Livinglies's Weblog

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

with Charles Marshall, Esq.

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

Foreclosure defense is getting more refined as an increasing number of lawyers and litigants are piecing together the true nature and deficiencies of securitization under current well-settled law.

Two facts remain in conflict: (1) foreclosure is legally impossible for a claimant who is not the owner of the debt by reason of having paid value for it (2) the courts have been inventing legal fictions to presume compliance with current law.

The situation is not unique. What is unique is that there is no effort to reform the law to allow securitization to proceed while at the same time protecting investors and borrowers as the real parties in interest. Until such changes are made the courts will be winking and nodding at fabricated documentation bearing no relation to the truth.

So many cases will continue to be won or settled favorably to homeowners in foreclosure for those who persist and are relentless in their pursuit of real evidence of ownership, fabrication, agency, the money trail and authority. It isn’t easy but it is happening with greater frequency than most people realize.

On today’s Show Charles Marshall will break out and break down an analysis of anticipated trends for 2020 in the following foreclosure-impacted litigation-related areas:

– Unlimited lawsuit litigation, with an emphasis on Plaintiff-borrower litigation in non-judicial foreclosure states like California;

– Appellate litigation in the foreclosure area, with a focus on the 9th Circuit and non-judicial foreclosure cases in the State Appellate Districts of California;

– Unlawful Detainer litigation, with a focus on California cases;

– Bankruptcy practice and litigation related to foreclosure issues;

– Novel and Cutting-edge approaches to the Foreclosure arena.

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Hidden far away from public view and mainstream media is an enormous fight over who should suffer what loss over the labyrinth of defaults in the “mortgage bonds” also known as “mortgage backed certificates.” Within this fight it is clear that current law is simply nonexistent and ineffectual in achieving a legal or just result. It is the investors and borrowers who are consistently left out in the cold.

The certificates are merely a promise to pay issued by a securities brokerage firm in the name of a trust. Those certificates promise periodic income to be paid to investors on behalf of the trust. The trust actually owns nothing and does no business and may even not exist at all under current law.

In the “repo” agreements the securities are subject to a requirement of buyback, to wit: if the payments that are promised in the certificates don’t materialize then the securities brokerage firm (in this case Bear Stearns) must buy them back. Insurance and other hedge products are issued to cover the risk of the repo or buyback. But they are payable to the securities brokerage firm (also known as investment bank).

The interesting zig and zag is that the securities brokerage firm can “declare” a “default” even if it is still making payments to investors. Under Goldman Sachs contracts this declaration is in the sole discretion of the securities brokerage firm and this is the model for other such insurance and hedge contracts. It triggers payments to the securities brokerage firm (investment bank) based upon a presumed decline in “value” of various attributes of  the securities themselves, the loans upon which the securities are indexed (not not backed), interest rates, the value of collateral and other measures of value within the sole discretion of the securities brokerage firm.

This is how Goldman Sachs made a windfall profit in 2008. It had funded the origination and acquisition of loans using money advanced by investors for the purchase of these vague certificates. It never retained any risk of loss and the investors who had in substance paid value for the loans never acquired any right, title or interest in the loans. AIG, because Hank Paulson (Former CEO of Goldman Sachs) as Treasury Secretary through his entire career on the line to coerce a reluctant President Bush and Congress to bailout AIG who simply used the money to fund the insurance contracts with Goldman. Neither the investors nor the borrowers on the loans that were used as an index ever saw one penny of benefit from that insurance payout. In short it was the expectation of Goldman’s profit that was bailed out not any actual losses.

So the real question is whether these arrangements have any financial effect on anyone who is claiming the right to collect, process or enforce the loans that are claimed as part of the securitization scheme that produced the issuance of the certificates in the first place.

The answer appears to be in the negative because none of them were actually using their own money or credit to fund the origination or acquisition of the loans in the first place. Current law simply does not cover this situation so the banks are being allowed to make things up as they go along to the great detriment of both investors who were in substance the lenders and the borrowers who were in substance party to an undisclosed larger contract to issue and trade unregulated securities.

see 182887p  In re Homebanc Mortg. Corp., 573 B.R. 495 (Bankr. D. Del. 2017)

If we really want to make meaningful changes in the way residential mortgage loans are funded, originated, acquired, collected, processed and enforced, there need to be changes in the law for every step of that process. Current law does not allow for unilateral appointment of a fictional creditor to be part of that scheme. While securitization of mortgage loans is perfectly sound finance in theory, there are basic and fundamental changes in the statutes that are needed to make securitization of such loans legal as practiced by Wall Street.

The assumption that this is capitalism and free markets will make the necessary corrections is false. Neither the investors nor the borrowers have received any meaningful disclosures upon which they can make decisions or bargain effectively for better asurances or better terms or both. Free Market forces are simply not present if the information is not freely available. Hence no correction of questionable practices can occur without statutory changes to the rules of disclosure and the rules of engagement.

The current trend of piling presumptions upon assumptions upon inferences in the courts is unsustainable. At some point the lack of any nexus between the loan documents and any party suffering injury is going to be revealed. Instead of waiting for things to collapse we should be proactive and lobby legislatures across the country for better laws, while allowing a new legal fiction created by law to allow for the designation of a creditor that passes constitutional muster to present a real case in controversy.

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EXPLANATION OF SECURITIZATION: The fundamental problem with securitization is not that it is illegal but rather than it encourages illegal behavior based upon false representations and misrepresentations to the courts. 

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The single reason for this lies in the start of virtually all securitization schemes. The money is coming from investors who make deposits with securities brokerage firms in exchange for an unsecured promise to pay in which the debtor is either a barely existing trust or the brokerage firm using the name of the “trust” as a business fictitious name. 

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Those investors are often referred to as certificate holders. Certificate holders are never beneficiaries of any trust and any claim by a “trustee” to represent the certificate holders is pure fiction. 

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Translation: Investors pay for the debt but they don’t get ownership of it. But the debt is funded before it even comes into existence with a loan to a borrower. 

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Common law and statutory law for centuries has held that a debt can only be enforced through foreclosure if the debt is owned by the party on whose behalf the foreclosure is initiated. All such law states that debt is only acquired by payment of value for it in exchange for ownership of it. The investors indirectly paid for it but they never received ownership of it. And they don’t get the payments from borrowers either monthly or through foreclosure.

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Since payment was already made by investors, no party claiming to be a “successor” could or would make a payment to a preceding party who was not and could not demand payment — since the preceding party in the chain of paper instruments had not paid for the debt and therefore did not own the debt. That is the current and historical status of our laws.  

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The investors were not named as the payee on the note or the mortgagee (or beneficiary) on the mortgage (or deed of trust).

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The securities brokerage firm (“investment bank”) who channeled the investor money to the closing table for loans through the escrow accounts of closing agents was never named as payee on the note or mortgagee (beneficiary) on the mortgage (or deed of trust).

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The possibly existing trust was not named as Payee or mortgagee, but it was named as assignee on a fabricated assignment of mortgage in which the debt was not transferred by sale. Neither the trust nor the party named as trustee paid for  for the debt. An assignment of mortgage without the debt is legal nullity in all applicable jurisdictions. 

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No trustor or settlor paid for the debt. Hence no debt was entrusted to the named “trustee.” The named “trustee” receives nothing except mention in an endorsement of the note or assignment of mortgage, which it holds not for investors but for the securities brokerage firm that started the securitization scheme. 

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In most cases both the original note and mortgage are not supported by consideration from the party named as payee on the note or mortgagee or beneficiary. Hence no consideration is actually paid to any predecessor and therefore no transfer of ownership of the debt has ever occurred. In cases where the origination was in fact paid by the “lender” the movement of money stops immediately after the originator is paid for the loan because the money came from the investors, and is not carried on the books as an asset of the securities brokerage firm, it at all, for more than 30 days. 

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ELEPHANT IN THE LIVING ROOM: Yes this produces an anomaly in which there is no legal owner of the debt. That is what Wall Street intended. It is what enabled them to make huge profits equal to vast multiples of the “loans” that were being granted. In reality those were not loans but merely a cost of  doing business — in the business of issuing and trading unregulated securities. It is called “leveraging” or “laddering” depending upon whom you ask.

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It is not borrowers saying “there ought to be a law” because  the laws are already there.

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It is the foreclosure mills and banks who want and get the courts to ratify illegal behavior. Wall Street changed the very essence of lending from risk of loss from nonpayment to elimination of risk of loss and still getting payment.

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This was a change in the reasonable expectation of homeowners who appeared as borrowers that the laws (TILA and state lending laws) applied and that the lender was responsible for and cared about the viability of the loans. In fact, the “lender” was most often brokering the loan and papearing, for a fee, as Payee and mortgagee (beneficiary) despite the absence of any financial interest in the loan or its transfer. 

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Accordingly, nearly all foreclosures, if successful, result in a distribution of money to a variety of players who receive such money as fees, compensation, profits or commissions and not as payment for the debt (because they do not own the debt). 

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The question often posed is why should the homeowners get a “free house” as a result of all this. That is the wrong question. In the face of failure to disclose the gross revenue arising from origination or acquisition of the loans and the identities of the players involved, (a) why should such behavior be rewarded and (b) why shouldn’t the homeowners be able to exercise their legal rights to disgorgement of such undisclosed profits and compensation? 

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There is a shroud of mystery around the entire role of the FHA. Its purpose is to guarantee loans, which was expanded to buy loans. It was never a lender. But the process of buying loans was just as complicated as everything else where securitization of debt is claimed. In most cases it “bought” loans from parties who never owned the debt and therefore had nothing to sell.

Furthermore the purchase was “funded” by a complex process which culminated in giving “certificates” issued by so-called REMIC trusts in which Fannie or Freddie was the “Master Trustee.” Whether such transactions constituted payment of value for anything is up for debate since we here do not know if Fannie or Freddie ever paid for the certificates.

Following the trend of “resecuritization” we have found that most nonperforming and reperforming loans are being sold by the GSE’s at a brisk pace. But foreclosures are proceeding as if the the loans were never sold at all. So we conclude here that many if not most foreclosures in which the names of Fannie and Freddie are invoked are merely cloaks for further weaponizing foreclosure procedures to obtain revenue instead of restitution for an unpaid debt. Restitution could only go to someone who lost money. That can only mean someone who paid value for the debt as required by Article 9 §203 UCC as adopted in all U.S. jurisdictions.

Practice Note: Both lawyers and pro se litigants fall into the trap: They assume that there has been a default despite the fact that nobody who has paid for the debt has suffered any financial injury — nor are they the claimant in any foreclosure action. That is because they do not own the debt and have in fact disclaimed such ownership in exchange for a promise of unsecured payments from a third party (securities brokerage firm). The default is a fiction and the foreclosure results in forced sale of property to produce revenue for the foreclosure participants.

This is why it is so important to establish in discovery that the opposition cannot produce a shred of evidence of payment for the debt. There was no payment “for the debt.” Since this is so counterintuitive as to be dismissed by most practitioners they ignore it and go on to admit in judicial proceedings that the lawsuit is a foreclosure when in fact, it is not. By admitting that the action is a foreclosure you are tacitly admitting that this is about restitution of an unpaid debt through a contract in which the claimant is a party, when in fact it is not.

Check this out:

Non-performing Loan Sales

Fannie Mae’s sales of non-performing loans, which are part of the Federal Housing Finance Agency’s 2015 Conservatorship Scorecard, are intended to reduce the number of seriously-delinquent loans that Fannie Mae owns, to help stabilize neighborhoods and to help meet the portfolio reduction targets required under the Senior Preferred Stock Purchase Agreement with the United States Treasury.

On March 2, 2015, the Federal Housing Finance Agency (FHFA) announced guidelines for these sales to encourage broad buyer participation and provide safeguards for borrowers. These guidelines require the buyers of non-performing loans to offer loan modifications to borrowers and provide foreclosure alternatives whenever possible. If foreclosure cannot be prevented, property sales to owner-occupants and non-profit agencies must be prioritized.

Fannie Mae will work to sell these loans to investors, nonprofits and public sector organizations. The company anticipates bringing pools of loans to the market on a regular basis. Fannie Mae intends to offer a mix of both larger and smaller pools that may be more attractive to nonprofits, smaller investors and minority- and women-owned businesses.

Reperforming Loan Sales

On October 11, 2016, Fannie Mae began marketing its first sale of reperforming loans as part of the company’s ongoing effort to reduce the size of its retained mortgage portfolio as indicated above. Reperforming loans are mortgage loans that were previously delinquent, but are performing again because payments on the mortgage loan have become current with or without the use of a loan modification plan.

see https://www.fanniemae.com/portal/funding-the-market/npl/index.html

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Picking the labels apart 

PLAINTIFF THE BANK OF NEW YORK
MELLON

FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE
CERTIFICATEHOLDERS CWABS, INC.
ASSET-BACKED CERTIFICATES, SERIES
2006-11

Thursdays LIVE! Click in to the Neil Garfield Show

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

How do you lose a case to a claimant with no claim? It’s simple. Let them pretend to have a claim and then watch judgment be entered against you in favor of a claimant without a name. Musical foreclosure chairs.

It all starts with labelling. The banks have long been masters at labelling things to seem like something other than reality. Close reading of the name of the claimant is often a key to a successful defense. Tonight I show you how to do that.

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SO BONY mellon is known to be named as “trustee” over what is probably a nonexistent trust with nonexistent beneficiaries since investors do not qualify as beneficiaries of any trust. The authority of BONY Mellon to represent “certificate holders” is never described in any allegations or exhibits. It is only a label.

Dig deeper and you will find actual trust agreements that are kept from court view, and still others like the “Corridor Agreement” which raises more questions than it could possibly answer found at https://www.lawinsider.com/contracts/dSu5MtwMEFKTTYLOTpEZs/cwabs-asset-backed-certificates-trust-2006-11/corridor-contract-administration-agreement/2006-08-08

Some quotes from the Corridor Agreement

This CORRIDOR CONTRACT ADMINISTRATION AGREEMENT, dated as of June
29, 2006 (this "Agreement"), among THE BANK OF NEW YORK ("BNY"), as Corridor
Contract Administrator (in such capacity, the "Corridor Contract
Administrator") and not in its individual or corporate capacity but solely as
Trustee under the Pooling and Servicing Agreement referred to below (in such
capacity, the "Trustee"), and COUNTRYWIDE HOME LOANS, INC. ("CHL").

            WHEREAS, CHL is a party to an interest rate corridor agreement
between CHL and Bear Stearns Financial Products Inc. (the "Counterparty"),
with a Trade Date of June 22, 2006 and a reference number of FXNEC8436 (the
"Corridor Contract"), a copy of which is attached to this Agreement at Exhibit
A;

EDITOR'S NOTE: CHL is described as having some interest in some interest rate that appears
 to be a reference to the rate paid to certificate holders who received an unsecured
Promise to make payments to owners of certificates issued by Bear Stearns in the name
of a trust that either did not exist or barely existed with virtually no assets and certainly 
no ownership of loans. 

WHEREAS, CHL is conveying certain mortgage loans and other related
assets to a trust fund (the "Trust Fund") created pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among CWABS, Inc., as depositor, CHL, as a seller, Park Monaco
Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), the Trustee, and The
Bank of New York Trust Company, N.A., as co-trustee, with respect to the
CWABS, Inc. Asset-Backed Certificates, Series 2006-11;

            WHEREAS, simultaneously with the execution and delivery of this
Agreement, CHL is assigning all of its rights, and delegating all of its
duties and obligations (other than its obligation to pay the Fixed Amount and
any fees, if applicable (as defined in the Corridor Contract)), under the
Corridor Contract to the Corridor Contract Administrator, pursuant to the
Assignment Agreement, dated as of the date hereof (the "Assignment
Agreement"), among CHL, as assignor, the Corridor Contract Administrator, as
assignee, and the Counterparty;

            WHEREAS, CHL desires that the Net Payments (as defined below) on
the Corridor Contract be distributed to the Trustee on behalf of the Trust
Fund to be applied for the purposes specified in the Pooling and Servicing
Agreement and that the Excess Payments (as defined below) on the Corridor
Contract be distributed to CHL;

       
            Controlling Party: As defined in Section 5.

            Corridor Contract Account: The separate account created and
maintained by the Corridor Contract Administrator pursuant to Section 3 with a
depository institution in the name of the Corridor Contract Administrator for
the benefit of CHL and the Trustee on behalf of the Holders of the Benefited
Certificates and designated "The Bank of New York for Countrywide Home Loans,
Inc. and certain registered Holders of CWABS, Inc., Asset-Backed Certificates,
Series 2006-11". Funds in the Corridor Contract Account shall be held for CHL
and the Trustee on behalf of the Holders of the Benefited Certificates as set
forth in this Agreement.

            
EDITOR'S NOTE: You really need to read this carefully. CHL is assigning without 
any warranty of ownership because it has no ownership. It is using labels to create
a seller and other roles without any descriptions of ownership or authority or even 
a description of what is being sold and how the sale was consummated ---
mostly because there was no such sale except for purposes of getting the loans off 
the books of Bear Stearns and onto nonexistent financial records of the fictitious trust.
Notice also the specific wording that there are recipients of payments described as
 . certain holders of interests in those payments and excess payments. 

Unlike most contracts drafted by banks everything is left undefined. 
In most contracts "holders" would be specifically defined either in the 
agreement or by reference to a separate agreement where the information
could be found. Instead they are relying upon labels and confusion so nobody
asks questions. 

And then further down you see that BONY is not liable for anything done in its name.
So the question is how does BONY Mellon claim to be trustee and at the same time
have separate agreements inuring to the benefit of CHL (now Bank of America)
and a securities brokerage firm? Unless BONY Mellon is in fact trustee for Bear Stearns
there would be an bvious conflict of interest preventing BONY from being a trustee.

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The moral of the story is don’t admit anything, not even the default. There is no default if the party demanding payment has no right to do so.

Everything they are saying is a lie. Just because they use a label doesn’t mean it is accurate.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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There are hundreds of thousands of prospective good paying clients with a high likelihood of success that lawyers are ignoring. This herd mentality is shifting lawyers away from their primary function: representation of people whose rights are being violated on a systematic basis.

The influx of requests for me to represent people who are engaged in a battle for their homes is reaching a feverish pitch. Here is the scoop. Except for a few legacy cases, I do not accept engagements for appearances as attorney of record nor as the advocate for any new cases. I refer cases out but the number of lawyers accepting such referrals has substantially diminished.

This is the result of misinformation and disinformation in mainstream media making it appear as though cases involving defense of foreclosure, ejectment, eviction, unlawful detainer are unwinnable and that the clients are deadbeats who cannot pay fees. The Wall Street banks pay big money to get that message out since it discourages homeowners from even considering a defense.

Both of those premises are untrue. Foreclosure defense and the filing of various causes of action centering around wrongful foreclosure or wrongful eviction can be very successful and profitable — both in hourly fees and contingency fees.

Any competent trial lawyer can win these cases and if they do their work right, they will win at least 2/3 of their cases. There are always judges who simply won’t listen to anything but they can be overturned on appeal.

The bottom line is that virtually all foreclosures are based upon a false premise that is not supported by law: the claimant is not the owner of the debt and thus the “foreclosure” is not really an action for restitution of an unpaid debt. Under current law in all U.S. jurisdictions, once this fact is inferred, presumed or established, the foreclosure fails.

I coach both attorneys and pro se litigants on methods, strategies and tactics to create the inference or presumption or to even establish the fact that the claimant did not pay for the debt, that the assignment is a legal nullity and therefore the foreclosure sought is not legally available. I have had judges specifically rule on the deficiencies of the case brought in foreclosure because in the end it was all smoke and mirrors presented. In many cases even when a claimant is named it doesn’t even exist.

I do not solicit nor accept split fees or referral fees since I will not be attorney of record. So a referral from me comes without cost to the trial attorney. If you accept an engagement, the client is yours and is not subject to any control by me. As the only legal decision-maker you can either choose to employ GTC services as a consultant or not —without any obligation to do so.

So YES I can refer cases to you and you will prosper in both reputation and wealth as a result — but only if you have the trial skills necessary to defeat opponents whose only hope for victory lies in effective use of procedure and legal presumptions. And one thing more — you must have the willingness to persevere and be relentless. Until the very last minute the only offers you get are going to be specifically designed to undermine your confidence in the case.

I don’t care if you know anything about property law or foreclosures. The requirements are simple and can be learned in a matter of minutes. If you know trial law you can win most of these cases. Many lawyers before you have made millions of dollars  based upon business plans that I designed back in 2008. It’s time to step it up a notch.

If you are a trial lawyer with experience then you are candidate for these referrals. That means you have been lead attorney in both bench and jury trials and verdicts have been entered in favor of your client.

If you think you qualify for this, simply write me an email at neilfgarfield@hotmail.com. I will call you if you want.

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The courts had previously protected borrowers as much as possible. Now there is a distinct trend in which even claims barred by SOL can be renewed and energized.

For homeowners facing foreclosure they may be waiving a very powerful defense: statute of limitations.

They are being lured into waiving such defense by solicitations to engage in in some payment plan in which the homeowner acknowledges the debt. This case, approved by 9th Circuit court of Appeals, affirms that holding thus permitting creditors to trick borrowers into renewing claims that didn’t exist in the first place.

The moral of the story is that you should not even respond to such solicitations without consulting an attorney who understands the issues.

see Stimpson v. Midland Credit Mgmt., Inc., 347 F. Supp. 3d 538 (D. Idaho 2018)

See Stimpson Case

So the moral of the story is that the now conservative courts say that even if the statute of limitations has run, a servicer or collection company can offer you a payment plan on the debt. By acknowledging the debt and/or by paying on the debt, you are probably renewing the statute of limitations and removing it as a defense to enforcement.

So the banks are sending solicitations for you to pay off debts that are barred, in whole or in part, by the statute of limitations. If you engage with them, you are probably waiving the defense of the statute of limitations.

So before responding to any service or other debt collector make sure that the statute of limitations has not already run. If it has, an appropriate response would be to tell them that the SOL has run and please don’t contact you again about the debt (if the entire amount is barred by SOL) or to  limit their correspondence to claims not barred by SOL.

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I would like you to think about the coming year as an opportunity to show your true powers. Everyone has them.

If you have an opinion about the state of our government and politics, then vote.

If you don’t know the issues or candidates, then learn.

If you don’t like your job, then get the help you need to change it.

If you don’t like how you feel about yourself, then associate with those (professional and otherwise) who will reflect back to you your good attributes.

If someone is violating your legal rights (e.g. foreclosure) then fight — or move on to something better.

If you don’t like a relationship you are in then seek to change how you react and proact.

It all starts with you. If you want the world to be a better place, then be a better person as often as you can.

On a more practical note, I want to thank all of the readers, contributors and others who have donated their thoughts, time and money to this blog.

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see Rotkiske v. Klemm https://www.lexology.com/library/detail.aspx?g=f434445e-b3ed-4dfd-83a8-7eaca6105ba5

Three Key Takeaways

1. The FDCPA’s statute of limitations ordinarily begins to run when the violation occurs, not when it is discovered.
2. The Supreme Court did not decide whether the FDCPA permits application of equitable doctrines, like equitable tolling, that may delay commencement of the limitations period in individual cases.
3. As a general matter, federal statutes of limitations should be interpreted in light of a default presumption that limitations periods begin to run when a cause of action accrues, not when a violation is discovered.

So, as Justice Ginsburg stated, the court did not take the obvious opportunity to say that when fraud occurs, this could result in active concealment of facts to prevent the victim from knowing of the violation and that the statute might be tolled under such circumstances if proven. So there is no SCOTUS opinion on that.

Notwithstanding such rulings, there is widespread agreement that an affirmative defense based upon FDCPA violations is most likely not barred by statutes of limitation because it is not a “Claim.” Such defenses are avoidance in recoupment good only up to the amount claimed by the party seeking to enforce the debt. Similarly violations of TILA and other statutes might be raised in affirmative defenses if the state jurisdiction does not enforce doctrine that all claims AND DEFENSES  are barred by the statute of limitations.

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OAA

OWNERSHIP, AGENCY, AUTHORITY

THAT IS WHAT NEARLY ALL FORECLOSURES ARE ABOUT

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

The banks have so far been successful in getting nearly everyone to think that foreclosures are about documents and paperwork. That is a false premise that has led to millions of illegal foreclosures. Foreclosures were designed to be and are by law required to be about money. It is not enough to follow the money. You must make it easy for the judge to get mad at your opponent. That’s when the tables turn.

You are asking the wrong question but you have the right idea. There are plenty of cases nationwide saying that enforcement of a mortgage without owning the debt is not allowed. But that isn’t enough — and that is where most pro se litigants get tripped up. The answer is that “It’s procedure, stupid!”

The burden is on you to rebut the legal presumption that the claimant has paid for and does own the debt. That presumption arises from the presentation of copies of what appear to be facially valid documents.

Sometimes a close look reveals the documents are not facially valid and that gives you added ammunition. The way you get from Point a to Point B is through discovery. It’s like one of those pictures where the more you stare at it, the more you see.

Assuming they have not paid for the debt and don’t own it and don’t have any authority from anyone who does own the debt, your questions about ownership, agency and authority will not be answered.

And that is what changes the narrative if you know what you are doing.

Listen to the Neil Garfield Show Tonight at 6Pm EST.

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