the system failed them or screwed them, they believe that the system owes them justice and therefore that lawyers should be willing to get them justice without regard to compensation. While there are good philosophical arguments in favor of that proposition, that’s not the way things work in this country or, as far as I know, and any other country.
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The people who can survive the court system and win a good verdict or satisfactory settlement are those who see the system in an objective light for what it is and not for what they think it should be.
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I give you some examples of what I mean.
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Many objections and motions are made as though the judge already knows that the opposing attorneys have committed fraud or that their clients are lying and fabricating documents. Judges have no such knowledge nor do they presume to have such knowledge nor do they presume to know what issues are being presented to them until one of the parties speaks or files a motion.
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Most objections by foreclosure defense attorneys are not timely and appear to be merely technical in nature because they lack a plan of strategy and tactics. Any good trial lawyer knows that objections are not meant to prove a point; they are meant to be part of a pattern by which the lawyer is educating the judge as to the credibility of the opposing party and counsel, and the lack of real evidence to support their claim.
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If you have previously done discovery and the opposing side has either answered or not answered, and you have properly followed up discovery with additional questions, motions to compel and motions for sanctions, you can use both their answers and their evasions to your advantage in excluding their evidence, which then is corroborated by your objections at trial as to lack of foundation, hearsay, best evidence and other laws of evidence and court rules.
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Laypeople just have no idea what I’m talking about. So they flounder about in hearings which they almost always lose when in fact they could have easily won. Virtually all of pro se litigants have no idea about what constitutes admissible evidence for summary judgment or a trial. As a result they fail to introduce admissible evidence and they failed to object to evidence used by the opposing counsel for summary judgment and at trial. The rules are clear. In most cases failure to object is a waiver of the objection. So, on appeal all of such cases are affirmed, usually without any opinion. We lawyers call that PCA, per curium affirmed.
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On appeal most pro se litigants and some lawyers forget that if there is any possible reason for the judge to have issued the ruling that you think was wrong, the decision will be affirmed, even if the appellate court thinks that the ruling was wrong. If it’s possible for a judge to have ruled that way, then even though most of the judges would not have made such a ruling, the decision will nevertheless be affirmed.
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So how do you survive?
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The answer is always preparation. Before you plead anything you should do the proper investigation, legal research and factual research so that you are pleading facts rather than theory.
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Most dismissals of pleadings filed by homeowners can be traced directly to the fact that they were pleading theory instead of facts. Information is not a fact unless it has all of the attributes indicating that it is true and not a statement of opinion.
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Pleading on information and belief is not enough unless you have made outright statements of ultimate facts upon which relief could be granted. Then pleadings on information and belief fill in some of the spaces that you will prove through discovery, if you enforce discovery with Motion to Compel and Motions for Sanctions and even Motions in Limine.
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One of the major reasons why homeowners win is that they have properly performed discovery and enforced it. It’s only then that they can properly complain that the opposing lawyers are attempting to introduce evidence about which they were evasive or unresponsive in discovery even after a court order.
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Lack of preparation for appearance in court is another big reason why homeowners lose even though they have strong facts upon which they could have won.
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Preparation means you know how you are going to convince the judge to rule in your favor and you know how you are going to counter the specific arguments raised by your opposing counsel.
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It means having a plan before you question or cross-examine a witness and that includes follow-up questions. I’ve seen lawyers bring a legal pad up to the podium and ask a bunch of questions without listening to any of the answers and following up on them.
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So that is my take on survival in court. Good luck and we’ll see you in two weeks after the independence day holiday.

Tonight! How to Survive Litigation on the Neil Garfield Show 6PM EDT!

Thursdays LIVE! Click in to current episodes of

The Neil Garfield Show

or prior episodes

Or call in at (347) 850-1260, 6pm Eastern Thursdays

===========================

Both lawyers and pro se homeowners are continually frustrated by the Dickensian process of the courts. If you don’t know what that means, go read Bleak House by Charles Dickens. If nothing else just read the first chapter.

What you need to know and accept as fact is that the litigation will always be long. That is because the lawyers for the banks, like every lawyer advocating an indefensible position, know that there is a difference between who should win and who can win. And often merely outlasting an opponent spells victory in what would otherwise be a losing position.

Surviving that requires physical and mental stamina and accepting the realities of the role of courts and judges. And most of all it requires the development of a strategic plan for each case and a tactical plan for executing the strategy. That can only be done by investigating and analyzing all the facts of each case.

Stop assuming you know or understand what the banks did. That will only interfere with your planning and execution of a successful defense strategy.

 

Payment History as Exception to Hearsay Rule

A recent decision from the 1st Circuit of the U.S. Court of Appeals applying FRE 803(6) states the current law — whether you like it or not. Pretending these decisions don’t exist or trying to avoid them is both pointless and highly likely to undermine your credibility in any other narrative or argument. Note that SCOTUS Justice Souter not only sat in on this review but wrote the opinion.

Simply stated the transaction history will be admitted into evidence every time — UNLESS the borrower disputes their content and demands a hearing on truthfulness of the foundation testimony in which the magic words are spoken, as set forth in the Federal Rule and virtually all state court rules.

That means that unless you have done the right research, the right investigation and the right discovery you will have no admissible evidence with which to dispel the notion that the transaction history is anything more than an independent reliable summary of events that is admissible as proof of the truth of the transactions that occurred, and which did not occur with respect to the borrower.

see 18-1719P-01A U.S. Bank Trust v Jones, No. 18-1719

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

The lawyers for the servicer are pretending to be the lawyers for US Bank who knows nothing about the foreclosure and doesn’t care as long as it receives its monthly check in exchange for the license it granted for use of its name to make it seem like this is an institutional foreclosure.

Those lawyers are going to throw this case at you when you challenge the payment history on grounds of hearsay or foundation. Tactically that is what you want them to do because then you can quote from the same case as follows:

the business records of loan servicers may not always carry the requisite indicia of reliability. See, e.g., Brief for National Consumer Law Center and Jerome N. Frank Legal Services Organization as Amici Curiae 12-18. It therefore bears repeating: the admission of integrated business records in this context must turn, as it does here, on the particular facts of each case.

So if you have been reading or listening to my work then you know that I have been saying categorically that if you are able to persuade the judge that your case stands alone or is unique in some respect and NOT try to make blanket accusations about industry practices in general as the focus of your claim, then you are much more likely to obtain a favorable result.

Souter emphasizes that this is a case by case decision and admits that servicer records might be neither truthful nor trustworthy. But that is not enough to bar them from evidence. Your defense can’t be equal to “we don’t dispute what is in those records but we dispute whether those records qualify as an exemption.” You have just slammed the door in your own face.

If you are admitting even tacitly that the debt exists, that you have not paid it, and that there is a loss attributable to your failure to make a payment, you have lost the case. If you admit that the record is accurate, even tacitly by not contesting anything within it, that record is coming into evidence.

The Judge will always find a way. And to be perfectly fair, the judge should  find a way to make justice happen. If you owe the money and the party claiming the money or the foreclosure does so in an effort to pay down the actual debt, they should win and you should lose.

There is no law that says that technical deficiencies should preclude an otherwise valid claim. Sounds like I am arguing for the bank, right?

The rejoinder is that through research and discovery and investigation you have uncovered the following documents from the public records, from the claimant’s records and from regulatory authorities and the following witnesses. They will show that the homeowner disputes the content of those records and has consistently done so since discovering erroneous information on them, and that the transaction history is at best unreliable and at worst a pure fabrication, just as this same servicer has done in these cases……

The legal argument is not that the records are permanently barred or that the truth of the matters asserted are permanently barred. It is that the opposing lawyers must produce a witness who can be cross examined and who can reconcile the factual issues that the homeowner has challenged.

The opposing lawyers will then stipulate for purposes of “judicial economy” that they no longer seek to recover based upon the contested transactions, and that they will reduce their demand accordingly. That looks like you are cooked.

But the rejoinder would be that while the homeowner accepts the admission that the records are incorrect (you ARE allowed to recharacterize the statement of opposing counsel) these erroneous statements were made before the notice letters were sent, which were a legal condition precedent to the pursuit of foreclosure. You argue that they have now failed to comply with statutes that are to be strictly construed where someone is threatened with the loss of their home. Both the amount stated as due and the amount required to reinstate were incorrect.

The whole scenario comes down to the fact that you must use facts to persuade the judge that the opposing attorney must prove his case instead of relying upon legal presumptions and exceptions to the hearsay rule. You must push hard on this because you know they cannot prove the facts, they cannot prove authority, they cannot prove ownership because they are all only doing this for fees, not for recovery on the debt. The lawyers have no knowledge as to the identity of the creditor and they don’t care. You don’t need to prove that. But you do need to raise it as a question mark in the head of the judge.

Those transaction histories might have some accurate information in them but they are being produced by a party who has an actual interest in the outcome of litigation, so they are not trustworthy and they contain errors that the servicing company now admits, although candidly there is a real question as to whether the servicing company is not simply a volunteer out for profit, the same as the lawyer and US Bank.

Also remember to attack foundation this way: US Bank or a trust is asserted to be the claimant. Unless someone can provide foundation testimony based upon personal knowledge that these records are the records of the claimant, then the records of the “servicer” may be barred. No representative of US Bank comes to trial. It is always a representative of a servicer.

In  discovery the absence of records showing disbursements  to creditors by the “servicer” might be sufficient to establish that the transaction history is not the whole story even if it is right and they should not be allowed to enter only one part of the transaction record supposedly conducted in the name of the Trustee or Trust. To whom were they forwarding the borrower’s payments? When did they stop? Did they stop because the debt is now owned by someone else or because it was enver owned by the trustee or the trust?

McDonough v Smith: High Court Open Door on Fabrication of Evidence

This decision is extremely important for 2 reasons.

1st, it reaffirms a right under federal law to bring an action for damages for fabrication of evidence.

2nd, and equally important, it establishes that the time to bring such a claim does not start until the conclusion of litigation, whether successful or unsuccessful.

see Article on McDonough v Smith McDonough v. Smith, No. 18-485 (U.S. Jun. 20, 2019)

See U.S. Supreme Court mcdonough-v-smith-5

see 42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

I am uncertain at the time of writing this as to whether or not any attorney has thought to bring an action for damages based upon this statute. but it certainly seems applicable to foreclosure actions in which assignments, endorsements, notices, correspondence, and even deeds are fabricated for the purposes of obtaining a judgment in court.

[Additional Comments: after analyzing the cases, it would appear that this federal statute provides the basis for a cause of action for money damages and injunction.

However, close analysis of the cases involved strongly indicates that a homeowner will be able to use this statute only if he prevails in the prior foreclosure action.

While many attorneys are bringing wrongful foreclosure claims, and claims based upon fraud, this federal statute is probably an important addition for 2 reasons: (1) the statute of limitations does not begin to run until the case and foreclosure is over and is probably tolled by active concealment; (2) it appears as though the burden of proof might be a mere preponderance of the evidence that fabricated instruments and fabricated testimony were used in the pursuit of a wrongful foreclosure.]

If I am right about the SOL, that eliminates a primary defense of the potential defendants. If I am right about the burden of proof, it makes it far easier to prove a case against the defendants than using a cause of action for fraud.

This statute could be used in conjunction with virtually all foreclosure defenses and which claims of securitization are made and documents are fabricated, robo-signed and forged.

At this point, as any foreclosure Defense Attorney and most pro se litigants can tell you, virtually all foreclosures are based upon some chain of title that includes various alleged transfers or apparent transfers of the subject debt, note or mortgage.

Nearly all such alleged transfers do not exist except for the paper on which a reference is made to an assignment, endorsement, power of attorney or some other document that may or may not exist, and in all probability has been fabricated, backdated, forged and/or robosigned. all such documents are only valid if they refer to an actual event in real life. In connection with loans, the only relevant events are transfers of money. And in real life, in nearly all cases, no transfer of money ever occurred in connection with the execution of documents that were fabricated for the sole purpose of obtaining a foreclosure sale.

if I am correct in my interpretation, the statute could be used to include multiple defendants that might otherwise escape liability for actions alleged in a complaint for damages related to the fabrication of evidence and the use of fabricated evidence in furtherance of the scheme to obtain a wrongful foreclosure.

Great Article on Discovery

While I have often expressed my opinions regarding how to conduct discovery, the article written by Donna Welch, Esq., and Kaitlin L. Coverstone of Kirkland and Ellis LP in Chicago Illinois presents a clearer and more concise blueprint for planning and executing discovery.

see SHAPING DISCOVERY

Some notable quotes:

Have a strategy. Rather than sending a huge number of overly broad requests and deciding later what’s relevant, think ahead about what facts will help you prove your case. If you are the plaintiff, consider what elements you need to prove for each claim and what kinds of documents would help establish those elements. If you are the defendant, approach discovery with your affirmative defenses or counterclaims already in mind. Tailored requests are more defensible if challenged, and can also avoid subjecting your client to equally broad requests. Courts are not fans of scorched-earth discovery with no reason, so be prepared to defend what you think you need and why.

  • Adjust the scope of your requests to the questions at issue. If a particular issue has been resolved and is now off the table, (i.e., through a decision on a Rule 12 motion), make sure the scope of your discovery requests reflects the narrowed scope of the case.
  • Send clear requests. In addition to being tailored, your requests need to be clear. Requests that include vague terminology, multiple subparts, or a series of “and/or” clauses can be unintelligible and make it difficult for you (or the judge) to police compliance. Sometimes it is better to split up a complicated request into multiple separate requests for the sake of clarity. If your opponent objects that requests are vague or overbroad, meet and confer and demand that they explain why. Then, consider whether you can reframe the requests to address the issue without sacrificing what you need
  • Make your objections clear and specific. The need for thoughtfulness also applies to your objections and responses. With recent changes to Federal Rule of Civil Procedure 34, an objection must state whether any responsive materials are being withheld on the basis of that objection. That means that your objections need to be intelligible and defensible. Don’t object to every request as “vague” or “overly burdensome”—courts hate it and you will live by the same objections.
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