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He Who Has the Gold Makes the Rules: Thousands of Foreclosure and Eviction Cases Lacking in Jurisdiction and/or Merit

…homeowners would do well to consider the possibility that they don’t deserve to be dunned in collection or foreclosure because they are only the victims of a perverse scheme that gives them money to sign papers and then punishes them for having done so

I take the position that if the investment banks want to make millions for each $100,000 in presumed debt, and they don’t want any risk of loss or any other responsibility for the transaction, and they want the homeowner to absorb the risks of all of that, then the homeowner should be compensated for assuming those unusual risks that are outside the custom and practice of real lending.

In fact — and this is the part the investment banks hate — I take the position that the homeowners were in fact compensated and that if the investment banks want any of that money repaid they should apply to a court to reform that homeowner transction such that some other figure is used for that compensation. Good Luck!

My conclusion is that they (the investment banks) set the amount paid to homeowners. Now they are now legally stuck with level of payment that they set apart from any potential underwriting standard for a conventional loan.  There was no consideration for the note and mortgage issued by the homeowner because the money that was paid to the homeowner was compensation for serviced rendered. Yet they are successful in around 98% of all cases where foreclosure was initiatied.

The plan was wildly successful and generated millions of dollars in revenue and pure profit for each homeowner transaction. It is ONLY when you see the amount paid to or on behalf of the homeowner as compensation that the deal even comes close to being fair. The reverse (i.e., being requried to give back compensation for absorbing undisclosed and material risks of loss) is unconscionable, inequitable and is not supported by centuries of legal precedent.

The challenge for nearly all homeowners really originates in the antiquated forms, rules, and procedures governing the initiation of foreclosure proceedings. The proof of the pudding is in the result. When homeowners win — and they often do win if they litigate in a timely and effective manner — it is at the end of the case even though their “win” is attributed to lack of standing or inability to produce sufficient evidence to establish a prima facie case.

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This means only one thing: that the cases are not properly vetted for jurisdictional qualification before they go into litigation. As a result, homeowners are forced into a Hobson’s choice: either they literally give their house away or face years of litigation and perhaps tens of thousands of dollars in litigations fees and costs. For most, it is no choice at all because they lack the resources to defend their property from claims without any merit.
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Attempts to remedy this situation have only been half-hearted and virtually ineffective. Declarations, certifications, and affidavits are routinely filed by people who know nothing about the case and who may not even have signed the document. They are titled with something that connotes “Official Document Signor” which does not mean that they were authorized by anyone who had the legal authority to grant authority to sign such a document. 
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This process needs to be substantially strengthened to prevent, for example, the routine allegation that Wells Fargo is the owner of the underlying obligation, followed by an admission that it is only a servicer late in the litigation. In every case in every U.S. jurisdiction, the party initiating legal proceedings must own a valid claim based upon actual damages suffered as a result of a breach of duty by the person or entity that the claim is aimed against. Wells Fargo regularly says it is the claimant knowing it is not and has obtained countless judgments when homeowners fail to contest (96% of the time).
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The absence of consequences for such behavior is encouraging the banks to continue with those strategies and basically use their only concrete strategy to gain more money in a pornographic economic game — weaponization of the litigation process even though they have no legally recognizable claims.
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Frankly, the best consequence for such actions would be the general acceptance that the documents upon which the foreclosure mill relies do not have that quality of reliability and trustworthiness that entitles the lawyers to invoke a legal presumption that everything said on those documents is accurate, true and correct. This would automatically require the investment banks to produce actual evidence instead of presumed evidence. It would also eliminate nearly all foreclosures and most evictions.
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Securitization is not a bad thing. It has proven to be a very good thing for Western economies for hundreds of years. But hiding the debt from prying eyes and not selling the underlying obligation is no securitization. It is trickery.
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And homeowners would do well to consider the possibility that they don’t deserve to be dunned in collection or foreclosure because they are only the victims of a perverse scheme that gives them money to sign papers and then punishes them for having done so, while the investment banks rake in millions for every $100,000 of so-called loans that have no lender, no risk of loss, and no compliance with lending statutes requiring the lender to be responsible for the appraisal, and responsible for assessing the viability of the loan.
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Of course, if they did that, then they would downgrade the quality of viability in virtually every case because the appraisal is above the contract price and far above the median value based on median income — the only reliable indicator of real estate value over the long term. (Case Schiller Index)
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Of course, the investment banks and their investors don’t need to worry about compliance with lending and servicing statutes. They are not required to do so because of the acceptance by law enforcement and regulatory authorities that they are not lenders. If they are not lenders, then how do they get to indirectly authorize administration, collection or enforcement of a supposed debt (loan account receivable) that is not maintained on the books of any company? 
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So I take the position that I accept their position — they are not lenders. And if they are not lenders they have no right to collect or foreclose. And based upon direct experience in the courtroom, the litigators who accept that position tend to win about 2/3 of the time. The other third can be attributed to a steadfast system of beliefs and perceptions founded in principles that stopped operating 30 years ago. 
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I take the position that if the investment banks want to make millions for each $100,000 in presumed debt, and they don’t want any risk of loss or any other responsibility for the transaction, and they want the homeowner to absorb the risks of all of that, then the homeowner should be compensated for assuming those unusual risks that are outside the custom and practice of real lending.
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The money the homeowner received was compensation, not a loan. To hold homeowners responsible for unknown risks attendant to a transaction with parties who had no lending intent is pure nonsense.
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This decision from the New Jersey Federal District Court is a good example of how cases should be vetted on the front end and not require the courts or homeowners to invest in extended litigation only to find, at the back end, that there was no case.
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Notice how this one district court judge correctly and wisely looks at the pleading and says”Wait! Who is suing here?” When the complaint or other document refers to the claimant as the REMIC Trustee, that is not true and fails to identify the actual claimant. In fact, it covers up the identity of the claimant when the complaint fails to say where the trust was organized and where it odes business. When the allegation of the complaint identifies only the party named as REMIC Trustee it is covering over any questions about the legitimacy of the trust.
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With the incredibly deep pockets of the investment banks, the only real possibility of relief for homeowners lies in collective action. As with all such organizing efforts, it is time-consuming and requires lots of money to bring the right people who would be otherwise employed doing other things. Without having consulted with them I am strongly suggesting that homeowners contribute $100-$1,000 to the only 501(c)(4) organization that has embarked on a mission to change the forms, rules, and procedures starting in Florida: American Property Owners Network.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Understanding the “Warehouse Lending” Trick

Warehouse lending is a legitimate method of financing. I borrow money from you in order to lend money to Jane Smith. In effect, it is arbitrage of interest rates since the interest rate on my loan is less than what I charged to Jane. I am Jane’s lender and I establish on loan account receivable on my books with a reserve for bad debt. I credit payments from Jane and I debit disbursement to that account. If Jane fails to make a payment to me, I lose money. This is NOT a description of what is happening with originators regardless of whether their source of funds is a “warehouse lending” agreement or is more aptly entitled a “purchase and assumption” agreement.
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Nearly all warehouse loan agreements in the current era are merely Purchase and Assumption Agreements which is very different. At the beginning of the securitization era, they called it a Purchase and Assumption Agreement — just like they initially (2001-2006) denied the existence of trusts and falsely stated that either MERS of the designated company pretending to be a servicer could initiate foreclosure. That was all shot down. And if you want to see the reason that was shot down and shut down, see the article by Tom Ice in the Florida Bar Journal where he nails the issue on all fours.
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So then they concocted the use of filing foreclosures in the name of REMIC trusts until the REMIC trustees forbade everyone from doing that. But when you look closely they don’t say they are filing for the trust because they always assert or allege that the Plaintiff or beneficiary is a bank, not a trust. By doing that they need not make normal essential allegations in order to survive litigation, to wit: that the trust is a trust under the laws of some specific jurisdiction and the trust is the owner of at least the note and mortgage (which should be an allegation that the trust owns the underlying obligation). This sleight of hand enables the foreclosure mill to move forward on a nonexistent claim with a nonexistent client.
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It was only after a new agreement giving the REMIC trustees more money in monthly or quarterly payments that Deutsch and US Bank et al agreed to let them bring actions for foreclosure in the name of the REMIC Trustee — along with heavy indemnification and hold harmless protection for filing fraudulent actions. BONY is paid through “Corridor Administration Agreements” in which there is no corridor and there is no administration by BONY. The reason is simple: a judge will look more closely at allegations and exhibits for a trust that he or she would look at the allegations or exhibits submitted on behalf of a large bank. It’s called “window dressing.”
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If we can get those hold harmless and indemnification agreements they will certainly expressly state that the named Trustee has absolutely no responsibility, power or control over any administration, collection or enforcement of any contract. While I have access to the corridor agreements I have not found the indemnification agreements that are probably locked in an offline server or vault.
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But in virtually all cases any agreement in which residential transactions are involved that says it is a warehouse lending agreement does NOT bear the characteristics of a warehouse lending agreement. It is, as it has always been, an Assignment and Assumption Agreement. That agreement exists between virtually all originators and an aggregator for the investment bank that is selling securities.
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The Purchase and Assumption Agreement is simple — the originator agrees to originate solely for the benefit of the aggregator who does not disclose its principal (investment bank). The duties of the originator are restricted to sales — not underwriting and no lending. The originator agrees to be named as a lender, as Payee on the note but in the agreement, it releases all claims to administer, collect or enforce any payment, claim, note or mortgage (deed of trust). As a practical matter, the mortgage broker is usually the person who actually stamps or writes an endorsement of the note contemporaneously with the closing. The “assignment of mortgage” is fabricated by other entities and forged.
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The originator does not create a loan account receivable on its books nor any reserve for bad debt because it is not a balance sheet transaction. It is an income statement transaction in which it receives a fee for services, which is not disguised in the original Purchase and Assumption Agreement. Now it is disguised in “warehouse lending” agreements that are in substance only Purchase and Assumption Agreements.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Latest Information on Homeowner Protections Coming Out of Moratoriums Ending July 31

there is nothing wrong with homeowners winning these cases. Nobody is getting hurt when homeowners win. But everyone gets hurt when the investment banks win using hidden interemdiaries and sham conduits to profit off the misery of homeowners.

virtually none of the information put out by the government, private businesses or banks is correct. None of them have any right, title or interest in homeowner payments, homeowner debts, or notes or mortgages issued by homeowners. And since that is true, none of them have any right to declare the existence of the obligation, declare a default, or otherwise claim the right to administer, collect or enforce any promise issued by the homeowner.

see https://library.nclc.org/fourteen-new-federal-actions-protecting-mortgage-borrowers

All of the information contained in the above link is useful and practical mainly because of the continued doctrinal thinking that mortgage loans today are the same as 30 years ago. They’re not and they are not intended to be mortgage loans at all by the parties who facilitate them — i.e., investment bankers. Investment bankers are interested in selling securities, not loans. So they don’t sell loans; they sell securities. And that makes all the difference.

As with any cover-up, one lie begets another. There is lots of information about various investors who own loans. But there is almost no information on whether they actually own loans. And the only current way to change that is with well-crafted QWRs, DVLs,  and discovery demands — followed by persistent, aggressive enforcement through lawsuits and motions.

They don’t own loans if owning loans means owning a loan account receivable owed by the homeowner to the investor. If the money is not owed to the investor, the investor is irrelevant. Any claim brought or asserted on behalf of such an investor is false. Each investor has received an IOU from an investment bank and the investment bank pays them whatever the formula requires regardless of the behavior of any homeowner.

Of course, this does not apply to those rare birds in which an actual loan was made by a lending institution that kept the loan in a portfolio of assets reported to the public and to regulatory authorities. It also does not apply to those situations in which one of the government-sponsored entities (GSEs) purchased for cash the underlying obligation of a homeowner from someone who did own it — i.e., someone who paid value for the underlying obligation.

But for the most part, all transactions reported as “loans” were never recorded as loans or loan receivable accounts. And that is why no payment of value was actually received despite recitations of “value received.” No value was paid or received because none was due. All transfers of virtually all loans today are merely paper transfers of convenience that are legal nullities.

So what all of that means is that virtually none of the information put out by the government, private businesses or banks is correct. None of them have any right, title or interest in homeowner payments, homeowner debts, or notes or mortgages issued by homeowners. And since that is true, none of them have any right to declare the existence of the obligation, declare a default, or otherwise claim the right to administer, collect or enforce any promise issued by the homeowner.

Think I am making this up? Just try to get a written acknowledgment from a source you can confirm from any GSE or REMIC Trust. You’ll die waiting because they refuse to issue a statement that could be perjurious.

They’re all treading the thin line between civil liability and criminal responsibility. By allowing their name to be mentioned in foreclosure proceedings, but not allowing their personnel to be involved in the foreclosure, they think they’re escaping any responsibility for fraudulent foreclosures and collection claims — and so far they are right.

So as a practical matter, because the system allows it, for now, the least expensive way of dealing with this mess is to negotiate a truce with the law firm that falsely claims to represent the GSE or REMIC  Trustee.

Or, as I have done and continue to recommend, you can fight them and win the case. It’s your choice.

And once again I will say to the naysayers or those who think I am going against the moral grain: there is nothing wrong with homeowners winning these cases. Nobody is getting hurt when homeowners win. And THAT is because the principal object of the business plan was to create, issue, sell and trade securities and derivatives of those securities — a process that generated at least 12 times the amount of any transaction with any homeowner.

This is not a case where if the homeowner does not make a scheduled payment someone loses money. If a homeowner does not make a scheduled payment there is still a reservoir filled with money from the sale and hedging of securities and derivatives of those securities.

When homeowners win foreclosure cases they’re merely collecting their due: a commission on a securities plan that could not have operated without them.

DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.
DID YOU LIKE THIS ARTICLE?

Foreclosure Defense in a Nutshell

The goal of the foreclosure defense strategy is to undermine the ability of the foreclosrue mill to put on a case — not to prove that the allegations are wrong.
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Let me first correct what I think is a misimpression or misapprehension: Defense of a civil case in court consists of two possible strategies — usually used in conjunction with each other.
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First and best is proving that the allegations against the defendant (homeowner) are untrue. this is generally impossible in the foreclosure of transactions that have been subject to the securitization process.
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Second, and equally effective, is to undermine the ability of the Plaintiff’s lawyers to put on a case, to wit: to establish the prima facie elements of a foreclosure case. This is the best option to win or settle a foreclosure case on favorable terms.
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Every foreclosure case starts with a pleading and exhibits. the allegations and the exhibits are required by law to be taken as true at the beginning of the case. In the middle of the case, the homeowner wants to show the inability or unwillingness of the attorneys for the named claimant/plaintiff to corroborate facts that the attorneys want to have the court presume are true.
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[The attorneys for the named claimant is always relying upon available legal presumptions arising from the facial validity of the exhibits and from relaxed pleading requirements that were created before the era of securitization.]
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By a series of motions to compel, motions for sanctions and motions in limine gradually the homeowner can bring the court to an inevitable conclusion that is 180 degrees opposite from the inevitable result that the court was presuming at the beginning of the case. to wit: having failed or refused to answer interrogatories and request for admissions, and having failed to respond to a request to produce, even after court orders (usually many of them) the foreclosure mill lawyers are barred from putting on evidence as to the truth of the matters that they wanted the court to presume were true.
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That leaves the foreclosure mill with no evidence at trial which means they lose. But it is only at the eleventh hour that the foreclosure mill will finally relent and offer a settlement (on the authority of unknown persons). This can be further leveraged in favor of the homeowner by insisting that the settlement be acknowledged by the named claimant/creditor. This particular aspect can be highlighted by motions for sanctions during the mediation process as well as at the end of litigation when the parties are discussing settlement.
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[Motions for Sanctions during the mediation process are often overlooked. The foreclosure lawyers are required to ring with them a representative of the named claimant who is authorized to negotiate and settle the case regardless of what comes up during the negotiations process — and to do so without pausing the mediation without getting instructions from unknown people of dubious authority. The failure to produce such a person will ordinarily be a violation of both administrative orders and direct orders from the trial judge.]
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So the goal of the homeowner is to show what didn’t happen rather than what did happen. The law requires that any assignment of the mortgage be accompanied by a transfer of ownership of the underlying obligation.
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The absence of a valid purchase and sale of the underlying obligation makes the paper transfer of the mortgage a legal nullity, which means that for legal purposes, it is treated as though it never happened. It is not necessarily true that an endorsement of a note creates such a transfer.
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So if the assignment of mortgage recites “for value received” and no such transaction occurred, then there was no assignment and all claims that rely on that assignment are void. Failure to produce evidence corroborating the truth of the matter asserted (that value was paid) results in rebuttal or exclusion of the legal presumption arising from the endorsement of the note or any other presumption.
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The homeowner wants to show that that the opposing side — the foreclosure mill — is unable or unwilling to produce evidence that the payment of value occurred — but not try to prove that the transfer, while on paper, never actually occurred. The burden of proof is on the party pleading allegations. To put it more bluntly, even if there was a purchase and sale of the obligation the foreclosure mill still loses if they can’t prove it when properly presented with well-drafted discovery demands and motions to enforce.
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The claim against the homeowner must be established with a prima facie case. If you stop that process, then you win. Don’t try to go beyond that point or you will end up raising more presumptions in favor of the foreclosure mill. You can’t prove anything if you don’t have the actual evidence and only the investment banks have evidence of what really happened outside the sight of prying eyes.
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You may know that the reason they cannot produce evidence of payment of value for the underlying obligation is that the underlying obligation no longer exists and therefore there was no reason to make a payment which in turn means that no payment was made.
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But if you try to actually prove that case without a cooperating defendant in a case brought for declaratory, injunctive, and supplemental relief, that could be an unreachable goal — except for using the same strategy of proving the unwillingness or inability of the parties you are suing to produce any evidence of the existence of the underlying obligation or the authority to administer, collect or enforce it. That claim is a lot easier once you have won the principal foreclosure case.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Tonight! Homeowners Don’t Deserve This! 3PM PDT with Charles Marshall

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with California consumer rights attorney Charles Marshall

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

Homeowners Don’t deserve to receive correspondence stating that they’re delinquent or in default from someone based on an unsigned letter that is sent using the letterhead of a company that is only pretending to be a servicer but fabricated by a company that never appears in the chain of title for yet other companies (investment banks) that never appear in the chain of title.

And they especially don’t deserve to lose their homes to players who have weaponized widespread ignorance of the facts and court procedure to illegally force the sale of homesteads.

The problem is that most homeowners believe they DO deserve this and they are reluctant to give up that mindset as a betrayal of core values of homeownership, mortgage ownership, and personal responsibility.

This attitude also pervades the law profession because if the client doesn’t believe in the defense, why should the lawyer?

The mission of our broadcasts on radio, the articles on the livinglies blog, and the appearances in TV and seminar videos is to disabuse homeowners of their erroneous notions of fair play and morality. It is not moral or fair to steal someone’s home for profit.

So tonight, listen up! Tune into our next radio broadcast starring Charles Marshall a descendent of the 4th Chief Justice of the Supreme Court and a long line of jurists and lawyers. He will tell you about the current climate and context for foreclosure defense that works. AND remember in today’s business contest, virtually all foreclosures should not work.

Homeowners must come to believe that they are entitled to defend their property and that there is nothing wrong with doing so. That is the American system. and to realize that rebelling against the status quo of submitting to unfair business practices and unfair and illegal litigation practices

The latest trends of 2021 will be addressed today, with a focus on non-judicial foreclosure states and actions, in the following legal areas:

– civil litigation state,

– litigation Fed,

– appellate practice both state and Fed,

– unlawful detainer practice, aka post-foreclosure eviction lawsuits,

– bankruptcy practice.

All to be examined through the lens of Covid impacts both State and Federal, including the latest re foreclosure and eviction moratoriums.

Quote from Charles Marshall: “Mike Tyson, the prize-winning boxer said, ‘Everybody’s got [obviously referring to his boxing opponents] a plan until they get punched in the mouth’.  As applied to attorneys defending homeowners against illegal and immoral foreclosures —the better man sticks to his plan, more or less, if it is working and well-founded, despite being punched in the mouth by the opposing lawyer.”

Tracking The Presumed Payment of Value for the Underlying Debt

One of the bigest lies in documents related to transctions with homeowners is “for value received.” In most cases no such “value” was paid or received by either of the parties to that document.

Paper checks have become a thing of the past. We have been too quick to assume they are not necessary — like paper ballots. But without corroborating evidence, the presumption arising from a document that recites “for value received” those presumptions can be busted wide open. But that only happens if you challenge it in a timely and proper manner.

Hat tip to Summer ChIc. She found the following description of the places that would have a record of a wire transfer. When you ask for a canceled check or evidence of the wire transfer the foreclosure mill will burst into flames. And you must understand that the reason is that there is no wire transfer in many situations and further if there is one, it didn’t come from the “lender” or “assignee” or anyone else who appears in the chain of title.

None of this makes sense to anyone who insists on viewing the status of the transaction as a loan. But it makes perfect sense to anyone who views the transaction as either completely fictional or simply an incentive payment to get the homeowners to execute the only documents that give rise to the sale of securities. The investment banks were not interested in loans. They were strictly interested in selling securities.

When you look at it the second way then you realize that there wouldn’t be any further “payments of value” because it was already paid. And the legal significance of that is this: endorsements of notes can be valid without consideration but assignments of a mortgage without transferring the debt by payment of value for the underlying obligation cannot be valid nor enforceable. Such assignments are, in all U.S. jurisdictions a legal nullity.

The endorsement of the note is often taken to be evidence of the transfer of the underlying debt. But that presumption is rebutted under existing law (for centuries) if there was no payment of value for the underlying obligation. That payment is presumed by apparent transfer of the right to enforce the note by transfer of possession of the original note and a grant of authority to enforce it. But that grant must come ultimately from the owner of the underlying debt.

So in discovery, it is important to test the sufficiency of each document that recites “for value received” or “for value paid.” In most cases, no such transaction occurred and that is exactly why you should test it in your discovery demands. If no such value was paid, either assignment of mortgage was a legal nullity or the note cannot be enforced.

While legal presumptions make it easy to file a claim for enforcement of the note, and without challenges from the maker it is then easy to get a judgment, that is turned on its head when there is no transaction and the maker reveals the lack of corroborating evidence for the presumptions, which are then rebutted or not applied. The foreclosure mill has nothing left under such circumstances. And that is one of the places in time — at the end of litigation — where confidential settlements occur that include scrubbing court files of any evidence of the case.

Practice hint: don’t ask for “proof of payment.” The word “proof” is a term subject to interpretation. The opposition could supply you with the same documents that they are relying on for the claim. A motion to compel based upon such request must be denied. A motion for sanctions would then become impossible.

You should ask for copies of any documents, agreements or correspondence that corroborate the recital of payment given or received. Documents would include evidence of write transfers. And that is where Summer Chic’s contribution is so important. This is taken from the Federal Reserve website.

The Wire Process

Most domestic wires are completed within 2-4 business hours from ordering.

Sending Bank

  •  Reviews Wire
  • Runs through OFAC (Office of Foreign Assets Control)
  • Sends to Federal Reserve
  • Receives a FED ID (also known as OMAD or IMAD #)

Federal Reserve

  •  Reviews Wire
  •  Sends to Receiving Bank

Receiving Bank

  • Reviews incoming wire
  • Runs through OFAC
  • Deposits funds in the title company account

What Your Clients Need to Know

  • All banks have different requirements and your client needs to have a conversation with their bank early in the transaction process:
    • Are there any fees involved to wire funds? Most banks will have fees for both outgoing and incoming wires.
    • Verify how many days prior to the closing the wire should be ordered for funds to arrive in time.
    • Can wires be ordered on the bank’s website or does the account holder need to be present in a branch to order?
    • International wires typically involve an intermediary bank and additional time.
    • Educate your clients about wire fraud and how to prevent it (see below).
    •  Wire instructions must be confirmed by calling the closing office using a known number such as the contact information on the title commitment.
    •  When ordering the wire, be sure to reference the Title Company’s file number, closer name and property address (found on the wire instructions form).
    •  After a wire is initiated at the sending bank, the buyer needs to notify your closing team via phone that the wire was sent.

What Could Slow Down a Wire

  • Extra approvals may be needed at each institution if funds are over $1 Million
  •  If the review by the Office of Foreign Assets Control (OFAC) raises a red flag e.g. a common name on the wire that matches a name on a government list. The bank may need additional info from the individual such as date of birth, location of birth etc.
  •  Incorrect information (e.g. missing or incomplete bank information, file #, closer name, property address).

How to Track a Wire

Occasionally a wire needs to be tracked. In order to locate a wire a FED ID number is needed. The client will need to contact their sending bank to obtain the FED ID number.It will always start with the date, followed by letters then numbers. E.g. 20190912QMGFT0000000000. Give the FED ID number to the title company (via phone) to aid in tracking the progress of the wire.

Wire Fraud Prevention

From day one, inform your client on how you will be communicating with them throughout the real estate transaction and how any other parties involved in the
transaction (i.e. title company) will be contacting them. Let them know you will never ask them to send sensitive information via email.

  •  Do not open suspicious emails, click on any links or open attachments.
  •  Be wary of emails purporting to send new wire instructions or demanding funds several days or even weeks before closing.
  •  Make sure to change your usernames and passwords frequently and never use passwords that are easy to guess like password or 123456.
  • Do not save wiring instructions on your desktop and send to the client. Land Title always sends the instructions via a secured email.
  • Always double-check and verify the phone number contained in the email for the intended recipient of the wire.
  •  If in doubt call the title company directly using a known number, such as the number on the title commitment.
Rest assured, Land Title and their in-house IT team have implemented measures to ensure that all sensitive information a client provides is encrypted and protected on secure sites throughout the real estate transaction. Our closing team will also be in continuous communication with all parties involved in the transaction from beginning to end of the closing. Transferring funds via wire can be a safe and secure process, as long as all parties involved maintain communication and use simple security protocols to ensure that the funds arrive safely and on time.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

 

Foreclosure Defense: Holder in Due Course Argument Refined. It’s no magic bullet but it can be used effectively

You should be careful about any argument based on the holder in due course. It is true that in order to enforce any rights under a security instrument, lien or mortgage the claimant must have paid value for the underlying obligation assuming the obligation still exists.

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But there are other elements required to achieve the status of a holder in due course. A holder in due course is someone who paid value for the note. They paid value to a person who was either a holder in due course or a holder. They might even have paid value to a thief.
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But in order to be a holder in due course, they must have acted in good faith and without knowledge of the defenses of the maker of the note (the homeowner).
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Both a holder and a holder in due course are entitled to enforce a note. A holder may enforce the note as long as they have either possession or constructive possession of the note and they have received authorization to enforce it from someone who is authorized to grant such authorization.
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Under current law, mere possession of the original note is sufficient to raise the legal presumption that authorization from a proper source has been given. This can be rebutted in discovery. There is of course a question about whether and when anyone ever receives possession of the original note in the context of a securitization infrastructure.
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The absence of an assertion and that the claimant is a holder and do course raises an important factual and legal point. A holder in due course may avoid most defenses of the maker of the note. A holder does not have that elevated status. A holder may enforce the note, but it may not enforce the mortgage unless it is paid value for the underlying obligation. See Article 9 § 203 UCC and Article 3 UCC, mortgage and note respectively. Note also that Article 3 presumptions do not apply unless the note is a negotiable instrument.
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So the failure to assert or allege that the claimant is a holder in due course is an admission that at least one of these three elements are missing: payment value, acting in good faith, and no knowledge of the maker’s defenses.
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It is therefore completely within the rights of the homeowner to ask which one of these elements are missing. The lawyers for the claimant will refuse or failed to answer any such questions. The reason they refuse is that the claimant cannot fulfill any of the elements of a holder in due course.
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None of this stops a judge from treating the claimant as a holder in due course unless the homeowner raises objections. It is an error to be sure. But on appeal, the appellate panel will see it as not material to the outcome of the case, unless a proper record has been preserved in which other procedural errors are involved.
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So the bottom line is that the holder in due course argument is part of a larger argument. It is not a magic bullet. But properly framed and aggressively used in discovery and motion practice will often yield a successful result for the homeowner.
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At such time that the claimant refuses to answer questions about payment value, acting in good faith, or knowledge about the defenses of the maker, a pretty strong argument emerges for the court to grant an order granting a motion in limine, barring the claimant from introducing evidence to prove the truth of the matter that the condition precedent contained in article 9 section 203 of the uniform commercial code has been satisfied.
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The net result of such a strategy is that if the motion has been granted, the claimant may not continue to pursue Foreclosure. The claimaint can’t pursue Foreclosure unless they have satisfied all conditions precedent. While the satisfaction of conditions precedent might be presumed at the beginning of the case, those presumptions no longer apply (assuming the homeowner raises the issue) if the claimant has refused to answer questions corroborating the presumed facts.
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And this is another example of why a lawyer is needed to argue this in court citing to appropriate state statute and state court decisions.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Attorney Bruce Jacobs in Miami Fl is Reaching Out — I think you support him if you are concerned about fraudulent foreclosures

Any attorney who has represented homeowners attempting to challenge illegal foreclosures will tell you that there is something inherently wrong with the foreclosure process as it is being applied. Bruce Jacobs, a 25 year veteran of judicial battle, is presenting a direct challenge to the sub silentio doctrines and assumptions that are forcing the sale of homestead property for the fun and profit of players who regularly fabricate documents and then lie about them.

Now Jacobs is starting a YouTube channel in support of this effort. As a leading successful advocate for Foreclosure defense, and as a practical litigator, Jacobs is concentrating on the constitutionality of taking property without due process.

I think he should be supported and recognized for his contribution not only to homeowners but to society at large which pays the price for illegal foreclosures.

 

SEE

https://www.facebook.com/groups/aafhelpus/posts/4802488059768010/

Please watch my new show on Community Newspapers: This is Constitutional with Bruce Jacobs. Ana Lazara Rodriguez was our very first guest. She talked about her fight against Castro’s corrupt regime 60 years ago and her fight for her home today. https://youtu.be/CPE3mc2qXVY
Please come support Ana’s fraud on the court trial this Wednesday and Thursday at 10:30AM. It’s going to be a David v. Goliath battle. Here is the Zoom information:
Zoom Meeting ID: 99768308659 Zoom Dial In Number: +1 786-635-1003 Zoom Link: https://zoom.us/j/99768308659

U.S. Bank is Sham Conduit For Illegal Claims Against Homeowners

Trust is not a negotiable commodity. And there is nothing in statuory or common law that says otherwise.
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If a named trustee does not wish to h ave any fiduciary responsiblity to manage the active affirs ofa trust for benefit of teh beneifciaries, the trustee should resign. Or, the trustee can replaced by written agreement of teh trustor and beenficaires or a court order after a lawsuit seeking reformation of the trust is filed.
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When Bank of AMerica supposedly “sold” or “transferred” the position of trustee to U.S. Bank, the only reason it didn’t matter is that is was trasnferring the right to be named as trustee — not the duties of performing as trustee.
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Every claim agaisnt any homeowner that relies upon the right of U.S. Bank to act as trustee in such circumstances is therefore false.
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I am raising a basic factual point and basic legal conclusion supported by statute and case law.
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A trust is a very restrictive covenant designed to protect the trustor and the beneficiaries. The whole point is that the trustor wants to appoint somebody in whom the trustor reposes trust. This is not something that can be delegated.
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You can’t delegate trust and statutes say exactly that. Anything that is entrusted to a trustee must be managed by the trustee and any instrument executed on behalf of the trust must be executed by the trustee. In fact, statutes often say (e.g. Florida) that anything executed by a party claiming to be an agent is void without acknowledgment and signoff by the trustee. That is what the Ft Myers case is all about.
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So the issue is twofold.
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First, is there a difference between naming a person or entity as trustee and appointing the person to have trustee powers over property entrusted to the trustee for the benefit of beneficiaries? I think the answer is a resounding YES. And under trust law, a “trust” without a trustee is not a trust. This is like my other thread that a loan without a lender is not a loan.
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There is no trustee if the person or entity named as trustee does not have the power to manage the active affairs of the trust — including the right to manage specific property that is in dispute. If the trustee lacks such authority — and in REMIC Trusts that is always true — then the trust is empty because the named trustee was never entrusted or empowered to take control of any assets.
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And if the trustee has no power over the asset claimed to exist and be in control of the “trust” then it can’t delegate or create such powers unless the “trust” is reformed to say that the Master Servicer is the trustee. [It is not the job of the homeowner to form the trust.  And it isn’t the job of the court to do that unless a repetition fro reformation is properly served with allegations that include all the required elements for reformation.
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But that isn’t true either if neither the Master Servicer nor the named trustee has ever purchased the underlying obligation of a “loan” (as required as a condition precedent in Article 9 §203 of the UCC adopted by all U.S. jurisdictions verbatim.), then there is no right, power or even obligation to attempt to administer, collect or enforce the claimed obligation — even if it presumed to exist at the time of the claimed enforcement.
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Second, given the above which is completely congruent with all treatises and cases on the subject, the question arises as to the largest “delegation” of trustee powers in the history of the world — the one by which U.S. Bank became the new trustee by virtue of a transfer from Bank of America and other banks.
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Even if we assume, for sake of argument, that the trusts did have “loans” entrusted to the trustee, the transfer of trustee duties to U.S. Bank is an illegal delegation unless the terms of the trust agreement for that trust allow for such a transfer thus stating empowerment by the trustee and giving notice to the beneficiaries that such a transfer might happen.
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I think that any court considering the issue will be loathe to allow the transfer.— because such an allowance would be contrary to law, public policy and the intent of that trustor (if there is one). but I also think that unless it is challenged it will be preemptively allowed.
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So in the U.S. Bank analysis, here is how that breaks down: This example is taken from a common paper trail where the initial “trust” agreement names La Salle Bank as trustee and allows for succession in the event of merger.
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First you need to look at the merger documents to determine whether the counterparty, Bank of America in this case, ever agreed to accept the trust responsibilities and duties. This is important because Bank of America would then be accepting the fact that it is bound by fiduciary duties to the beneficiaries which do not include the investors who bought certificates (See below).
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Anyone who has followed this particular tack knows that when investors sued the U.S. Bank or Deutsch or BONY Mellon, they were rebuffed by the court who declared that no duty was owed to them, since they were only creditors of the trust at best. (In actuality they were creditors of the investment bank who was only using the trust name as a fictitious name for the investment bank).
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But the payment “due” from the investment bank is completely discretionary and NOT based upon actual receipts of money from payments by homeowners. Instead, it was based upon the publication of reports about payments by homeowners. those reports were issued by the investment bank whose reporting cannot be questioned). The money received from homeowners was used as either off-balance-sheet, offshore transactions producing revenue or was mislabeled as return of capital — capital that had already ben recouped from the sale of multiple layers of securities.
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Second, you need to determine whether LaSalle warranted what it held in trust and that it was transferring those assets to be entrusted with Bank of America.
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Third, you need to know if Bank of America ever took any action in which it was managing the active affairs of the trust including, in our usual example, the ownership of a loan and the right to administer, collect and enforce such loan. The usual answer will be NO, they don’t because they can’t according to the terms of the trust agreement — which by the way does NOT name investors as beneficiaries.
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The Pooling and Services Agreement refers to investors and implies they are beneficiaries but the trust agreement makes it clear that the beneficiaries are the bookrunner investment banks. The Pooling and Services Agreement refers to loan portfolios but not the ownership of loans. There is no statement or warranty of title to the loans.
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Payments to investors are based upon a formula based upon data about — not ownership of — the “loans.” The trust agreement, if you can get it, will say that the trust, if it exists at all, is merely a naked title trust for the receipt of documentation that could be used as evidence of ownership of loans but does not include any right, title or interest to ownership of the underlying obligation or payments, nor any right to administer, collect or enforce the obligation in said “loans.”
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PRACTICE HINT: DO NOT TRY TO ALLEGE OR PROVE THE CONTENT OF THIS ARTICLE. IF YOU ALLEGE IT YOU ACCEPT THE BURDEN OF PROVING IT AND YOU DON’T HAVE THE PROOF. THE POINT OF THIS ARTICLE IS TO INCENTIVIZE YOU INTO DEFENDING ON BASIC PRINCIPLES OF COLLECTION AND FORECLOSURE. THE DEFENSE NARRATIVE SHOULD ALWAYS BE THE TESTING AND CHALLENGING OF EVERY ALLEGATION, ASSERTION, OR IMPLICATION AGAINST THE HOMEOWNER BECAUSE NONE OF THE PRESUMED FACTS ARE TRUE. THE GOAL MUST BE DEMONSTRATING TO THE COURT THAT THE FORECLOSURE MILL IS UNWILLING OR UNABLE TO PRODUCE CORROBORATING EVIDENCE OF THE TRUTH OF THE MATTERS IT WISHES THE COURT TO PRESUME.
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This requires a strategy that roughly follows these steps:
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  • Admit nothing. That includes whether the copy of the note proffered is a copy of the original, whether this is actually a foreclosure procedure (as opposed to abuse of process for profit) etc.
  • Challenge early: In non-judicial states this means challenging the notice of substitution of trustee. In judicial states it means challenging the pleadings by motion to dismiss or a motion for more definite statement because they failed to identify the Plaintiff, allege ownership of the debt and allege damages. It could also be a motion to strike the affidavits or certifications. In all cases it requires use of QWR and DVL to set the stage for a separate action for violation of statute.
  • Timely and proper service of demands for discovery.
  • Timely and proper motions for enforcement of demand for discovery. This means motions to compel, motions for sanctions and motions in limine.
  • Timely and proper objections if the matter goes to trial.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud. Every bit helps. Many thanks to our $100+ donors!

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Elephant in the living room: That’s not a bump under the rug, it’s a mountain

HIDDEN EQUITY IN ALL HOMES SUBJECT TO CLAIMS OF SECURITIZATION

It comes as no surprise to learn that the investment banks have been hiding things from us for decades, since 1983 when the era of securitization of debt came into existence. Back then the nominal value of deriviates on the autocratically controlled trading posts for derivatives was ZERO. They didn’t exist.

The main purpose was concealed from both homeowners and the purchasers of certificates issued by the investment bank. The point of the entire plan was to make money solely from the sale and trading of unregulated securities. There was no incentive to make a good loan or any loan. There was no incentive to use the money proceeds from sale of certificates to investors primarily for the benefit of the investors.

These facts were withheld, concealed and denied by the investment banks. But they continue to be true. And what that means is that all investors — homeowners who purchased what appeared to be loan products and pension funds who purchased what appeared to “sophisticated” loan products — are enttield to know the full scope of tehd eal and to be comensated accordiungly for revenues generated ir risks that were udnetaken without knoweldge of the scope and consequences of thsoe risks.

And the fact that those hoemowners and pensions funds still don’t realize the hidden value of their claims against the investment banks who benefitted so greatly from the securities scheme does not mean that no such entitlement exists. It simply means that they still don’t know about it.

Lawyers and homeowners keep asking me about notes, mortgages, endorsements, assignments, and delivery.  The investment banks want all of your attention focused on the allonge or assignment.

One of the interesting things about that is that when fabricating transfers of the note, there is no recitation regarding payment of value in exchange for the endorsement. On the mortgage transfer, they usually recite “for value received.” Of course, we know that no value was received because no payment was due. And because no value was paid, the grantee could not be said to be the owner of any loan account receivable due from the homeowner. The “assignment” is a legal nullity which means that for legal purposes it is as if it never was written, signed or recorded.

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The delivery of the note with an endorsement raises the presumption of the entitlement to enforce the note. And most courts use the delivery of the note as a basis for raising the presumption that the note constituted “title” to the underlying obligation. But that would only be true if there was a transaction in the real world in which there was a purchase and sale of the underlying obligation.
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The reliance on endorsements to the promissory note skips the fact that there is never an assertion of the status of a holder in due course. If there was no status of a holder in due course what was missing? People forget to ask that. Was it that there was no payment for the purchase of the note? Was it that the endorsee was not acting in good faith? Or was it that the endorsee already knew of the defenses of the maker (homeowner)?
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In all foreclosure cases, the claimant takes the position of a holder but not a holder in due course. And the lawyer for the claimant always attempts to leverage the apparent possession of the note as reason enough to foreclose on the mortgage or deed of trust. Setting aside the fact that the original note has probably never been produced, possession of the original note is not sufficient for enforcement.
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The legal requirement for enforcement of a promissory note consists of possession plus authority granting the entitlement to enforce the note. Who can grant that authority? The answer must be the owner of the underlying obligation or someone who represents the owner of the underlying obligation. In either event, the owner of the underlying obligation must be identified.
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The playbook for the banks consists of wearing out the homeowner or the attorney for the homeowner with strategies that misdirect attention from the real issue.
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The real issue in any action to enforce a note or enforce a lien is very simple. It is about money. More specifically about money owed. It is not about games to play to get money because the note or mortgage exists. it is about collecting an unpaid debt. 
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Unless there is a debt and unless the debt is unpaid and unless the debt is due to the claimant there can be no claim. Why would anyone want to give money to someone just because they know about the original promise to pay money?
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Knowledge is valuable to be sure, but the homeowner is under no obligation to pay for that knowledge, since he/she already has it, to wit: a promise to pay was issued at the origination of the transaction. But that promise was made in the context of what the homeowner believed to be a loan transaction with a specific lender who had a risk of loss on the transaction, just like the homeowner.
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If the promise was made without knowledge of the full details of the elements of the deal, then the homeowner is entitled to Full disclosure and participation in the entire deal, not just part of it.
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But the homeowner does not know what happened to that promise after he or she issued it. Since the counterparty to the transaction with the homeowner consists of a group of companies intending to make a profit on the sale of securities, the intent of the homeowner and the intent of the counterparty(ies) is entirely different.
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The result in legal analysis is as follows: there is either no contract or there is a contract, the details of which have not been disclosed. Normally the remedy for this would be rescission. But even in the face of expressed federal law requiring rescission if the homeowner asked for it, judges have been universally opposed to enforcing rescission under statute or common law.
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Court in equity are expected to do equity. In order to make sense out of the transaction involving the homeowner, the entire story must be told and adjustments must be made to the contract. If the homeowner is excluded from the securities scheme then there is no consideration for the issuance of the promissory note. If the homeowner is included in the securities scheme, then the issuance of the note was an investment into the security scheme, for which the homeowner was entitled to compensation.
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That leaves open the question of the amount of compensation to which the homeowner might be entitled. This requires an evidentiary hearing in which the judge hears evidence on what reasonable compensation would be appropriate as payment to the homeowner for starting the highly profitable securities scheme. But I think a reasonable starting point would be whatever the amount was that was paid to or on behalf of the homeowner, leaving no balance due from either side.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Tonight! What I Can and Cannot Do for Victims of Fake Foreclosures 6PM EDT 3PM PDT

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

I often have exchanges with frustrated homeowners that end up like this one received recently:

“That leaves everyone doing nothing and allowing the banks to prevail. Your posts are very inspiring ( like a carrot) but then very discouraging ( your answer) when there’s no one willing to help the cause.

We’re supposed to have real answers/ solutions to help people, not just information. “
She’s right! But like most homeowners, she doesn’t like the real answer and real solution.
The real answer lies in a good or great knowledge of court procedure. I can’t teach that to lay people who have no foundation in legal training. If it was that easy we would not need lawyers or even judges.
The reason solution lies in a timely, well-conceived strategy and tactical plan to attack the sufficiency of the allegations, the implied allegations, the evidence, and the implied evidence. In order to do that you need to understand the rules of civil procedure in your local courts and methods and strategies that can be used to encourage a court to fund that that there is insufficient evidence to allow the foreclosure claim to proceed.
That said, I intend to discuss tonight some of the basics and why homeowners should be paying their lawyers more — in order to get the work done that needs to be done.
Whether you are fighting to win or just kick the can down the road, the key to success is in attacking the sufficiency of allegations and the sufficiency of the evidence against the homeowner. Nothing more and nothing less. 

Elements of Discovery in Foreclosure Cases

If you want to pursue discovery, you have to follow the rules. The right to demand and enforce discovery does not exist in a vacuum. There are specific rules that provide for specific periods of time in which discovery can be pursued. Think about what you are demanding. the mroe vague and ambiguous you are, the less effective will be your pursuit of discovery and justice.

  1. The right to discovery only exists during litigation. You must already be in court. There are very rare exceptions that probably would never apply to foreclosure litigation.
  2. During litigation, the right to discovery only exists during the periods of time defined by the rules of the court.
  3. The right to pursue discovery generally commences when litigation is started.
  4. The right to pursue discovery ends with any court order that cuts off discovery or any judgment entered in that case.
  5. The right to enforce discovery demands is subject to the above guidance.
  6. Failure to enforce discovery demands is generally treated as a waiver of discovery demands.
  7. A court order that refuses to enforce discovery demands is potentially subject to an interlocutory appeal. Consult with local counsel.
  8. All discovery demands are required to be focussed on the core issues of the case. In foreclosure cases, this means the existence, ownership, and right to administer, collect and enforce an underlying obligation owed to the claimant. Some leniency exists to “fish” for information but only if you can show that the demand might lead to the production of evidence that would be admissible at trial (i.e., related to the core issues of the case).
  9. Discovery must be well-drafted and focused on one issue at a time. Compound questions that use words that are subject to interpretation will lead to either a response that avoids the intent of the demand or rejection of a motion to compel a response. For example “proof” can mean anything that the responder considers to be proof. “Evidence” can be anything the responder considers to be evidence. But a canceled check is not subject to interpretation.
  10. Motions to compel must be based upon timely well-drafted discovery demands. The motion should establish the question or demand, plus the reason for each paragraph to which the responder did not answer, did not answer fully or raised an objection. A memorandum of law is often helpful along with preparation for oral argument.
  11. Motions for sanctions must be based upon the contents of a prior order rendered by that court in the subject action. Such motions should in most cases demand monetary and evidentiary sanctions.
  12. In foreclosure cases expect that there will be multiple motions to compel discovery and multiple motions for sanctions.
  13. In foreclosure cases in which securitization is stated, implied or suspected, the object is to file a Motion in Limine that prevents the opposition from introducing evidence regarding the existence, ownership or right to administer, collect or enforce any obligation, note or mortgage.
  14. The filing of a Motion accomplishes nothing without a hearing in the motion. A notice of hearing must be filed after securing a date and time from the office of the clerk or the judge. The motion and the hearing must conform to the local requirements as to form and content.
  15. Preparing a proposed order and find a way for the judge to see it informs the judge of exactly what you are demanding — along with the timing allowed to the other side to correct its response or lack of response. Many times the proposed order will be signed if you’re successful at the hearing. Be proactive. Do not let the opposition prepare the order unless the judge specifically instructs that to be the case.
  16. The right to renew a discovery period is within the sole discretion of the court. It must be based upon new events or new evidence that was not previously available. Any such attempt that appears to be an attempt to relitigate the case will be rejected.
  17. Conducting discovery without the assistance of local licensed counsel is not likely to succeed. There are many terms of art that are used in the discovery that do not have analogous meaning in everyday life.
  18. Don’t be afraid to ask. If the foreclosure case is predicated upon some assertion or implication that a debt was securitized, the likelihood is extremely high that no such thing happened and that the subject underlying obligation, the legal debt, the note, and the mortgage were never sold or purchased in any transaction based upon events in the real world.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Homeowners: Where is the OUTRAGE?

Homeowners have been brainwashed into thinking that there was never anything wrong with their “loan” transction at the beginning, in the middle or in the end when they lose their house. So the collective homeowner action requried to break the grip of Wall Street never materializes. In this article I reveal what you are missing.

The benefit of refinancing for Wall Street is simple. They sell $2 Billion worth of “certificates” on the data from the origination of the first transaction with the homeowner. Then without disturbing the first securitization structure the offer to refinance which means new data. The new data is then the subject of a new sale for $2 Billion in “certificates”. If the securitization had been on the debt none of what is described below could ever have occurred and the normal attributes of a loan transaction would have been maintained with the balancing of risks and rewards.

[PRACTICE NOTE: the law in all US jurisdictions is contrary to the current practices, forms and procedures used in most foreclosure attempts today. Those laws were derived from centuries of consideration and experimentation. Even cursory research reveals that no enforcement of a lien is permitted without the claimant having paid value for the underlying obligation. The courts are inclined to presume that the added protection contained in Article 9 § 203 of the Uniform Commercial Code has been satisfied. Most homeowners and their lawyers are afraid to ask. But if you do ask, you will find that there is no secondary or corroborative evidence that value was paid for the underlying obligation. The absence of evidence does not prove that no value was paid. But the unwillingness of the foreclosure mill to respond, servers as a basis for evidentiary sanctions that bar the foreclosure mill from introducing evidence of the existence, ownership or a right to administer, collect or enforce the alleged debt, note or mortgage.]

On the original transaction, the investment bank is taking in $2 billion but only paying out, at most, around $1.4 billion they made an immediate “trading profit” of $600 million on the first securities deal — and then another $2 billion on the second securities deal. The second securities deal required no payment to the homeowner because that payment had already been made.

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If there is a third, fourth and fifth round of securitization based upon data that is based upon the first deal only, the profits of the investment bank rise to many multiples of the first deal, which is the only deal in which money is paid out to homeowners. And in some cases that is exactly what happened — after paying out $1.4 billion to homeowners, the investment bank ended up with direct profits of more than $10 billion — all without ever becoming the lender in a regulated loan transaction.
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Then you have the derivatives sold whose value is based upon the “value” or “performance” of the certificates that were sold. You can easily see why some brokerage houses were ensnared by leveraging since they were, for the first time, leveraging revenue. By borrowing 42 times the net worth of Bear Stearns, management thought they would be making hundreds of billions of dollars. And they would have if the fake trading market for certificates had not come to a grinding halt in 2008. Instead, the selling of new certificates and derivatives topped, and like any Ponzi scheme so did the “Business.”
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And who made all of this possible? Gullible investors that included homeowners and pension funds. At least the managers of pension funds and other stable managed funds knew they were investors. Homeowners were kept in the dark.  They never knew that their role was critical and essential to starting any securitization scheme and so they never asked for anything in return. How much revenue did the investors ever see or receive from this scheme? Zero. Investment banks had inverted their role from being a broker to becoming the de facto principal without any of the liability of being a principal.
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Explaining this to the normal average homeowner is a virtually impossible task and that is why there is no collective outrage from homeowners except the self-destructive outrage against themselves. They’re left paralyzed by the deceit, the shame, the guilt and the moral belief that anything they do against the “enforcement” of their “debt” is wrong. It also explains why homeowners see no benefit in spending money on lawyers and defenses. they are convinced, despite evidence to the contrary, that they have no defense.
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DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

How you can make the system work against the banks in foreclosure cases.

Among the people who litigate Foreclosure cases on a regular basis, it is well known that the alleged “trustee” of the implied trust possesses neither knowledge nor control over the foreclosure proceeding. In addition, neither of the “trustee” nor the implied trust is intended to receive the proceeds of the liquidation of the homestead property.

Recently a homeowner and her attorney contacted me regarding the viability of using a specific statute under the laws of the state of Florida. The statute specifically states who can sign and who cannot sign anything on behalf of the trustee or the trust.

One thing is totally clear, the statute excludes any company that is self-proclaimed as an agent, servicer, or even Lawyer for the trust. The entire point of a trust is the appointment of a trustee known to the trustor or settler to be a trustworthy person to take charge of specific property and manage it on behalf of the beneficiaries named by the trustor or settler.

While I have addressed this issue obliquely, the attorney, in this case, filed a specific motion to dismiss the entire action and a motion for summary judgment. It was a short motion that merely stated that lawyers representing the Foreclosure Mail failed to comply with the required acknowledgment and certification by the alleged plaintiff in a Florida judicial foreclosure action.

This produced an anomalous result. Normally the Foreclosure Mail is instructed to litigate to the very end regardless of the weakness of their position. The logic behind this instruction is that most homeowners will give up because of time, money or expense. The idea is to win by attrition.

I cannot give you the details of the case in question, but I can give you the result. The foreclosure miil dismissed the entire foreclosure action along with the list pendens that clouded title.

Now the problem for the Foreclosure Mill is that they don’t represent the named trustee or the named trust. And there are contracted ministration agreements that prevent the named trustee and the name trust from actually getting involved in a foreclosure action — particularly when neither of the named trustee nor the named trust or implied trust will ever see one penny of money collected from the proceeds of the forced sale of the subject property.

This is reminiscent of the early stages of foreclosure litigation starting back in the early 2000s. The Foreclosure Mills simply walked away, leaving the homeowner and the court completely in the dark. In some cases the Foreclosure mail, or a different Foreclosure mill, came back with a new initiation of foreclosure process hoping to wear down the homeowner and the attorney for the homeowner.

But in the vast majority of the foreclosures that were dismissed or vacated, the homeowner was left with clouded title or the threat of a cloud on title. But in the meanwhile, they were not required to make any mortgage payments. Some of those homeowners lost their property anyway because they failed to make payments on property taxes.

The essential takeaway from this story is that this strategy employed by this attorney in Fort Myers Florida ended up shining an extremely bright light on a fake Foreclosure. Most homeowners and their attorneys make the key mistake of admitting or accepting the named “trustee” and the named trust as being real parties in interest who had authorized the Foreclosure Mill to proceed with legal action to force the sale of the homestead property.

The mistake is compounded by the assumption that when the homeowner loses the case, the proceeds from the sale of the subject property are paid to either the trustee or the trust. This results in the absence of any investigation or research into what happens after the judgment is entered. As Charles Koppa has repeatedly suggested, the activity after judgment or after-sale reveals the true nature of both the transaction and the alleged foreclosure proceeding — a process conducted for profit instead of restitution for an unpaid debt.

Of course it is possible that the investment banks want to direct us or distract us into this type of conversation which appears more philosophical than based in real world events or established law and procedure. But I can tell you as a point of fact that the real problem that the banks do not ever want to see debated or discussed is how much money they still owe homeowners, instead of the mythological underlying obligation for a transaction that is still only partially completed.

DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

CLICK TO DONATE

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

How the courts are chilling access to the courts, and why they smack down defenses of homeowners in foreclosure

Some people think I am blaming them for not knowing how to navigate the court system. We actually don’t have a dispute between us. The conflict is between two fact patterns that produce an inequitable result for homeowners.

The inequitable result arises from being drafted into an illegal securities scheme and then having that same scheme used against them in court — all to their detriment and never with any distributions or particpation in revenues or profits. In this plan homeowners abosrb only risk and never participate in the bounty of the scheme.

The first fact is that it is nearly impossible for any homeowner, pro se, to achieve success in the courtroom even against the most egregious violations of law, common sense, and equity.

The second fact is that it is nearly impossible for any homeowner to find competent trial counsel to represent them.

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I have another idea which dovetails with some other plans I am pursuing. Someone like Gary Dubin might be of considerable assistance in this endeavor if he is so inclined.
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As we have been discussing, writing, and talking, it has occurred to me that the primary complaint of virtually every homeowner who is in the crosshairs of a group of players who are claiming the right to administer, enforce, or collect an alleged underlying obligation, is that the homeowner can’t get a lawyer.
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A secondary problem, of course, is that most homeowners are unwilling to pay the attorney to do the necessary investigation and research that will reveal defects in the existence and ownership of the core claim against the homeowner.
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I think homeowners should sue their respective states on the grounds that state action, as applied, prevents most homeowners from mounting a credible challenge to foreclosure.
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Either the state should provide effective defense for homeowners or the state should change its policy in treating all homeowners as deadbeats.
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More specifically, each court in each state should not even consider any case in which foreclosure proceedings are initialized — unless the Plaintiff (in a judicial state) or the beneficiary (in a nonjudicial state) swears and acknowledges that they are the claimant, swears under oath, and acknowledges that the attorney who initiated the process has been retained by the claimant to act on behalf of said claimant — and that the claimant and the Attorney certify that the claimant has suffered some financial loss arising from directly from the failure to receive a scheduled payment from the homeowner.
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An additional certification should require that the named Plaintiff or beneficiary is the party intended to receive the proceeds of a forced liquidation of the property and that a loan account receivable on the accounting ledgers of the claimant will be reduced by the payment of such proceeds to that Plaintiff or beneficiary.
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This simply relates back to all pleading practices and forms required in all civil cases except Foreclosure. In every civil case, the claimant is required to make a short plain statement of ultimate facts supporting the foundation for asserting a duty owed by the defendant to the plaintiff, a breach of that duty, and damages allowed by law for the breach of that duty. There are no exceptions. In some cases, statutory damages apply even if the plaintiff is unable to describe the damage to the claimant. But the damage must be there either by application of those rare cases where statutory damages are applied.

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It should go without saying that no Foreclosure should be allowed to be concluded in favor of the claimant if the only damages are prospective and speculative in nature. So the fact that some investment bank, “Servicer,” or “lawyer” might lose future profits or a share of the bounty, is not considered damages for purposes of sustaining a claim against anyone. The only legal and common-sense purpose of a foreclosure action is to make restitution for an unpaid debt owed by the homeowner to the claimant.
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The investment banks have steadfastly avoided any such argument. This is because they stand to lose hundreds of billions of dollars, perhaps trillions, if that door is opened. Once it is revealed that the real purpose of nearly all current foreclosures is to generate revenue instead of restitution for an unpaid debt owed to the claimant, the obvious question will emerge: if they were not owed the money, why did they pursue the foreclosure? And the answer is that the entire securitization framework and infrastructure is based upon lies told to homeowners, the courts, regulators, and lawmakers.

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In foreclosure cases, virtually all of the normally required pleading is simply implied and then presumed. It is not until the end of the case after years of litigation and tens of thousands of dollars spent on lawyers, court costs, and other fees, that homeowners obtain a judgment in their favor based primarily upon the insufficiency of the evidence to provide a foundation for the claim (failure to maintain a prima facie case in a contested matter.)
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In short, homeowners when their cases only after revealing the deficiencies in the initial forms and procedures and vote by false players in foreclosure, who have no intention, incentive, or desire to pay anyone who paid value in exchange for ownership of the underlying obligation alleged to be owed by the homeowner.
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This relates back to my other project of suing to change the current forms, rules, and procedures in place. If the case should never have been filed in the first place, then it should not take homeowners 2 years or more to litigate a case costing tens of thousands of dollars to defend in order to get to the point that should have been known at the beginning: the claimant does not win the claim against the homeowner and is not the intended receiver of any proceeds from the cash proceeds of forced sale of litigation.
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This has been the result of a chilling effect on access to the courts.
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The entire system (courts, bar, regulators, and lawmakers) and context of foreclosure litigation take dead aim at lawyers who are successful in defending attempted foreclosures. Lawyers and their clients must endure ridicule and sanctions for even bring up the idea that the claim does not exist.
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In most cases, these successful outcomes result from (a) enforcement of the rules requiring adequate responses to timely discovery demands (es[eciallya after a court order requiring compliance or (b) findings of act and conclusions of law that recite the judge’s conclusion that the claimant had no case in the first instance.
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Yet nearly all judges start with the premise that homeowners do not and should not win the litigation of their foreclosure case. All of those judges are apparently proceeding in ignorance of the fact that homeowners are winning cases — that’s contradicting their initial assumption that the foreclosure proceedings are valid and based on authentic documents.
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The latter point is especially problematic since the source of those documents has been intermediaries who have since promised the Attorneys General of all 50 states that they will stop faking, forging, and fabricating documents that contain false information in support of their foreclosure claims.
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In that context, it strains credibility to understand why the courts would apply legal presumptions to such documents without requiring further corroborative evidence in the initial forms for initiating foreclosures or shortly thereafter. All rules covering such legal presumptions contain a caveat that states that those legal fictions of validity of documents do NOT apply if the source might not be a credible source mainly because they have an interest in the outcome of litigation.

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The courts are restricted from taking such factors under consideration primarily by the application of doctrines relating t precedent. I have seen multiple cases in which after a victory or satisfactory settlement was reached with the homeowner, the homeowner was literally paid to maintain secrecy and confidentiality about the existence of the case and certainly not the terms of settlement at I can report often eaches 6 figures for damages in addition to the retention of the property.
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It should come as no surprise that upon researching such cases, most investigators will find that the court record has been scrubbed clean. Not even the initial pleadings can be found much less ofIt should come as no surprise there upon researching such cases, most investigators will find that the court record has been scrubbed clean. Not even the initial pleadings can be found much less the settlement.
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Needless to say, such cases are never seen at the appellate level. So there is literally a complete absence of precedent relating to the viability, constitutionality, and fairness of a final order or a judgment in favor of the homeowner. There is nothing in the court record on appeal because there is no appeal. There is nothing in the trial record because it is scrubbed.
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DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

TransUnion LLC v. Ramirez, No. 20-297: SCOTUS RULES ONLY CONCRETE INJURY GIVES STANDING

This new case was decided by the United States Supreme Court about 3 weeks ago. It is extremely interesting on many levels. Basically the court was trying to shoot down the  standing of consumers who were wronged by illicit behavior by the credit bureaus. And the court succeeded as it always does because it is the final word.  they did that. But they also created a change in judicial doctrine that is now the law of the land.

This change doesn’t serve as a magic bullet by which all foreclosures will go away — but it comes awfully close in is effect. It strengthens the argument considerably that the current pleading standards in use violate law — i.e., current approved forms for pleading foreclosure are insufficient to establish standing to foreclose.

Specifically, implied or hypothetical damages arising from the failure to receive a scheduled payment is no reasonable substitute to asserting — on the front end of foreclosure proceedings — that the identified claimant has suffered financial injury because the scheduled payments were due to the claimant; they were injured therefore by the homeowners breach of a promise to pay the claimant. That is the pleading requirement in all other civil cases. It just isn’t the pleading requirement for a foreclosure.

The absence of such pleadings violates at least the intent of what SCOTUS asserted as new doctrine in this case. So in the application for TRO in nonjudicial case or motion for dismissal or motion for more definite statement in judicial case, lawyers now have a stronger argument for saying they should not be required to respond to a complaint that does not assert concrete injury in fact caused by a breach of duty by their client where the duty was in fact owned to the claimant.

If that works, the Wall Street goose might be cooked. If they can’t imply the injury in fact caused by the homeowner and suffered by a real person, then they lose their most essential tool. They lose ability to wear down the homeowner without ever having a real claim and then losing only a small percentage of cases that are quickly buried after years of litigation.

Here are some of the quotes I found most itneresting from the court. It seems that by cutting off the liberal way fo thinking about “damages” they also cut off the protrusion of the investment banks who faked their entry into the lending marketpalce.

To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. [e.s.] Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm. SpokeoInc. v. Robins578 U. S. 330, 340-341 (2016).

TransUnion LLC v. Ramirez, No. 20-297, at *5 (June 25, 2021)

The question in this case focuses on the Article III requirement that the plaintiff’s injury in fact be “concrete”—that is, “real, and not abstract.” SpokeoInc. v. Robins578 U. S. 330, 340 (2016) (internal quotation marks omitted); see Susan BAnthony List v. Driehaus573 U. S. 149, 158 (2014); Summers v. Earth Island Institute555 U. S. 488, 493 (2009); Lujan504 U. S., at 560Schlesinger v. Reservists Commto Stop the War418 U. S. 208, 220-221 (1974).

TransUnion LLC v. Ramirez, No. 20-297, at *12 (June 25, 2021)

As Spokeo explained, certain harms readily qualify as concrete injuries under Article III. The most obvious are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III.

TransUnion LLC v. Ramirez, No. 20-297, at *13 (June 25, 2021)

this Court has rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 578 U. S., at 341. As the Court emphasized in Spokeo, “Article III standing requires a concrete injury even in the context of a statutory violation.” Ibid.

TransUnion LLC v. Ramirez, No. 20-297, at *14 (June 25, 2021)

The “law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Raines v. Byrd521 U. S. 811, 820 (1997) (internal quotation marks omitted). Separation of powers “was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.” INS v. Chadha462 U. S. 919, 946 (1983) (internal quotation marks omitted).

Therefore, we start with the text of the Constitution. Article III confines the federal judicial power to the resolution of “Cases” and “Controversies.” For there to be a case or controversy under Article III, the plaintiff must have a “‘personal stake'” in the case—in other words, standing. Raines521 U. S., at 819. To demonstrate their personal stake, plaintiffs must be able to sufficiently answer the question: “‘What’s it to you?'” Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983).

To answer that question in a way sufficient to establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief. Lujan v. Defenders of Wildlife504 U. S. 555, 560-561 (1992). If “the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” Casillas v. Madison Avenue Assocs., Inc., 926 F. 3d 329, 333 (CA7 2019) (Barrett, J.).

Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant and redressable by the court ensures that federal courts decide only “the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803), and that federal courts exercise “their proper function in a limited and separated government,” Roberts, Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1224 (1993). Under Article III, federal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question. Federal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities. And federal courts do not issue advisory opinions. As Madison explained in Philadelphia, federal courts instead decide only matters “of a Judiciary Nature.” 2 Records of the Federal Convention of 1787, p. 430 (M. Farrand ed. 1966).

In sum, under Article III, a federal court may resolve only “a real controversy with real impact on real persons.” American Legion v. American Humanist Assn., 588 U. S. ___, ___ (2019) (GORSUCH, J., concurring in judgment) (slip op., at 10).

TransUnion LLC v. Ramirez, No. 20-297, at *11-12 (June 25, 2021)

DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Tonight! WAMU Lives On to 2015 and Beyond, and Double Reconveyances are Now a Thing! 3PM PDT

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

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

Chase bank is having a really good time doing whatever they want with the nearly $1 trillion in transactions originated with homeowners. They literally paid zero for a nonexistent portfolio. The FDIC has issued paperwork indicating that Chase has the power of attorney over any property that was acquired in the purchase agreement on September 25, 2008.

But if you issue a request under the freedom of information act (FOIA) the FDIC will deny that it transferred any loans to Chase or that it has any record of transferring any loans to Chase. In fact, the FDIC will deny that it has any record of any loans that were owned by Washington Mutual.

This leads to all sorts of fun and games for Chase. Among the consequences of this dance in which Jamie Dimon is leading, is the issuance of assignments reconveyances. The reason they don’t make any sense is that none of those documents memorialize any transaction that ever occurred in the real world.

Bill Paatalo dissects an assignment of mortgage loan interest to a ‘WAMU trust’, a possible legal nullity after the 2008 WAMU BK liquidating WAMU’s legal interest in their mortgage loan portfolio. Then Bill further dissects a double reconveyance situation, which again involves WAMU and US Bank.

Charles Marshall will weigh in on these issues as well, in addition to providing the latest news on the COVID-19 front as it relates to mortgage loans and evictions.

How the Banks Are Lying to Us

like all con games, anyone with an interest can pull the plug on it.

A good lie by definition is one that is believed by the listener or reader. In order to pass off a good lie, the source must be considered credible (i.e., a con man) or the listener or reader must erroneously believe that they have independent knowledge that confirms the truth of the matters asserted. It’s still a con, but as any good con man will tell you, it only works when the “mark” convinces themselves.

In the world of finance, derivatives, and the illusion of lending, the marks are the homeowner and investors. This is followed by the myriad of investment vehicles that trade in derivatives of derivatives, but that is another story.

The latest announcement from Ocwen that it is selling servicing rights is an example of the con. It is a simple announcement that it is selling its servicing rights to the “newly created” HLSS — a company that would not exist at all if it were not for an IPO that raised money for it to “buy” the servicing rights presumably sold — but not warranted — by Ocwen.

This is simply another one of thousands of announcements of transactions over three decades in which Wall Street investment banks created, maintained, and promoted the illusion that any part of their claim of “securitization of debt” was ever true. The plain truth is that no asset (debt is an asset) is securitized unless it is sold in a real-world transaction in which the purchaser paid value in exchange for documents conveying ownership of the underlying obligation (from someone who owns it). This does not happen in residential mortgage loans.

ABSENCE OF WARRANTIES OF OWNERSHIP: All con games have an essential flaw that prevents them from being a real investment. All banks when they a ret transferring or relying upon representations of ownership, require a warranty of ownership that is also independently confirmed. for example, if the borrower owns property that is leased, the bank will require the borrower to warrant (guarantee) his/her ownership and a variety of other things that might interfere with ownership; in addition the bank will check public records and then confirm with the tenant that the property is leased and that the tenant intends to stay. This is a basic universal requirement in all financial transactions that have property involved. Any review of any document in the world described by Wall Street as “securitization of debt” is devoid of such warranties. In plain language, it means that the “grantor” is not saying it owns anything but it is nonetheless executing the transfer of ownership of the note and mortgage, usually under some agency or power of attorney that implies — but does not warrant — that the principal owns the subject financial or property interest. And that is a legal nullity under existing law in all U.S. jurisdictions unless there was a purchase of the claimed underlying obligation (which in most cases does not exist).

If by “servicing” we mean the receipt and disbursement of funds by an agent for the creditor, Ocwen cannot warranty or guarantee that it has the right to service any “loan” accounts because (a) there are no loan accounts receivable and (b) it doesn’t service them regardless of who owns them if anyone. But the announcement of the sale conjures up something that is real and compounds the lie that the IPO was anything more than an illusion such that a judge or law enforcement person would assume that there are too many third party purchasers for value to unwind the transactions even if they were fake.

The “sale” reinforces the notion that Ocwen owned those servicing rights. In turn, once you assume that Ocwen did own the servicing rights, then you must assume that it was working for a creditor who owned an existing loan account receivable that needed servicing.

And so we are led down the path to where everyone starts believing they have independent knowledge about something that is a complete lie. If you start at that point and you admit it in court that there is a loan account receivable and that the company claiming to be the servicer is a servicer, then you have reduced your defense to rubble and you have reinforced the fake claim against you.

see https://www.reuters.com/article/ocwen-idUSL3E7DO1VH20110224

Like any “mark” people and lawyers and judges don’t like it when I describe this phenomenon as one gigantic con game. They don’t like it because they don’t want to think they were stupid or ignorant. What they fail to realize is that they were neither stupid nor ignorant. The information that homeowners needed was ( and still is) being actively concealed from them.

But like all con games, anyone with an interest can pull the plug on it.

THE “YES BUT” DEFENSE FAILS EVERY TIME: For the millions who have tried defending foreclosures the traditional way because they thought they were dealing with traditional loan transactions, they know now with virtual certainty that they are doomed in court with anything that sounds like a “yes, but” defense. Such defenses admit the case against them and seek to prove that a claimant is a bad person. The judge is only there to pass judgment on the claim, not the person. So the homeowner loses.

THE PURSUIT OF EVIDENCE DEFENSE WORKS MOST OF THE TIME: Yet tens of thousands of homeowners have obtained satisfactory or even victorious results by one simple assumption that they don’t necessarily plead. By making no assumptions and no admissions about the validity of the claim, and assuming that the opposition cannot corroborate its presumptive case against the homeowner, anyone can win. Such homeowners persist aggressively in pursuit of evidence that they know does not exist, this exposing the big lie.

Only then will the judge see the light — there is insufficient evidence to support the claim against the homeowner.  And that is all any homeowner needs to send the banks into retreat.

CAVEAT #1: It is true that some judges are so fixated on the assumption that the transaction was and remains what it seems to be that they miss the fact that nobody ever claims that they have actually paid any money or other value for the claim and thus suffered some sort of financial injury as a result of a breach of the homeowner’s duty to pay that specific claimant. Those judges barrel through granting motions for summary judgment and ignoring all the defenses that should be applied in favor of homeowners. Most judges start off with this attitude but then gradually change their view of the foreclosure mill and its client if the homeowner raises timely. proper AND CONSISTENT attacks on the existence, ownership, and right to administer, collect or enforce any claim.

CAVEAT #2: This defense only works if the litigant or litigator understands the nuances of motion practice — something most homeowners do not understand and usually have no reason to understand. The bottom line is that most judges are not going to deny the existence of the claim unless the claimant has exhausted almost all potential opportunities to prove it with supportive evidence. Any claimant can claim anything. Unchallenged that might be all they need for judgment. But a contested nonexistent claim cannot stand up under fire. 

DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Foreclosure Defense: The problem with explaining securitization

Winston Chuchill was fond of saying that we should walk our dog three times per day regardless of whether or not we had a dog. Some readers will remember that pursuant to that sage advice there appeared leashes in the marketplace that were rigid so as to simulate the appearance of walking an invisible dog. The dog though was not invisible. It obviously did not exist.
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The problem with explaining securitization of debt to anyone who does not already know how to do it, is that there is a serious risk of putting the listener Into a coma.
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And when you get around to the mythological securitization of mortgage debt, it only gets worse.
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At the moment, I have arrived at a possible analogy that might help some people. If you think about securitization as an animal that dies in the woods, you can probably understand at least some of what happens to the animal.
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Every bit of that animal is consumed by other animals and insects and by chemical reaction to its environment which produces further byproducts. The ecosystem makes various parts and attributes of the dead animal carcass attractive in different ways to different animals, insects, and chemical processes.
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In the process that is labeled “securitization of debt”, there is always someone out there who is referring to the animal as though it was alive and intact. They make money saying that the animal is alive and intact even though that is not true. But as long as people pay them to say it, they will keep saying it — regardless of whether or not the animal ever existed. It makes no difference to them, as long as they’re paid their speaking fee.
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In foreclosures, the people misrepresenting the status of the animal consist mostly of lawyers and companies that are masquerading as “servicers”. The servicers are pretending to feed the animal and producing various reports in court to prove that they are feeding the animal even though it has been dead for years or even nonexistent.
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But to the animals and insects that consumed the carcass, they make no bones about the fact that it is consumed; and they are perfectly willing to say that in every venue except foreclosure procedures, where they report implying that the animal is alive and well.
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It is in foreclosure procedures that you find piles of fabricated documents that appear to be facially valid because they have printing on the paper. Besides the ink and the paper, these “documents” are completely worthless. They do not memorialize any transaction that ever happened in the real world. Therefore they are for legal purposes a legal nullity. Yet in court, they are presumed valid.
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For any homeowner that wants to challenge the administration, collection, or enforcement of any alleged underlying obligation (the carcass), they need to attack the secondary corroborative evidence of the existence of the animal not as carcass but as a living breathing animal. And as we all know there is no secondary evidence that would corroborate the existence of the animal because it is — if you get to it soon enough — just a decayed carcass. If you wait long enough it disappears completely.
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Or perhaps there never was any animal. That would mean that all the paper that had ink on them describing the animal was just telling a story for profit. Explaining any of that to a judge is virtually impossible even for someone who knows what he or she is talking about.
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But there are ample procedures that may be used in court to force the claimant to either produce the animal or give up their claim. And that is what foreclosure defense is all about. It is not about proving a point or proving the evil intent and practices of others. It is about forcing them to give up their claim.
DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

Does Discovery Invite Fraudsters to Invent Backdated Documentation of Nonexistent Transactions?

I have divided the rules of evidence into two categories that are useful to homeowners seeking out a judgment or final order in their favor.

The two categories are primary evidence of a claim against the homeowner and corroborative evidence in support of the primary evidence. The banks want you to attack the primary evidence. I want you to attack the corroborative evidence.

The primary evidence is the case AGAINST the homeowner.

The attack on the corroborative evidence is the case FOR the homeowner.

The unfortunate truth about our judicial system is that anyone can win a completely fraudulent claim if they work the system correctly. But it is also true that anyone can successfully defend against a claim even if it is not fraudulent. 

The first category is primary evidence which is probably not what you’re thinking. Primary evidence is any document or testimony which on its face asserts the truth of the matter asserted. In foreclosure, the matter asserted is that the proceedings have been initiated on behalf of a claimant who has paid value in exchange for ownership of an unpaid debt owed by the homeowner to the claimant.

Examples of primary evidence that are currently used in foreclosure cases by lawyers representing Foreclosure Mills include assignment of mortgage, allonges that purport to endorse a promissory note, a copy of a promissory note, and payment histories that purport to establish a loan account receivable and its status.

Primary evidence consist mainly of an anchor from which the lawyer for the claimant will claim that he or she is entitled to the application of a legal presumption arising from the facial validity of the testimony or the exhibit.

So if the exhibit says for example that it is “for value received”, the court will ordinarily assume that value was received. Inherent in this presumption is the idea that there was something to buy and that something was sold. This reinforces the idea that the transaction with the homeowner was in fact a loan and that this loan was in fact sold into the secondary market and was securitized.

In the absence of any affirmative defense, denial, counterclaim or objection from the homeowner, the primary evidence establishes the prima facie case for the claimant, which means that the Foreclosure Mill is entitled to a foreclosure judgment or an order in allowing the foreclosure sale to proceed, following which there will be an eviction or writ of possession.

Defending against such claims is as much an art as it is the application of skills learned through education, experience and practice.

The typical layman approaches the case as a conflict between right and wrong. The experienced practitioner approaches the case as an opportunity to work the system. On Defense, the practitioner seeks mainly to discredit the case brought against his or her client. The successful practitioner does not try to overshoot by attempting to plead and prove facts supporting the idea that the entire securitization scheme is mostly or entirely a Ponzi scheme.

So the successful practitioner attacks the prima facie case by attacking the ability of the claimant to provide corroborative evidence for the facts that are currently presumed. Pursued successfully, this leads to an inevitable result: the Foreclosure Miil is unable to produce any of the corroborative evidence. And this is because no transaction ever occurred. You don’t need to believe that proposition; you only need to use it so that you can win.

But some people question the viability of pursuing a strategy that is based mostly on the pursuit of discovery demands on the grounds that it will only lead to the production of more fake documents.

That is possible but a real loan file will include an accounting ledger (not just a payment history) and source documents that can be independently confirmed. So if they are claiming to have made an entry on the general ledger that says we paid for this loan and now we own it as an asset, then there will be one or more source documents and corroborating documents that show that to be a true memorialization of what happened.

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In this instance, it would mean that they had a canceled check or confirmation of ACH or wire transfer together with corroborating documents showing an agreement for purchase and sale of the underlying obligation as required by Article 9 §203 UCC, adopted in all U.S jurisdictions verbatim.
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This is the reason why they will refuse to respond to timely and proper discovery demands even in the face of a court order requiring them to do so. Some fairly sophisticated pro se litigants get right up to the line where they could snatch victory from the jaws of defeat, only to be faced with a final order granting the foreclosure. This is because they were unaware of the requirements for establishing a bar to the Foreclosure Mail introducing any evidence of the existence, ownership, and right to administer, collect or enforce any alleged debt.
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I have identified the procedural mistake as one in which the homeowner fails to ask the court to bar such evidence in a motion for sanctions or a motion in limine. The mistake occurs because the homeowner believes that the unanswered questions together with lack of compliance with court orders is sufficient for the court to simply enter a judgment or final order in favor of the homeowner. A similar mistake is often made by inexperienced trial lawyers who fail to proffer a motion to strike after their objection is sustained.
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DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • 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.
Please visit www.lendinglies.com for more information.

 

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