Livinglies's Weblog

People and lawyers often say that the judge would not listen. That isn’t true. The judge is listening. He or she is just not hearing well founded objections raised in a timely manner. If you don’t put the nickle into the gumball machine, you get nothing. It doesn’t matter that you had a nickle in your pocket.

I see no reason why automated technologies should not be used. They do make things easier, faster, better and less prone to error. But with machines that create a signature, there is a legal problem of great significance. It creates a loophole through which the largest banking institutions in the world are driving 18 wheel trucks filled with cash.

For purposes of information, if you don’t have the original document or a copy of the original document, then you must account for why you don’t have the document and why you should be considered a party to it. That is basic black letter law. See procedures for lost notes etc.

But what we have been seeing is a fabrication passed off as an original — with no explanation or accounting.

Hundreds of thousands of foreclosure cases were originally filed as “lost note” cases because the original notes were destroyed contemporaneously with the “closing” of the transaction with the homeowner. As admitted by the Florida Bankers Association, it was custom and practice to destroy the promissory note even though it was a cash-equivalent document. Crazy at first blush but nonetheless true.

This was actually uncovered very early in the foreclosure mess that started around the year 2000. By 2007 it was very apparent that if you asked for the “loan file” before the foreclosure process began, nobody had it — and in particular, nobody had the original note. But after the foreclosure process begins the note pops up like magic. The reason became clear when the documents claiming to be original notes were signed with a different color ink than the homeowner used.

And we all know that all State attorney generals filed lawsuits against the securitization players for fabricating false documentation for exactly that reason. Apparently for political reasons the problem was never corrected and still remains. The players promised to mend their ways but did no such thing.

So what we are left with is a document that is not signed, as the word “Signature” is intended to convey. It is marked by machine and presented as the original that was signed by the homeowner. That means that the original is either destroyed (most likely) or lost (also likely). And that means that someone else might have the original or that someone else might be entitled to the enforcement of the note. Or it could mean that nobody is entitled to enforce the note because the obligation has been extinguished. It could mean almost anything.

see https://www.youtube.com/watch?v=N5VB8DuZMv8

https://www.youtube.com/watch?v=ZuIyTwFO5tY

And that is why the mechanical reproduction of signed documents is a hearsay declaration presented by the proponent of the evidence unless there is someone who can testify under oath (and subject to penalties of perjury) that they have personal knowledge of the transaction and the way that the original note was lost and why the proponent is entitled to enforce it.

The only reason why machines are used to fabricate documents as “originals” is to avoid the requirement of producing a real live witness with personal knowledge. Before the era of securitization, they had no problem with producing such witnesses. But now they not only avoid it; they also refuse to do it.

Remember that while it is presumed that possession of the original note means that the possessor is a holder with rights to enforce, the possession of mechanical reproduction does not carry such presumptions. The reason is obvious: it isn’t the original. This brings the claimant or plaintiff in a foreclosure case back to the very thing they wish to avoid: proving the existence and ownership of the underlying obligation.

People forget that the right to enforce must ultimately come from the person who has paid value for ownership of the underlying obligation. This is precisely the issue that has been dodged so successfully in foreclosure litigation resulting in foreclosure sales that inure to the benefit of companies that receive money in exchange for services instead of for the purpose of crediting a loan account.

The courts have all assumed and twisted judicial doctrine out of joint to prove their assumption that eventually the sale results in payment to someone who has paid value for the underlying obligation, owns the underlying obligation, and would otherwise suffer a financial loss if they did not get the monetary proceeds from the sale. That simply is not true.

It is the job of the defender to show (1) the basic black letter elements of a foreclosure case are not actually present or (2) that the opposition cannot prove that those elements are present; either one produces a win for homeowners. Homeowners make strategic errors when they attempt to prove that the elements do not exist. They should be concentrating on revealing that their opposition can not prove the elements —even if they did exist. 

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FREE REVIEW: Don’t wait, Act NOW!

• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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see https://checkbox.flcourts.org/NonAppellate-Judges-and-Attorneys-Opinion-Survey-2021.aspx

I checked “other”.

Here is what I wrote:

The courts are about to be clogged with foreclosure litigation again. The cause of this is the use of archaic preapproved forms from the Florida Supreme Court. This results in shifting the eventual outcome of the case in favor of the homeowner to the end of litigation based upon criteria that should be examined at the beginning of the case. A fast-track system for interlocutory appeals would result in huge benefits to the judicial economy and fairness. Gaming the system through the use of certifications from parties unauthorized to issue them is just one example out of dozens.

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The rule against hearsay does not only impact oral statements—it also applies to written documents, and, unless the proffered evidence falls within one of the multitude of hearsay exceptions or statements that are otherwise categorized as nonhearsay, it is inadmissible in court. One of the most well-known and frequently relied upon exceptions is the “business records exception” found in Federal Rule of Evidence 803(6). Under FRE 803(6), a business record is admissible if “(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

In other words, first, the record cannot have been made in preparation for or as part of the litigation, because such records may likely be inherently untrustworthy or biased, and, second, the record’s custodian must attest to this fact.

see https://www.mondaq.com/unitedstates/patent/1076922/fed-circuit-affirms-exclusion-of-source-code-containing-hearsay

In every foreclosure in which “securitization” is stated or lurking in the background, the sole witness at trial and the persons who are tasked with executing affidavits or “certifications” are relaying entirely on written documents. None of them have any personal knowledge of any transaction about which they are testifying.

Those written documents are produced at trial as “business records” mainly because the witness testifies that they are business records. But if they’re not business records and are merely reports produced for the purpose of foreclosure then they must be excluded under the rules governing hearsay evidence. If the proponent of the hearsay wishes to prove the truth of the matters asserted to be true in the reports generated for foreclosure, it must do so in some other way.

The basic mistake by anyone defending a foreclosure is to assume that the witness is employed by a company that handles payments and disbursements. The payments come from homeowners and the disbursements go to the creditor(s). But the moment you demand discovery about the receipt of payments or disbursement of proceeds you get crickets, objections, and double talk arguments from the lawyers who say they represent the named designated claimant or plaintiff (but who in fact have never spoken with anyone at the named designated claimant or plaintiff).

The reason is simple: the company whose name is being used and promoted as “Servicer” does not handle the money in any manner, shape, or form. Why is that important? If they don’t handle the money, then they are not making the data entries about the receipt or disbursement of the money. It is simple logic. How could they memorialize an event in which they did not participate? If they’re producing reports from third parties who did witness the events, then the “servicer” reports are hearsay. The only competent witness is someone who did witness the transactions.

So if the business records exception to the hearsay requires that the data entry be made “at or near the time by—or from information transmitted by—someone with knowledge,” then the witness for the company claiming to be servicer should not be allowed to testify and is any such testimony is subject to a motion to strike if timely made. But they do testify all the time and their “records” (which are really reports of data received from third parties) are most often admitted into evidence, thus sealing the doom of the homeowner.

There are two reasons for this phenomenon. The first is that there is no well-founded and timely objection from the homeowner. The second, more subtle reason is that once you tacitly or expressly admit the company is a service, most of your objections must be overruled. You have waived the essential truth — that the company is not a servicer.

A third reason is that lawyers have successfully argued that the companies claiming to be servicers received the information from “someone with knowledge.” They argue that even if that knowledge came from a third-party company that is not present or represented in court, that the out-of-court declarations of that third party are still an exception to the rule against hearsay. The obvious argument against that theory is that all out-of-court statements are made by people who profess to have knowledge and therefore there would be no hearsay rule barring such statements from evidence.

So if the business records exception to the hearsay requires that the data entry be “kept in the course of a regularly conducted activity of a business, organization, occupation, or calling” the reports of the company that is proclaimed “servicer” do not qualify for exception unless it did in fact operate a business in which payments were in fact collected and then disbursed to the creditor(s). The absence of such activity should be fleshed out in discovery.

Don’t be confused by the fact that the checks were made out in the name of the company claiming to be a servicer. It is perfectly possible for me to ask you to issue checks in my name and send them to a P.O. box that is not owned or operated by me or on my behalf, which are then deposited into accounts that are not owned by me or operated on my behalf and actually the behest of yet another third party (in this case an investment bank). The people or machines that handle such deposits do not work for the claimed “servicer.” Nobody in their right mind would ever entrust trillions of dollars to thinly capitalized entities — and they never did.

The proof of the pudding lies in disbursements. Servicers have no record of disbursements because they never made any disbursements. They never made any disbursements because, as stated above, they never received the money to make any disbursements.

So if the business records exception to the hearsay requires that “making the record was a regular practice of that activity,” the exception fails again. But the issue is clouded by the fact that the activity of the company claiming to be a servicer was to print out reports from third parties. So it was the product of an activity conducted by the company. but it wasn’t THE activity of receiving or disbursing money.

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FREE REVIEW: Don’t wait, Act NOW!

• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260, 3 PM PDT, 6pm EDT Thursdays

Bill Paatalo joins Host Charles Marshall to discuss an established pattern he has uncovered in Chase litigation of all sorts. Just as Lenin in Soviet Russia days decided political questions based on who the players to benefit were from a given action, whom the victims would be from same action, Chase variously changes their claims of ‘owning’ the debt in securitized mortgages stemming from the WAMU to Chase bankruptcy of 2008, depending on whom they are litigating against. When the other party to their litigation over securitized mortgage loans is a borrower, they claim for these WAMU to Chase loans an ownership interest and role.

When the other party to the litigation is instead an investor and/or an insurance company, involved with the securitized trust at issue, then Chase conveniently disclaims the type of ownership role in which they naturally and derivatively would be liable for defects in the securitized trust at issue.

Then Charles Marshall will do what might be a last call of sorts on the National Foreclosure Moratorium, covering how homeowners can still potentially take advantage of the forebearance options available through the Moratorium. The companion Eviction Moratorium is also slated to end June 30, 2021.

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The big change occurred when the Wall Street securities firms forced securitization practices over the line. Whereas the purpose of securitization had always been to reduce risk, the investment banks meant to eliminate it. The only way you can eliminate the financial loss from a failed asset is if you don’t own it. That is basic accounting, basic law and common sense.

If you don’t own an asset there is no basis in the law that allows you to claim a loss if the asset is somehow damaged (assuming it even exists). If you have no loss then you have no claim and the court ahs no power to grant you any “relief”.

Why knowledge of accounting is important to understand how the apparent debt vanishes in the context of securitization.

Before 1995, all homeowner transactions were subject to the same accounting rules. Accounting consists of making data entries and issuing accurate reports about those data entries. All laws, regulations, and rules about data entries and reports are based upon compliance with Generally Accepted Accounting Principles and practices (GAAP). And all of GAAP is based on double-entry bookkeeping.

Double entry, a fundamental concept underlying present-day bookkeeping and accounting, states that every financial transaction has equal and opposite effects in at least two different accounts. It is used to satisfy the accounting equation: Assets = Liabilities + Equity. With a double-entry system, credits are offset by debits in a general ledger or T-account. See https://www.investopedia.com/terms/d/double-entry.asp

In legal practices and doctrines, such accounting entries and reports are considered evidence that transactions occurred. And if the entries were made by an employee of the company who personally received shipment or payment, that employee would make data entry of that receipt. The data is then processed through an accounting department that matches that entry with a different data entry showing how or why that shipment or money was received. In the simple example, if someone receives a payment it will be posted as a data entry of cash received. Accounting would post it as an increase (credit) to the cash account and a decrease (debit) of a prior account established with a product that was sold and converted into an account receivable.

Each data entry has a corresponding entry in some other account. If you paid for something, you would show a debit to cash and a credit to inventory for the product received. The outside auditor (or a court) takes all that as evidence of an event in the real world — unless, on examination, it turns out that the product was never received or that the cash was not used for the purchase of the product, such as in embezzlement.

So in a residential loan transaction, the lender keeps an accounting ledger in which all data entries are compiled. When the lender gives a borrower money, the lender debits a cash account and then credits another asset account to take the place of the cash it used to fund the loan. That other account is generically described as a loan account receivable. In general banking practice, a depository loan account is created in the name of the borrower, and the money proceeds from the loan are deposited into the name of the borrower. The borrower, if he or she was a business, would keep an accounting ledger that showed an increase (credit) to the cash account and an increase in accounts payable under the subcategory of loans payable.

So when the lender comes to court asking for foreclosure, it satisfies the prima facie elements of the claim for foreclosure by saying we loaned money to the defendant, we have the records, the defendant paid us until he didn’t, and we are suffering financial loss or injury arising from the defendant’s failure to pay. That would et them past the pleading stage.

Then at trial, the lender would produce its records custodian who would testify that he/she keeps the records for the lender. At the request of the Attorney for the lender, the custodian would provide the foundation testimony to establish that he has personal knowledge of how the books and records are kept, who receives payments, how they record them, and how the data entries are then recorded into the account ledgers of the lender. If the borrower contested whether payments were accurately entered, the lender would be obligated to produce a witness who actually received or supervised the receipt of payments from the borrower.

And so it was — for centuries.

Starting in 1995, the securitization system based upon “derivatives” (which began in 1983). So securities brokerage firms set about buying loan portfolios, initially, which evolved into borrowing to buy loan portfolios of real loans from real lenders. The first such activities were performed in accordance with the theory and intent of securitization of residential debt. Investors bought pro-rata interests in the portfolios which were managed by master servicers who subcontracted the work to subservicers. it was all perfectly legal but the securities brokerage firms were limited in sales to the dollar value of the loans. That in turn limited the commissions and fees to a percentage of the loan portfolios being traded.

Around the year 2000, everything changed. The securities brokerage firms started executing a plan that would give them multiples of the amounts traded as “loans” instead of percentage commissions. As an analogy, imagine a car salesman suddenly finding a way to get $500,000 for every car he/she sold for $40,000. If his/her commission was 5% the earings would increase from $2,000 to $500,000. And even if his scheme was somewhat illegal or extra-legal he would have enough money to pay off everyone around him to shut up, giving them more money than they had ever seen in their lives.

The rules of accounting and the rules of law are the same. If you don’t own an asset you have no financial loss associated with the loss of the asset. And that is because there is no account that gets debited or credited with any payment or disbursement related to the asset. According to GAAP and the law, if there are payments and disbursements, they are not related to an asset if it is not owned by the party who made or received payment.  Without that, the courts are without any authority to hear any dispute relating to the asset. If the party making a claim does not own the asset, it cannot claim a financial injury. And without a present financial injury, there is no claim.

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FREE REVIEW: Don’t wait, Act NOW!

• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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Homeowners attempt to “disprove” the presumed facts by raising questions. But the questions are directed to the judge instead of to their predator. The judge has no obligation to answer such questions and in the absence of some procedural reason raised by the homeowner will and must decide in favor of the fraudster because the victim failed to properly defend.

I think that I have not made securitization, as practiced, clear enough. In the context of securitization, there are only two possibilities for a “loan” transaction with a homeowner. One is that the transaction was never a loan and the other is that it ceased being a loan. People get confused by the fact that securitization (i.e., issuance of securities) occurred.

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1. Although you issued a promise to pay, it does not currently appear as an asset on the books of any company or person. THAT ABSENCE IS A FATAL DEFECT IN ANY CLAIM AGAINST YOU. The process of securitization extinguishes all risk of financial loss by extinguishing the underlying obligation and therefore the legal debt. Any aggressive effort in discovery on your behalf that requires the opposition to show the existence of a loan account receivable due from you and any documents or transaction history in which the loan account receivable was established will reveal its absence, or the inability to prove the existence of the debt. Either one is equally effective in defeating claims to enforce it.
2. The absence of the asset is legally equivalent to the absence of a creditor.
3. The absence of a creditor eliminates or completely undermines any claim to represent a creditor.
4. The company claiming to be the servicer is not performing and never has performed any servicing functions such as the collection of money or disbursement of money. Therefore any record (e.g. payment history) is not admissible as an exception to the hearsay rule since neither the “servicer” nor its predecessors ever handled any money from anyone.
5. The lawyer who filed the foreclosure has most likely never had contact with the named designated plaintiff or claimant. Hence while the filing of the lawsuit is an implied representation that the lawyer represents the named designated claimant or plaintiff, it is not supported by facts in the real world. Efforts to pierce through this veil and hold the attorney accountable have failed because of the faulty application of litigation of immunity.
6. If the foreclosure nevertheless results in the formal sale of the property and a deed is issued, the proceeds of sale from the auction or the liquidation of REO property will not result in posting a credit to any loan receivable account. The money proceeds will instead be distributed as either revenue or uncategorized receipts that are frequently channeled to offshore accounts.

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documents that pledged, sold, transferred anything relating to transactions with homeowners were regularly fabricated with false information and then used in subsequent documents as though there was actual trading going on. But there wasn’t. And there isn’t. And that is why the opposition in foreclosures can never give a straight answer to questions about any presumed transaction in which value was paid for the document purporting to make such transfer, assignment, appointment, or endorsement. No such transaction exists.

This is not subject to debate. It is however subject to testing. It is the reverse of “ask and ye shall receive.” If you ask, you will never receive. The homeowners who win foreclosure are those who used that fact — the inability to produce evidence in lieu of legal presumptions about transactions in which rights were sold.

The big lie is that anything happened when in fact nothing happened. It started with the origination of the transaction with the homeowner when the homeowner received money under the false premise that the money paid to him/her or on behalf of the homeowner, was paid as part of a loan transaction. As a result of that false premise (in most instances) the homeowner is lured into signing conventional-looking “loan documents.” What is missing is any statement or confirmation that the named lender ever loaned money to the homeowner. Because it is an absent element, nobody notices this glaring error unless they are a lawyer who is pondering the situation.

Up until the era of securitization, there simply was no reason for questioning whether the named “lender” was engaged in a loan transaction or something else. What else could it be? And with lawyers now being cut out of most of those transactions, nobody is questioning anything. But in nearly all such transactions the named “lender” was not engaged in the practice or effect of “lending” and since most such transactions were “refinanced” it may fairly be said that in most cases, no consideration was paid.

The only exception would be cases in which the homeowner received extra cash out of the “refinance”. In those cases, to the extent of money received the homeowner received at least some consideration. The rest of the consideration —paying off the old “debt” — has not occurred.

The purported “refinancing” is merely an elaborate scheme to start a new securitization scheme in which unregulated securities are sold to investors without ever retiring the homeowner, debt (which no longer exists), or retiring the old securities that were issued.

Unlike the business of lending money, securitization is an infinite process because the securities do NOT convey any right, title, or interest to any underlying obligation, legal debt, note, or mortgage issued by the homeowner. Untethered from any representation of ownership of the promise issued by the homeowner, the investment banks could issue an infinite number and variety of securities that were merely referenced on reports about the transaction with eh homeowner rather than ownership of anything arising from the transaction with the homeowner.

And before you say that is impossible, think about this. Why did the banks hire more than 10,000 convicted felons in the state of Florida to sell these financial products to homeowners? The felons were all convicted of economic crimes. They were already vetted for the one purpose that the banks wanted — i.e., to lie with a straight face and be convincing. How else did people who were delivering pizza without any education or training, go from earning over wages to millions of dollars? Where is that money come from? Do the math! It can’t be from the interest income from a loan that is purportedly the nature of the transaction with the homeowner. There is no enough interest in the world to cover the huge commissions and profits that were paid to everyone who was in on this feeding frenzy.

But in order to maintain the illusion, the banks needed to get creative after the origination of the transaction with the homeowner. They needed to establish a paper trail that would lead everyone to believe that multiple parties were engaged in due diligence and trading interests in transactions with homeowners when inf act no such trading occurred.

And they did this by eliminating a statement from documents that appeared to be facially valid. The statements, as is required today and for all time by anyone during business with a bank, is called a warranty and essentially says “I own this property or right.” Such statements are universally missing in action in all chains of all documents leading up to claims of administration, collection and enforcement of the “loan closing documents” (note and mortgage) issued by the homeowner.

The banks knew that if institutions were named in documents they would be presumed to have been involved. The idea that any large brand name commercial banking institution license the use of its name in an agreement with Wall Street securities brokerage firms that operated as “investment banks” had some precedent in payday loans, but never before on his scale. So with tacit or explicit permission that concocted documents in which the names of government entities and large band name banks were used even though they had no involvement in any transction.

So documents that pledged, sold, transferred anything relating to transactions with homeowners were regularly fabricated with false information and then used in subsequent documents as though there was actual trading going on. But there wasn’t. And there isn’t. And that is why the opposition in foreclosures can never give a straight answer to questions about any presumed transaction in which value was paid for the document purporting to make such transfer, assignment, appointment, or endorsement. No such transaction exists.

This is not subject to debate. It is however subject to testing. It is the reverse of “ask and ye shall receive.” If you ask, you will never receive. The homeowners who win foreclosure are those who used that fact — the inability to produce evidence in lieu of legal presumptions about transactions in which rights were sold. In the end, no robowitness, no document, and no other report or evidence can ever establish an event that did not occur — unless it is offered or proffered and the homeowner fails to contest it.

Just because a loan was pledged, doesn’t mean that there was any warranty of ownership nor any previous purchase of the underlying obligation. That is precisely the game they are playing. They keep issuing documents that purport to transfer something hoping that it will give rise to the assumption that something must have been transferred. They do this in assignments, pledges, and various other instruments that bear a title of some conventional name of a document of action or transfer of ownership or rights.

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• BREACH of DUTY
• DAMAGES
• CAUSE OF DAMAGES

DONATE TO APON!!

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Thursdays LIVE! Click into the Neil Garfield Show

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

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This has a very substantial effect on the legal status, duties, rights, and obligations of the parties that are concealed from that point forward. Since the originator never received any money, it was neither a borrower nor a lender. The mask of advancing money on behalf of the originator is removed when the process of underwriting and accounting for the transaction is analyzed. And this is common sense.

*

No Wall Street company (or anyone else!) is going to pump hundreds of billions of dollars into or on behalf of a company that can’t possibly answer for mistakes, errors, omissions, or malfeasance (see Taylor Bean and Whitaker). It may have occurred a couple of times, but on the whole, it would be just stupid to allow the temptation of skimming the money flow to the tune of hundreds of millions or even billions of dollars. And no Wall Street company has agreed to do that. There is no warehouse loan. This is a table-funded transaction that was not even a loan at all.

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What is hearsay evidence?

The old Rules on Evidence did not define hearsay. Evidence is hearsay if the probative value is not based on the personal knowledge of a person. The knowledge is that of another person and is not a witness to the case.

It is the personal knowledge that determines what hearsay is because evidence outside of personal knowledge may be considered unfounded information.

Hearsay is now defined as a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. The statement may be an oral or written assertion, or a non-verbal conduct of a person, if it is intended to be an assertion. Hearsay evidence is inadmissible except as otherwise provided in the Rules…

see https://www.panaynews.net/hearsay-rule/

I actually found the clearest explanation of hearsay in a plainly worded article for Panaynews.com in the Philippines by Ayin Dream D. Aplasca. 

It is a very simple proposition. The Court will not allow evidence that is not presented from a credible natural person with personal knowledge of the facts in dispute and who is subject to testing before and during the trial.

What is happening in foreclosure trials across the country, and sometimes even at Summary Judgment is that testimony or affidavits are being accepted into the court record from natural breathing persons who have no personal knowledge about anything relevant to the case at bar.

Everything that is contained in their live testimony or affidavit (assuming they signed the affidavit — see robosigning) is based upon data obtained from an outside source. The witness or affiant knows nothing about the transaction with the homeowner and has never had any communication or other involvement with the homeowner starting with the origination up to the moment that such testimony or affidavit is offered.

Further, the witness or affiant is not employed by the named designated claimant in the foreclosure proceeding. Rather, he or she has been designated to testify on behalf of a company claiming to be the servicer for the named designated claimant. Usually, the witness or affiant has no other job except testifying so they actually know virtually nothing about their “employer” who frequently pays them as an independent contractor working out of their home.

And lastly, their “employer” has been party to many settlements or judgments in which lines, damages, and agreements were reached in which the employer agreed to stop fabricating false documents for foreclosure.

Only in foreclosure cases would such a person be allowed to set foot in the courtroom other than as a spectator.

With that backdrop, it is astonishing that such a witness would be allowed to testify or that their affidavit would be accepted into the court record much less used as the truth of the matters asserted. But the truth is the ignorant robo witness is accepted, their testimony does come into the record and it is relied upon by most judges as the only relevant evidence in the case.

This does not happen because judges are corrupt or biased. It happens because homeowners litigating for themselves do not know how to litigate and lawyers who represent them fail to prepare properly for hearings and trial. As an old mentor of mine once said, “Objections are not miracles that show up at trial. They are the product of preparation and strategy.”

In most cases(not all) properly framed, well-timed objections are sustained by trial judges. In most cases, any such objection that is sustained will be followed by a motion to strike the evidence that was offered by the witness who knows nothing, saw nothing, and can only testify according to a script that has been memorized.

That motion will also be granted — but only if someone asks for it. If the litigant does not ask for it, the judge is prohibited from inserting his own strategy in place of the strategy (or lack thereof) of the litigant. I have personally conducted interviews and otherwise spoken privately with people I know who serve on the bench. They are constantly amazed by what litigants allow the other side to get away with.

The obvious conclusion is that the only component of allowable evidence that is being presented in most foreclosure cases is a natural breathing person. No other elements are present.

But the way the system works if you don’t know the elements and proper timing of objections based on hearsay, foundation, leading, etc. you are probably not going to properly object when the objectionable question and answer was staged. And if you don’t know enough to ask the court to strike the objectionable answer that came out while you were objecting it stays in the record and it almost always is considered by the trier of fact.

There are two morals to this story. Stop pretending you know when you don’t. And stop pretending that you are prepared when you have not considered the crucial elements of the prima facie case and a cogent plan to undermine the ability of the opposition to establish that case against the homeowner.

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FREE REVIEW: Don’t wait, Act NOW!

• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Filed under: foreclosure | Leave a comment »

Press Release

June 6, 2021

American Property Owners’ Network

Announces Launch of Program to Stop Most Foreclosures—

APON Members Will Be Invited to APON/Garfield Q & A Webinar

Those Who Join APON by today get into the Zoom Webinar free

The American Property Owners Network (APON) formed a year ago with the express mission of organizing mass political and judicial action to assist groups of property owners whose property rights are being threatened by unlawful practices of common foreclosure claimants.

APON and others concerned about the influence of global banks and the financial sector over our government, as well as how the pandemic will affect homeownership, are going to court in Florida in a lawsuit to change foreclosure court proceedings, which could greatly limit the ability of current foreclosing parties to take people’s homes and property, and stop the upcoming tidal wave of foreclosures across Florida and the country. Renowned financial expert and foreclosure defense attorney Neil Garfield will lead the fight.

The new agreement about the suit was announced between The American Property Owners Network (APON),  a 501c4 non-profit organization, and GTC Honors, Inc. which sponsors several blogs, meetings, CLE seminars for lawyers, and seminars for homeowners seeking to avoid foreclosure.  The agreement seeks to grant funds to legitimate efforts to conform rules, forms, and court procedures to the current realities arising from claims of securitization of debt. In general, current rules do not conform to the UCC requirement for sworn validation of a debt prior to the start of any foreclosure litigation, which gives rise to false documents being filed in court by foreclosure claimants who have no legitimate claim, or right to any debt. Everybody who joins APON today will get free entrance into the upcoming Webinar (see below for details), at which Neil Garfield and APON will answer questions from participants and the press.

APON also seeks to organize mass court actions for damages against the large investment banks and their co-venturers for falsely initiating foreclosure process on debts that either do not exist or obligations that are not owned by the named claimant. Larry Nemec, APON’s President summed up their efforts: “After nearly a trillion dollars in settlements, with the megabanks, we still do not have any resolution in our society about past, current or future attempts at unlawful foreclosure. We intend to do something about that and now we think we have a coherent plan and skilled people to do it.”

APON is sponsoring a Zoom webinar/press conference/membership drive Webinar on June 23rd, with Neil Garfield, a nationally-known financial expert, and foreclosure defense attorney.  The attorney and APON representatives will be answering questions from attendees. Those who join today will be invited to register for the event without charge. Others who register will be charged $49, in order to raise money for APON’s upcoming litigation.

To sign up to be a member and/or to volunteer, go to www.apropertyownersnetwork.org., scroll down to the bottom of the homepage and fill out the form.

Filed under: foreclosure | 3 Comments »

Most pro se litigants and many attorneys start the defense with “yes, but”. But the successful defense starts with “what obligation?”

Technically speaking, the mortgage is not evidence of the legal debt or the underlying obligation. It might not even be evidence of the note. The note is evidence of an underlying obligation.

Filed under: foreclosure | 3 Comments »

there is no incentive for the homeowner to sign the absurd documents falsely declaring that the transaction is a loan and that the counterparty is a lender. The homeowner is only left with financial loss and prospective loss of property, possession, quiet enjoyment and lifestyle. 

At the conclusion of the transaction with a homeowner, the homeowner is left without a lender, without lender compliance with lending the laws, and without a loan account. There is no possibility of settlement or modification except on a random arbitrary basis as ordered by the investment bank that controls the securitization process without ever loaning money, buying loans, or owning debt.

The counterparties to his or her transaction have an incentive to inflate the appraisal and overstate the viability of the loan in a fake underwriting procedure. The homeowner is providing the sole basis for the launch of a securitization scheme that will generate $12 for every dollar transacted with the homeowner. The fee, therefore, is the money received by the homeowner which is about 8% of the scheme. But the lie about the “Loan transaction” lures the homeowner into paying back the fee plus interest and fees.

So the bottom line is that the homeowner is assuming risks that are outside of any normal loan transaction. This includes the immediate loss associated with the inflated appraisal and the future loss generated by terms and conditions that are only understood by the investment bank that controls the securitization process. Further, the homeowner is getting negative consideration because he or she is required to pay back the fee with interest and fees involved in the fictitious servicing of the “loan” account.

The remote sellers of these warped financial products are already offering absurd incentives if one were to use the perspective of a loan transaction. They will pay everything including your first few payments. And practically every service provider and every sale of every product involve a concurrent or offer of fictitious credit funded by a securitization scheme in which securities are issued but no securitization of death ever occurs.

Instead of paying people who were felons convicted of economic crimes to sell these financial products, the incentive payments should go directly to the homeowner. It is the homeowner who is assuming all the risks. Nobody fails to receive an expected payment that is legally due regardless of whether or not the homeowner makes a scheduled payment.

The securitization scheme resembles artwork by M.C. Escher who famously created a work called Penrose Staircase or “the impossible staircase.” Without the homeowner agreeing that this is a loan transaction and agreeing to make payments there can be no sale of securities that are referenced upon the data of that transaction, regardless of the ownership of the “rights” supposedly acquired in that transaction.

But it isn’t a loan transaction. Since the homeowner is the unwitting participant in this endless series of fabrication and deception, they should be paid for it. If the homeowner is going to agree to pay back a certain amount of money, then in order to grant the homeowner some consideration for participation in a highly profitable securities sales scheme, he or she should get much more money (another 8%)?) Without that there is no incentive for the homeowner to sign the absurd documents falsely declaring that the transaction is a loan and that the counterparty is a lender.

The homeowner is only left with financial loss and prospective loss of property, possession, quiet enjoyment and lifestyle. 

Filed under: foreclosure | 7 Comments »

Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show

with Attorney Charles Marshall

Or call in at (347) 850-1260, 3 pm Pacific Thursdays

The National Foreclosure Moratorium and associated forbearance enrollment applying to various Government-back loans (Fannie Mae, Freddie Mac, HUD/FHA, VA, USDA), is set to expire June 30, 2021. As of this date, a possible extension to let’s say September 30 does not appear to be on the horizon, though it may still happen.

The national eviction moratorium thru the Centers for Disease Control (CDC) likewise expires June 30.

Today on the Show we will break down the nuts and bolts of what these foreclosure and eviction protections have looked like, and also cover what to expect in the months ahead, including discussing the various end dates of certain State deadlines, which largely track the Fed expiration of June 30. A notable outlier is New York, which extends its eviction ban through August 31, 2021.

The hidden problem is that many homeowners and renters have been lulled into a sense of complacency about the mounting charges for rent and claims for mortgage payments. HIt by economic hardship, many households had to spend the money on other necessities to live. They don’t have the money to pay off the “arrears.” And many still don’t even have the income to do so.

This presents a myriad of issues. But first, you need to start with the basics of the elements and requirements of the moratoriums and then move on to the elements and requirements of making a claim for a debt that may not exist or which cannot be legally claimed by the lawyers or parties who are making the claim.

Filed under: foreclosure | 1 Comment »

The debt is like the ball in a baseball game. It is either there or not there. It doesn’t get invented at the end of the game. If it is not there then all you are watching is a video game that portrays a baseball game. If the debt is not there, there is no claim, no lawsuit and no foreclosure.

This is the discussion that Wall Street banks willa void at any cost. Once called upon to produce the debt, they are dead in the water.

It is very challenging for someone like me to find the best words to describe what the Wall Street banks are doing. Back in 2006, I used the food processor analogy. I said if you put the apple, orange, and banana in the food processor it is impossible to bring the apple to court with you because you can’t reinvent it. It’s gone. That was interesting but it didn’t help as many people as I wanted.

Recently I hit upon a new analogy that I think makes the case more succinct. I continue to talk in legal terminology about the debt, which is the point of any effort to administer, collect or enforce any written instrument (note or mortgage) signed by the homeowner.  If there is no debt in play then there is no case to adjudicate regardless of how badly someone wants to get money from a homeowner. Our legal system does not intentionally permit people to use legal processes purely for fun and profit. But there are loopholes that enable people to do so.

So the analogy is a baseball game. Is there a game if there is no baseball? In the courtroom that is an interesting question. If there is no baseball and the players are on the field swinging bats, raising their baseball gloves, and running around the field what would be happening? Anyone who has recently watched a spectator sport knows that the broadcaster uses technology to enhance the viewing experience. So for example in hockey or baseball where it isn’t easy to see the ball anyway, they use graphics to show you the location and direction of the ball or puck.

You see where this is going. Since you probably can’t see the ball or puck, why not just have the players be actors pretending they are hitting or catching the ball or puck? Wouldn’t it be true that virtually nobody would know the difference, since everyone relies now on computer graphics. The players have in large part become actors in a drama, rather than actual competitors.

So the answer to all of the questions is simple: was there an actual baseball or not? That answers the question of whether any of the actions portrayed on your TV were real or not. In court, here is how it plays out.

Imagine that enforcement of gambling debts was legal and that someone (the promoter of the event) was suing you on a bet you made on that baseball game that had no baseball. According to them, you lost the bet and you didn’t pay. They would say that you placed a bet on the outcome of the game and that would be true. They would say that you didn’t pay it which would also be true. They would produce business records showing the broadcast, which would be accurate even though such records would not be true.

Your defense would be that you were betting on the outcome of a competition and not a drama that was scripted by the people who seek to enforce the bet. And you would be right. And now, here is how the promoter of the drama (“game”) would win.

By making the initial allegations about the bet and the failure to pay out, along with a direct allegation of financial loss caused by your failure to pay, the claimant/plaintiff has filed a complaint that states a cause of action and it will survive a motion to dismiss even though there was no baseball and no game in the real world. The event that was the subject of the transaction never occurred. 

That means judgment will be entered against you unless you raise defenses and deny the allegations of the complaint in whole or in part. The promoter of the event will have had their lawyers draft it such that you are unlikely to be able to deny the main allegations. So you would be forced to allege affirmative defenses and prove them. You can’t prove that the game never happened and that it was only a scripted drama without getting discovery from the promoter who has the information that would prove your affirmative defense.

So if you don’t demand discovery and enforce your rights to discovery you will lose at summary judgment or at trial even though there was no baseball and there was no game. The entry of judgment will be regarded by all courts as presumptively valid which means that there was a ball even though there was no baseball. It will also be rewarded and legally treated as presumptively true that there was a game when there was only a drama.

If you do challenge the “contract” starting when you suspect there is no game, and you are aggressive and persistent about it, you win. If you don’t, you lose.

Moral of the story: Either the ball is there or it isn’t. Either debt is there or it isn’t. What you will find is that companies like Caliber come right out and say that ownership of the underlying obligation doesn’t matter until you get to foreclosure. That just isn’t true. You can’t deny ownership or fail to report ownership and then invent it at the end of the drama. Ther est simply act that way and pretend to “sell” ownership or servicing rights to a debt that they do not own, and which does not appear on any accounting record as an asset.

The plain facts are that the presence of securitization means that there is no loan. It might be that the “loan” was extinguished by securitization or it might be that there was no loan in the first place because the transaction with the homeowner was strictly for the purpose of securitization. Either way, there is no debt if there is no accounting record of any company claiming your “debt” as an asset. if they don’t claim it, there is no foundation for alleging the debt exists. If they don’t claim it, there is no allegation of loss (which is why they never make that allegation). And that is why, in the final analysis, you want to see the money trail and the accounting records of the creditor, not the company claiming to be a servicer.

And speaking of morality, there is nothing wrong with allowing the homeowner to break free of an illegal contract. Homeowners were tricked or forced to participate in a business scheme that was entirely focused on the creation, issuance, and sale of securities. Homeowners were given money to execute the documents that made that scheme possible. They were then deceived into thinking it was a loan thus excusing the demand that the homeowner agrees to pay back the fee they received to start the securitization scheme, which is about 8% of total revenue. There was never any debt. there was only the graphic illusion of a debt that virtually everyone believed.

And THAT is why nobody ever lost money from a homeowner’s refusal or failure to make the scheduled payment on an illegal contract. With $12 revenue for each $1 of the homeowner transaction, everyone got paid. Nobody ever receives less money that month, quarter, or year because you finally stopped paying. And nobody who gets the money proceeds of forced sale of your home in foreclosure proceedings ever accounts for that money as reduction of debt — because there is no debt.

Filed under: foreclosure | 1 Comment »

JOIN US IN STARTING A MOVEMENT!!

CHANGE THE RULES AND FORMS

A rule change would require the named Plaintiff/Claimant, and its attorney to certify due diligence and factual accuracy including an assertion that is not currently required: that the named Plaintiff is suffering financial loss as a result of the homeowner not making a scheduled payment. Without that simple premise being 100% satisfied, there is no assurance that a homeowner won’t be losing their house to satisfy a profit motive (which is NOT allowed by law) rather than to satisfy a debt owed to the party who initiated the foreclosure (which is the ONLY thing allowed by law). 

Parties who are creditors are allowed to preserve profit through enforcement. They’re not allowed to create profit through enforcement. 

The reason banks and their lawyers would oppose such a change is that they can’t satsify such a requirement without lying. Failure to make the change in the rules will produce another “court run” with a tidal wave of foreclosures on a new “rocket docket” powered by faulty assumptions, lies and erroneous presumptions used to satisfy greed rather than debt.  

Many of you are aware that I am involved with APON (American Property Owners Network) in Project Rule Change involving a Petition for changes in the rules, procedures, and preapproved forms currently utilized in foreclosure. Most people don’t even know such forms exist. But the current one used as a “guide” in Florida, for example, allows a party to file the action without giving any assurance that a creditor is filing and no assertion that the action is filed to satisfy a debt owed to the named Plaintiff/claimant.

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APON is now hiring lawyers and other professionals and has started fundraising. I am inviting lawyers to participate in this venture by filing petitions in all U.S. jurisdictions. I am specifically including invitations to certain lawyers whom I regard as having been disbarred because they were successful at foreclosure defense. I also am inviting all other homeowner organizations, large and small, to join this effort. I don’t want to inundate APON management with phone calls and emails.

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So I have devised a form that you can fill out if you are a prospective contributor to this effort. There is no limitation on who can participate. Anyone who thinks (or knows) that the investment banks have acquired too much power by promoting the myth that they are too big to fail can join this effort.

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Whoever you are. you can contribute money, time, and/or effort to this project. If you have advanced legal skills (courtroom experience as a litigator), or if you have organizational skills for fundraising and writing grant requests. APON is completely open to alliances with other organizations.

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Please CLICK ON THIS LINK to show your support. This is a new project that is being initiated under the name “LendingEyes.” In a petition to the Supreme Court of Florida, we will likely name APON and individual homeowners as Petitioners, along with lawyers who agree with the effort.

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We are planning on petitioning the Supreme Court in each state because that is the ultimate arbiter of preapproved forms and rules of engagement — I..e., who must allege, certify, and attach valid documents to a complaint. While legislative changes might be helpful, that might be a bridge too far since it is only in foreclosure proceedings that this problem exists.

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In nonjudicial states, the petitions will be similar but not the same as in judicial states. We believe that the rule change in nonjudicial states should require the realignment of parties if the foreclosure is contested. That means that while the homeowner can file a complaint for a TRO, the parties should be realigned such that the claimant, beneficiary on the deed of trust must allege the same things as in judicial states, and the homeowner must be allowed to file affirmative defenses in recoupment — something that is currently barred by the current application of the rules.

The reason to pursue a change in the rules and forms is that the current rules and current forms allow a party to file a foreclosure without alleging, certifying or even providing an exhibit that asserts compliance with Article 9 §203 UCC.

The current rules and forms allow the foreclosure lawyer to escape dismissal without alleging financial loss arising from the conduct of the homeowner. Judges make presumptions both from the pleading and the current rules and forms approved by the Supreme Court. They assume that the plaintiff is a creditor and that the homeowner is in default of payment due to that creditor. Neither one is true but the judge has no way of knowing that.

We believe that a homeowner should be allowed to invoke this new procedure without the requirement of going to a lawyer. This is not an endorsement of pro se litigation. Attempting to perform procedures that are unknown to the pro se litigant is as dangerous as performing surgery on oneself. Once in litigation, the homeowner should select trial counsel. However, we believe that the expected tidal wave of new foreclosures will be vastly reduced by the requirement of swearing under oath that the named claimant/beneficiary/plaintiff has actually suffered a financial loss to its loan receivable account owed by the homeowner.

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It is one thing to point to a statute and say an act is against the law. Murder is against the law but that law does not stop people from committing that act. In foreclosure, the illegal act is initiating the foreclosure process without any intention of paying off debt. Without a rule change, this will continue to be done and will continue to be seen as an institutional practice.

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The law is very simple. You may not initiate the foreclosure process without first paying value for the underlying obligation. The banks have been successful in avoiding that requirement by implication. They have fabricated documents to imply the payment of value despite the absence of any transaction in which any payment could or would be required.

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A rule change would require the named Plaintiff to acknowledge the action (like U.S. Bank, as trustee, etc.), to directly and explicitly assert ownership of the underlying obligation by virtue of a transaction in which the named Plaintiff paid value or, if a trust, then a settlor or trustor paid value in exchange for ownership of the underlying obligation.

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If the named claimant in foreclosure proceedings can satisfy the requirements already in the laws of every state then they should be allowed to appoint whatever servicers, collectors, lawyers, or anyone else to enforce payment. If they cannot, then none of the parties claiming authority (to enforce, collect, or even administer the presumed existence of any obligation owed by a homeowner ) are operating legally and within the requirements and intent of existing law.

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The reason banks and their lawyers would oppose such a change is that they can’t satsify such a requirement without lying. Failure to make the change in the rules will produce another “court run” with a tidal wabve of foreclosures on a new “rocket docket” powered by faulty assumptions, lies and erroneous presumptions used to satisfy greed rather than debt.  

The reason to pursue a change in the rules and forms is that the current rules and current forms allow a party to file a foreclosure without alleging, certifying or even providing an exhibit that asserts compliance with Article 9 §203 UCC.

The current rules and forms allow the foreclosure lawyer to escape dismissal without alleging financial loss arising from the conduct of the homeowner. Judges make presumptions both from the pleading and the current rules and forms approved by the Supreme Court. They assume that the plaintiff is a creditor and that the homeowner is in default of payment due to that creditor. Neither one is true but the judge has no way of knowing that.

We believe that a homeowner should be allowed to invoke this new procedure without the requirement of going to a lawyer. This is not an endorsement of pro se litigation. Attempting to perform procedures that are unknown to the pro se litigant is as dangerous as performing surgery on oneself. Once in litigation, the homeowner should select trial counsel. However, we believe that the expected tidal wave of new foreclosures will be vastly reduced by the requirement of swearing under oath that the named claimant/beneficiary/plaintiff has actually suffered a financial loss to its loan receivable account owed by the homeowner.

Filed under: foreclosure | 4 Comments »

Blaming the system might be a good argument in politics; but it rarely produces a beneficial result in the courtroom. The investment banks have found a way to weaponize the system against homeowners; but homeowners have the ability to reverse that by attacking the foundation of the claim against them.

When a document says that value was paid, you can ask questions about the transaction in which value was paid. If they can’t answer the question you can invalidate the presumption that there was a transaction in which value was paid, and thus invalidate the entire document. With no document, and no evidence of a transaction, the claim is defeated even if it was valid.

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Summary judgment is a court procedure in which a judge decides whether there are any factual issues in dispute that are relevant to the outcome of the case. If there are no such factual issues in dispute, the judge will render judgment. The judgment could be for either side. But ordinarily, the judgment is in favor of the proponent of the motion.

Filed under: foreclosure | 4 Comments »

As mortgagee of record, MERS holds mortgage liens. When MERS serves as mortgagee of record, it does so as a nominee of the corresponding Lender and that Lender’s successors and assigns. It is through this nominee relationship with the current Lender that any separation or splitting of the mortgage from the note is prevented. In other words, if the Lender is succeeded in interest by another party (e.g. through a merger or acquisition) or if the Lender transfers the note to another party (e.g. the note is sold and negotiated) then MERS will continue to act as mortgagee on behalf of (i.e. as a nominee of) that new Lender, which is a successor or assign of the previous Lender. It is only when MERS actually assigns the mortgage (i.e. a MERS Signing Officer executes an assignment of mortgage) that MERS no longer holds any interest in the mortgage and the lien is transferred.

see MERS_System_Procedures Manual

MERS never holds any mortgage liens. What they fail to say is that MERS never has any financial interest in any debt, note or mortgage. Under our current system of laws which has existed for centuries, it is impossible to transfer a lien without transferring the underlying debt. Such transfers are dubbed, in all courts, as legal nullities. That means for purposes of judicial review, the transfer does not exist. Therefore, MERS does not own, hold or otherwise have any interest in any mortgage or lien. It might serve as the agent for a party who could qualify as a lienholder. And that is exactly what every mortgage and deed of trust says.

It is true that if the underlying obligation was sold by the principal (“Lender”) for whom the agent (MERS) was acting, then MERS would no longer be the agent of the named principal (“lender”) but would rather be the agent of the transferee (“successor lender”). But there never is such a sale. Therefore, there is no successor lender.

And unless the originator was merged with or was acquired by the party claiming to be a successful lender, and the terms of that transaction included the transfer of ownership of underlying obligations from homeowners, there is no possibility that anyone can legally to be the principal in a relationship with MERS. But they do it anyway.

None of the companies pretending to be successor lenders ever paid for any obligation owed by any homeowner and therefore none of those companies has ever become the owner of those obligations, any legal debt, note or mortgage issued by the homeowner. The purpose of MERS is to blur the record rather than keep track of actual transactions. By showing “transfers” on MERS the investment banks are adding more layers of smoke and mirrors.

They say that no splitting of the note from the mortgage can occur as a result of the use of MERS. But they don’t say that the note has never been split from the mortgage. And more importantly, they don’t say anything about the payment value for the underlying obligation as required by article 9 section 203 of the uniform commercial code which has been adopted verbatim in all US jurisdictions.

They also don’t specify any duties of MERS, which consists of about four dozen employees who maintain a colony  of servers that are actually operated by “members.” That’s because MERS has no duties and does not perform any functions other than allowing members to make, change or remove entries of data on the servers. MERS is not a servicer in any sense of the word and the parties who are referred to as servicers are not servicers either. None of them collect money from homeowners, deposit them in an account opened by the company claiming to be the servicer, and then disperse the proceeds to an “investor.”

They are all sham entities — but if you are not in a position where you can submit legal discovery demands during litigation, all allegations concerning those sham entities will be taken as true and will be used as a foundation for the entry of a final judgment that either orders or permits the sale of the property.

You will likely never see a foreclosure proceeding in which the lawyers for the claimant alleges that the party named as plaintiff or beneficiary has paid value for the underlying obligation — which is a critical condition precedent to filing any enforcement action. It is all implied. While MERS talks about the note it never sees, handles, or knows anything about the note. but the house of cards falls down when you ask for the identity of the creditor who paid value for the underlying obligation and the manner in which that creditor granted authority to enforce the note.

What is left out of the discussion is that possession of the original note alone does not necessarily confirm the authority to enforce it. It might be presumed from the possession of the “original note” (which is most likely a fabrication), but the house of cards falls down when you ask for the identity of the creditor who paid value for the underlying application and the manner in which that creditor granted authority to enforce the note.

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FREE REVIEW: Don’t wait, Act NOW!

• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Filed under: foreclosure | 2 Comments »